Vol. 11, Nos. 45 & 46
Covering Cases Published in the Advance Sheets through Nov. 15, 2004

Chutzpah of the Year Award

Koubriti Antiterrorism Conviction Finally Vacated

Pushing Enforcement of the Child Pornography Laws Beyond Their Legal (and Rational) Limits

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U.S. v. Wilson, No. 03-2170 (7th Cir. 12/02/04) (Judge Williams)

We have an early winner of our annual Chutzpah of the Year Award. This year’s winner is Assistant U.S. Attorney James Porter from the S.D.Ill. His shameless bullying and irrational petulance deserve recognition for what they are - an example of astonishing and unmitigated prosecutorial misconduct that defiles the criminal justice system and was, quite simply, nothing more than Imperial Chutzpah.

In 1993, AUSA Porter was the lead prosecutor in a case in which Reginald Wilson was convicted on some drug charges. Nearly a year after he was sentenced to 70 months in prison, the Government moved, pursuant to Rule 35(b) of the Fed.R.Crim.P., to reduce Wilson’s sentence to 46 months based on his post-sentencing cooperation. Although the district court granted that motion, the sentence reduction was never communicated to Wilson or the BOP, due to what the Court described as a “bureaucratic bungle.” As a result, Wilson spent an extra two years in prison for his 1993 conviction.

In November, 2000, while he was serving his term of supervised release on the 1993 conviction, Wilson was again arrested after the police discovered 25 grams of cocaine in his car. The Guideline sentencing range for the new drug charge was 188 to 235 months. In an effort to reduce that sentence, Wilson immediately began to cooperate with the Government in various ways, including by acting as a confidential informant.

Ultimately, Wilson pled guilty to the new drug charge pursuant to a written plea agreement in which AUSA Porter agreed that, based on Wilson’s complete cooperation, the Government would again file a motion, either under U.S.S.G. § 5K1.1 or under Rule 35(b), to reflect Wilson’s new cooperation. The agreement specified that the filing of any such motion was in the sole discretion of the U.S. Attorney; and Wilson agreed to waive his rights to appeal any sentence imposed by the court.

Wilson was represented by Lawrence Fleming of the Federal Public Defender’s Office in connection with the 2000 drug charge. During his representation, Fleming learned that Wilson had spent two extra years in prison in connection with his 1993 conviction. Therefore, prior to Wilson’s sentencing on the 2000 charges, Fleming filed a motion for a downward departure, requesting the court to account for the two lost years that Wilson spent in prison by mistake.

Before filing that motion, Fleming tried on numerous occasions to contact Porter to advise him of the reasons for the downward departure motion - but Porter never returned any of Fleming’s phone calls. Finally, Fleming sent Porter a letter explaining why he was filing the motion for a downward departure.

When Porter received that letter, he exploded. Judge Williams described what followed:

“Porter objected. He wrote Fleming a letter of his own, announcing that he was ‘simply floored’ by Fleming's attempt to secure a downward departure on Wilson's behalf, a move Porter labeled ‘unconscionable.’ And although no term in Wilson's plea agreement can even arguably be read to prohibit Wilson from moving for a downward departure, Porter took the position in his letter that Wilson had breached the plea agreement by filing his motion. Thus, warned Porter, unless Wilson withdrew his motion, Porter would ‘cease any and all cooperation’ with Wilson and suggest to the district court that Wilson be allowed to withdraw his guilty plea so that all matters against him could be ‘reset ab initio for trials or hearings.’ In closing, Porter condemned Wilson's motion as ‘overreaching by a three-time convicted felon’ that made Porter ‘shudder to think’ whether he would be doing his job if he ‘did any less than ensure that Mr. Wilson never gets to see the light of day again given his current situation’."

Fleming himself was “shocked and disheartened” at Porter’s violent overreaction. In an attempt to appease Porter and diffuse his anger, Fleming immediately wrote Porter another letter. He went out of his way to assure Porter that he (Fleming) was not trying to place blame on Porter for the two extra years that Wilson spent in prison. But Fleming also carefully explained that it would not be in Wilson’s best interests to withdraw his guilty plea; and he offered several solutions under which Wilson would receive a fair sentence reduction both for his cooperation and to reflect the two extra years that Wilson had spent in prison, but which would not result in any embarrassment to Porter.

Nothing appeased the enraged Porter. To punish Fleming for his insolence, Porter announced that there would be no § 5K1.1 motion at Wilson’s sentencing. Instead, he offered his own snake-oil proposition: if Fleming would withdraw his motion for a downward departure, Wilson would at least “qualify” for a later-filed Rule 35(b) motion “if he remained willing to cooperate at the government’s request”; and, when and if the Government did file that Rule 35(b) motion, it would graciously agree not to object to Fleming arguing for an additional sentence reduction based on the two extra years that Wilson wrongfully spent in prison.

