Vol. 11, No. 17
Covering Cases Published in the Advance Sheets through April 26, 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.

Second Circuit Rejects Attack on the Presumption of Innocence

Attorney General Ashcroft Sanctioned For Violating "Gag Order" in terrorist Case

Supreme Court

Resident Alien Permitted to Withdraw Guilty Plea Because He Was Not Advised of Deportation

White House Counsel Memo Re: The Geneva Convention

We have posted on our Web site a copy of a revealing memorandum to the President by White House Counsel Alberto R. Gonzales, dated January 25, 2002 entitled “Decision Re Application of the Geneva Convention on Prisoners of War to the Conflict With Al Qaeda and the Taliban.” In that Memo, Mr. Gonzales suggests that the war against terror "renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.” He acknowledged that this approach would generate “widespread condemnation” throughout the world, but he assured the President that such condemnation could be overcome by assuring the world of America’s commitment to treat prisoners humanely and, “to the extent appropriate and consistent with military necessity, in a manner consistent with” the Geneva Convention.


U.S. v. Koubriti, 305 F.Supp.2d 723 (E.D. Mich. 2003) (Judge Rosen)

For a long time, this case was the shining star in the Department of Justice’s orbit. Just six days after the September 11, 2001 terrorist attacks, a terrorism task force arrested three of the four defendants in this case - all foreigners of Middle Eastern origin. Those arrests were a public relations dream come true. Properly used, they could help assure an emotional and nervous nation that a vigilant Government was in charge.

And that is precisely what happened. From the outset, the DOJ did everything possible to capitalize on this case. Even though, as Judge Rosen observed, “the Government has never alleged, either at the outset or at any other point in these lengthy proceedings, that these Defendants had any connection whatsoever to the terrorist attacks on New York and Washington, D.C.” (id., at 728), the Government continuously fed the media stories connecting the defendants to the 9/11 attacks. In fact, the desire for favorable publicity became so intense that one of the indictments in this case “was leaked to the media before it had been returned by the grand jury.” (Id., at 725, n. 1).

Against that background, defense counsel became increasingly concerned about the challenges of ensuring the defendants a fair trial. As a result, they quickly moved for a gag order regulating all public statements by the parties and their attorneys. On October 23, 2001, Judge Rosen granted the Order which prohibited the public disclosure of information or opinion that had a reasonable likelihood of interfering with a fair trial or otherwise prejudicing the proceedings. (As a matter of interest, in a decision reported at 307 F.Supp.2d 891 (E.D.Mich. March 8, 2004), Judge Rosen recently extended the life of his pre-trial gag order to cover the period required to consider the defendants' motion for a new trial.)

After that order was signed, Judge Rosen noted that:

“[s]ome lamentable incidents did arise, however, and two of the more serious of these directly involved this Nation's highest law enforcement official, United States Attorney General John Ashcroft. Specifically, the Attorney General referred to this case at two separate press briefings in Washington, D.C., once near the outset of this case [and eight days after the Order was entered] and again in the middle of the trial. In the first instance, Attorney General Ashcroft erroneously stated that the three Defendants arrested on September 17, 2001 were ‘suspected of having knowledge of the September 11th attacks.’ On the second occasion, the Attorney General referred to a cooperating Government witness who had just completed his trial testimony, opining that this individual's testimony had ‘been of value, substantial value’ to the Government.” (Id., at 725).

The defendants raised contemporaneous and strenuous objections to those two incidents; but, in general, Judge Rosen elected to defer the ultimate disposition of those matters until after the trial, “in order to avoid disruption of pretrial preparations and the conduct of the trial itself.” (Id.)

The case finally went to trial; and the Government did secure some convictions - although not on the grand scale that had been promised. One defendant was acquitted on all charges. A second was convicted solely on a document fraud conspiracy charge. The remaining two defendants were convicted on both document fraud conspiracy and some terrorism-related charges that had nothing to do with 9/11. (Id., at 736).

After the trials were completed, the defendants renewed their efforts to punish General Ashcroft for violating the terms of the gag order, by seeking to have him held in contempt for violating the Federal contempt statute, 18 U.S.C. § 401, by disobeying or resisting a lawful order of the Court.

In considering that motion, Judge Rosen recognized his duty to “stand behind [his] orders and apply them equally to all, without regard for station or title.” (Id., at 726). Then, after a detailed review of the facts and the law, Judge Rosen concluded as follows:

“For the reasons stated below, the Court finds that the Attorney General's public statements about this case violated the terms of the Court's Order regarding communications . . . . The Court further determines, however, that there is insufficient evidence of willful misconduct or prejudice to the rights of Defendants to warrant the drastic and constitutionally problematic measures of instituting criminal contempt proceedings against the Attorney General or compelling him to appear at a hearing and give testimony concerning his actions.

“Nevertheless, in light of the particular circumstances surrounding the Attorney General's conduct, . . . the Court finds that it cannot simply ignore repeated violations of its Order. The Attorney General's Office exhibited a distressing lack of care in issuing potentially prejudicial statements about this case, one of which came after senior Justice Department officials were directly and expressly advised by the Court, on two separate occasions, that the Order had been entered and would be strictly applied to all, including the Attorney General and his staff.

“Despite his unquestioned duty to address the Nation on matters of public concern, and his more specific responsibility to keep the Nation informed of the Justice Department's efforts in the war on terror, the Attorney General has an equally vital and unyielding obligation, as the Nation's chief prosecutor, to ensure that defendants are accorded the fair trial guaranteed to them under our Constitution. In this case, this essential balance was jeopardized, even after the Court had issued specific warnings. Accordingly, the Court finds that a public and formal judicial admonishment of the Attorney General is the appropriate sanction to address this concern.”


