Vol. 11, No. 39	Covering Cases Published in the Advance Sheets through Sept. 27, 2004

• The Chandler case is a striking example of the ease by which the Government can sweep up targets in a conspiratorial net and obtain multiple convictions. In this case, the Government charged some 50 defendants with conspiring to commit mail fraud by submitting “illegitimate” game stamps to McDonald’s in a series of promotional games. After 47 of the defendants pled guilty, four decided to fight. They went to trial and lost - but, on appeal, the Eleventh Circuit reversed and vacated their convictions. It found “a complete failure of proof as to the charged conspiracy” - a finding that even the Government reluctantly conceded on appeal (not that its concession mattered very much: after all the Government already had its 47 convictions!).

The Government's Intransigent Stonewalling of the Rights of its Enemy Detainees

• The evidence continues to mount that the Administration really has no serious intention of according any rights to its military detainees - no matter who tells it to do so or what the consequences. In the Al Odah case, JudgeKoller-Kotelly of the D.D.C. sharply rebuked the Government for its virtual open defiance of the Supreme Court’s ruling in Rasul v. Bush (where the Court held that the Guantanamo Bay detainees have the right to challenge the legality of their detention) by using subterfuge, a “flimsy assemblage of arguments,” and openly belligerent delaying tactics to deny them their rights. The press has also begun uncovering a long trail of evidence that shows the extreme efforts the Administration took to adopt secret and repressive methods of dealing with the detainees to assure that they were kept out of sight and away from the jurisdiction of the International Red Cross and the American courts.
  

The New Google Desktop Search Engine

If you are fed up with Windows Explorer (Microsoft’s wimpy and ineffective tool that pretends to let you search your hard-drive for files you have lost or misplaced), try the new Google Desktop Search tool. It's terrific: not only does it let you search the files on your hard drive, you can also search any web page you’ve ever seen, any e-mail you’ve ever opened, and the transcript of any instant-message chat you’ve had. Best of all, the program is free; and its easy to install and use.

So far, the Google Desktop Search is only available in a beta format; and thus right now it only works with Microsoft’s Internet Explorer browser. In addition, the e-mail searches are currently limited to e-mails received through Microsoft Outlook or Outlook Express. But we are certain that Google will continue to expand the capabilities of this great new tool.

To find out more about this new product, read "Google Takes On Your Desktop," by David Pogue, The New York Times, October 21, 2004.

Notice to Subscribers

The next issue of P&J will be published in two weeks. Hopefully by that time the results of the Presidential elections will be known.

U.S. v. Chandler, No. 03-10725 (11th Cir. 10/19/04) (Judge Hill)

Federal prosecutors must have been delirious with excitement when they first learned about this case: with its almost endless supply of defendants all across the country, it had the potential of becoming the mother-lode of all Federal prosecutions. Even Attorney General John Ashcroft, at one of his now-standard pre-conviction, "they're already-guilty" press conferences called to announce simultaneous arrests in Florida, Georgia, Indiana, Wisconsin, South Carolina and Texas, complemented the FBI and the U.S. Attorney’s Office in Jacksonville, FL for their extraordinary work in breaking up this criminal “conspiracy.” With support like that, the case was a natural career-maker for any ambitious AUSA!

This case began back in 1995, when McDonald’s started a series of promotional games that could be played at its 29,000 restaurants. The games were played by visiting the restaurants, purchasing food, and collecting “game stamps,” some of which were winners that could be redeemed for substantial cash prizes. McDonald’s employed Simon Marketing Inc. to develop, manage and advertise the games. Jerome Jacobson was the Director of Security for Simon, with responsibility for disseminating the high-value stamps.

Seizing the opportunity to make a ton of money, Jacobson stole a lot of the high value stamps, and then gave them to ten friends, relatives and other “recruiters.” The recruiters, in turn, found “winners” to submit the stolen winning game stamps, collect the prize money, and share the proceeds with Jacobson. In the end, the promotional games produced hundreds of winners all across the country - some from the Jacobson group, but many from people who just traded for game winning stamps.