Probably recognizing that if he didn’t accept Porter’s counter-proposal, he would only antagonize Porter even further, Fleming withdrew his downward departure motion; and Wilson was then sentenced to 188 months in prison.

As the one-year deadline for the Government to file a Rule 35(b) motion approached, a new dispute with the hot-tempered Porter broke out. First, Fleming sent Porter a letter, reminding him that the deadline was approaching. Then, after seeing Fleming’s letter, Wilson decided to send Porter a letter of his own; and in that letter he expressed the view that the Government “was ‘far from remorseful over the miscarriage of justice,’ as evidenced by Porter’s earlier threat to put him ‘in prison for life’ instead of trying to remedy the situation.” He also labeled his letter as a “NOTICE OF INTENT TO INSTITUTE LEGAL ACTION.”

When Porter received both of those letters, he blew his stack again. He wrote to Fleming stating that “the United States intends to do nothing” for Wilson. After further exchanges of letters, Fleming finally filed a motion to compel the Government to file a Rule 35(b) motion. The district court (Judge Reagan of the S.D.Ill.) attempted to broker an agreement between the parties that would result in a reduced prison term of 101 months (some seven years less than the sentence that Wilson had received).

After those negotiations broke down, Judge Reagan denied Wilson’s motion - despite the fact that he found the Government’s stated reasons in defense of its refusal to file the Rule 35(b) motion were “pretextual for the real reason - the government’s desire to use its control over the Rule 35(b) motion as a tool to secure a release from liability for the extra two years Wilson spent in prison on his previous conviction.”

This appeal then ensued; and a visibly upset panel from the Seventh Circuit not only reversed, it remanded the case to a new judge. In reviewing Judge Reagan’s ruling, the Court concluded that he had “cursorily reasoned” that (a) the Government’s reasons for refusing to file the Rule 35(b) motion were “not on par with refusing to file based on a defendant’s race or religion,” the examples cited by the Supreme Court in Wade v. U.S., 504 U.S. 181 (1992); and (b) although the Government’s behavior was “questionable,” it did not amount to “bad faith.”

With blunt and forceful words, the Court stated that Judge Reagan had erred because the Government had “overreached”; that its actions were “so far afield from the purpose of § 5K1.1 and Rule 35(b) as to be irrational”; and that “the government’s refusal to file a Rule 35(b) motion was not rationally related to a legitimate government interest.” It then continued:

“No amount of window dressing can hide the fact that Porter told Wilson in no uncertain terms that the government would not even consider carrying out its part of the bargain unless Wilson accepted the government's new one-sided demand. In sum, the district court concluded that the parties had an independent agreement that the government would act in ‘good faith’ regarding Wilson's Rule 35(b) motion, and by subsequently conditioning its willingness to file on a reason unrelated to Wilson's admittedly satisfactory assistance, the government instead acted in bad faith.”

In honor of Mr. Porter’s outstanding contributions to the field of criminal justice, we are pleased to present him with our annual Chutzpah of the Year Award - which we hope he will hang above his bed next to the “John Ashcroft Prosecutor of the Year Award,” which he is also rumored to have received.


U.S. v. Koubriti, 336 F.Supp.2d 676 (E.D.Mich. 2004) (Judge Rosen)

On September 17, 2004, just six days after the 9/11 terrorist attacks, Attorney General John Ashcroft held a widely-publicized press conference in which he announced the arrest of Karim Koubriti and several associates who were “suspected of having knowledge of the September 11th attacks.”

That statement marked the beginning of The Detroit Terror Case, a case that Ashcroft repeatedly cited and praised as an example of a great victory in America’s continuing war on terror.

Unfortunately, from the outset, the case against the defendants has been racked by turmoil. Much of the Government’s case against the defendants was premised on the testimony of an informant - who has since fled the country. Charges and counter-charges flew between the lead prosecutor and the DOJ; and the lead prosecutor was ultimately removed. Even the head of the FBI’s office in Detroit was “temporarily” recalled to Washington.

The allegations made by Ashcroft at his widely-publicized “I-saved-the-world” press conference turned out to be false and misleading. None of the defendants had any advance knowledge of the 9/11 attacks. (See, e.g., U.S. v. Koubriti, 305 F.Supp.2d 723 (E.D.Mich. 2003) (Koubriti I) (P&J, 04/26/04), where Judge Rosen not only sharply criticized Ashcroft for making that statement when he knew or should have known that it was false, but he also imposed a gag order on Ashcroft to prevent him from continuing to make “potentially prejudicial statements” about the case.

Unfortunately, too, none of the other charges against the alleged Detroit Terrorists had much validity either - although that didn’t prevent convictions of three of the defendants on some of the charges against them in the tense mob-lynching mentality that prevailed in the early aftermath of 9/11.

Still, despite their convictions, the defendants repeatedly denied the charges against them. They argued that the prosecutors had engaged in a “pervasive pattern of outrageous misconduct [that] deprived them of a fair trial and violated the very integrity of the judicial system”; and they moved for a new trial.

