Vol. 12, No. 5	Covering Cases Published in the Advance Sheets through Jan. 31, 2005

Booker

• The Supreme Court’s landmark decision in U.S. v. Booker continues to command the nearly full-time attention of most of the Federal courts; and they are pouring out Booker-related decisions at an unprecedented rate - even though we still haven’t had a single published ruling of significance from the First, Third, Fifth and D.C. Circuits.

  It is also interesting to note that, out of the first 173 reported post-Booker decisions (all of which are listed on our Website at www.ussguide.com/members/BulletinBoard/Booker/index.cfm), 66 of those rulings (or 38% of the total) were unpublished dispositions that may not be cited for precedential purposes. The courts are just not making it easy for defendants and defense counsel to file appeals based on Booker.

  In the meantime, we continue our practice of highlighting some of the more significant of the Booker events during the past week.

Joint Defense Agreements

• The LeCroy decision from the E.D.Pa. Is noted for Judge Baylson’s detailed review and analysis of the legal principles governing joint defense agreements (JDAs). In this case he concluded that certain notes and interviews were not protected by the attorney-client privilege and/or the JDA at issue because the defendants had “voluntarily and knowingly” waived the protection of the JDA by ceding to the employer-party to the agreement the right to turn over certain interview notes to the Government, “if the government pushed.”

CCE Capital Case - Trifurcation of Jury Proceedings Ordered

• With one of his signature super-sized decisions, Judge Bennett of the N.D.Iowa has entered the fray of death penalty litigation in the Johnson case. Responding to the Government’s efforts to seek the death penalty for Angela Johnson for her alleged participation in a “continuing criminal enterprise” in violation of 21 U.S.C. § 848, Judge Bennett has ordered three separate juries - one for the merits phase, one for the eligibility phase, and one for the penalty phase.

Batson Challenge Upheld

• In a case that is a testimonial to the persistence and hard work of defense counsel, the Third Circuit, in Brinson, finally granted habeas relief to Curtis Brinson, some 20 years after he was convicted of murder. The Court agreed that Brinson had clearly established a prima facie case that the prosecutor had violated the Equal Protection Clause by peremptorily striking 13 potential jurors on account of race; and, in its detailed review of the facts and the law, the Court noted, inter alia, that the prosecutor had made a videotape in which he advocated the use of peremptory challenges against African-Americans.
  

With some notable exceptions, the lower courts continue to churn out an amazing number of rulings interpreting various aspects of the Supreme Court’s landmark sentencing decision in U.S. v. Booker, 125 S.Ct. 738 (Jan. 12, 2005). The notable exceptions, of course, are the First, Third, Fifth and D.C. Circuits, which so far have not jumped into the fray with any published decisions of significance.

According to the Third Circuit Blog at http://circuit3.blogspot.com/, the Third Circuit has begun sending out orders in cases pending on direct appeal that direct counsel who wish to raise a Booker challenge to do so in a letter of 750 words or less. The order further requires that the letter "must succinctly state the factual and legal basis of the challenge. The letter may not contain argument. Cf. Fed R. App. P. 28(j). . . . Further briefing will be permitted only at the court's direction."

Among the most notable of the new Booker developments during the past week were the following:

U.S. v. Ameline, 2005 U.S. App. LEXIS 2032 (9th Cir. Feb. 9, 2005) (Judge Paez)

Since we reported on this case last week (P&J, 01-24-05), the Government has filed a motion to defer disposition of all pending direct criminal appeals presenting Booker claims pending resolution of the government's petition for rehearing en banc; and it has asked the full court to expedite consideration of the decision whether to rehear this case en banc. Copies of the Government’s motions and information about the latest status of this case are available on the Ninth Circuit Blog at http://circuit9.blogspot.com/.

U.S. v. Biheiri, 2005 U.S. Dist. LEXIS 2322 (E.D.Va. Feb. 9, 2005) (Judge Ellis)

Although this decision is dated Feb. 9, it was not posted on LEXIS until late last week. It relates to the sentencing of an Egyptian convicted of terrorism financing; and it is noted principally for Judge Ellis’ detailed discussion and analysis of some of the sentencing questions not answered in Booker. For example, he noted that:

“neither reached nor addressed in Booker is the question of the proper weight to be accorded to the Guidelines results in the sentencing calculus under § 3553(a): Are the Guidelines entitled to ‘heavy weight,’ as one district court has ruled, or is a less deferential approach warranted, as another has concluded? Compare United States v. Wilson, F. Supp. 2d , No. 2:03-CR-882 PGC (D. Utah. Jan. 13, 2005) (‘heavy weight’) with United States v. Ranum, F. Supp. 2d , No. 04-CR-31 (E.D. Wis. Jan. 19, 2005) (noting inconsistencies between Guidelines and § 3553(a) factors). Also not reached or decided in Booker is the somewhat more subtle question whether the Sentencing Guidelines ‘range’ to be considered in the § 3553(a) sentencing calculus is the range determined by the base offense level, reflecting only what the jury found, or the range determined by the adjusted or final offense level, reflecting also the sentencing judge's determinations as to enhancements, departures, and downward adjustments. Cf. United States v. Hughes, ___ F.3d ___, No. 03-4172, slip op. at 13-17 (approving use of a sentencing range based on the final offense level, but the question was neither squarely presented nor explicitly addressed). Nor is this an unimportant point, for it is easy to see that if the final offense level sentencing range is used as the § 3553(a) factor and also accorded ‘heavy weight,’ the result might well be precisely what Booker condemned, namely the sentencing of a defendant on the basis of Sentencing Guidelines factors found by a judge by a preponderance of the evidence, rather than by a jury beyond a reasonable doubt. See Booker, 125 S. Ct. at 756.”

