Vol. 12, Nos. 19 & 20	Covering Cases Published in the Advance Sheets through May 16, 2005

Booker

• The torrid pace of Booker-related decisions continued last week, as the lower courts produced another of 248 new decisions - raising the total since January 12, 2005 to an astonishing 1391 reported Booker decisions (both published and unpublished). The big news was the Ninth Circuit’s 103-page, en banc decision in U.S. v. Ameline, where a sharply divided court essentially agreed, by a vote of 7-to-4, to apply the limited remand approach to Booker appeals used by the Second, Seventh and D.C. Circuits. The dissenting judges accused the majority of choosing the short, easy, and quick fix to the mountain of Booker appeals - but said that solution was neither correct nor just.
  

Supreme Court

• In Andersen, the Supreme Court unanimously overturned the criminal conviction for obstruction of justice of the now nearly defunct auditing giant, Arthur Andersen LLP, because of faulty jury instructions on the destruction of audit documents related to the Enron scandal. The Court held that the jury instructions “failed to convey properly the elements of a ‘corrup[t] persuas[ion]’ conviction" under a federal witness tampering statute, 18 U.S.C. § 1512(b)(2).
  
  
• In Cutter, the Supreme Court unanimously reversed a Sixth Circuit decision which held that section 3 of the Religious Land Use and Institutionalized Persons Act of 2000 (commonly referred to s “RLUIPA”) facially violated the Establishment Clause, thereby upholding Congress' power to require officials of state and local prisons and jails to find ways to allow inmates to practice their religious beliefs.
  

Ninth Circuit Debates Propriety of Permitting the Grand Jury to Consider Jury Nullification

• In Navarro-Vargas, a majority of the en banc Court rejected a claim that the model grand jury instructions violate the Fifth Amendment by undermining the independence of the grand jury; while Judge Hawkins argued, in a brilliant dissent, that the challenged instructions constituted a real and substantial impediment to the regular functioning of the grand jury as envisioned by the Constitution.

The Federal Death Penalty Act - The Debate Continues

• In Green, Judge Gertner continued her judicial assault on the death penalty procedures set forth in the Federal Death Penalty Act, by barring the Government from presenting to the petit jury, as aggravating factors, allegations of prior, unrelated crimes that were not charged in the indictment and that have never been adjudicated in any setting.

Extending the Applicable Statutes of Limitation in Sex Offense Cases

• In Jeffries, the Eighth Circuit held that an extension of the applicable statute of limitations period before the prosecution was barred under the existing limitations period did not violate the ex post facto clause.

U.S. v. Booker - Update

The number of lower court decisions interpreting the Supreme Court’s landmark sentencing decision in U.S. v. Booker, 125 S.Ct. 738 (Jan. 12, 2005) continues to amaze most observers. Last week there were 248 new Booker-related decisions (published and unpublished) - bringing the total to 1,391 since Jan. 12, 2004. We continue to maintain a complete listing of all those cases (in alphabetical order) on our special Booker Resource Center on the Internet, together with links to the full text and summaries of all the significant Booker decisions for each Circuit, listed separately by Circuit.

One development of note during the past week was the report by Prof. Douglas Berman, the reigning Booker guru, about one aspect of the DOJ’s post-Booker appellate strategies. Prof. Berman noted on his Website that one senior DOJ official recently stated that, as a matter of course, the DOJ plans to appeal five types of sentencing decisions in every instance: (1) any sentence with a variance of straight probation; (2) any sentence with a variance based on crack/powder cocaine disparity; (3) any sentence with a variance based on fast-track disparity; (4) any sentence with a variance based on comparison to state sentencing laws; and (5) any sentence with a variance based on substantial assistance in the absence of a 5K letter.

Certainly the most significant of the many new Booker decisions was the Ninth Circuit’s long-awaited en banc decision in U.S. v. Ameline.

U.S. v. Ameline, 2005 U.S. App. LEXIS 10030 (9th Cir. June 1, 2005) (en banc) (Judge Rawlinson)

In U.S. v. Ameline, 400 F.3d 646 (9th Cir. Feb. 9, 2005) (Ameline I) (P&J, 01/24/05), a three-judge panel from the Ninth Circuit held that the defendant’s sentence - which was imposed prior to the Supreme Court’s decision in U.S. v. Booker, 125 S.Ct. 738 (Jan. 12, 2005) - violated the Sixth Amendment and constituted reversible plain error warranting a remand for resentencing. In effect, the panel adopted a “presumption of plain error” standard when analyzing Booker errors - a position that was subsequently adopted in principle by the Third, Fourth and Sixth Circuits.

