Vol. 11, No. 12
Covering Cases Published in the Advance Sheets through March 22, 2004

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.

Reversal of Drug Conviction Because Expert Strayed From His Expertise

Money Laundering Conviction Reversed Because Evidence Was "Simply Too Thin"

Restitution Award of $728,141 Against Juvenile Offender Upheld

Controversial Qualified Immunity Strip Search Ruling To Be Reviewed

Unpublished Decisions Update

The ongoing battle over the increasing use of so-called unpublished decisions in the Federal courts is again coming to a flash point. Currently, some 80% of all Federal appeals are resolved through the use of unpublished decisions - usually brief and unpolished summary orders that lack much of the detail of the decisions which are “designated for publication” in the Federal Reporter. Presently, four Circuits (the 2nd, 7th, 9th and Federal Circuits) prohibit virtually any citation of unpublished decisions; and some of the other Circuits limit the precedential weight accorded to such unpublished decisions.

This past week, an advisory subcommittee of the U.S. Judicial Conference backed a highly controversial proposal to enact Rule 32.1 of the Federal Rules of Appellate Procedure that would forbid all appeals courts from placing restrictions on the citation of unpublished opinions. Some of the proponents of the new rule argue that unpublished decisions should be available to public scrutiny and citation; and that technological changes have already made most unpublished opinions available online. Some of the opponents to the new rule argue that it will add more work to an already busy case-load; and, they claim, if the new rule is adopted, many courts will simply issue one-line orders, such as “affirmed,” to avoid getting bogged down writing detailed decisions,

While the new Rule still faces a long and tortuous route before being enacted into law, the debate appears to be coming to a head as explained in two recent articles from the Legal Times: “Unpublished Opinions - Inedible Sausage or Crazy Uncle?,” dated April 12, 2004; and “Judicial Conference Group Backs Citing of Unpublished Opinions,” dated April 15, 2004.


U.S. v. Cruz, No. 02-1458 (2nd Cir. 04/02/2004) (Judge Meskill)

In this case the Second Circuit overturned a heroin conviction because a drug agent had been allowed to testify both as a fact witness and as an expert witness, ultimately testifying as to the meaning of the phrase: “I was there to watch someone’s back.” Concluding that the district court’s role in both encouraging and allowing that testimony was “manifestly erroneous,” the Court firmly admonished the lower courts to be “especially vigilant in evaluating the admissibility of expert testimony.”

The defendant, Tommy Cruz, was convicted on an aiding and abetting theory for being a lookout at a drug deal that took place at a Boston Market in Queens. At trial, Special Agent Mark Tully testified about his arrest of Cruz, and about certain statements Cruz made post-arrest. Cruz reportedly stated that he was there to “watch someone’s back” during a “deal,” but he did not know what kind of a deal it was.

Tully was then asked by the prosecutor to explain what he thought Cruz meant by the phrase. After Cruz’ counsel objected to that question, Judge Ross of the E.D.N.Y. suggested that the information could be elicited if the prosecutor first developed Tully’s expertise on drug transactions.

Tully then responded, in part: “In my experience, when narcotics transactions happen like this you have people, lookouts for you. There are people that are out there to watch your back, to make sure” that there are no law enforcement personnel in the area or that no one involved in the drug deal will be double-crossed.”

Evaluating that testimony, the Second Circuit held that Tully - prompted by Judge Ross - had left his area of expertise and had interpreted a phrase that “did not fall within the ambit of drug jargon.” The Court also stressed that the problem with the phrase in question was that it was capable of many different meanings depending on the context, and that there was no evidence that it had a special meaning in the world of narcotics dealing.

“We do not doubt that this phrase describes conduct that may well take place during drug deals; people have repeatedly agreed ‘to watch’ someone else's ‘back’ in the course of narcotics transactions. . . . We do not suggest that the aforementioned phrase could never be characterized as a drug code. We simply hold that the government failed to introduce evidence to demonstrate that the phrase constituted drug jargon with a fixed meaning within the narcotics world rather than a phrase that could have equally referred to activities with no relation to narcotics transactions.”

The Court emphasized that Rule 702 of the Fed.R.Evid. established both the purposes and requirements for the admission of expert testimony, and “[W]hen parties seek to introduce expert testimony in accordance with Rule 702, a district court must serve as a gatekeeper.” The Court explained:

“Although the government may ordinarily call on law enforcement officials to decipher drug jargon, district courts, in their role as gatekeepers, must be ever vigilant against expert testimony that could stray from the scope of a witness' expertise. . . . Where an expert strays from the scope of his expertise, ‘some jurors will find it difficult to discern whether the witness is relying properly on his general experience and reliable methodology, or improperly on what he has learned of the case.’

