Vol. 10, No. 14
Covering Cases Published in the Advance Sheets through April 7, 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

Failure To Assist a Defendant's Cooperation Held Ineffective Assistance of Counsel

Secretly Recorded Videotape Evidence Held Admissible


U.S.S.G. and Sentencing Issues

Disclosue of Government Informant's Identity Ordered

 


Demore v. Kim, No. 01-1491 (U.S. Sup. Ct. 04/29/2003) (Justice Rehnquist)

Here, by a vote of 5-to-4, the Supreme Court upheld the mandatory detention provisions of 8 U.S.C. § 1226(c) which provide that “the Attorney General shall take into custody any alien who” is removable from this country because he has been convicted of one of a specified set of crimes, including drug crimes and “aggravated felonies.” The majority concluded that detaining the alien, without affording him the right to bail, does not violate his due process rights under the Fifth Amendment. Thus, the decision affirms the broad authority granted to Government in 1996 to imprison lawful permanent residents whom it is seeking to deport, without first giving them a chance to show that they present neither a flight risk nor a danger to the community.

Previously, four Circuits (the Third, Fourth, Ninth and Tenth) had held that the mandatory detention provisions are unconstitutional, at least as applied to lawful permanent residents, who were deemed to have more rights than aliens who had not been lawfully admitted into the country. See Patel v. Zemski, 275 F.3d 299 (3rd Cir. 2001) (P&J, 12/10/01), where the Court held that due process requires that an alien, who is jailed at the beginning of deportation proceedings that stem from an “aggravated felony” conviction, must be granted a bail hearing - despite the statute's prohibition of bail; Welch v. Ashcroft, 293 F.3d 213 (4th Cir. 2002); Kim v. Ziglar, 276 F.3d 523 (9th Cir. 2002) (P&J, 12/24/01), where the Court held that 8 U.S.C. § 1226(c), which denies bail to aliens awaiting deportation, is “unconstitutional as applied to lawful permanent resident aliens"; and Hoang v. Comfort, 282 F.3d 1247 (10th Cir. 2002).

The appellate courts had relied, in major part, on the Supreme Court’s decision in Zadvydas v. Davis, 533 U.S. 678 (2001), where the Court interpreted another provision of the immigration laws and held that the Government could not indefinitely detain a deportable alien whose country of origin refused to take him back. Writing for the majority, Justice Rehnquist reasoned that Zadvydas and the instant case were substantially different, Zadvydas dealing with an open-ended, perhaps lifetime detention, while the instant case concerned detentions that normally last only weeks or months, until the conclusion of the deportation proceedings.

The alien in this case, Hyung Joon Kim, came to the United States from Korea with his family at the age of six; and he became a lawful permanent resident two years later. After two criminal convictions in California as a teenager, one for burglary and one for theft, he was placed in deportation proceedings and imprisoned under the new law. After three months in detention, he filed a petition for a writ of habeas corpus, arguing that he was constitutionally eligible for release while challenging his deportation. The district court agreed with Kim’s contention and released him on $5,000 bail in 1999. He has been free since then.

Kim’s case actually raised two separate questions. First, there was a significant threshold question - namely, whether habeas review was even available in light of the statutory language contained in 8 U.S.C. § 1226(e). That statute provides: "The Attorney General's discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole." The second question was whether the mandatory-detention provisions violated the constitutional guarantee of due process.

The two questions were answered by different groupings of the Justices. By a vote of 6-to-3, a majority concluded that, because § 1226(e) “contains no explicit provision barring habeas review, . . . we think that its clear text does not bar respondent's constitutional challenge to the legislation authorizing his detention without bail.” Justices O’Connor, Scalia and Thomas disagreed. They took the position that § 1226(e) “unequivocally deprives federal courts of jurisdiction to set aside ‘any action or decision’ by the Attorney General in detaining criminal aliens under § 1226(c) while removal proceedings are ongoing.”

Five Justices, namely Rehnquist, Kennedy, O’Connor, Scalia and Thomas, agreed that the mandatory detention provisions of § 1226(c) were constitutional. Adopting a results-oriented approach, Justice Rehnquist, writing for the majority, noted that criminal aliens make up one-fourth of the nation’s prison population, and that nearly one-fourth of aliens released pending deportation don’t show up for their deportation hearings. “Against [that] backdrop of wholesale failure by the INS to deal with increasing rates of criminal activity by aliens,” he reasoned that Congress had adequately demonstrated a need to imprison aliens awaiting deportation for past crimes to keep them from committing new crimes.

While Congress might have permitted “individualized bail determinations,” he wrote, “when the government deals with deportable aliens, the Due Process Clause does not require it to employ the least burdensome means to accomplish its goal.”

The principal dissent on the merits was written by Justice Souter, and he was joined by Justices Stevens and Ginsburg. He wrote that the majority’s decision was “at odds with the settled standard of liberty,” under which the Government has to justify the detention of individuals on a case-by-case basis, and not based on an entire class of people. “Due process calls for an individual determination before someone is locked up.” He also pointedly noted that, in 1987, Justice Rehnquist had written that "in our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception." (Citing U.S. v. Salerno, 481 U.S. 739, 755 (1987)).