Once McDonald’s learned about Jacobson’s fraud, the FBI was called in; and ultimately the Government brought a series of high-profile cases against defendants all across the country. In the instant case, it charged some 50 defendants in a 62-page indictment with conspiracy to commit mail fraud. (So powerful is the force of a Federal indictment that 47 of the defendants just gave up and pled guilty; even though at least 14 of those who pled guilty testified that they pled guilty “despite the fact that they did not know that the game stamps they redeemed had been embezzled.”)

Four of the defendants (the appellants in this case) decided to fight and went to trial. The costly trial lasted over three weeks, at the end of which they were convicted on all counts. This direct appeal then followed.

On appeal, the defendants alleged numerous errors of law; but the essence of their claims was that the Government had failed to prove the elements of the charges against them - namely that they had conspired to commit mail fraud in violation of 18 U.S.C. § 1341. That statute makes unlawful two separate acts: (a) using the mails to devise a scheme to defraud; or (b) using the mails to obtain money or property by means of false or fraudulent pretenses, representations, or promises.

In this case, the Government charged that each of the four defendants had committed both of the acts proscribed by § 1341. Specifically, it charged a single conspiracy with two unlawful objects - “to steal the game stamps, and to redeem them by representations amounting to criminal fraud.”

Unfortunately (for the Government), both theories were fatally flawed. The Eleventh Circuit concluded that there had been a “complete failure of proof” on both of the charges the charges asserted; and that there was neither a scheme to defraud nor any fraudulent misrepresentations.

No Scheme to Defraud. The Court emphasized that, “under Federal conspiracy law, the government must allege and prove that the defendants knowingly entered into an agreement to commit an unlawful act.” In this case, however, the Government never even attempted to prove that there was a knowing agreement between the defendants and Jacobson to commit an illegal act - arguing instead that “such knowledge was irrelevant to proof of the charged conspiracy.”

The Government was forced to make that novel “knowledge-is-irrelevant” claim because it couldn’t prove any knowing “scheme” between Jacobson and the four defendants. To avoid detection, Jacobson had made sure that none of the defendants were even aware of the overall secret scheme. He set up a classic “hub-and-spoke” conspiracy in which he was the hub and his recruiters and winners formed the various spokes; but there was nothing to link Jacobson with any of the other defendants.

At his own trial, Jacobson had even testified that not one of his “recruiters” knew any of the others, or even about his own theft of the game stamps; and none of the winners knew of Jacobson, or his theft of the game stamps. Jacobson was the only conspirator in the hub, and when he moved from spoke to spoke, he moved alone. The Supreme Court has characterized such a conspiracy as a “rimless wheel” because there is no rim to connect the spokes to a single scheme. (See, Kotteakos v. U.S., 328 U.S. 750 (1946)).

Based on those facts, the Court explained that “since no one can be said to have agreed to a conspiracy that they do not know exists, proof of knowledge of the overall scheme is critical to a finding of conspiratorial intent.” Then, after reviewing the evidence, it held that the convictions of the four defendants for engaging in a scheme to defraud were errors “of constitutional proportions” and had to be vacated.

No Fraudulent Representations. The Government also concocted the theory that the defendants had conspired to represent themselves fraudulently as “legitimate winners” by checking a box on the McDonald’s prize redemption form to indicate that they had obtained their winning game stamps through legitimate channels. The Government argued that there were only three “legitimate” ways to acquire the game stamps: (1) by purchasing a food item with a game stamp attached; (2) by writing to McDonald’s and requesting a food stamp; or (3) by cutting a food stamp out of a magazine or newspaper; and it contended that none of the defendants had obtained their game stamps under any of those alleged “legitimate” circumstances.

The flaw in that argument was that there was nothing in the game rules that supported the Government’s contention. As the Court explained: “Although conceding that no rule specifically prohibited the transfer of a game stamp from one person to another, the government contended that the acquisition of a game in this way would not be through an ‘authorized, legitimate channel,’ and, therefore, any subsequent claim to be a ‘legitimate’ winner would be criminally fraudulent.”

That inventive theory of criminal liability blithely ignored the facts of the case: not only were there no rules prohibiting the transfer of game stamps from one person to another, the Government’s own witnesses testified that game stamps were publicly traded, including on e-Bay and McDonald’s own website; and a McDonald’s representative testified that game players could transfer stamps “to anyone - including the stranger in the next booth - prior to sending the piece to McDonald’s.”