“District courts must be especially vigilant in evaluating the admissibility of expert testimony where, as here, a law enforcement official is called on to testify as a fact witness but also functions as an expert for the government. Although this type of ‘dual testimony is not objectionable in principle,’ the government confers on law enforcement officials in this position an 'aura of special reliability and trustworthiness surrounding expert testimony, which ought to caution its use.’

“This aura poses a particular risk of prejudice 'because the jury may infer that the agent's opinion about the criminal nature of the defendant's activity is based on knowledge of the defendant beyond the evidence at trial.’

“[W]hen a law enforcement official testifies as both a fact and an expert witness, the danger that his expert testimony will stray from ‘applying reliable methodology and convey to the jury . . . [his] “sweeping conclusions” about [a defendant's] activities’ is particularly acute.” (Internal citations omitted, but citing principally U.S. v. Dukagjini, 326 F.3d 45 (2nd Cir. 2003)).

After holding that the agent’s “expert” testimony should not have been admitted, the Court reviewed the remainder of the evidence for sufficiency, finding it insufficient. Accordingly it reversed Cruz’ conviction and remanded with instructions to enter a judgment of acquittal.


U.S. v. Patrick V., 359 F.3d 3 (1st Cir. 2004) (Judge Coffin)

Before reading this decision, one should read the recent op-ed commentary written by Professors Devah Pager and Jeff Manza of the Institute for Policy Research at Northwestern University, and published in the Chicago Tribune on April 11, 2004. The article, which is posted on our Web site, is entitled “Society Punishes Ex-Convicts for Life.”

It starts: “America punishes its criminals harshly. Beyond rapidly rising rates of imprisonment, offenders leave jail or prison only to be subjected to a variety of continuing restrictions, some lasting for life.” The authors also conclude that many of the restrictions “seem aimed more at extending punishment than serving society.”

The authors have spent a great deal of time studying the state of criminal justice in America. For example, Professor Manza is one of the authors of a forthcoming book, “Locking Up the Vote: Felon Disenfranchisement and American Democracy,” Oxford Press, New York: 2004.

The instant case is a troubling example of the “ignore-rehabilitation and punish-forever” mentality of America’s approach to crimes. In this case, Patrick V., a juvenile, appealed from a judgment of delinquency, in a proceeding under the Federal Juvenile Delinquency Act (FJDA) (18 U.S.C. § 5031-5042), for commission of arson.

Prior to this case, Patrick had no history of delinquent activity or substance abuse; and he had been an honor student. However, in the Court’s view, he was somewhat disturbed emotionally, principally because, at age 10, Patrick had been sexually abused by a camp counselor (who immediately committed suicide when confronted by Patrick’s mother about his crime).

In the summer or 2002, Patrick and a 19-year old “adult” friend (who himself had recently been released from a drug rehabilitation program) introduced Patrick to drugs and alcohol. One night, they broke into one of the buildings of Southern Maine Marine Services, hoping to steal a marine radio to enable them to monitor police communications. Once inside the building, they noticed surveillance cameras, which they attempted to find and disable. When those efforts were unsuccessful, they decided to burn down the building and destroy any evidence of their crime.

They poured gasoline around; and set a fire using a marine flare. They then fled the building. The fire took over six hours to control; and caused property losses in excess of $725,000. The two boys were caught when a box, found at the site of the fire, was traced to them. Patrick was charged with juvenile delinquency for aiding, abetting and committing arson of a building used in interstate commerce in violation of 18 U.S.C. § 844(i).

Patrick ultimately signed a plea agreement, admitting the truth of the charges against him. The district court ordered him detained for 30 months; and it further imposed an obligation to pay restitution, in the amount of $728,141.61, jointly with his co-arsonist (who had been sentenced for five years in a Federal penitentiary), to be paid during the period of supervised release. The district court ordered the restitution, mistakenly believing that it was required to do so, under the provisions of the Mandatory Victim Restitution Act (MVRA), 18 U.S.C. § 3663A.

In fact, the Court explained, “[u]nder the relevant juvenile proceeding section, 18 U.S.C. § 5037, the district court ‘may’ order restitution under 18 U.S.C. § 3556. Once the court chooses this route, § 3556 leaves no further choice, stating that the court ‘shall order restitution in accordance with section 3663A.” (Id., at 9).

Patrick appealed his sentence, arguing that “the rehabilitative purpose of the FJDA requires treatment rather than detention, and weighs against the imposition of restitution.” (Id., at 5).

