Vol. 10, No. 39
Covering Cases Published in the Advance Sheets through Sept. 29, 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.

Joint Defense Agreements

Supreme Court

Vicarious Liability Under Pinkerton Held Insufficient to Support a Felon in Possession Conviction

Guidelines

The Growing Population of Mentally Ill Prisoners

At the end of this week's issue, we note two recent, disturbing reports about the dramatic surge in the numbers of mentally-ill persons who are now being housed in America’s prisons and jails.


Yarborough v. Gentry, No. 02-1597 (U.S. Sup. Ct. 10/20/2003) (Per Curiam)

In Gentry v. Roe, 320 F.3d 891 (9th Cir. 2003) (Gentry I), a divided panel from the Ninth Circuit held that a defense lawyer’s description of his client as a "bad person, lousy drug addict, stinking thief, jail bird" during closing arguments constituted per se ineffective assistance of counsel; and thus it granted habeas relief to Lionel Gentry who had been convicted of the stabbing death of his girlfriend and was sentenced to death.

In this brief summary ruling, the Supreme Court reversed Gentry I and held that the grant of habeas relief was improper. The Court emphasized that the lawyer’s derogatory comments about his client had not risen to the level of ineffective assistance of counsel under the standards established in Strickland v. Washington, 466 U.S. 668 (1984) because they could well have been, as the state courts had ruled, an attempt to build credibility with the jury. “By candidly acknowledging his client’s shortcomings, counsel might have built credibility with the jury and persuaded it to focus on the relevant issue in the case.”

Then, in what was clearly a pointed rebuke to the Ninth Circuit for interfering - once again - with state court rulings that the Justices felt were not “objectively unreasonable,” the Supreme Court stated: “To be sure, Gentry's lawyer was no Aristotle or even Clarence Darrow. But the Ninth Circuit's conclusion -- not only that his performance was deficient, but that any disagreement with that conclusion would be objectively unreasonable -- gives too little deference to the state courts that have primary responsibility for supervising defense counsel in state criminal trials.”


U.S. v. Rawlings, 341 F.3d 657 (7th Cir. 2003) (Judge Posner)

This is an interesting decision in which the Court vacated a conviction for possession of a gun by a felon after rejecting the Government’s efforts to prove the possession element of that crime by using the Pinkerton theory of vicarious liability.

Elisha Rawlings, the defendant in this case, was the driver of the getaway car for three coconspirators who committed armed bank robbery. The four participants were quickly arrested; and the three persons who actually committed the robbery pled guilty. Rawlings went to trial; and he was convicted of conspiracy to commit armed bank robbery and of being a felon in possession of a gun. Interestingly, he was acquitted of using or carrying a gun in the commission of an offense. He was sentenced to consecutive sentences of 60 months on the robbery count and 84 months on the gun count.

Rawlings appealed only the gun conviction; and the Court vacated that conviction on the grounds that it was not supported by the evidence - even though it agreed that (a) Rawlings was “a full-fledged member of the conspiracy” for purposes of the bank robbery charge and (b) Rawlings’ conviction for conspiracy to commit armed bank robbery meant that “the jury found . . . that he learned before the robbery took place that it would be an armed robbery . . ., yet he made no effort to disassociate himself from the scheme.” (Id., at 659).

In essence, the Court concluded that the Government had failed to prove either actual or constructive possession of a gun by Rawlings. In reaching that conclusion, the Court emphasized that constructive possession requires the Government to prove that Rawlings had “the power and the intention as a given time to exercise dominion and control over the firearm, either directly or through others.” (Id.) Here the Court determined that, as the driver of the getaway car, Rawlings was neither “the leader of the conspiracy nor the supplier of the guns, and so his relation to the guns [used by his coconspirators] does not satisfy the test for constructive possession, which requires power to control. . . . Rawlings played no role in procuring the guns and he had no authority, under the informal rules or norms of his criminal partnership, to prevent his coconspirators from carrying guns.” (Id., at 660).

The Court also brushed aside the Government’s “far-fetched argument” that, by transporting his armed coconspirators and the guns they possessed, Rawlings “possessed” the guns himself. Judge Posner wrote: “If you give a lift to a policeman, you do not possess his gun during the time in which he is in your car.” (Id).

Finally, the Court addressed the Government’s argument that, even if Rawlings lacked actual or constructive possession of the guns used in the bank robbery, his conviction should still stand under the Pinkerton doctrine of vicarious liability. In Pinkerton v. U.S., 328 U.S. 640, 647-48 (1946), the Court held that a conspirator could be held liable for any foreseeable crimes committed by his fellow conspirators during and in furtherance of the conspiracy.

Citing its decision in U.S. v. Walls, 225 F.3d 858, 864-66 (7th Cir. 2000), the Court explained that “Pinkerton ascribes the crimes of coconspirators to each other, not a conspirators acts that when combined with the acts of another conspirator might add up to a crime.” (Id.) (Emphasis in original.)

In Walls, the Court dismissed a similar attempt to charge the defendant with felon in possession crime based on a Pinkerton vicarious liability theory. In rejecting that effort, the Walls court reasoned that the Government “seeks Pinkerton liability based in part upon acts by a co-conspirator that did not constitute a crime. . . [T]he government uses a cut-and-paste approach, taking the firearm possession by one conspirator, adding it to the felon status of another conspirator, and thereby creating a substantive offense for that second conspirator. It is a significant expansion of the Pinkerton doctrine that appears to be difficult to limit. . . It is an unwarranted, and possibly unconstitutional, expansion of the Pinkerton doctrine.” (Walls, id., at 865).