Based on those facts, the Court concluded that “[i]n the absence of any explicit prohibition of transfer, and in view of the evidence that such transfers were publically tolerated by McDonald's, only if defendants redeemed game stamps that they knew were stolen could it be said unequivocally that they knew that they were not ‘legitimate’ winners, since it is a crime to receive stolen property. Absent such proof, we do not think that representations to McDonald's that may have violated the rules of its games could form the basis for a criminal prosecution.”

As a fitting statement of its overall view of the bona fides of this case, the Court observed:

“This trial clearly demonstrates the inherent danger in a multi-defendant conspiracy prosecution - that individuals who are not actually members of the group will be swept into the conspiratorial net. Because the government is permitted broad prosecutorial discretion to prove the conspiracy, the likelihood exists that those who associate with conspirators will be found guilty of a crime that they have not intended to commit, and part of a group that they never joined.”

Judge Learned Hand once described the Federal criminal conspiracy laws as "the darling of the modern prosecutor's nursery." (Harrison v. U.S., 7 F.2d 259, 263 (2nd Cir. 1925)). Years later, Judge Friendly referred to the crime of criminal conspiracy as "that elastic, sprawling and pervasive offense whose development exemplifies . . . the tendency of a principle to expand beyond the limit of its logic - and perhaps beyond." (U.S. v. Borelli, 336 F.2d 376, 380 (2nd Cir. 1964)). This case is a shining example of both of those views.

Al Odah v. U.S., Civ. No. 02-828 (D.D.C. 10/20/04) (Judge Kollar-Kotelly)

In an unusually stern and hard-hitting ruling, Judge Kollar-Kotelly lashed out at the Administration’s transparent efforts to skirt recent Supreme Court rulings by continuing to deny the detainees at the Guantanamo Bay Naval Base access to the courts and to effective assistance of counsel. She emphasized that the Supreme Court’s decision in Rasul v. Bush, 124 S.Ct. 2686 (2004) had made clear that her Court had jurisdiction “to hear petitioners’ habeas corpus challenges to the legality of their detention.”

The instant case, involving the claims of three Kuwaiti nationals, is one of the many cases involving the approximately 560 detainees who are being held incommunicado at Guantanamo Bay. The specific issue before the Court were complaints filed by those three petitioners about a series of monitoring and review procedures that the Government attempted to impose as a condition of attorney-client visits.

The petitioners argued that several of those procedures were improper, including the audio and video real time monitoring of attorney-detainee meetings and a post hoc "classification review" of any notes taken during those meetings and legal mail between counsel and detainees. The Government argued that those restrictions were necessary because the detainees were particular risks - even though they have never been charged with any crimes.

After a hearing, Judge Kollar-Kotelly ruled that “the Government is not entitled to unilaterally impose procedures that abrogate the attorney-client relationship and its concomitant attorney-client privilege covering communications between them.” She accused the Government of attempting to erode the “bedrock principle” of attorney-client privacy with “the most slender legal support” and a “flimsy assemblage” of arguments.

She then noted that the detainees “have been detained virtually incommunicado for nearly three years without being charged with any crime. To say that Petitioners’ ability to investigate the circumstances surrounding their capture and detention is ‘seriously impaired’ is an understatement. The circumstances of their confinement render their ability to investigate nonexistent.” She continued that it was impossible for the detainees “to grapple with the complexities of a foreign legal system and present their claims to this court” without attorneys, access to a law library and fluency in English.

She concluded that the Government’s proposed procedures “inappropriately burden” the attorney-client relationship, and that any national security considerations could be addressed in other ways. Thus, she ordered the Government to allow the detainees to meet with their lawyers, and she ruled that the Government cannot monitor their conversations.

In Brief

The BOP and Halfway House Placement: In Goldings v. Winn, 383 F.3d 17 (1st Cir. 2004) (P&J, 08/16/04), the First Circuit became the first Court of Appeals to address the BOP’s controversial two-year old policy of denying inmates placement in halfway houses for the lesser of six months or the final 10% of their sentences - and it held that the BOP’s interpretation of the law was erroneous and invalid. Now, two more Circuits have now chimed in on the same topic. In Elwood v. Jeter, No. 04-2253 (8th Cir. 10/18/04), the Eighth Circuit agreed with Goldings, and held that the BOP’s new policy is based on an erroneous interpretation of 18 U.S.C. §§ 3621(b) and 3624(c) and is invalid; and that the statute imposes an affirmative obligation on the BOP to take steps to facilitate a smooth re-entry for prisoners into the outside world.

