Vol. 12, No. 17
Covering Cases Published in the Advance Sheets through Apr. 25, 2005

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.

Booker

Bifurcation of Juries in Federal Capital Cases Held to Be Improper

Money-laundering Count Dismissed Due to the Absence of Any Illegal "Proceeds"

Proximate Causation Not Required to Sentence a Defendant for a Drug-Related Death

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We have included in this week’s issue special coverage of two far-reaching and highly controversial bills that are wending their way through Congress with little or no debate - namely the “Gang Deterrence and Community Protection Act of 2005," and the “Real ID Act of 2005."
We urge our readers to stay abreast of both of these pieces of legislation and, where appropriate, to advise their legislators of their opposition to both bills.


Booker Boxscore
Past Week's New Decisions -  105 Total Since Jan. 12, 2005 -  1023

U.S. v. Booker - Update

We passed another milestone this past week - as the number of lower court decisions (published and unpublished) interpreting the Supreme Court’s landmark sentencing decision in U.S. v. Booker, 125 S.Ct. 738 (Jan. 12, 2005) passed 1,000 - reaching 1,023. All those cases are listed in alphabetical order on our special Booker Resource Center, together with links to the full text and summaries of all the significant Booker decisions for each Circuit, listed separately by Circuit. The Supreme Court also chimed in by vacating the sentences imposed in another 28 cases, and remanding those cases for reconsideration in light of Booker. Thus, to date the Supreme Court has remanded a total of 715 cases based on Booker - a case that it decided only four months ago.

Perhaps the most significant Booker-related event last week was the passage in the House of H.R. 1279 - the bill that is deceptively entitled the “Gang Deterrence and Community Protection Act of 2005." Because that bill could have a major impact on Federal sentencing process, we have included a separate analysis of it below. However, lest there be any doubt that one of the main purposes of that bill is to commence a legislative assault on Booker, we note the following language from pages 15-16 of the Report issued by the House Committee on the Judiciary in the in support of H.R. 1279 (House Report No. 109-74, May 5, 2005), which pointedly states:

“The Supreme Court's recent Booker decision has eviscerated long-standing and effective sentencing policies adopted by Congress as part of the Sentencing Reform Act of 1984. The evidence is starting to come in, and the picture is not a good one. Federal judges have begun to hand out sentences below the guideline recommended range, citing the discretion they now have under the Booker decision. The Sentencing Reform Act of 1984 was designed to provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted disparities among defendants with similar records who have been found guilty of similar criminal conduct. Sentencing judges have started to deviate, and some have announced even prospectively that they intend to do so in more cases. Given the elimination of an effective determinate sentencing guideline system, Congress will need to act quickly in certain areas by imposing mandatory-minimum sentences to protect the public, particularly when it comes to violent gang crimes. . . .”

On the Judicial front, clearly the most colorful of the new rash of Booker decisions was Judge Kopf’s often amusing ruling in U.S. v. Bailey, 2005 U.S. Dist. LEXIS 8918 (D.Neb. May 12, 2005). In this highly fact-specific case, Judge Kopf granted a downward departure and imposed a non-prison sentence on a 37 year old father who was convicted of possessing on his computer files containing child pornography.

In granting that departure, Judge Kopf eschewed the use of the so-called “parsimony provision” of the sentencing statutes, namely, 18 U.S.C. § 3553(a) (which calls upon judges to impose a sentence “not greater than necessary” to achieve the purposes sent forth in paragraph (2) of that statute) as the justification for the imposition of a “wimpy sentence.” Poking fun at those who have advocated the use of that phrase “as the motivating factor for sentences outside the Guidelines,” he suggested that the phrase “dissolves into meaninglessness.”

Swearing undivided loyalty to the now-advisory Guidelines, Judge Kopf also expressed the view that the sentencing ranges called for by the Guidelines “while certainly not elastic, are not as rigid as we make out.” Then, emphasizing that family ties and responsibilities “are not ordinarily relevant” in determining whether a departure is warranted, he justified the departure in this case by focusing on the welfare of “a particularly vulnerable child [who] was uniquely dependent upon the defendant” - her father.