Under the facts of the instant case, Judge Ellis only addressed the first question - namely, the “weight” to be accorded to the Guidelines; but even on that isolated issue, Judge Ellis raised a lot of interesting questions. For example, in focusing on the various enumerated factors contained in 18 U.S.C. § 3553(a) that sentencing courts must now consider, he made the following thought-provoking observations:

“Section 3553 does not elucidate what is meant by ‘unwarranted disparities.’ It is unclear, for example, whether disparities arising between federal circuits as a result of local legal cultures are ‘unwarranted.’ The resilience of such local cultures is illustrated by a comparison of federal sentencing statistics across different regions. Such statistics reflect that the Guidelines have been quite successful in reducing intradistrict and intra-circuit disparities, but considerably less effective with respect to inter-circuit disparities. For example, the statistics reflect that the rate of downward departures attributable to factors other than substantial assistance is generally below 10% in the Fourth Circuit and 4% in Virginia, whereas the rate for the same downward departures exceeds 54% in the Southern District of California and 60% in Arizona. See 2002 SOURCEBOOK OF FEDERAL SENTENCING STATISTICS, Appendix B. The latter rate may, of course, be attributable to a high volume of cases involving illegal aliens. Also worth noting are the obvious and well-publicized disparities in sentences imposed in the federal and state systems, which, of course, the federal Sentencing Guidelines are powerless to affect in any direct manner.”

In the end, Judge Ellis imposed a sentence of thirteen months and one day (far less than the Government was seeking), stating: “Because Biheiri will be deported to Egypt immediately following his release from confinement, the goals of protecting the public and providing rehabilitative opportunities are of little import in the instant circumstances. And, while it may appear that a longer sentence is appropriate given Biheiri's involvement in terrorist financing, the principle that a defendant should only be punished for the offenses of conviction as provided by law commands that this involvement should not drive the sentence.”

* * * Non-Booker Issues * * *

U.S. v. Johnson, No. CR 01-3046-MWB (N.D.Iowa 02/18/05) (Judge Bennett)

This is another in a recent line of cases in which courts have held that the defendant in a capital case is entitled to more than one jury - a concept that the Government is fighting tooth-and-nail. (See, e.g., Judge Gertner’s recent decision in U.S. v. Green, 343 F. Supp. 2d 23 (D. Mass. 2004), appeal filed, No. 05-1014 (1st Cir., Jan. 27, 2005) (P&J, 10/14/04)).

In the instant case, in a typically huge 122-page opinion that has become his trademark, Judge Bennett ordered the “trifurcation” of the jury proceedings in this case where the Government was seeking the death penalty for Angela Johnson for her participation in a “continuing criminal enterprise,” in violation of 21 U.S.C. § 848. Her motion sought different juries for the following phases of her trial:

“(1) a ‘merits phase’ on the elements of the capital offenses; (2) a ‘gateway phase’ on the ‘gateway factors’ for imposition of the death penalty; and (3) a ‘weighing phase,’ involving any other aggravating and mitigating factors.”

Several of those terms were derived from Johnson’s motion papers, which consistently referred to the Federal Death Penalty Act, 18 U.S.C. §§ 3591-98, as the governing statute in this case. However, Judge Bennett, somewhat caustically, observed that “this case does not involve any capital offenses under the Federal Death Penalty Act; instead, it involves capital offenses under 21 U.S.C. § 848.”

Then, despite chastising Johnson for her use of a “generic ‘canned’ brief,” he granted her motion to separate the jury proceedings into three phases as follows:

Phase I: Merits - for a determination of guilt or innocence on the § 848 offenses;
Phase II: Eligibility - for a determination of the factors required for Johnson to be “eligible” for the death penalty; and
Phase III: Penalty - for a determination of the appropriate penalty, requiring determination of (a) non-statutory aggravating factors, (b) mitigating factors, and (c) the balance of all other factors required to “recommend” a life or death sentence.

In his decision, Judge Bennett acknowledged that his solution was unique, stating:

“[N]otwithstanding that § 848 expressly provides for a ‘bifurcated’ proceeding, and there is no constitutional requirement for proceedings in a different form, the court concludes that § 848(j) permits, and the circumstances in this case require, that the proceedings in the case be ‘trifurcated,’ as described above.”

We assume that this decision will be appealed promptly.

