Vol. 10, No. 47	Covering Cases Published in the Advance Sheets through November 24, 2003

Supreme Court

• In Castro, the Supreme Court issued one of its exceedingly rare “pro inmate” interpretations of the new limitations on the filing of habeas petitions that were enacted in 1996 as part of the AEDPA. Here, adopting the view of a majority of the Circuits, the Court held that if a district court “recharacterizes” an inmate’s pro se filing into a § 2255 motion, without warning him that one likely effect of such a recharacterization will be to limit future appeals, that recharacterized motion cannot later be deemed to be a “first” § 2255 motion for purposes of triggering the prohibitions against the filing of “second or successive” petitions without the permission of a Circuit Court of Appeals.
  
  
• In Pringle, the Supreme Court held that when the police discover illegal drugs in a car and no one admits to their ownership, the police have the constitutional right to arrest all the occupants of the car, even if that means arresting those who may be innocent.
  
  

Antiterrorism

• Just as we were about to go to press, the Second and Ninth Circuits published historic decisions of great importance. In Padilla, the Second Circuit held that the Executive Branch lacked the authority to detain indefinitely a U.S. citizen arrested on American soil on suspicion of terrorism simply by declaring him an “enemy combatant.” In Gherebi, the Ninth Circuit held that the U.S. policy of imprisoning some 660 noncitizens in the Afghan war at the U.S. Naval base in Guantanamo Bay, Cuba without access to any legal protections was both unconstitutional and a violation of international law.

Guidelines

• In Arnaout, Judge Conlon of the N.D.Ill. undertook a comprehensive analysis of the history and purpose of the terrorism enhancement contained in U.S.S.G. § 3A1.4, which automatically increases a defendant’s sentence by a minimum of 12 levels. She then firmly rejected the Government’s efforts to apply that enhancement to the defendant who was convicted of racketeering based on highly publicized (and later withdrawn) allegations that he had provided material support for al Qaeda.

The "Public Safety Exception" to the Miranda Rule

• The Williams case from the E.D.Mich. is noted for Judge Gadola’s timely review of the “public safety exception” to the Miranda rule which allows police officers to question suspects without giving any Miranda warning if there is a reasonable concern for public safety.

Season’s Greetings

We wish all of our subscribers, friends and supporters a Happy Holiday Season and a Prosperous and Peaceful New Year. The next issue of P&J will be mailed in two weeks.

Padilla ex rel. Newman v. Rumsfeld, No. 03-2235 (2nd Cir. 12/18/03) (Per Curiam)

While we will cover this ruling in greater detail in the next issue of P&J, we do note this historic and important ruling as one of the most significant decisions to date dealing with the Government’s war on alleged terrorists. Here, a divided panel from the Second Circuit ruled that the Government does not have the power to detain Jose Padilla, an American citizen, as an “enemy combatant” in a military prison. Padilla was arrested in May of 2002 as an alleged terrorist and quickly moved to a Navy brig in South Carolina, where he has since been held incommunicado and without access to an attorney. For more than 18 months, attorneys Donna Newman and Andy Patel of New York City have been fighting to assert Padilla’s constitutional rights.

While the panel agreed that Padilla can be moved to a civilian court if criminal charges are brought against him, and that Padilla can be held as a material witness in a grand jury proceeding, it also firmly held that, as an American citizen, he cannot continue to be held without charges and without access to the courts and lawyers simply because the Government has designated him as an “enemy combatant.”

The majority wrote: “As this court sits only a short distance from where the World Trade Center once was, we are as keenly aware as anyone of the threat al-Qaida poses to our country and of the responsibilities the president and law enforcement officials bear for protecting the nation. But presidential authority does not exist in a vacuum, and this case involves not whether those responsibilities should be aggressively pursued, but whether the president is obligated, in the circumstances presented here, to share them with Congress.”

The majority stated that law known as the Non-Detention Act (18 U.S.C. § 4001(a)) provides that “no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an act of Congress”; and it also stated that the joint Congressional resolution authorizing operations against terrorism after September 11 “contains no language authorizing detention.”

As a matter of interest, although the Court’s decision was widely reported as a split decision, all three judges on the panel agreed that the district court had the proper jurisdiction to hear the case and that Padilla had the right to a hearing, with the assistance of counsel, to contest his status. The dissenting judge, the recently appointed Judge Wesley, dissented on the limited grounds that he disagreed with one aspect of the majority’s opinion - namely its conclusion that the President was without authority from Congress or the Constitution to order the detention and interrogation of Padilla.

Gherebi v. Bush, No. 03-55785 (9th Cir. 12/18/03) (Judge Reinhardt)

In an equally important decision from the Ninth Circuit (which will also be reviewed in greater detail in the next issue of P&J), a divided panel held that the detention of the 600 plus detainees at Guantanamo Bay, without charges and without access to lawyers, was both unconstitutional and a violation of international law.

In a powerful decision, Judge Reinhardt wrote: "Even in times of national emergency - indeed, particularly in such times - it is the obligation of the Judicial Branch to ensure the preservation of our constitutional values and to prevent the Executive Branch from running roughshod over the rights of citizens and aliens alike. . . . We simply cannot accept the Government's position that the Executive Branch possesses the unchecked authority to imprison indefinitely any persons, foreign citizens included, on territory under the sole jurisdiction and control of the United States, without permitting such prisoners recourse of any kind to any judicial forum, or even access to counsel, regardless of the length or manner of their confinement."

