Vol. 10, No. 50
Covering Cases Published in the Advance Sheets through Dec. 15, 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 Finding of a Presumptively Vindictive Sentence

Withdrawal of Guilty Pleas

Guidelines

Airport Searches and Racial Profiling


U.S. v. Peyton, No. 02-50482 (9th Cir. 12/31/2003) (Judge Tallman)

The defendant in this case, Fatima Peyton, was tried for and convicted of eight counts of falsely procuring credit cards in the names of fellow postal workers, in order to obtain goods and other things of value, in violation of 18 U.S.C. § 1029(e)(1). At sentencing, Judge Brewster of the S.D.Cal. imposed a sentence of 15 month in prison.

Peyton then appealed her convictions, and the Ninth Circuit vacated six of the eight convictions (due to “a material variance in proof”), and remanded the case back to Judge Brewster for resentencing on the two remaining counts, which were affirmed.

At the second sentencing, Judge Brewster resentenced Peyton to 30 months in prison - double the original sentence - with credit for time served. Peyton again appealed, arguing that Judge Brewster had acted vindictively by doubling her original sentence after she had successfully attacked her earlier convictions and sentence.

The Ninth Circuit agreed. In an extremely rare ruling, it held that the new sentence was presumptively vindictive under the standards established by the Supreme Court in North Carolina v. Pearce, 395 U.S. 711 (1969) and its progeny. In Pearce, the Court stated that, to guard against the danger of vindictiveness, "whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.” (Pearce, id., at 726).

In the instant case, the Ninth Circuit stated that there was nothing in the sentencing record to rebut the presumption of vindictiveness; and that “the government failed to rebut the presumption that this harsher sentence was in retaliation for Peyton’s successful appeal.”

Judge Noonan, who dissented on a separate issue, summed up his reaction to Judge Brewster’s new sentence by stating: “‘Win your appeal and double your sentence.’ That cannot be our motto or that of any judicial body interested in doing justice. . . The process due every defendant has been violated by the district court in violation of the Fifth Amendment.”

The crux of Judge Brewer’s new sentence was his about-face on the imposition of an obstruction of justice enhancement on Peyton. During her trial, Peyton had offered the declaration of her boyfriend and co-defendant into evidence, which falsely attempted to exculpate Peyton of all misconduct. At the initial sentencing, Judge Brewster ruled that Peyton could not be held responsible for a third-party’s false declaration; and, on that basis, he declined to impose any enhancement for obstruction of justice.

At the resentencing, Judge Brewster changed his ruling on that enhancement and imposed an obstruction of justice enhancement on Peyton, which dramatically increased her Guideline range. However, in imposing that enhancement, Judge Brewster “failed to provide an explanation as to why the enhancement was appropriate now but had not been appropriate at the first sentencing hearing.” Judge Brewster simply stated that the obstruction enhancement now applied because Peyton had improperly sought to influence the proceedings against her. However, as noted, he never even attempted to explain the reasons for his change of position.


U.S. v. Thurston, 286 F.Supp.2d 70 (D.Mass. 2003) (Judge Harrington)

The defendant is this case, William Thurston, a regional vice-president of Damon Clinical Testing Laboratories, was one of a number of defendants charged with conspiring to defraud Medicare. The fraud charged involved the manipulation of physicians into ordering unnecessary blood tests for Medicare beneficiaries. Damon itself was separately indicted; and it pled guilty to the charges and ultimately paid some $83 million in restitution.

The President of Damon was offered a highly favorable plea bargain by the Government if he pled guilty; and he was ultimately sentenced to three years’ probation. Thurston was offered a similar deal; but he refused to plead guilty and went to trial - a decision that angered the Government. Despite numerous defenses (such as that Thurston was not a knowing participant in any conspiracy to defraud the Government and that Damon had complied with existing Medicare regulations), Thurston was convicted at trial of a single count of conspiracy to defraud Medicare.

Thurston’s Guideline sentencing range was 63-78 months; but there was a mandatory minimum sentence of 60 months. However, at sentencing, over strong objections from the Government, Judge Harrington granted a downward departure to Thurston and sentenced him to a term of three months in prison, to be followed by a term of supervised release of 24 months. In granting the departure, Judge Harrington cited two reasons. First, he stated that the departure was necessary to “correct” the disparity between the sentence recommended for Thurston and the sentence of three years’ probation imposed on Damon’s President. Second, the court reasoned that the departure was justified based on the many good works that Thurston did for his church and community, which Judge Harrington described as “extraordinary.”