In a closing footnote, Judge Kopf also included a pitch for Congress to have the "mature wisdom to wait . . . a reasonable period of time (say three years)" before responding legislatively to Booker. An alternative course, he said, could be unseemly: "By acting precipitously, Congress reinforces the (unjustified) image of a bunch of blood-starved cave dwellers looking for a fight. Sometimes one can win by waiting."

Another case of note was Judge Marrero’s decision in U.S. v. Cosimi, 2005 U.S. Dist. LEXIS 8900 (S.D.N.Y. May 11, 2005). The defendant, Pietro Cosimi, was one of 17 defendants charged with a conspiracy to smuggle the illegal drug “Ecstacy” into the United States. On December 3, 2004, he signed a plea agreement in which he and the Government stipulated to an offense level of 25, which corresponded to a stipulated sentencing range of 57 to 71 months in prison. In the plea agreement, the Government promised that it would not prosecute Cosimi any further charges arising out of his activities in the conspiracy; and Cosimi in turn committed to accepting the validity of the stipulated sentencing range, and to forego seeking any relief that may have otherwise been available to him under the Guidelines.

On April, 18, 2005, shortly before his scheduled sentencing, Cosimi’s counsel, David Lewis of New York City, submitted a Sentencing Letter to the Court, in which he argued that, as a result of the Supreme Court’s decision in U.S. v. Booker, the Court was no longer mandated to adhere to the Guidelines and could impose a non-Guidelines sentence below the stipulated sentencing range of 57-71 months. Accordingly, Lewis argued that, based on all of the factors enumerated in 18 U.S.C. § 3553(a), the Court could even properly sentence Cosimi to time served.

The Government was infuriated. It immediately filed a motion seeking to find Cosimi in breach of the terms of his plea agreement; and seeking to hold a Fatico hearing in order to establish facts that would enhance Cosimi’s sentence.

The sole issue before the Court was “whether Cosimi's calling to the Court's attention the authority that exists after Booker to permit imposition of a non-Guidelines sentence, and his advocacy for a non-Guidelines sentence pursuant to that authority, represent a breach of his pre-Booker plea agreement.”

After an extended (and interesting) discussion and analysis of the law, Judge Marrero rejected the Government’s contention that Cosimi had breached his plea agreement; and stated emphatically:

“Lewis was professionally obligated, as Cosimi's attorney and an officer of the court, to call to the Court's attention the changes wrought by Booker. The Sentencing Letter, in stating that the Court ‘must consider more than the Guidelines alone’ when sentencing Cosimi, accurately states the new law: Booker mandates that a court consider all of the factors listed in Section 3553(a), not merely the sentencing range produced by the Guidelines, in determining a defendant's sentence. This consideration is intended to be conceptually different from, and to take place subsequent to, the Court's Guidelines analysis.” (Internal citations omitted).


U.S. v. Green, No. 05-1014 (1st Cir. 05/12/05) (Judge Selya)

In this decision, the First Circuit reversed Judge Gertner's compelling landmark rulings in U.S. v. Green, 343 F.Supp.2d 23 (D.Mass. Nov. 03, 2004), P&J 10/11/04 (“Green I”) (Order Re: Bifurcation) and 348 F.Supp.2d 1 (D.Mass. Dec. 29, 2004) (“Green II”) (Additional Findings Re: Bifurcation), which directed that two juries be empaneled in this capital case, one, a “non-death-qualified” jury to hear the guilt phase, and the other, a “death-qualified” jury to hear the penalty phase, if necessary.

