Vol. 10, No. 35	Covering Cases Published in the Advance Sheets through September 1, 2003

Highlights of this Issue:

Disclosure of Information About An Informant's Past Crimes

• Two cases this week addressed some of the different approaches used by the Government to justify the withholding of details about an informant’s past crimes. In Jackson, the Second Circuit dealt with a case in which the Government failed to disclose certain information about a key informant who died before trial. In that case, the Court held that Brady and its progeny require disclosure of exculpatory and/or impeachment materials concerning a confidential informant, regardless of whether the informant testified at trial. However, the Court also found that the Government’s failure to disclose the Brady materials in question was harmless error since the defendants failed to establish a reasonable probability of a different result had the information been disclosed.
  
  
• In Cruz-Garcia, the Ninth Circuit addressed a case in which the Government had opposed a defense motion to present evidence about its star witness’s past crimes. The Government somehow persuaded the district court that the evidence was inadmissible under Fed.R.Evid. 404(b) because the witness’s “knowledge and intent were not in question” - a position that the panel found “troubling.” The Ninth Circuit concluded that the evidence was “highly probative” of the credibility of the Government’s star witness and should have been admitted. The panel also held that the error was not harmless. It thus reversed the conviction and remanded the case for a new trial.
  

Guidelines

• In Liu, Judge Weinstein of the E.D.N.Y. ruled that a pathological gambling addiction can constitute a significantly reduced mental capacity under U.S.S.G. § 5K2.13. On that basis he granted a four-level sentencing reduction to a defendant who had been a habitual gambler since the 1980's and whose addiction constituted an “impulse control disorder” that led to the credit card fraud crimes that he had committed.
  
  
• In Mussayek, the Third Circuit presented a thoughtful analysis of the parameters of U.S.S.G. § 5K2.10, which permits a downward departure if a victim’s conduct contributes significantly to provoking the offense behavior. In this case, the defendant had been victimized by two individuals in two separate scams. He then sought the help of undercover agents, who he thought were "Italian Mafioso," to assist with a plan to get revenge by extorting money from the two individuals. In rejecting a departure based on the victims’ conduct, the Court noted that the defendant’s conduct took place long after the alleged scams, and that time lag plus other circumstances of the case “simply do not evidence provocation as required by § 5K2.10.”
  

Illegal Arrest Held to Vitiate Consent to Search

• In Lopez-Arias, the Sixth Circuit rejected the DEA’s claim that the defendants had given their written consent to search their hotel room during what the DEA called a permissible investigatory detention. The Court then held that, once the detention become an illegal arrest, any consent given is fatally tainted by the illegal arrest, and the district court must grant a motion to suppress all the evidence discovered during the search that resulted.

U.S. v. Cruz-Garcia, No. 02-10275 (9th Cir. 09/17/03) (Judge Kozinski)

In this case, the Ninth Circuit sharply criticized both the district court and the prosecutor for their roles in preventing the defense from presenting rebuttal evidence about the prosecution’s star witness’s prior crimes. The Court held that the excluded evidence was “highly probative”; it could “well have cast reasonable doubt” on the defendant’s role in the crime; and that the error was not harmless.

Here, the defendant, Hugo Cruz-Garcia, and his brother-in-law, Juan Meza-Castro, were driving together on a highway outside Reno, NV, when they were pulled over for weaving. Suspicious about their behavior and the defendant’s inability to produce a valid driver’s license, the highway patrol officer asked for consent to search the car. In the ensuing search, the officer discovered over 100 grams of heroin hidden in the pocket of Meza-Castro’s jacket, which was on the floor of the back seat. It was later discovered that Meza-Castro had previously been convicted of selling heroin and cocaine to an undercover narcotics agent on six separate occasions, and that he was on probation at the time of the current incident. The defendant had no prior drug-related convictions.

Both men were charged with drug trafficking crimes. Meza-Castro pled guilty to conspiracy to traffic heroin. During his plea hearing, he told the court that he bought the drugs in Nevada after meeting some “guy” in a restaurant who offered him the drugs. He never mentioned the defendant during his plea colloquy.

Cruz-Garcia went to trial; and Meza-Castro suddenly appeared as a witness against him. Meza-Castro testified that the defendant was the drug dealer from whom he got the drugs; and that the defendant had begged him, on ten different occasions, to take the blame for the drugs. The Court then explained:

“The prosecutor built his case around Meza-Castro's testimony. He argued that Meza-Castro was ‘dumb as a box of rocks,’ and thus could not have been the sole drug dealer; he needed defendant's help to pull off such a crime. To rebut this argument, defendant tried to present evidence of Meza-Castro's prior conviction, hoping to show that Meza-Castro was indeed capable of dealing drugs on his own. The government objected and the district court only allowed defendant to impeach Meza-Castro under Federal Rule of Evidence 609 by showing that he had been previously convicted; the court barred defendant from presenting the facts underlying Meza-Castro's conviction, apparently under Rule 404(b).”

The defendant was then convicted. On appeal, he challenged the exclusion of the underlying details of Meza-Castro’s prior conviction. The Government argued that those details had been properly excluded because “Meza-Castro’s knowledge and intent were not in question.”