U.S. v. Kirsch, Crim. No. 02-288 (D.Minn. 10/17/2003) (Judge Magnuson)

In this widely-reported Sentencing Memorandum, Judge Magnuson lashed out at the recent attempts to “intimidate” judges into imposing sentences that are pleasing to Congress and the Justice Department. The words he chose to reflect his disdain for and his disgust with the new policies need no comment:

“The Court believes that the day of the downward departure is past. Congress and the Attorney General have instituted policies designed to intimidate and threaten judges into refusing to depart downward, and those policies are working. If the Court were to depart, the Assistant U.S. Attorney would be required to report that departure to the U.S. Attorney, who would in turn be required to report to the Attorney General. The Attorney General would then report the departure to Congress, and Congress could call the undersigned to testify and attempt to justify the departure. This reporting requirement system accomplishes its goal: the Court is intimidated, and the Court is scared to depart. The reporting requirement has another, more invidious effect. Although the Court has a high regard for the Assistant U.S. Attorney who prosecuted this matter, there will be other cases in which the prosecutor will misuse his or her authority. Due to the requirement of reporting departures that is now in place, Courts are no longer able to stop that abuse of power. The reporting requirements will have a devastating effect on our system of justice which, for more than 200 years, has protected the rights of the citizens of this country as set forth in the Constitution. Our justice system depends on a fair and impartial judiciary that is free from intimidation from the other branches of government. The departure reporting requirements constitute an unwarranted intimidation of the judiciary.”


In Brief

Double Jeopardy: U.S. v. Wells, No. 02-2233 (8th Cir. 10/17/2003) - Here the Court held that where the defendant's first trial resulted in acquittal on two counts of possession and a hung jury and mistrial on the third count, double jeopardy did not bar the government from reintroducing evidence regarding the acquittal counts at the retrial of the third count.

Guidelines: U.S. v. Stokes, No. 03-4067 (4th Cir. 10/15/03) - Here the Court vacated a sentence enhancement imposed, pursuant to the provisions of U.S.S.G. § 2A6.1(b)(2), on a defendant who pled guilty to mailing a threatening letter, holding that the term "more than two threats" refers to the number of threatening communications, not the number of victims; U.S. v. Fuentes, 341 F.3d 1216 (10th Cir. 2003) - Here, joining with six other Circuits (the First, Second, Fourth, Fifth, Seventh and Ninth), the Tenth Circuit held that the Government is entitled to notice that the district court is considering a downward departure; and thus it vacated and remanded a sentence to give the Government an opportunity to present fully its arguments against the departure.

Immigration: Bravo v. Ashcroft, 341 F.3d 590 (5th Cir. 2003) - Holding that Federal courts no longer have jurisdiction to review discretionary denials of relief from removal orders made by immigration judges. Here, a Mexican couple, who illegally entered the United States in 1985, moved for cancellation of their removal order on the grounds that their child, an American citizen, would be subjected to “exceptional and extremely unusual hardship,” within the meaning of 8 U.S.C. § 1229b(b)(1). The IJ concluded that the parents had failed to prove any such hardship - and the Fifth Circuit concluded that the IJ’s ruling was unreviewable under the provisions of § 1252(a)(2)(B) of the Illegal Immigration Reform and Immigrant Responsibility Act.

Ineffective Assistance of Counsel: U.S. v. Leibach, No. 01-4186 (7th Cir. 10/14/2003) - In a habeas claim from a sexual assault and aggravated battery conviction, the Seventh Circuit held that trial counsel was constitutionally ineffective for failing to investigate and interview exculpatory eyewitnesses, and for making promises to the jury in opening statements that were not kept.

Material Witness Statute: In Re Grand Jury Material Witness Detention, 271 F.Supp.2d 1266 (D.Or. 2003) - In this brief order, Judge Jones concluded that a grand jury proceeding constitutes a “criminal proceeding” within the meaning of the Material Witness Statute (18 U.S.C. § 3144). Accordingly, he agreed that the Government could detain the witness, Maher Mofeid Hawash, but not indefinitely, and he directed the Government to present Mr. Hawash to the grand jury within three weeks.


Prisons - The New Destination of the Mentally Ill

Two articles from The New York Times on October 22, 2003 caught our attention. The first article presented the problem: In “Study Finds Hundreds Thousands of Inmates Mentally Ill,” the Times reported on a recent study issued by the Human Rights Watch (HRW) which concluded that as many as one in five of America’s 2.1 million prisoners are “seriously mentally ill” - far outnumbering the number of mentally ill patients who are in mental hospitals. As a result, prisons are becoming the default mental health system in America.

The second article presented the treatment: “Report on State Prisons Cites Mental Illness,” by Paul von Zielbauer reported that New York State simply claps many of its prisoners who are mentally ill in “punitive segregation” (i.e., locked in a small cell at least 23 hours a day).

Copies of both articles have been posted on our Web site, where we have also posted the full 223-page Report entitled “Ill Equipped: U.S. Prisons and Offenders with Mental Illness,” issued by the HRW.


Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court

This Week

Year to Date

Since 1996

Courts of Appeal

66

1,902

18,410

District Courts

30

1,085

 10,023


Copyright © 2003 Punch and Jurists, Ltd.