Vol. 12, Nos. 44 & 45
Covering Cases Published in the Advance Sheets through Nov. 7, 2005

Jose Padilla and His "Legally Irrelevant" Unlawful Incarceration

Sentencing

Second Circuit Upholds the Constitutionality of New York's DNA Database Statute

 

Misleading Deportation Information Invalidates Guilty Plea

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

 


Booker Box Score
Past Weeks' New Decisions - 246 Total Since Jan. 12, 2005 -  5086

 

U.S. v. Jose Padilla - Round Three

The Government’s ever-changing case against Jose Padilla, a U.S. citizen, continues to bounce in crazy new directions. Padilla was initially arrested in Chicago in May, 2002, and held as a material witness in the investigation into the Sept. 11, 2001 terrorist attacks. After defense counsel moved to dismiss his material witness warrant, President Bush quickly designated him an “enemy combatant” for posing “a continuing, present and grave danger to the national security of the United States”; and Padilla was moved from his federal prison in Manhattan to a military brig in South Carolina.

At a highly publicized press conference, then Attorney General Ashcroft alleged that Padilla had plotted to blow up a radioactive “dirty bomb” in the United States. The Government, however, steadfastly refused to file any formal charges against Padilla or to grant him any of his constitutional rights as a U.S. citizen; and so he was held, virtually incommunicado, in a military prison for more than three years. (See, “In Terror Cases, Administration Sets Own Rules,” by Adam Liptak, The New York Times, Nov. 27, 2005).

The continued detention of Padilla led to a series of lawsuits in various courts. In 2003, the Second Circuit ruled that Padilla’s detention was illegal (Padilla v. Rumsfeld, 352 F.3d 695 (2nd Cir. Dec. 18, 2005)); but the Supreme Court then held that the lawsuit should be heard in South Carolina, where Padilla had been transferred, rather than New York, where he had initially been taken (Rumsfeld v. Padilla, 542 U.S. 426 (June 28, 2004)).

A new case was then filed in South Carolina (Padilla v. Hanft, 389 F.Supp. 628 (D.S.C. Feb. 28, 2005)), where Judge Floyd ruled that Padilla’s continued detention was unconstitutional; and he ordered that Padilla be charged or released; but the Fourth Circuit quickly overruled Judge Floyd and held that the President does have the legal authority to declare that a person is an enemy combatant and hold him indefinitely in military custody (Padilla v. Hanft, 423 F.3d 386 (4th Cir. Sept. 9, 2005)).

After the Fourth Circuit’s decision, Padilla’s lawyers filed an appeal in the Supreme Court, asking a fundamental question: “Does the President have the power to seize American citizens in civilian settings on American soil and subject them to indefinite military detention without criminal charge or trial?”

One week before the Government’s briefs in that case were due to be filed, the Administration switched tactics and decided to indict Padilla on various criminal charges, including conspiracy to murder Americans overseas. Specifically, the new indictment, filed under the caption U.S. v. Hassoun, No. 04-60001-CR-Cooke, charges Padilla and four other defendants with participating in a North American support cell that sent money, physical assets, and recruits to overseas conflicts for the purpose of fighting a violent jihad.

Interestingly, the new charges include none of the Government’s earlier allegations that Padilla planned to detonate a dirty bomb in the U.S. or carry out other attacks in America; and there has been much speculation that the Administration was aware that much of the evidence supporting those claims had been obtained through torture. (See, “Report: US didn't want Al Qaeda members to testify in Padilla case - Evidence linking Padilla to 'dirty bomb' plot may have been obtained under 'harsh questioning',“ by Tom Regan, Christian Science Monitor, Nov. 25, 2005.)

An integral part of the Administration’s new strategy was to move Padilla from military custody to a Federal prison in Miami, in a patent effort to avoid any scrutiny by the current Supreme Court of the secret and unilateral standards it has used in deciding whether to charge terrorism suspects like Mr. Padilla with crimes or to hold them indefinitely in military custody as “enemy combatants.” In fact, at a press conference announcing the new charges, Attorney General Gonzales claimed that the Supreme Court case was now “moot” and that Padilla’s past designation and imprisonment as an enemy combatant "has no legal relevance whatsoever" to the new charges.

