Vol. 10, No. 38
Covering Cases Published in the Advance Sheets through Sept. 22, 2003

Note: This Visitor's version of Punch and Jurists does not include all the cases covered in the Member's version. In addition, while the Member's version contains links to the full text of all of the decisions noted below, that feature is not available in the Visitor's Edition. Thus, while the names of some of the cases cited below may be highlighted in blue, they are not hypertext-linked to the official decision in this Visitor's Edition of Punch and Jurists.

A Rare Judicial Acknowledgment of the Penalties of Winning an Appeal

Pre-Indictment Motions Under Rule 41(e)

Waiving the Attorney-Client Privilege

Guidelines

Conviction Reversed Because Counsel Failed to Challenge Cop's Reliance on Police Flyer


U.S. v. Palladino, No. 03-1146 (2nd Cir. 10/10/2003) (Judge Cabranes)

We found this to be a surprising decision - and a classic example of the proverb “beware what you wish for.” Here, the defendant, John Palladino, won a “victory” by convincing the Second Circuit that he had the right to withdraw his plea because the Government had violated the terms of his plea agreement. However, at that point, even the judges on the Court of Appeals felt compelled to warn Palladino of the likely consequences of beating the thin-skinned Government. In not so subtle terms, the Court effectively urged him to take his lumps and withdraw his appeal - or he would get screwed on the replay.

Palladino pled guilty to one count of transmitting a threat in interstate commerce, in violation of 18 U.S.C. § 875(c). His plea agreement specifically provided, inter alia, that “based on information known to [the Government] at this time, [the Government] estimates the likely adjusted offense level under the Sentencing Guidelines to be level 10 . . .” (Emphasis added). Level 10 carries a sentencing range of 6 to 12 months in prison for a defendant with no prior convictions.

After the plea was entered, the Probation Department prepared a presentence report (PSR) which raised the possibility of a six-level sentencing enhancement (from level 10 to level 16) for “conduct evidencing an intent to carry out [defendant’s] threat,” pursuant to U.S.S.G.§ 2A6.1(b)(1). However, the PSR also noted that the enhancement was “without a sufficient factial basis.”

Upon reading the PSR, the Government (now represented by a new AUSA) transcribed for the Probation Office a tape recorded conversation that occurred before the plea agreement was signed in which Palladino had “angrily indicated his intent to carry out his previously articulated threat.” Based on that evidence, the Probation Department prepared an addendum to the PSR in which it recommended that Palladino’s base offense level be raised to level 16 - which carries a sentencing range of 21 to 27 months.

At sentencing, the district court (Judge Ross of the E.D.N.Y) determined that the six-level enhancement was appropriate based on the tapes that the Government produced. Palladino objected, arguing that the Government had violated the terms of his plea agreement. He noted that the Government had conceded that, at the time the plea agreement was signed, it had “full knowledge” of the existence of the tape recording that it ultimately played for the Court and the Probation Department. Thus, he argued that the Government had “no new information which, under the terms of the Plea Agreement, could have justified its enhancement request.”

Focusing primarily on other provisions of the plea agreement which emphasized that the estimated Guideline calculation wasn’t binding on the Probation Department, the Government, or the Court, Judge Ross rejected Palladino’s contention that the Government had violated the terms of the plea agreement. However, she did acknowledge the equities of Palladino’s claim, stating: “I understand the frustration of it, but it’s something that we do meet sadly not infrequently. There is a mistake in the estimated guideline calculation and that’s why everyone is told in the plea agreement, during the allocution, if there is a mistake, if the court determines it to be otherwise, there’s no ground to withdraw the plea.” (Emphasis added).

Then, stating that she understood Palladino’s “surprise” in learning that he now faced a dramatically increased sentencing range, she decided to sentence him at the bottom of the new Guideline range - and she imposed a sentence of 18 months. [In arriving at that sentence, the Second Circuit noted that Judge Ross had goofed by using offense level 15 - rather than 16 - as the basis for his sentence. However, since neither party had objected to the use of offense level 15, the Court overlooked that error, stating that “any possible claim on [that] score has been forfeited on appeal.”]

On appeal, the Court focused primarily on the provision of the plea agreement which stated that the Government’s estimate of the relevant offense level was “based on information known to the Government [at the time of the plea].” Based on that language, the Court stated: “[W]e believe that defendant had a reasonable expectation that the Government would not press the Court for an enhanced offense level in the absence of new information. . . . Accordingly, we hold that the Government breached the plea agreement by advocating a six-level sentencing enhancement on the basis of information that was known to the Government at the time of the agreement, but was not reflected in the estimated offense level in the plea agreement. . . . In the circumstances here presented, we agree with defendant that permitting withdrawal of his plea is the correct remedy.” (Emphasis added).

At that point, the Court commented, with surprising candor, on the impact that a plea withdrawal would have on the defendant. It stated:

“As a final matter, we note that what appears to be a ‘victory’ for defendant in this case could ultimately result in a conviction on remand that carries a longer sentence than that initially imposed. . . . If a new plea agreement cannot successfully be negotiated, then defendant would have to stand trial and, if convicted, the Government could again seek to impose the disputed six-level enhancement, as well as any other enhancement it may deem appropriate in the circumstances. Even if the Guidelines range calculated by the District Court turned out to be identical to the range calculated initially, there is no guarantee that the sentencing judge would again choose to sentence defendant at the bottom of the applicable Guidelines range. Under these circumstances, defendant could face a sentence well in excess of 18 months, notwithstanding the fact that it was the Government's violation of the plea agreement that gave rise to the instant appeal. (Emphasis added).