The Ninth Circuit took strong exception to that argument - noting that “Meza-Castro’s inability to pull off a drug deal by himself was the corner of the prosecution’s case.” It stated that the Government had consistently pressed the point - even stating that because Meza-Castro was “such a fool . . . he’s not capable of pulling this whole thing off by himself.” In the Court’s mind, that argument “raised the inference that the defendant must have been the mastermind.”

For all those reasons, the Court found the Government’s opposition to the use of the evidence of Meza-Castro’s prior conviction “troubling” and even bordering on prosecutorial misconduct. It stated: “To put the matter in its simplest form, the prosecutor here argued that Meza-Castro was too dumb to deal drugs on his own. Yet the prosecutor well knew (as the jury did not) that Meza-Castro had done precisely that. This is closer to the line than we like to see prosecutors get.”

In the end, the Court concluded that the evidence was “highly probative” and should have been admitted. particularly because the evidence “does clearly show that Meza-Castro could have more than held his own against a box of rocks.” The Court’s analysis of the standards applicable to Rules 403 and 404(b) of the Fed.R.Evid. was both thorough and compelling. Finally, the panel also held that the error was not harmless, and it reversed the conviction and remanded the case for a new trial.

U.S. v. Liu, 267 F.Supp.2d 371 (E.D.N.Y. 2003) (Judge Weinstein)

This decision is certain to start a stampede of motions for downward departures based on claims of the defendant’s “pathological gambling addiction.” In his own inimitable style, Judge Weinstein started this noteworthy opinion with these words:

“The State encourages people to gamble, using Madison Avenue advertising techniques to induce them to do so, and placing gambling outlets in thousands of convenient retail locations. The question presented is whether, when a person becomes a pathological gambling addict, partly as a result of this pervasive gaming atmosphere, and is driven to crime as a result of his addiction, the court may rely upon this pathology in downwardly departing under the United States Sentencing Guidelines. The answer is yes.” (Id., at 371-72).

The defendant in this case, Yi Ching Liu, was charged with using unauthorized credit card convenience checks issued to others to obtain $1,000 or more during a one year period, in violation of 18 U.S.C. §§ 1029(a)(5) and (c)(1)(B). Liu pled guilty; and he was sentenced to 24 months in prison - a sentence that reflected a four-level downward departure based on diminished capacity, pursuant to U.S.S.G. § 5K2.13. This decision sets forth Judge Weinstein’s reasons for that downward departure.

In support of his motion for the departure, Liu presented an expert witness, Dr. Stephen Block, a psychotherapist at the Saint Vincent Catholic Medical Centers’ Gamblers Treatment Center. Block testified at length by assessing Liu’s condition in light of the ten criteria for pathological gambling described in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (“DSM IV”). (Id., at 372). Block testified that a score of five or more of those criteria indicates a diagnosis of pathological gambling - but he concluded that Liu had achieved a perfect score: his condition met all ten of the criteria described in DSM IV.

Although he noted that there was “a dearth of cases addressing the question of whether a pathological gambling addiction can constitute a significantly reduced mental capacity under § 5K2.13” (id., at 374), Judge Weinstein’s decision amply fills that void. The opinion is also a revealing look at some of the statistics of the gambling industry in the United States. For example, Judge Weinstein noted that “[t]he states are increasingly making gambling easier and encouraging it in order to increase their revenue from their ‘take’ of the proceeds. . . . With an annual growth rate of 9 percent since 1991, gambling is increasing substantially faster than the economy as a whole. . . .This mushrooming of the gambling industry is fed by, and leads to, staggering losses by the gamblers themselves.” (Id., at 375-76) (Internal citations omitted.)

In the end, Judge Weinstein concluded: “Based on the testimonial and documentary evidence presented, defendant Liu has proved by a preponderance of evidence that he suffered from a pathological gambling addiction, evidenced by participation in state-operated numbers games and other forms of gambling, that this condition constituted an impulse control disorder, and that this disorder led to the crime. The disorder interfered with Liu's ability to control behavior that he knew was wrongful. See U.S.S.G. § 5K2.13, Application Note 1. A downward departure is appropriate.” (Id., at 375).

On September 22, 2003, Attorney General Ashcroft sent a new directive to all 94 U.S. Attorney’s Offices across the country, directing them henceforth to charge and pursue only the most serious charges (i.e., those yielding the highest penalties), and forbidding them, in almost all situations, from pursuing any form of plea bargaining at any stage of the proceeding without express approval from Washington. The directive also requires local prosecutors to get the approval of their superiors to "request or accede" to a downward departure under the Guidelines, except in cases where the defendant has provided substantial assistance or a “fast-track” program is in place.

The directive is the latest in a series of dramatic policy changes (including the recently enacted Feeney Amendment) designed to combat what General Ashcroft perceives to be “dangerously lenient” sentencing practices by some prosecutors and judges. Clearly, the new directive will restrict the ability of local prosecutors to plead out cases based on anything but the most serious charge. Some commentators have also suggested that the new policy will force more people to go to trial - a trend that could swamp the courts.

The full text of this latest directive has been posted on the Bulletin Board section of our Web site at www.ussguide.com, together with a number of commentaries and analyses of the expected impact of this new change on sentencing practices.

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