The only other Circuit court to have addressed the detention of the prisoners at Guantanamo Bay was the D.C. Circuit. In Al Odah v. U.S., 321 F.3d 1134 (D.C.Cir. 2003), that court held that the U.S. courts do not have jurisdiction to adjudicate actions concerning the legality and the conditions of confinement of aliens captured abroad during hostilities in Afghanistan and held at Guantanamo Bay in U.S. military custody. The Supreme Court has already granted certiorari in the Al Odah case; and thus, when it deliberates the Guantanamo issues next year, it will now have two radically different lower court decisions to consider.

U.S. v. Arnaout, 282 F.Supp.2d 838 (N.D.Ill. 2003) (Judge Conlon)

As has happened to many terrorist suspects, the defendant in this case, Enaam Arnaout, was initially charged with a series of “sensational and highly publicized charges of providing material support to terrorists and terrorist organizations.” (Id., at 843). Arnaout had been the founder and a director of an Islamic charity, known as the Benevolence International Foundation (BIF), which, in the heady days immediately after 9/11, was labeled a terrorist organization and was accused of being a fund-raising arm of al Qaeda. (See, U.S. v. Benevolence International Foundation, 2002 U.S. Dist. LEXIS 17223 (N.D.Ill. Sept. 13, 2002)). Even though all of BIF’s assets have been seized, the Government has yet to prove its allegations that BIF was in fact a fund raising arm for al Qaeda.

Arnaout himself was initially charged with being associated with Osama Bin Laden and with assisting members of al Taeda in purchasing large quantities of weapons. (See, e.g., U.S. v. Arnaout, 231 F.Supp.2d 797 (N.D.Ill. Nov. 25, 2002)). Even after the Government’s evidence against Arnaout in support of those charges began to dissipate, the Government stubbornly kept Arnaout in prison. Ultimately, on the eve of his trial, Arnaout entered a guilty plea to a charge of racketeering fraud conspiracy, in violation of 18 U.S.C. § 1962(d).

The stipulated facts submitted in support of the plea agreement specified that Arnaout’s fraud consisted of permitting the use of a portion of BIF’s assets, which had been raised for humanitarian purposes, to be used to purchase supplies for Chechen rebels, including boots, uniforms, an ambulance, an x-ray machine and a quantity of foot and hand-warmers. In exchange for that plea, the Government quietly agreed to dismiss all the earlier sensational charges that Arnaout had provided material support to terrorists and terrorist organizations.

Nevertheless, the Government continued to press for the imposition of the terrorism enhancement contained in U.S.S.G. § 3A1.4 at Arnaout’s sentencing. That enhancement mandates a minimum 12-level increase in the defendant’s offense level, but if the resulting offense level is less than 32, § 3A1.4 requires the use of a level 32 offense level, which calls for a sentencing range 0f 121-151 months.

By its express terms, the terrorism enhancement applies to a person who is convicted of a “federal crime of terrorism,” as that term is defined in 18 U.S.C. § 2332b(g)(5). In considering the Government’s request, Judge Conlon noted that “Arnaout does not stand convicted of a terrorism offense. Nor does the record reflect that he attempted, participated in, or conspired to commit any act of terrorism.” (Id., at 843). She also observed that “Arnaout’s offense is not included in the exhaustive list of federal offenses defined by Congress as terrorism crimes [and] the enabling legislation and § 3A1.4 plainly preclude application of the terrorism enhancement to the racketeering fraud conspiracy offense of conviction.” (Id., at 844).

Ah, but the Government countered, that’s only what the statute says. “[T]he crime of conviction need not be enumerated in 18 U.S.C. § 2332b(g)(5) because the Sentencing Commission's use of the phrase ‘a felony that involved, or was intended to promote, a federal crime of terrorism’ in § 3A1.4 should be read to expand application beyond the congressional directive that the enhancement shall apply only to federal crimes of terrorism.” (Id.)

The Government also cited a Sixth Circuit decision, U.S. v. Graham, 275 F.3d 490 (6th Cir. 2001), where a divided panel held that the terrorism enhancement should be applied to a conviction for conspiracy to possess machine guns, threaten to assault and murder federal officers and employees, to forcibly assault, resist, oppose, impede, intimidate and interfere with federal officers when they were engaged in their official duties, and to maliciously damage and destroy and attempt to damage and destroy by means of an explosive a building, or other real or personal property used in interstate commerce.

Judge Conlon responded:

“The divided Graham opinion is neither binding authority on this court nor factually analogous to this case. Even if this court followed the majority's questionable redrafting of § 2332b(g)(5), the racketeering fraud conspiracy offense of conviction is not predicated on any terrorist conduct enumerated in that statute. The government has not established that the Bosnian and Chechen recipients of BIF aid were engaged in a federal crime of terrorism, nor that Arnaout intended the donated boots, uniforms, blankets, tents, x-ray machine, ambulances, nylon and walkie-talkies to be used to promote a federal crime of terrorism.

“Moreover, it should be noted that the phrase ‘involved or was intended to promote’ in § 3A1.4 was carried over verbatim from the original international terrorism guideline. The phrase is repeated in the revised guideline without any explanation or comment in the application notes - or even acknowledgment that the enhancement was to apply only to federal crimes of terrorism. Indeed, all the Sentencing Commission did to comply with the congressional mandate was to change the phrase ‘international terrorism’ to ‘federal crime of terrorism.’ Even if it is inferred that the Sentencing Commission intended to expand application of the terrorism enhancement to conduct beyond the offense of conviction, the Sentencing Commission lacks authority to preempt the specific directives of Congress.” (Id., at 845).

For all of those reasons, Judge Conlon declined to apply the § 3A4.1 enhancement to Arnaout’s racketeering offense “because it is not a federal crime of terrorism as defined by § 2332b(g)(5).” (Id.)

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