“In the interests of justice, and in view of the impracticability of a specific performance remedy in this case, we will stay the issuance of the mandate for 30 days to allow defense counsel to confer one final time with defendant regarding the risks of withdrawing his plea. Defense counsel and the Government may confer during this time period as they may deem appropriate. Defendant shall have the option to withdraw his appeal at any time prior to the issuance of the mandate.”


In Re Grand Jury Subpoena, 341 F.3d 331 (4th Cir. 2003) (Judge Wilkins)

This case is noted as an example of how easy it is for the average person, untrained in the subtleties of the law, to waive valuable rights. The unnamed Appellant in this case, a person of Middle Eastern descent, moved to quash a subpoena served on his former attorney (“Counsel”) to compel him to answer two questions before a grand jury. The Appellant had earlier been interviewed by two FBI agents in the lobby of his apartment building for the purposes of (1) determining whether Appellant had any information that might be helpful in connection with ongoing terrorism investigations, and (2) discussing Appellant’s earlier filing of an INS document known as Form I-485, which is sometimes referred to as a “green card” application.

During that “non-custodial interview,” which lasted approximately 45 minutes, the FBI agents stated that they were aware that Appellant had a prior conviction for shoplifting; and they presented him with a printout of that conviction. They then asked the Appellant why he had answered “no” to a question on Form I-485 about whether he had ever been arrested, cited, charged, indicted, fined, or imprisoned for breaking or violating any law or ordinance. The Appellant responded that he had answered "no" under the advice of an attorney; and he subsequently identified Counsel by name.

Later, Counsel was subpoenaed to appear before a grand jury, where she was questioned as to whether the Appellant had consulted with her on questions involving the filing of the Form I-485 and whether she advised Appellant to answer "no" to the question at issue. Counsel declined to answer the questions, asserting her answers would reveal privileged information. Subsequently, the district court ordered Counsel to answer the grand jury's questions, holding that any privilege that had existed had been waived through the Appellant’s statements to the FBI agents.

On appeal, the Fourth Circuit agreed that Appellant’s statements to the FBI agents constituted an implicit waiver of any attorney-client privilege that had existed. It stated: “As a general rule, implied waiver occurs when the party claiming the privilege has made any disclosure of a confidential communication to any individual who is not embraced by the privilege. Such a disclosure vitiates the confidentiality that constitutes the essence of the attorney-client privilege.” (Id., at 336) (Internal citations omitted).

The Appellant argued that his statements to the FBI agents did not constitute a waiver of the attorney-client privilege because they merely revealed his conduct -- i.e., that he had acted in a particular way relying on the legal advice of an attorney -- rather than disclosing the substance of that advice. The Fourth Circuit disagreed, stating: “This distinction fails, however, because Appellant clearly stated to a third party that his attorney had advised him to answer ‘no’ to Question 1(b). This same information is the subject of the second (and ultimate) question posed to Counsel by the Government: whether she advised Appellant to answer ‘no’ to Question 1(b).” (Id., at 337).


In Brief

Bail: U.S. v. Twine, No. 03-10383 (9th Cir. 09/19/2003) - Here, joining the First, Third and Fifth Circuits, the Ninth Circuit held that the Bail Reform Act (18 U.S.C. § 3142) does not authorize pretrial detention based solely upon a finding of dangerousness to the community. The Court also agreed with holdings from the Fifth, Seventh, Eleventh and D.C. Circuits to the effect that the crime of felon in possession of a firearm is not per se a crime of violence for purposes of the Bail Reform Act - an issue on which the Second Circuit disagrees; in U.S. v. Dillard, 214 F.3d 88, 97 (2nd Cir. 2000), that court stated that “the vast majority of courts that have considered the question” have agreed that possession of a firearm by a felon is “by its nature” a crime of violence, but it cited only district court cases in support of that statement.

Felon in Possession: U.S. v. Belk, No.2-1636 (2nd Cir. 10/09/2003) - Here the Court held that the district court did not abuse its discretion by refusing to bifurcate the elements of a felon-in-possession charge, in order to allow the jury to consider separately whether he was in unlawful possession of a firearm and then whether he had been previously convicted of a felony, in order to eliminate the prejudice of his previous conviction from the consideration of the first issue.

Prison Conditions: Marion County Jail Inmates v. Anderson, 270 F.Supp.2d 1034 (S.D.Ind. 2003) - Finding that the conditions at the Marion County Jail were neither “safe” nor “humane,” District Judge Sarah Barker held that Sheriff Frank Anderson was in contempt for failing to comply with her previous court orders to improve those conditions. Of note, Judge Barker concluded: “We do not find the Sheriff’s failure to be the result of willful behavior; the failures described and elaborated upon in the filings and at the hearing represent the cumulative results of derelictions of duty in every branch and at every level of county, city and state government.” (Id., at 1035).

Probation Department: U.S. v. Amatel, No. 03-1212 (2nd Cir. 10/09/2003) - Joining with decisions from the First, Sixth, Ninth and Tenth Circuits, the Second Circuit rejected claims that the Probation Department had exceeded its authority or violated the Separation Clause or unlawfully practiced law by filing a petition for revocation of supervised release with the court, holding that such filings were not accusatory instruments, but were reports and recommendations to the court.


Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court

This Week

Year to Date

Since 1996

Courts of Appeal

57

1,836

18,344

District Courts

23

1,055

   9,993


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