In Green I and II, Judge Gertner observed that, before a jury is chosen to consider guilt, prosecutors have the right to challenge and disqualify any potential juror who opposes capital punishment and would be unable to vote to put a convicted defendant to death. Relying on statistical evidence submitted by defense counsel, she noted that two factors - “the large percentage of African-Americans who are opposed to the death penalty and the disproportionately small number of African-Americans in the Eastern District of Massachusetts jury venire” effectively excluded all or most African-Americans from a death-qualified jury.

She thus found that purging such jurors produces a panel that is disproportionately white and male and more likely to convict defendants, stating: “Updated data presented by the defendants in this case overwhelmingly shows that death-qualified jurors are significantly more conviction-prone than jurors who are not death-qualified.”

While she conceded that the defendants had no constitutional entitlement to a non-death-qualified jury, she concluded that one provision of the Federal Death Penalty Act, to wit, 18 U.S.C. § 3593(b)(2)(C), permitted her to empanel two separate juries, because that statute gave her the right to discharge a jury “for good cause.” She also concluded that: “Death penalty qualification hinders my responsibility to facilitate, to the best of my ability, a fair trial on guilt. It provides an additional ‘good cause’ justifying bifurcating the juries in the trial of the capital defendants before me.”

The Government, arguing that separate juries would create enormous fiscal and logistical burdens on it, sought a writ of mandamus to invalidate Judge Gertner’s two-jury order. The First Circuit agreed with the Government’s position, granted a writ of advisory mandamus, and vacated the dual jury order.

Essentially, the Court ignored Judge Gertner’s contention that death-qualified jurors are more conviction-prone than jurors who are not death-qualified; and focused primarily on the statutory construction of § 3593(b). It concluded that “our task is to attempt, as best we can, to follow Congress’ prescription, not endeavor to improve upon it.” It also held: “The bottom line is this: where Congress has provided a specific panoply of rules that must be followed, the district court’s discretionary powers simply do not come into play.”

Based on those principles, the Court held that Judge Gertner’s reading of the statute “contradicts the structure of the statute by turning the ‘good clause’ language, clearly written in the form of an exception, into a threshold question to be posed at the time of the original jury empanelment in every case.”

Despite this ruling, we suspect that, should the defendants in the instant case be convicted of any capital offenses, it is likely that the conclusions relied upon by Judge gertner will be raised again by defense counsel. For the record, we also note that so far only one other Circuit has addressed this issue. In U.S. v. Williams, 400 F.3d 277 (5th Cir. Feb. 14, 2005) (P&J, 01/24/05), the Fifth Circuit reversed a similar order of bifurcation that had been issued by Judge Vanessa Gilmore.


H.R. 1279 - The “Gang Deterrence and Community Protection Act"

Last week, the House passed, by a wide margin (279 to 144), a bill which, it trumpeted, would give the Government sweeping new RICO-type powers to fight street gangs. The new legislation, H.R. 1279, has one of those “must pass” names - namely, the “Gang Deterrence and Community Protection Act of 2005" - designed to assure that no one would dare to vote against it - even if it authorized rape and pestilence as the national pastime.

Bandying statistics designed to make American cities look like veritable war zones, the sponsors of H.R. 1279 described a society in which more than 25,000 violent gangs operate “in more than 3,000 jurisdictions”; a society in which we have “750,000 to 850,000 criminal gang members” committing every conceivable sort of mayhem and violence; and a society in which “law-abiding members of communities are prisoners in their own homes in fear of being caught in the cross-fire of gang violence.”

Not content with such hyperbolic outbursts, Congressman Forbes of Virginia even boldly stated that if the criminal gang members in the United States were an army, “it would be the sixth largest army in the world,” “equipped to do guerrilla warfare,” and that “they’re cutting off people’s arms, they’re cutting out the larynxes of individuals, they’re murdering people, they’re raping people, and they’re spreading all across the country.”

We admit that we don’t know what it’s like to live in Chesapeake, Virginia (where Congressman Forbes hails from), but it sure sounds like it may actually be safer to live in Baghdad!

