Vol. 12, No. 35	Covering Cases Published in the Advance Sheets through Aug. 29, 2005

Airport Security, the First Amendment, and the Tyranny of the Badge-Wielding Bureaucrats

• The Rendon case is a depressing reminder of the officious, don’t-mess-with-the-Government world in which we live. In this case, the Sixth Circuit affirmed a $700 civil penalty that was imposed on a passenger who mouthed off to a Transportation Security Administration (TSA) screener at an airport. The decision seems to gloss over - if not totally ignore - the fact that our First Amendment rights are becoming more and more diminished by layers and layers of overly broad, vague and highly subjective administrative regulations that do little more than feed the already puffed-up self-importance of the legions of badge-wielding bureaucrats who now regulate so much of our lives.

Sentencing

• In Kortgaard, the Ninth Circuit held that upward departures under U.S.S.G. § 4A1.3 (i.e., departures based on the inadequacy of the defendant’s criminal history category) involve factual findings that are beyond the mere fact of a prior conviction. Accordingly, such decisions are not within Apprendi’s exception for the fact of a prior conviction, and they are subject to the restrictions of Booker and must be presented to the jury.
  
  
• The Dare case, from the Ninth Circuit, is an important summary of the state of the law on the interplay between judicial fact-finding and the imposition of mandatory minimum sentences. Here, a divided panel upheld a ten-year mandatory minimum sentence based on a district court’s finding, by a mere preponderance of the evidence, that the defendant had discharged a gun during a drug trafficking crime - even though the district court conceded that it could not have made that finding using a clear and convincing standard of evidence. Over a strong dissent by Judge Bea, the majority based its ruling on the continuing validity of the Supreme Court’s 2002 decision in Harris v. U.S., despite acknowledging that “Harris is difficult to reconcile with the Supreme Court’s recent Sixth Amendment jurisprudence.”

Joint Defense Agreements

• The Austin decision from the Ninth Circuit is a reminder of some of the many pitfalls of using Joint Defense Agreements - a tool that is designed to protect the attorney-client privileges of individual defendants who decide to share information with other defendants in the preparation of a common defense - but which, more often than not, seems to lead to serious problems when one of the participants flips and decides to cooperate with the Government. Here, the Court declined to decide whether the joint defense privilege “ever protects inmate-to-inmate conversations in the absence of counsel,” but, by refusing to allow the defendants the right to bring an interlocutory appeal, it allowed an extremely prejudicial district court ruling on joint defense agreements to stand.

The next issue of P&J will be published in two weeks.

U.S. v. Booker - Update

In recent speeches, Attorney General Gonzales has been highly critical of the impact of U.S. v. Booker on sentences imposed in the Federal courts, claiming that Booker has led to a “drift towards lesser sentences.” Based on that perceived “drift,” Gonzales proposed a quick legislative fix that would involve scrapping the current advisory Guideline system and replacing it with what he referred to as a "minimum guideline system."

What is most surprising about Gonzales’ proposal is that its underlying premise is categorically false - a surprising blunder for one who is being considered for appointment to the Supreme Court. Gonzales supported his “drift” contention by citing a few anecdotal examples of sentences he felt were too lenient. Those limited and incomplete examples both ignore, and are categorically contrary to, the findings of the United States Sentencing Commission in each of the eleven exceptionally detailed studies of post-Booker sentencings that have been released since Booker was announced.

Numerous commentators quickly saw through Gonzales’ spin; and they roundly criticized his “drift towards lesser sentences” comments as contrary to the facts. (Copies of many of those critiques have been posted on our special Booker Resource Center on the Internet.)

Recently, District Judge Lynn Adelman of the E.D.Wisc. and his law clerk, Jon Deitrich, have added to that body of criticism with an article entitled “AG’s Misguided Proposals,” that was published in The National Law Journal on Sept. 19, 2005. Calling Gonzales’ proposals "unbalanced" and "constitutionally suspect," the authors wrote:

“[T]he Department of Justice has declined to release any data supporting Gonzales' assertion. As noted, the Sentencing Commission's data, which are comprehensive and detailed, rebut it. Rather, the attorney general relies on anecdotes such as one about a rancher in Kansas who fraudulently obtained loans and received probation rather than prison; a tax cheat in New York who received a short prison term followed by home confinement rather than the 41 months called for by the guidelines; and a defendant in New York convicted of possessing child pornography who received probation while a New Jersey defendant got prison. Significantly, the attorney general never addresses whether the judges had good reasons for imposing such sentences, nor does he acknowledge that the government can, in any case, appeal sentences that it believes are unreasonable.