The Court observed that “the challenge to both the detention and the restitution aspects of the judgment reflect the uneasy tension between the rehabilitation focus of the FJDA and the sterner approach of the more recent [MVRA}. Federal intervention in juvenile proceedings is relatively rare, at least in this circuit, and we find ourselves in a field as yet unploughed.” (Id.).

For the record, the Court presented a lengthy review of the somewhat complex detention provisions of the FJDA; and it concluded that the record was insufficient to permit the Court “to factor in information as to the location and rehabilitative capabilities of the detention facility chosen by the government pursuant to the requirements of 18 U.S.C. § 5039.” (Id.) Accordingly, the case was remanded back to the district court for the limited purpose of making more detailed findings on the detention portion of the sentence.

The more interesting issue, however, was the Court’s discussion and treatment of the restitution issue before it. Patrick had argued, inter alia, that the district court had abused its discretion in this case because “it failed to properly consider Patrick’s financial resources as well as the detrimental effect such a large debt will have on Patrick’s prospects for rehabilitation.” (Id., at 9). He also described his predicament as that of one who “will enter adulthood with a debt unpayable,” which for his whole life will “doom all hope of rehabilitation.” (Id., at 10). He even expanded on that theme by arguing that if he made a yearly payment of $14,000, “over half of the median income of a person in appellant’s shoes,” he would never be able to pay off the debt - and would just carry it to his grave.

While the Court did acknowledge that “the reach of the [MVRA] in the case of juveniles is modest,” it also stated that Patrick’s concerns were “inflated.” It explained:

“Were this predicament a reality, a court might well say that such a burden ruled out any vestige of rehabilitation. But this is far from the reality faced by the appellant. As the government acknowledged at oral argument, and as indicated by the restitution order, the duration of appellant's payment period is the 27 months of supervised release following detention.

“Given the arguably minimal impact of the order (stemming from its limited duration) in combination with the required evaluation of appellant's financial circumstances at the beginning of supervised release, we do not find that the imposition of discretionary restitution "dooms all hope" of rehabilitation. We therefore find no abuse of discretion.” (Id., at 10).

Regardless of the Court’s somewhat dismissive approach towards Patrick’s restitution obligations and their impact on his rehabilitation prospects, we note that the Court never mentioned the provisions of the Federal Debt Collection Procedures Act (FDCPA) (28 U.S.C. § 3001 et seq.), which gives the Government the right to convert an unpaid restitution obligation into a civil judgment, which then becomes a lien on the defendant for a period of at least 20 years from the end of his period of supervised release. (See, e.g., U.S. v. Rostoff, 164 F.3d 63 (1st Cir. 1999)).


“In Brief”

Interstate Agreement on Detainers Act: U.S. v. Kelley, 300 F.Supp.2d 224 (D.Mass. 2003) - This case is noted both as a rare example of a dismissal (albeit without prejudice) of a Federal prosecution for a violation of the anti-shuttling provisions of the complex Interstate Compact on Detainers (IAD), and for its detailed and informative analysis of that law, which creates uniform procedures for the lodging and execution of a legal order or “detainer” on an individual who is currently imprisoned in one jurisdiction to hold him when he has finished that sentence so he can be shipped to and tried by a different jurisdiction for a different crime.

Schoolyard Zone: U.S. v. Haywood, No. 01-4086 (3rd Cir. 04/08/2004) - Stating that, based on the trial record, “only rank conjecture supports a conclusion that [the defendant] knew or should have known” that the bar he robbed was within 1,000 feet of a school zone, the Third Circuit vacated his conviction on the 18 U.S.C. § 922(q)(2)(A) conviction and remanded with instructions to enter a judgment of acquittal on that count.

UNICOR: Coalition for Government Procurement v. Federal Prison Industries, Inc., No. 01-2231 (6th Cir. 04/12/2004) - In this lengthy and highly technical opinion, the Sixth Circuit ruled that the plaintiff private furniture industry had failed to prove that Federal Prison Industries, Inc. (commonly known as UNICOR) had illegally expanded its furniture business over the past decade. The plaintiff group of furniture makers had sued, charging that they were significantly harmed when UNICOR increased its production, in violation of its governing statutes, 18 U.S.C. §§ 4121-4129. UNICOR is the mandatory provider of furniture for most government agencies. The lawsuit comes at a time when UNICOR’s monopoly is under increasing attack. (See, “Senate Tackles Prison-Made Furniture Issue,” by Sarah Kellogg, Michigan Live, April 8, 2004).


Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court

This Week

Year to Date

Since 1996

Courts of Appeal

55

499

19,426

District Courts

36

389

 10,795


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