He then concluded: “This case is not about the National Government's undisputed power to detain aliens in order to avoid flight or prevent danger to the community. The issue is whether that power may be exercised by detaining a still lawful permanent resident alien when there is no reason for it and no way to challenge it. The Court's holding that the Due Process Clause allows this under a blanket rule is devoid of even ostensible justification in fact and at odds with the settled standard of liberty. I respectfully dissent.”


U.S. v. Spellman, 243 F.Supp.2d 285 (E.D.Pa. 2003) (Judge Dalzell)

This case is noted because of its comprehensive coverage of a topic that seems to becoming more and more prevalent - disorderly conduct by passengers during a commercial flight. At the conclusion of his decision, Judge Dalzell listed nearly two-dozen cases which have addressed various issues arising out of interference with flight attendants and other crew members.

The defendant in this case, Alonzo Spellman, was a veteran of the National Football League, having played for the Chicago Bears, the Dallas Cowboys, and the Detroit Lions. He pled guilty to one count of interference with flight attendants and crew members, in violation of 49 U.S.C. § 46504, and to two counts of simple assault on an aircraft, in violation of 49 U.S.C. § 46506.

The plea agreement stipulated that Spellman should be sentenced under the provisions of U.S.S.G. § 2A5.2, which provides for a Base Offense Level as high as 30. However, the parties also stipulated that Spellman’s Base Offense Level was 9, the lowest level under § 2A5.2, and one which calls for a sentencing range of four to ten months in prison. Judge Dalzell observed that by stipulating a Base Offense Level of 9 the parties “inferentially negate[d]” a higher sentence under one of the other components of § 2A5.2 (id., at 289); and that stipulation “presupposes their agreement that what Spellman did fell below recklessness, which would have triggered a base offense level of eighteen rather than nine.” (Id., at 293).

At the sentencing hearing, seven passengers and crew members testified that Spellman had frightened and threatened just about everyone who came in contact with him on his flight, with verbals threats, abusive and obscene language, and menacing gestures. He even talked out loud about opening the plane’s door while in flight.

Spellman, who is 6'6" tall and weighs 330 pounds, was so imposing that, when the plane finally landed at the Philadelphia International Airport, the six local policemen who had been summoned by the pilot refused to arrest him; and Spellman left the airport unimpeded. Judge Dalzell was so outraged at the inaction of the Philadelphia police that he accused them of “craven indifference” and “abject cowardice.” (Id., at 289).

The government filed a motion for an upward departure, arguing that the defendant’s conduct was clearly outside the “heartland” of the conduct contemplated by § 2A5.2. The defendant, in turn, filed a motion for a downward departure pursuant to U.S.S.G. § 5K2.13 (Diminished Capacity) based on suffering from an alleged “bipolar disorder” at the time of his abusive conduct. He essentially argued that there was no serious threat of violence because he was unarmed, he never actually touched anyone, and his words were an unfortunate product of his mental condition.

After reviewing the law applicable to both of the requested departures, Judge Dalzell denied the defendant’s request for a downward departure; granted the Government’s request for an upward departure; and sentenced Spellman to 18 months in prison - a term that, he concluded, would “pay[ ] the added dividend of affording the Bureau of Prisons time to provide Spellman with the structured mental health treatment he so palpably needs.” (Id., at 295).

In addressing the defendant’s request for a downward departure, Judge Dalzell first noted that § 5K2.13 does permit a downward departure “if the defendant committed the offense while suffering from a significantly reduced mental capacity.” He also agreed that, based on the testimony of Spellman’s and the Government’s expert witnesses, that Spellman was “suffering from a bipolar disorder at the time of the offense.” (Id., at 290).

Nevertheless, he noted that § 5K2.13 also states that a downward departure is not permitted under that section if “the facts and circumstances of the defendant’s offense indicate a need to protect the public because the offense involved actual violence or a serious threat of violence.” Based on the evidence before the Court, Judge Dalzell concluded that “the record clearly establishes that [Spellman] subjectively intended his statements to be threatening and that his victims perceived his statements as such.” (Id., at 291) (Emphasis in original). For those reasons, Judge Dalzell concluded that Spellman was “ineligible for a downward departure for diminished capacity."

In reviewing the Government’s request for an upward departure, Judge Dalzell first reviewed some of the legislative history behind 49 U.S.C. § 46504, the principal statute under which Spellman was convicted; and he noted that Congress had been extremely concerned about intimidating flight crew members because of the unique role they play in maintaining the safe operation of the aircraft.

He then concluded that, “looking at the constellation of events, the most analogous Guideline would indeed by recklessness under § 2A5.2(a)(2), notwithstanding the parties’ stipulation that by implication negates recklessness.” (Id., at 294). He then chose the midpoint between level 18 and level 9 as the appropriate sentencing level, and on that basis he imposed the sentence of 18 months.


Feeney Amendment Enacted Into Law

On Wednesday, April 30, 2003, President Bush signed into law the “Protect Act of 2003" (Prosecutorial Remedies and Tools Against the Exploitation of Children Today),
which included the controversial “Feeney Amendment” that dramatically limits the discretion of Federal judges to grant most downward departures at sentencing. We have posted
on our Web site at www.ussguide.com the full text of that act,
together with copies of the relevant provisions of the Sentencing Reform Act and
the U.S. Sentencing Guidelines that have now been amended by that legislation.

Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court

This Week

Year to Date

Since 1996

Courts of Appeal

48

640

17,148

District Courts

28

375

   9,313


Copyright © 2003 Punch and Jurists, Ltd.