“The advisory guideline regime should not be evaluated based on anecdotes. However, the question of how it should be judged is an important one. We believe that the appropriate standard is not whether the average sentence is more severe or more lenient than it was previously, or how many sentences remain within the guidelines, but rather whether in individual cases judges are doing justice. To answer this question, policymakers and scholars must carefully consider the quality of judicial reasoning underlying the sentences imposed, a factor that often goes unmentioned during the debate about sentencing. This task is not simple, and it will not be accomplished over night.

“In the meantime, the attorney general's calls for change do not advance the discussion. His speeches seem to reflect DOJ's anxiety about the fact that, under the advisory guideline system, judges actually have the authority to determine defendants' sentences. However, under our system of justice, judges, not prosecutors, are supposed to sentence defendants. Unless the attorney general has solid evidence that judges when sentencing are not sufficiently taking into account public safety (which he does not), he should refrain from calling for radical changes in our sentencing system.”

“Bully bully” for Judge Adelman for not buying into AG Gonzales’ palaver.

Rendon v. Transportation Security Administration, No. 04-4229 (6th Cir. 09/22/05) (Judge Kennedy)

On July 27, 2002, when Mark Rendon arrived at the Cleveland International Airport to board a scheduled flight, we assume that he - like most Americans - had never heard of a Government regulation codified at 49 C.F.R. § 1540.109. He quickly learned that § 1540.109 is a potent weapon in the hands of any aspiring airport screener.

For those unfamiliar with § 1540.109, it is part of the massive web of new regulations enacted in 2002 in the aftermath of 9/11 to deal with threats of terrorism in the United States. This particular provision is in a section of the law that grants the Transportation Security Administration (“TSA”) (a division of the Department of Homeland Security) control over “Civil Aviation Security.” Specifically, under the caption of “Responsibilities of Passengers,” § 1540.109 states:

“No person may interfere with, assault, threaten, or intimidate screening personnel in the performance of their screening duties under this subchapter.”

As Rendon attempted to check in for a flight, he went through the metal detector. When an alarm sounded, Rendon realized that he was still wearing a watch. So he took off his watch, put it in a tray, and attempted to walk-through the metal detector again.

At that point, superlunary TSA employee Richard Pindroh put up his arm to stop Rendon from walking back through the metal detector. He said that once Rendon set off the alarm, he could not go back through the metal detector, but had to wait to be “hand-wanded.”

Rendon, who was anxious to catch his plane, suggested that such a rule was "bullshit"; and he asked Pindroh "is this your rule or is this the rule of the airport?" Pindroh responded that it was a rule developed by the security company he worked for and the airport.

As Rendon waited to be hand-wanded by some other officious official, he became “understandably” more anxious about catching his flight, and he finally exclaimed "Shit, man, can't you get someone over here." After being told again that he had to wait, Rendon exclaimed: “This was fucking bullshit.”

At that point, Pindroh called over his supervisor and accused Rendon of “being uncooperative, unruly, and using loud profanities.” They then summoned a cop, and Rendon was escorted away. Not only did he miss his flight, but Rendon was fined $700 in civil penalties by an administrative law judge “for interfering with an airport screener in the performance of his official duties,” in violation of § 1540.109.

Acting pro se, Rendon appealed the administrative law judge’s fine to someone known as a TSA “Decision Maker” (a title for which we could not find any legal definition in Title 49 of the C.F.R.); and, when the Decision Maker upheld the $700 fine, Rendon appealed to the Sixth Circuit.

Essentially, Rendon argued that § 1540.109, as applied, violated his First Amendment right to freedom of speech; and that the regulation was both overbroad and unconstitutionally vague. The Government, in turn, did its best to convert the case from a First Amendment challenge to one involving a violent and dangerous menace who threatened the safety and security of the entire country. It even produced three witnesses who testified about Rendon’s use of profanities.

The facts of the case posed a dilemma for the Court. Clearly the Court was appalled at Rendon’s choice of words; but it also knew that words alone are generally protected by the First Amendment. Clearly, too, the Court was concerned about ruling against airport screeners, who have one of the most thankless jobs imaginable. Thus, it had to find some way of justifying the $700 civil penalty without violating Rendon’s constitutional rights.

The Court’s solution was simple. It stated that the civil fine “was not imposed simply because [Rendon] used profanities” - thus avoiding his contention that 49 C.F.R. § 1540.109 was, “as applied, a content-based regulation in violation of his First Amendment right to freedom of speech.”

Rather, the Court said, the civil penalty was imposed because Rendon had “interfered with a screener in the performance of his duties”; and, it ponderously concluded: “It is clear that this regulation serves a substantial government interest, as its purpose is to prevent individuals from interfering with screeners in the performance of their duties, which are to both ensure that those screened are not potentially carrying weapons and to conduct the screening of passengers as efficiently as possible.”