U.S. v. Singh, 305 F.Supp.2d 109 (D.D.C. 2004) (Judge Walton)

In this decision, Judge Walton may have given some new life to an old and somewhat dormant issue: namely, whether an alien who pleads guilty to an aggravated felony is entitled to withdraw his plea if he is not advised that, as a result of his plea, he faces absolute, non-discretionary deportation.

The defendant, Philip Singh, a 40-year old citizen of Guyana, has legally resided in the United States for 30 years. He was charged with embezzling monies from a hospital where he worked as a materials buyer. He pled guilty in 1991 to mail fraud involving more than $10,000 in cash, and he agreed to forfeit more than $110,000 in cash, a Lexus automobile, and the equity in two Virginia residences. During his plea hearing, the judge who accepted his plea told Singh that his conviction could result in his deportation. Singh also alleged that he was informed by the AUSA before he pled guilty that mail fraud was not a deportable offense; and that, at the sentencing hearing, the AUSA told him that he would be entitled to a “meaningful hearing” before he could be deported. (Id., at 113)

After he learned that he was facing “absolute, non-discretionary deportation” (id., at 110) because his crime is deemed to be an “aggravated felony” under the immigration laws, Singh sought to withdraw his plea on a number of grounds. He argued principally that his Rule 11 plea hearing was defective, and that his plea was not voluntary, because he was not properly informed that he would be absolutely subject to deportation; and he cited a number of cases in support of that proposition, including Kercheval v. U.S., 274 U.S. 220, 223 (1927), where the Supreme Court stated that a guilty plea “shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences.” (Emphasis added).

The Government opposed the motion. It argued that it is well-settled that the immigration consequences of a guilty plea are merely collateral consequences of that plea; and as such are not an essential component of the plea colloquy. It argued that the defendant’s argument was precluded by U.S. v. Russell, 686 F.2d 35, 39 (D.C.Cir. 1982) where the D.C. Circuit held that “Rule 11 does not require informing a defendant of the possibility of deportation. . . . As a result, it has frequently been held that defendants are not entitled to withdraw pleas under Rule 32(d) [now Rule 11(d)] merely because they misunderstood the possible consequences for deportation.”

Russell was built on two court-created fictions that have been accepted by most courts when dealing with challenges similar to those made in the instant case. The first such fiction was to create an artificial distinction between the “direct” and the “collateral” consequences of a plea; and then to hold that, while a defendant must be told of the “direct” consequences of his plea to ensure that the plea is voluntary, he need not be advised of any of the “collateral” consequences, no matter how onerous they may be.

Judge Walton noted that even the Russell court acknowledged the difficulty of defining with any clarity and precision the demarcation line between “direct” and “collateral” consequences of a plea. In Russell, the Court noted that “like many of the lines drawn in legal analysis,” distinguishing a collateral versus a direct consequence of a criminal conviction “is obvious at the extremes and often subtle at the margin.” (Russell, id., at 38).

The second court-created fiction used in Russell was simply to redefine the meaning of the word “consequences.” In that case, the court held that deportation is not really a “consequence” of a conviction that needs to be brought to the attention of the defendant because it is not “punishment.” Although acknowledging that “deportation may result ‘in loss . . . of all that makes life worth living’,” the Russell court stated that "[i]t is well settled that deportation, while it may be burdensome and severe for the alien, is not a punishment.” (Russell, id.)

In deciding the case before him, Judge Walton declined to adopt the defendant’s “sweeping proposition” that that recent changes in the immigration laws (which make deportation a certain, rather than a discretionary, consequence of an aggravated felony), require the court to reject the old rule that deportation is merely a “collateral” consequence of a conviction and to treat deportation as a “direct” consequence of the conviction.

Nevertheless, Judge Walton did agree that Singh was entitled to withdraw his plea because he concluded that there was a clear misunderstanding in this case as to the deportation consequences of the defendant’s guilty plea. In reaching that conclusion, Judge Walton noted that the Russell court had specifically identified three factors to be considered when considering whether to permit a defendant to withdraw a plea after the sentence has been imposed. The first factor is the strength of the defendant’s reason for withdrawing the plea, including whether the defendant is asserting his innocence. The second factor is whether the Government would suffer any prejudice “as a result of the defendant’s untimely request to stand trial.” And, third, the court “must consider whether the defendant's misunderstanding of the collateral consequences of the plea is the result of misleading statements by governmental authorities or the defendant's own ignorance." (Id., at 112-113).

While he concluded that neither of the first two Russell factors were particularly determinative in this case, Judge Walton did agree that Singh had made a compelling case on the third factor for the purposes of showing a manifest injustice: “[Singh] was clearly misled into believing that [deportation] was a mere possibility, as compared to an absolute certainty.” (Id., at 115). Thus, even though Singh was not professing his innocence (and even though it seems improbable, based on the facts recited in this decision, that Singh would fare any better at a trial), Judge Walton concluded that Singh’s motion to withdraw his plea ”must be granted on the ground that his plea was not knowingly and voluntarily entered.” (Id., at 115).

In sum, the court’s decision is a timely review of the law on a topic that is constantly coming before the courts as the Government’s unending efforts to rid America of all aliens convicted of aggravated felonies (no matter what the consequences on the families left behind) hums along at breakneck speeds.


Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court

This Week

Year to Date

Since 1996

Courts of Appeal

38

684

19,611

District Courts

27

506

 10,912


Copyright © 2004 Punch and Jurists, Ltd.