The Government strongly objected, claiming that the decision was “analytically flawed” and “seriously” misapprehended the Supreme Court’s plain error jurisprudence. It also predicted that the decision would have “profound and potentially destabilizing consequences for the administration of the criminal justice system, particularly in [the Ninth] Circuit, where district judges impose more Guidelines sentences per year than any other Circuit.”

The Ninth Circuit quickly decided to vacate Ameline I and to grant a rehearing en banc. In this lengthy 103-page decision, a majority of the en banc Court adopted a compromise position that had not been requested by either the Government or the defendant. Essentially, the majority adopted a “limited remand” approach, thus aligning itself with the Second, Seventh and D.C. Circuits. By a vote of 7-to-4, it held that:

“when we are faced with an unpreserved Booker error that may have affected a defendant's substantial rights, and the record is insufficiently clear to conduct a complete plain error analysis, a limited remand to the district court is appropriate for the purpose of ascertaining whether the sentence imposed would have been materially different had the district court known that the sentencing guidelines were advisory. If the district court responds affirmatively, the error was prejudicial and failure to notice the error would seriously affect the integrity, fairness and public reputation of the proceedings. The original sentence will be vacated by the district court, and the district court will resentence the defendant. If the district court responds in the negative, the original sentence will stand, subject to appellate review for reasonableness. See Booker, 125 S. Ct. at 769. In essence, we elect to follow the approach adopted by the Second Circuit in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005).”

Writing for the majority, Judge Rawlinson reasoned: “If we decline to find out what the district court knows unless the defendant can make a showing of something over which he had no control, the defendant will surely feel abused, with some justification, and everyone will be left to wonder about whether the sentencing court might have acted differently.”

Judge Wardlaw, who both concurred in part and dissented in part, accused the majority of placing administrative concerns above the interests of justice. She chided the majority for its ruling, stating that “while at first blush it may be enticing to an overworked and overscrutinized bench to rid ourselves of hundreds, perhaps thousands, of appeals, we may create much more work for ourselves down the road than if we had simply done it right in the first place.” She then continued: “We will have removed several appeals from our own crowded docket by requiring the district courts to further crowd theirs, as they do our job. Although the burden-shifting approach the majority arrives upon may be ‘short,’ ‘easy,’ and ‘quick,’ it is neither correct nor just.”

She also complained that the majority’s solution meant that defendants won’t get the opportunity to be heard, stating: “The majority fails to explain how, without an evidentiary hearing and briefing tantamount to resentencing by normal vacatur and remand procedures, a district judge could ever accurately answer the question as to whether he would have imposed a materially different sentence had he known that the Guidelines were advisory.”

While this decision may have left a lot of key issues up in the air, it will certainly break the log-jam that has existed in the Ninth Circuit, where an estimated 700 Booker appeals have remained in limbo since the Court withdrew its decision in Ameline I. The Court’s decision may also give further impetus to the Supreme Court to resolve the Circuit split that exists on the proper way to determine whether a Booker error warrants a remand for resentencing.

Arthur Andersen LLP v. U.S., No. 04-368 (U.S. Sup. Ct. May 31, 2005) (Justice Rehnquist)

In this unanimous ruling, the Supreme Court overturned the criminal conviction of Arthur Andersen LLP “Andersen”), the once powerful and venerable accounting giant. Anderson was the auditing firm for Enron, the high-flying Houston energy conglomerate whose convoluted financial accounting practices led to its meltdown in 2001 and to a surge of high-profile Federal white collar prosecutions. Andersen was convicted of obstruction of justice under a witness tampering statute for “corruptly persuading” staff members to destroy documents before the Securities and Exchange Commission had formally opened an investigation into Enron’s affairs.

With surprising bluntness, the Supreme Court held that the jury instructions given in the case were too vague and too broad for jurors to determine correctly whether Andersen had obstructed justice. Writing for the Court, Justice Rehnquist wrote that those instructions

“simply failed to convey the requisite consciousness of wrongdoing. Indeed, it is striking how little culpability the instructions required. For example, the jury was told that, ‘even if [petitioner] honestly and sincerely believed that its conduct was lawful, you may find [petitioner] guilty.’ The instructions also diluted the meaning of ‘corruptly’ so that it covered innocent conduct.”