The truth is that those alarmist statistics are more a product of political hype than an intensifying public safety threat. Many of the claims are belied by a recent Justice Department survey of gang activity which noted that “the estimated number of gang members between 1996 and 2002 decreased 14 percent, and the estimated number of jurisdictions experiencing gang problems decreased 32 percent.” (See, “Highlights of the 2002 National Youth Gang Survey,” U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention Fact Sheet, April 2004.)

While truth often takes a back seat in Congress, the ruse was so obvious that the Miami Herald accused the House of looking to "respond to the menace of immigrant gangs in the United States with headline-grabbing legislation that does little to cure the problem but looks good in a campaign ad." (See, "Anti-Crime Hysteria in the U.S. Congress," an Editorial, The Miami Herald, May 12, 2005.)

Behind the propaganda is a sinister political agenda to enact legislation that would dramatically expand Federal jurisdiction over a broad category of crimes previously left to the states; that would raise mandatory minimum sentencing for a wide range of loosely-defined crimes; and that would start the legislative assault on the much-hated concept of judicial discretion at sentencing.


H.R. 418 - The Real ID Act of 2005

Also coursing its way through Congress is another lollapalooza of a bill that probably couldn’t pass on its own, so once again it has been tacked on to a “must-pass” piece of legislation bill to make sure that no member of Congress would dare to oppose it. The bill in question is the “Real ID Act of 2005" - and it has been added to an appropriations bill to provide funds for our troops in Iraq and Afghanistan.

The New York Times quickly saw through the charade and commented on the “sneaky business” behind this bill. In an Editorial on May 4, 2005 entitled “An Unrealistic ‘Real ID’,” the Times wrote:

“What Congress is doing . . . is to ram through a bill that turns state-issued driver's licenses into a kind of phony national identity card through the mislabeled ‘Real ID' provision. And in order to make absolutely sure there's no genuine debate, the sponsors have tied it to a crucial bill providing funds for American troops in Iraq and Afghanistan. Attaching a bad bill to a vital one is a sneaky business, making it nearly impossible for thoughtful members of Congress to vote against it. In this case, in order to provide financial support to American troops doing dangerous service abroad, lawmakers are stuck also supporting a plan that eliminates the chance of doing anything serious about identity security.”

Because of the underhanded manner in which it has been proposed, the Real ID Act will likely be enacted without being scrutinized by any hearings or debate.

Practically speaking, starting three years from its enactment, the Real ID Act will require everyone who lives or works in the United States to carry a Federally approved, electronically readable ID card. If you don’t have one, you won’t be able to travel on an airplane, open a bank account, collect Social Security payments, or take advantage of nearly any government service. We don’t yet know what information will be stored in the ID card; the Department of Homeland Security (the same group that gave us color codes), will be authorized to make that determination.

But one this is certain: the new ID card will be tantamount to a national identity card and a "show us your papers" society. The Real ID Act will also force the states to link their databases - containing every licensed driver’s personal information - with other states and with Canada and Mexico. The act includes no guidelines as to who will have access to that information. Congressman Ron Paul has already warned that the Real ID Act “establishes a national identity card” - and he’s a Republican - from Texas!

The American Civil Liberties Union has attacked this sweeping legislation as one that rolls back asylum laws, attacks immigrants and sets the stage for a national ID. For example, the act goes against international law and allows government officials to demand written "corroboration" from those seeking asylum. Thus, for instance, a Chinese woman seeking asylum after being forced to have an abortion could be required to obtain proof of her abuse from the doctors who performed the procedure.

For a detailed analysis of some of the legal problems with this bill, see "The Real ID Act - How It Violates U.S. Treaty Obligations, Insults International Law, Undermines Our Security, and Betrays Eleanor Roosevelt's Legacy," by Noah S. Leavitt, FindLaw's Writ, May 9, 2005.

 

Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

td>
Court
This Week
Year to Date
Since 1996
Courts of Appeal
32
707
21,894
District Courts
32
457
12,271

 


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