The problem was that the Court never explained how Rendon had “interfered” with Pindroh - or what conduct was being punished. However, by assuming (rather than demonstrating) that there had been some actual interference of Pindroh’s duties, the Court was then able to dance between Rendon’s two other constitutional challenges - namely that 49 C.F.R. § 1540.109 was both overbroad and constitutionally vague.

In addressing Rendon’s contention that § 1540.109 was unconstitutionally vague, the Court actually agreed that some good-faith grumbling about TSA personnel is permissible - even when laced with profanities. But, it never explained what saved the regulation from the vagueness challenge. Instead, the Court merely boot-strapped its conclusion by stating that “the regulation does not reach a ‘substantial’ amount of constitutionally protected conduct. Thus, because 49 C.F.R. § 1540.109 is not impermissibly vague in all its applications, [Rendon’s] vagueness challenge must fail.”

With a similar boot-strap argument, the Court also rejected Rendon’s contention that § 1540.109 was overbroad because “it regulates more speech than the constitution permits to be regulated” and because the regulation allows for punishment “no matter what was said.”

The Court reasoned that the word “interfere,” as used in § 1540.109, was not overly broad because it “prohibits only that conduct which poses ‘an actual hindrance to the accomplishment of a specified task’.” Then, without ever specifying what specific task or tasks Rendon had prevented Pindroh from performing, the Court simply concluded: “Consequently, [Rendon] has not demonstrated that 49 C.F.R. § 1540.109 is overbroad.” (Emphasis added).

One day America will wake up and learn that it got precisely what it wished for: a new breed of bureaucratic despots with near-total, subjective power over all sorts of freedoms that affect the way in which we live. Sadly, by the time America does wake up, it will probably be too late to reverse course and put a stop to the tyranny of the badge-wielding bureaucrats who operate under such vague and all-encompassing laws.

U.S. v. Dare, No. 04-30202 (9th Cir. 09/23/05) (Judge Leavy)

In Harris v. U.S., 536 U.S. 545 (2002), the Supreme Court affirmed a mandatory minimum seven year sentence based on the district court’s finding by a preponderance of the evidence that Harris had brandished a gun. In his concurring opinion, Justice Breyer observed that one cannot easily distinguish the Court’s ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000) from Harris “in terms of logic.” (Harris, id., at 569).

Since then, the Supreme Court’s decisions in Blakely v. Washington, 542 U.S. 296 (2004) and U.S. v. Booker, 125 S.Ct. 738 (2005) have raised even more questions about the ongoing validity of Harris to the imposition of mandatory minimums - and those questions were debated at length by the majority and dissenting judges in this case.

The defendant, Steven Dare, received a 10 year mandatory minimum sentence for discharging a shotgun during a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(iii). Dare had been drinking heavily at a bar, when he sold $200 of marijuana to a bar patron who was a drug informant working for the Montana drug task force. Later a shotgun shot was fired. While the district court conceded that it could not find, under a clear and convincing standard of evidence, that Dare had discharged the gun during a drug trafficking offense, it did make that finding using a preponderance of the evidence standard - thereby increasing Dare’s sentence from five years to a mandatory ten.

On appeal, Dare argued that the imposition of the ten year mandatory minimum sentence violated his Sixth Amendment rights as established in Booker; that the district court erred in using a preponderance of the evidence standard when it found that he had discharged the firearm; and that the constitutional analysis in Harris was effectively overruled by Booker.

In a significant ruling on the interplay of judicial fact-finding and mandatory minimums, the majority rejected Dare’s arguments and affirmed his sentence. While the majority conceded that Harris “is difficult to reconcile with the Supreme Court’s recent Sixth Amendment jurisprudence,” it concluded that “Harris has not been overruled.”

In a strong dissent, Judge Bea argued that Harris "is no longer good law in cases where a defendant receives a sentence, based on facts found by a judge other than a prior conviction, that is higher than the maximum sentence the judge could have imposed based solely on facts either admitted by the defendant or found by a jury beyond a reasonable doubt." According to Judge Bea, "[w]hile Harris may not be overruled in its entirety, it is limited by Booker, and Dare's sentence exceeds the Booker limit."

Despite the majority’s refusal to extend the logic of Apprendi, Blakely, and Booker to mandatory minimums, we believe that the current* Supreme Court will soon have to reconsider Harris; and therefore we recommend that counsel preserve this issue whenever appropriate so the courts and the Government can’t later argue that the issue has been waived. (*And of course we cannot predict how the appointment of President Bush’s two stealth candidates to the Supreme Court will ultimately impact this issue.)

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