The criminal statute at issue, 18 U.S.C. § 1512(b)(2), applies to anyone who “knowingly uses intimidation or physical force, threatens, or corruptly persuades another person . . . with the intent to . . . cause or induce any person to . . alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding.”

The Government argued that Andersen had violated § 1512(b)(2) when it shredded documents in response to an e-mail sent by Nancy Temple, a lawyer for Andersen, who reminded employees of the firm’s policy of routine document shredding. Numerous documents were destroyed until the SEC formally notified Andersen, some three weeks later, that it was under investigation.

At trial, Government attorneys urged the district court to charge the jurors that Andersen could be found guilty under § 1512(b)(2) if they found that Anderson had sought to “impede” a government proceeding. Accepting the Government’s position, the district court instructed the jury that Andersen could be convicted even if it “honestly and sincerely believed that its conduct was lawful” and without proof of any nexus between the document destruction and any particular official proceeding. The instructions also stated that an improper purpose, for this case, was “an attempt to subvert, undermine, or impede the fact-finding ability of an official proceeding.” After receiving these instructions, the jury convicted Andersen of obstruction.

On appeal, Andersen argued that the jury instructions did not accurately reflect the elements of the crime. In a decision reported at U.S. v. Andersen, 374 F.3d 281 (5th Cir. 2005), the Fifth Circuit held that these instructions did not misinterpret the statute; and it affirmed the conviction of Andersen.

The Supreme Court reversed, holding that held that the jury instructions failed to define what it means to “knowingly . . . corruptly persuade” someone to destroy documents. The Court noted that persuading someone to withhold information from the Government is “not inherently malign,” giving the example of advice to invoke one’s rights under the Fifth Amendment. The Court also emphasized that it is not “inherently malign” to withhold documents from the Government “under ordinary circumstances” - as the Government had suggested.

The Court identified two specific flaws in the jury instructions. First, the Court held that the instructions “failed to convey properly the elements of a ‘corrupt persuas[ion]’ conviction under § 1512(b).” Not only did the instructions fail to define “corruptly” as “dishonesty,” the Court noted that the instructions permitted a conviction if prosecutors could simply show that Andersen had sought to “impede” a Government proceeding - even though the Government conceded, at oral argument, that the word “impede” has broader connotations than “subvert” or “undermine,” and that many of those connotations “do not incorporate any ‘corrupt[ness]’ at all.”

Second, the Court held that the jury instructions were flawed because they did not require the jury to find any nexus between the document destruction at issue and any particular official proceeding in which the documents would have been required to be produced. It stated: “A ‘knowingly … corrup[t] persaude[r]’ cannot be someone who persuades others to shred documents under a document retention policy when he does not have in contemplation any particular official proceeding in which those documents might be material.”

Clearly, the decision represents an unusually blunt and rare slap in the face of the prosecutorial arm of the Government for overreaching. During oral argument, even Justice Scalia described the Government’s theory of this case as “weird.” On the other hand, the decision did nothing to alleviate the enormous hardship wrecked on thousands of innocent lives as a result of the Government’s overreaching.

The conviction was a death sentence for Anderson; and, as anyone could have predicted, it forced the once proud and prestigious firm to shut down and dismiss its 85,000 employees world-wide. (See,e.g., "Over Before It Started," by Joseph A. Grundfest, The New York Times, June 14, 2005, which noted that Prosecutors played judge and jury in Andersen's fall.) Such is the power and the lure of career making, high-profile prosecutions - even when they are “weird.”

Cutter v. Wilkinson, No. 03-9877 (U.S. Sup. Ct. May 31, 2005) (Justice Ginsburg)

In another unanimous decision, the Supreme Court upheld a five-year old federal law that requires state and local prison officials to lift unnecessary governmental burdens imposed on the religious exercise of institutionalized persons under their control - even if the religious observances at issue are rooted in atypical beliefs like polytheism, Satanism and white supremacy. In so ruling, the Court rejected challenges by Ohio officials that the law, the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq. (RLUIPA), violated the Constitution by advancing religion in violation of the Establishment Clause of the First Amendment.