Finally, due in part to a courageous, no-nonsense judge, and to some amazing investigative work by press, the Government was forced to re-examine its evidence in this case. Based on that reexamination, the DOJ reluctantly concluded that there was a dearth of solid evidence on almost every aspect of its case; and that the prosecutors had gone out of their way to withhold significant exculpatory evidence from the defendants.

Under relentless pressure from Judge Rosen, the DOJ filed a 60-page Response to the defendants’ motions, confessing error and concurring in their request for a new trial. (See also “Justice Dept. Seeks End to Its Detroit Terror Case,” by Danny Hakim, The New York Times, September 2, 2004.)

In response to those motions, Judge Rosen issued the instant ruling - and that ruling a must-reading for anyone interested in the techniques used by the Government when it prosecutes those it considers to be “terrorists.”

At the outset, Judge Rosen stated that jury verdicts should be disturbed “only upon a court's firmest conviction and belief -- formed after the most searching and comprehensive review of all of the evidence and issues -- that a miscarriage of justice has occurred and a defendant's fundamental constitutional rights violated.” (Id., at 679).

He then continued, chronicling some of the many appalling and astonishing abuses that occurred in this case as the prosecutors raced to achieve a politically important conviction. Because of the significance of what Judge Rosen wrote, we have quoted some of his decision at length:

“As thoroughly detailed in the Government's filing, at critical junctures and on critical issues essential to a fair determination by the jury of the issues tried in this case, the prosecution failed in its obligation to turn over to the defense, or to the Court, many documents and other information, both classified and non-classified, which were clearly and materially exculpatory of the Defendants as to the charges against them. Further, as the Government's filing also makes abundantly clear, the prosecution materially misled the Court, the jury and the defense as to the nature, character and complexion of critical evidence that provided important foundations for the prosecution's case.

“As the Government's filing also makes clear, these failures by the prosecution were not sporadic or isolated. Rather, they were of such a magnitude, and were so prevalent and pervasive as to constitute a pattern of conduct, that when all of the withheld evidence is viewed collectively, it is an inescapable conclusion that the Defendants' due process, confrontation and fair trial rights were violated and that the jury's verdict was infected to the point that the Court believes there is at least a reasonable probability that the jury's verdict would have been different had constitutional standards been met.” (Id., at 680-681).

In trying to explain why and how these many abuses occurred, Judge Rosen said:

“First, the prosecution early on in the case developed and became invested in a view of the case and the Defendants' culpability and role as to the terrorism charges, and then simply ignored or avoided any evidence or information which contradicted or undermined that view. In doing so, the prosecution abandoned any objectivity or impartiality that any professional prosecutor must bring to his work. It is an axiom that a prosecutor must maintain sufficient distance from his case such that he may pursue and weigh all of the evidence, no matter where it may lead, and then let the facts guide him. That simply did not happen here.

“More broadly, when viewed against the backdrop of the September 11 attacks upon our Nation and the public emotion and anxiety that has ensued, the prosecution's understandable sense of mission and its zeal to obtain a conviction overcame not only its professional judgment, but its broader obligations to the justice system and the rule of law.” (Id., at 681).

While Judge Rosen acknowledged the monstrous nature of the 9/11 attacks on America, he also emphasized that “we are a nation that defines itself by laws” and that “our greatest challenge will be to insure that this new threat is confronted in a way that preserves our most fundamental and cherished civil liberties.” (Id., at 680).


In Brief

Blakely Update: Once again, the Supreme Court has disappointed all the Blakely watchers by failing to hand down an early ruling in U.S. v. Booker and U.S. v. Fanfan, the two Blakely cases that were argued on the first day of the Court’s current term. The Court granted certiorari in those two cases at the urging of the Solicitor General, to remedy the “disarray” to the Federal sentencing system in the wake of its decision last June in Blakely v. Washington, 124 S.Ct. 2531 (2004), which struck down a state sentencing system that was similar to the Federal Sentencing Guidelines.

Although the Court has issued opinions in eleven other cases argued in the current term, its failure to resolve the profound and extensive legal questions raised by Blakely suggests that there may be sharp divisions among the Justices about what to do with the Guidelines. Some commentators have also suggested that Chief Justice Rehnquist’s illness may have caused the delay; and that, without his participation, the other Justices may be evenly split. The next scheduled decision day for the Supreme Court is January 11, 2005; but there can be no assurance that the Court will hand down decisions in Booker and Fanfan on that date.

There have already been more than 600 reported lower court decisions involving Blakely; but those cases are only the tip of the iceberg. In his oral argument before the Court, the Solicitor General estimated that there are 1,200 sentencings a week in the federal system alone - so the potential impact of the Blakely logjam is huge and it could already impact tens of thousands of Federal sentences.

 

Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court

This Week

Year to Date

Since 1996

Courts of Appeal

81

2,128

20,955

District Courts

43

1,269

 11,671


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