Despite it’s earlier offer of leniency to Thurston, the Government was “outraged” by the sentence; and it appealed. In a decision previously reported at U.S. v. Thurston, 338 F.3d 50 (1st Cir. 2003) (P&J, 7/28/03), the First Circuit reversed - largely on the grounds that the Feeney Amendment prohibited district courts from granting the types of departures that had been given in this case. Accordingly, the case was remanded back to Judge Harrington with instructions that Thurston be sentenced to the mandatory minimum sentence of 60 months.

On remand, Judge Harrington refused to be a pawn in a sentencing that he considered to be unjust and unfair. Therefore, he recused himself from the case - but not before making an impassioned statement about the folly and the inherent unfairness of the Guidelines, mandatory minimum sentences, and the Feeney Amendment (which he separately said “renders the trial judge superfluous.”). He wrote:

“An essential objective that Congress sought to achieve in enacting the Sentencing Reform Act of 1984 was ‘uniformity in sentencing by narrowing the wide disparity in sentences imposed for similar criminal offenses committed by similar offenders.’ United States Sentencing Commission Guidelines Manual, p. 2 (Incorporating guideline amendments effective November 1, 2002).

“When the chief architect of the scheme to defraud, President Isola, is offered by the government and receives a term of three (3) years' probation for pleading nolo contendere and Vice President Thurston, who is Isola's subordinate, claims that he is innocent and exercises his constitutional ‘right to a speedy and public trial, by an impartial jury,’ is to receive a term of imprisonment of five (5) years, the objective of the sentencing guidelines is absolutely annulled. The terms of three (3) years' probation and five (5) years' imprisonment constitute a ‘wide disparity in sentences imposed for similar criminal offenses committed by similar offenders.’ The goal of ‘uniformity in sentencing’ has utterly failed to have been achieved.   Moreover, it is obvious that this ‘wide disparity’ in sentences was precipitated by Thurston's exercise of a constitutional right.  He was offered by the government and would have received a term of probation by the Court if he had been willing to forego a trial by jury and had pled guilty, as had Isola.

“The Court recuses itself from this case. It is disinclined to mechanically impose a sentence, previously prescribed by the Court of Appeals, which is clearly contrary to the objective of the sentencing guidelines and which severely punishes a defendant for exercising a constitutional right. The government should be prohibited from inflicting a harsh and punitive penalty on any citizen for the exercise of a fundamental right.” (Id., at 72) (Emphasis added).


In Brief

Batson Claim: Collins v. Rice, 348 F.3d 1082 (9th Cir. 2003) - Here a divided panel granted habeas relief to the petitioner, finding that there was clear and convincing evidence that the state prosecutor’s stated concern over a potential juror’s youthful age was a pretext for racial discrimination; and that the state courts had unreasonably applied clearly established federal law in rejecting the petitioner’s Batson claim.

Apprendi: U.S. v. Perez-Ruiz, No. 02-1466 (1st Cir. 12/19/2003) - Here the Court held that even though the indictment charged drug types and quantities sufficient to bring the defendant’s sentence within the life imprisonment authorized by 21 U.S.C. § 841(b)(1)(A), and even though the district court made a somewhat vague reference to that statutory provision in its instructions to the jury, those factors did not satisfy Apprendi’s requirement that the jury be told it must find, beyond a reasonable doubt, the quantity of drugs necessary to increase the defendant’s sentence beyond the default statutory maximum of 20 years. The Court also specifically rejected the Government’s contention that there was no “plain error” because the defendant both failed to object to the jury instructions that were given and failed to request a special verdict form on drug quantity - stating that the Government’s argument “imputes to the defendant a non-existent duty”; U.S. v. Phillips, 349 F.3d 138 (3rd Cir. 2003) - Here the Court held that Apprendi does not require the jury to determine the amount of drugs attributable to each defendant in a drug conspiracy, but rather that the jury is required to find, beyond a reasonable doubt, only the total amount of drugs involved in the drug conspiracy as a whole.

Second Amendment: U.S. v. Stewart, 348 F.3d 1132 (9th Cir. 2003) - Here a divided panel held that Congress could not, under the Commerce Clause, prohibit the mere possession of a homemade machine gun. Accordingly, the Court vacated the defendant’s conviction for machine gun possession under 18 U.S.C. § 922(o), but it also affirmed the defendant’s conviction for possession of a firearm by a felon under 18 U.S.C. § 922(g)(1) and rejected a constitutional challenge to that statute, holding that “there is no Second Amendment limitation on ‘legislation regulating or prohibiting the possession of use of firearms’.”


Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court

This Week

Year to Date

Since 1996

Courts of Appeal

50

2,322

18,830

District Courts

21

1,406

 10,344


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