The Seventh Circuit took a far narrower - and patently pointless - approach in Richmond v. Scibana, No. 04-2264 (7th Cir. 10/19/04). There the Court held that a federal prisoner cannot use a habeas petition under 28 U.S.C. § 2241 (which is what most of the successful cases have been brought under) to challenge the refusal to consider him or her for more than 10% CCC placement, but must instead bring a civil action under the Administrative Procedures Act to challenge the policy itself, which (the Court said) would require exhaustion of remedies, however futile, under the PLRA. Inmates simply don’t have the legal training, the resources or prowess that is available to the BOP when dealing with lawsuits to correct an injustice; to force them to leap through futile legal hoops before the courts will even listen to the merits of their claims is not only pointless, it questions the Court’s sincerity and accentuates the incredibly tall mountains that inmates must climb to achieve justice.

Guidelines - Downward Departures: U.S. v. Jones, 382 F.3d 403 (3rd Cir. 2004) - Here the Third Circuit affirmed that district courts have the authority, at least in principle and under appropriate circumstances, to grant departures under U.S.S.G. § 5K2.0 for substantial assistance that a defendant renders to branches of the Government other than those that engage in prosecutorial activities - so long as the assistance does not involve “the investigation or prosecution of another person who has committed an offense,” which it emphasized is the exclusive province of the Government under U.S.S.G. § 5K1.1.

U.S. v. Phillips, 382 F.3d 489 (5th Cir. 2004) - Here the Fifth Circuit joined every other Circuit in holding that the exclusive routes for departures below any applicable mandatory minimum sentence are (a) departures pursuant to 18 U.S.C. § 3553(e), (i.e., in cases where the Government moves for a departure based on a defendant’s substantial assistance); and (b) departures pursuant to 18 U.S.C. § 3553(f), (i.e., in cases where the so-called “safety valve” departure is available). Thus it specifically rejected the defendant’s claim that the district court could impose a sentence below the mandatory minimum under the general language of U.S.S.G. § 5K2.0, as interpreted by the Supreme Court in Koon v. U.S., 518 U.S. 81 (1996).

Searches - Vehicle Checkpoints: Collins v. Ainsworth, 382 F.3d 529 (5th Cir. 2004) - Sheriff Frank Ainsworth of Copiah County, MS just doesn’t like live rock concerts in his county: in his mind, they produce “excessive noise, profanity and trash.” So, when he heard that the rap group 2 Live Crew was coming to his county, he bluntly told the producers that he didn’t want the concert to take place. When those efforts failed, he set up roadblocks and vehicle checkpoints on two roads leading to the concert. He directed his deputies to make arrests for any criminal infractions they discovered when the cars were stopped. Ultimately, some 70 to 80 people were arrested - most on the charge of illegal possession of beer - and they were held overnight on Sheriff Ainsworth’s orders. The roadblocks achieved Sheriff Ainsworth’s goal: the concert never took place.

The concert’s producers and a number of the people arrested brought a civil rights action against numerous County officials, including Sheriff Ainsworh, for damages, alleging, inter alia, violations of their First, Fourth and Fourteenth Amendment rights. The district court (Judge Wingate of the S.D.Miss.) denied the defendants’ motions for summary judgement on qualified immunity grounds. On appeal, the Fifth Circuit reversed that ruling as to some of the defendants, but agreed that Sheriff Ainsworth was not entitled to qualified immunity on the Forth Amendment claims against him.

The Court concluded that his decision to set up the vehicle checkpoints constituted “seizures” under the Fourth Amendment; that they had an “impermissible programmatic purpose” - namely to discourage the concert from taking place; and that any “objectively reasonable officer would or should have known that discouraging a First Amendment-protected musical performance” would not constitute a violation of the Fourth Amendment under clearly established law. (Id., at 544).

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