This battle over RLUIPA involved three cases consolidated in the Sixth Circuit for the purpose of deciding a challenge by the Ohio Department of Rehabilitation and Corrections to the statute's constitutionality. (The other cases are Gerhardt v. Lazaroff and Miller v. Wilkinson).

The plaintiffs are Ohio prisoners who assert unconventional religious beliefs. One of the co-plaintiffs in the named case is Jon Cutter, an avowed Satanist; and the other is Lee Hampton, a Wiccan and practicing “witch.” Gerhardt is an ordained minister of the Church of Jesus Christ Christian, which espouses a belief that the races should be separated. Miller and other co-plaintiffs are followers of Asatru, a polytheistic religion that originated with the Vikings, and includes Thor as one of its gods. All of them asserted that Ohio prison regulations denying them access to religious literature and the opportunity to conduct religious services violated their rights under RLUIPA and the Ohio Constitution.

State prison officials argued that, by requiring prisons to cater to the demands of adherents of Satanist or white-supremacist religions, the law would result in attracting new followers to those sects, to the detriment of prison security.

In a decision reported at Cutter v. Wilkinson, 349 F.3d 257 (6th Cir. 2003) (Cutter I), the Sixth Circuit agreed with the state prison officials and held, inter alia, that RLUIPA does violate the Establishment Clause because of "its message of endorsement" and because, in the court's view, it "has the effect of encouraging prisoners to become religious in order to enjoy greater rights." The Court also reasoned that the effect of the statute was to elevate the level of judicial review of restrictions imposed by prison officials on religious practice.

Under traditional First Amendment doctrine, such a restriction would be subject to a “rational relationship” review, which examines whether there is a “valid, rational connection” between the prison regulation and a legitimate government interest, and whether inmates have alternative means of exercising their religious freedoms.

Under RLUIPA, the restriction is given “strict scrutiny,” which requires prison officials, rather than the inmate, to prove that the regulation furthers a compelling penological interest and is the least restrictive means of satisfying this interest. In practice, RLUIPA imposes a switch from a scheme of deference to prison officials to one in which the regulation is presumptively unconstitutional. According to the Sixth Circuit, RLUIPA's legislative history offers no evidence that religious rights are at any greater danger of deprivation in prison than are other fundamental rights. Accordingly, such heightened scrutiny impermissibly advances religion by giving greater protection to religious rights than to other constitutionally protected rights.

The Sixth Circuit’s ruling was sharply at odds with decisions from the Fourth, Seventh and Ninth Circuits, all of which have held that RLUIPA does not violate the Establishment Clause just because it seeks to lift burdens on religious worship in institutions without affording corresponding protection to secular activities or to non-religious prisoners. Those courts reasoned that RLUIPA merely accommodates and protects the free exercise of religion, which the Constitution allows.

In reversing the Sixth Circuit’s ruling in Cutter I, the Supreme Court said that the state’s fears about the impact of the law on prison security were unfounded. Writing for the Court, Justice Ginsburg said that Congressional sponsors “were mindful of the urgency of discipline, order, safety and security in penal institutions” and she made clear that the Court did not read the law “to elevate accommodation of religious observances over an institution’s need to maintain order and safety.” She also emphasized that the Court was ruling only on a facial challenge to RLUIPA, noting that prison officials could claim later that accommodations of inmates' religious practices went so far as to undermine safety or discipline among prisoners.

As a matter of interest, Justice Ginsburg discussed at some length the overlapping provisions of the two religion clauses in the First Amendment, which states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” She wrote:

“The first of the two Clauses, commonly called the Establishment Clause, commands a separation of church and state. The second, the Free Exercise Clause, requires government respect for, and noninterference with, the religious beliefs and practices of our Nation’s people. While the two Clauses express complementary values, they often exert conflicting pressures.

“Our decisions recognize that ‘there is room for play in the joints’ between the Clauses, some space for legislative action neither compelled by the Free Exercise Clause nor prohibited by the Establishment Clause.” (Internal citations omitted).

For a very thorough and very helpful background memorandum on this case, see “The Constitutional Status of the Religious Land Use and Institutionalized Persons Act: Cutter v. Wilkinson,” by the Pew Forum on Religion and Public Life.

U.S. v. Green, Crim. No. 02-10301-NG (D.Mass. June 2, 2005) (Judge Gertner)

This case has already evolved into a major confrontation between the Government and Judge Gertner over the conditions under which the death penalty may be imposed under the Federal Death Penalty Act, 18 U.S.C. § 3591 et seq. (“FDPA”), should the defendants be convicted of the various gang-related crimes for which they have been indicted.