Brinson v. Vaughn, No. 02-4466 (3rd Cir. 02/08/05) (Judge Alito)

On April 28, 1986, two days before the Supreme Court issued its landmark ruling in Batson v. Kentucky, 476 U.S. 79 (1985), jury selection began in the trial of Charles Brinson, an African American, for a murder that took place a year earlier in the bathroom of a Philadelphia nightclub. The state prosecutor, one Jack McMahon, “exercised fourteen peremptory challenges, thirteen for blacks,” even though he “seldom, if ever, questioned blacks prior to exercising his peremptory challenges.”

As the Court explained:

“In Batson, the Supreme Court set out a three-step procedure for determining whether a prosecution violated the Equal Protection Clause by peremptorily striking potential jurors based on race. First, the party asserting the claim must make out a prima facie case. . . . In order to do this, the party must point to facts that "raise an inference" that a challenged strike was based on an impermissible ground. . . . Second, if a prima facie case is established, the party who exercised the challenge must "come forward with a neutral explanation." . . . Third, if a neutral explanation is offered, the trial judge must make a finding as to whether the contested peremptory was based on an impermissible ground.” (Internal citations omitted).

Later, the Pennsylvania Superior Court rejected Brinson’s Batson claim on the equally unsupported ground that “where the victim, the perpetrator and witnesses are black, a prima facie case of racial discrimination is not present under Batson.”

By the time Brinson had exhausted his state remedies and turned to the Federal courts, he picked up two powerful assets. He had the good fortune of having Norris Gelman of Philadelphia appointed as his counsel; and he discovered a prosecutorial training session videotape entitled “Jury Selection with Jack McMahon,” in which his prosecutor “advocated the use of peremptory challenges against African Americans.” After that tape was released, Brinson filed a motion requesting that the district court take judicial notice of the new evidence.

Still facing a criminal justice system that rarely (and only reluctantly) ever gives a defendant a second chance at reversing a conviction, the district court (Judge Fullam of the E.D.Pa.) concluded that Brinson “had failed to establish a prima facie case under Batson.”

The Third Circuit reversed, stating that “the explanations given by the state trial and appellate courts were all ‘contrary to’ Batson, or at least represented an unreasonable application of that precedent.” It also strongly disagreed with Judge Fullam’s conclusion that “Brinson’s attorney did not point to facts that made out a prima facie case,” stating that “the pattern of strikes alleged by the defense is alone sufficient to establish a prima facie case under the circumstances present here.” Thus, the Court concluded:

“We hold that the state courts' rejection of Brinson's Batson claim without proceeding to the second step of the Batson analysis cannot be sustained under 28 U.S.C. § 2254(d)(1). We therefore reverse the order of the District Court and remand. On remand, the Commonwealth should be given the opportunity to provide legitimate reasons for any strikes against African Americans. If it is unable to provide such explanations, Brinson will be entitled to habeas relief. If the Commonwealth is able to provide nondiscriminatory reasons for the strikes, then the District Court will be required to make findings as to whether the strikes were based on race.”

In Brief

Guideline Departures - Family Circumstances: U.S. v. Manasrah, 347 F.Supp.2d 634 (E.D.Wisc. 2004) - Although this is a pre-Booker Guideline case dealing with a downward departure based on family circumstances (a ground that U.S.S.G. § 5H1.6 says is “not ordinarily relevant” in determining whether the sentence should be outside the sentencing range called for by the Guidelines), it is a sentencing decision by Judge Lynn Adelman. Not only is he one of the nation’s leading jurists on sentencing issues, his decisions are always logical, imaginative and compassionate - a rarity in a system that eschews logic, imagination and compassion. In many ways, decisions such as this will take on ever greater significance in the post-Booker Guidelines era than they did when the Guidelines were mandatory.

The defendant, Inam Manasrah (“Inam”) immigrated to the United States from the West Bank with her husband Munir in 1991. Her father arranged her marriage to Munir. As Judge Adelman explained, because Inam had a limp from a childhood foot injury, she was considered “damaged goods.” (Id., at 636). Therefore, her father “gave her away” to a man with mental health problems. Despite those mental problems, Munir was able to father six children, ranging in age from two to sixteen. He was, however, abusive to his wife and children, both physically and verbally; and he refused to participate in caring for the children.

Crammed into a small two-bedroom apartment in New York City, Inam (who speaks no English) fell prey to a company that offered her money if she would cut coupons from newspapers delivered to her home. The coupons were picked up by others and fraudulently redeemed. Somehow, in its infinite wisdom, the mighty U.S. Government sought to prosecute Inam for wire fraud based on her participation in what was apparently an illegal coupon redemption scheme.

Inam pled guilty; and her Guideline sentencing range called for her to spend at least five months in prison. The brave and mentally unbalanced Munir threatened that, if Inam went to prison, he would take the children to the West Bank to live with his parents; and not allow Inam to see her children ever again.

Based on those facts, Judge Adelman granted a two-level departure, based on family circumstances, so he could impose a sentence of probation, with a condition of home confinement. He commented, simply: “Imprisonment would cause both defendant and her children to suffer inordinately. Their circumstances are extraordinary, far worse than those faced by a defendant-parent and her children in the usual case.” (Id., at 638). We wonder how many other judges would have had the courage and compassion of Judge Adelman in the face of pressure from an all-powerful and unforgiving Government?

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