Previously, Judge Gertner had ordered the empanelment of two different juries for this case: one a “non-death-qualified” jury for the guilt phase; and the other a “death-qualified” jury for the penalty phase of the trial. (See, U.S. v. Green, 343 F.Supp.2d 23 (D.Mass. 2004) (P&J, 10/11/04); and 348 F.Supp.2d 1 (D.Mass. 2004)). The First Circuit quickly reversed Judge Gertner’s call for a bifurcated jury, in a decision reported at 2005 U.S. App. LEXIS 8326 (1st Cir. May 12, 2005) (P&J, 04/25/05).

In the instant ruling, Judge Gertner addressed a different issue under the FDPA - namely, the Government’s proposal to submit to the petit jury various non-statutory aggravating factors that were not considered by the grand jury in presenting its indictment. That issue arose because the Government gave a formal Notice that, should the defendants be found guilty of the charged capital crimes, it would seek to justify their death sentences on the basis of a number of aggravating factors, including allegations of prior crimes, unrelated to the case at bar, “that were not charged in the instant indictment and, indeed, have never been adjudicated in any setting.”

Once again, in a decision that is rich with a detailed analysis of the FDPA and the law on the propriety of using unadjudicated crimes during the penalty phase of capital trials, Judge Gertner rejected the Government’s proposal. While she acknowledged that the FDPA does not expressly require the Government to have a grand jury include all aggravating in an indictment, she concluded that recent Supreme Court cases “cast constitutional doubt” on the procedures that the Government proposed to use in this case - at least with respect to those prior uncharged and unadjudicated crimes. Accordingly, she ordered the prior unadjudicated crimes be struck from the Government’s formal Notice, unless the defendants waive the grand jury presentment, stating:

“Together, Apprendi [v. New Jersey, 530 U.S. 466 (2000)], Ring [v. Arizona, 536 U.S. 584 (2002)], and Blakely [v. Washington, 124 S.Ct. 2531 (2004)] abandoned the Court's previous focus on the procedural protections required when a defendant is exposed to punishment above the statutory maximum. They emphasized the protections that must be accorded more generally to facts, including those factors traditionally characterized as sentencing factors, that are essential to punishment because they increase a defendant’s punishment even within a statutory sentencing range. Plainly, prior unadjudicated crimes that the government offers to justify the imposition of the ultimate punishment fit within this category of essential factors.

“Although defendants urge the Court to treat all nonstatutory aggravating factors alike and require that everything be screened, my ruling is a narrow one, limited to prior unadjudicated crimes. The other non-statutory factors here (lack of remorse and victim impact), like certain of the listed statutory aggravators, are factors tied to the charged offense. They do not raise the same constitutional concerns as prior unadjudicated accusations of crime apparently unrelated to the offense and uniquely prejudicial.”

We expect this ruling will soon make its way to the First Circuit which, like the Government, seems dedicated to upholding the FDPA.

Challenging the BOP’s Sex Offender Classification: Simmons v. Nash, 361 F.Supp.2d 452 (D.N.J. 2005) - This is the first case we can remember seeing in which a petitioner has successfully challenged his classification by the Federal Bureau of Prisons (BOP) as a sex offender. The core issue was whether a prisoner could be classified as a sex offender, under the provisions of 18 U.S.C. § 4042(c), based solely on the crime for which he was currently serving time, or whether such classification could be based on a prior federal or state conviction.

As a preliminary matter, the court found that it had proper jurisdiction over the case, and the matter could proceed as an action for declaratory judgment under 28 U.S.C. § 2201 because the BOP's classification of petitioner as a "sex offender" was a final decision for purposes of judicial review, and since 18 U.S.C. § 4042(c) did not vest the Attorney General with authority to determine whether the statutory language applied only to the current crime of conviction or to prior convictions as well, the exception to jurisdiction in 5 U.S.C. § 701(a)(2) did not apply. The court then determined that classification as a sex offender for purposes of 18 U.S.C. § 4042(c) could only be based on the offense for which a federal prisoner was currently serving a sentence and any such classification based on a prior state court conviction was inconsistent with congressional intent. Accordingly, the Court enjoined the BOP from classifying the petitioner as a sex offender based on a prior state court conviction.

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