Counsel for Padilla immediately rejected the contention that the new charges had rendered moot any Supreme Court review of Padilla’s long incarceration; and they vowed to fight on. While the battle over the President’s power to hold alleged terrorists in secretive prisons without legal process is far from over, it is also becoming clear that, with each new appointment to the courts of judges loyal to him, the President’s chances of escaping any judicial review are rapidly improving.


U.S. v. Perry, 389 F.Supp.2d 278 (D.R.I. Sept. 16, 2005) (Judge Smith)

This is another of a growing series of post-Booker rulings that takes issue with the huge sentencing disparity mandated by the Guidelines for cases involving crack cocaine compared to cases involving a comparable amount of powder cocaine. Under the prevailing statutory scheme, 5 grams of crack cocaine carries the same mandatory minimum sentence as 500 grams of cocaine - namely 5 years; and, as Judge Smith explained in this 71-page sentencing memorandum, the 100-to-1 ratio results in punishments that are three to six times longer for crack cocaine than for an equivalent quantity of powder cocaine.

The origins of that 100-to-1 ratio can be traced to a number of conclusions reached by Congress when it enacted the Anti-Drug Abuse Act of 1986. In passing that law, Congress made clear that it considered crack cocaine much more dangerous than powder cocaine and, therefore, those who trafficked crack cocaine warranted significantly higher punishment. Specifically, the establishment of the 100-to-1 drug quantity ratio was based on beliefs that (1) crack cocaine was extremely addictive; (2) crack cocaine distribution and use were highly associated with violence and other systemic crime; (3) crack cocaine use was especially perilous, with particularly devastating harms to children prenatally exposed to the drug; (4) young people were particularly prone to crack cocaine use; and (5) crack cocaine’s purity, potency, low cost per dose, and ease of distribution and administration were leading to its widespread use.

Over time, critics, including the Sentencing Commission itself, has challenged those assumptions; and have called the disparity racist since it is used disproportionately on African-Americans. In 2002, the Sentencing Commission issued a Report in which it urged Congress to equalize the penalties for crack and powder cocaine, and make other changes in the punishment scheme for persons convicted of crack offenses. Congress, however, was unmoved and refused to enact any changes in the law. Nevertheless, Judge Smith concluded in the instant case that the Commission’s conclusions and proposed solutions were “supported by an overwhelming amount of authority -- empirical, scholarly, and otherwise.“ He then continued:

“In fact, it is virtually impossible to find any authority suggesting a principled basis for the current disparity in sentences. Courts now face the question of how to factor the sound criticism and conclusions of the Sentencing Commission, and others, regarding the disparity into the § 3553 analysis in a crack cocaine sentencing such as this.”

The Supreme Court’s decision in U.S. v. Booker, 543 U.S. 220 (2005) has refueled the debate over the 100-to-1 ratio; and a number of judges have written lengthy decisions concluding that the ratio is no longer tenable in the aftermath of Booker. In the instant case, the defendant was found guilty by a jury of possession with intent to distribute more than five grams of crack. His Guideline sentencing range was 188-235 months; but he asked the Court to vary from the Guidelines range and impose only the statutory minimum sentence of ten years.

After a lengthy review and analysis of the issues involved in the debate over the validity of the 100-to-1 ratio, Judge Smith concluded that “the crack/powder disparity cannot stand up to the scrutiny of analysis under 18 U.S.C. § 3553. Therefore, this Court will vary from the advisory sentencing range established by the Sentencing Guidelines and impose the statutory minimum sentence of 10 years.” He then continued:

“The growing sentiment in the district courts is clear: the advisory Guideline range for crack cocaine based on the 100:1 ratio cannot withstand the scrutiny imposed by sentencing courts when the § 3553 factors are applied. This Court, too, will not blindly apply the Guideline range, for to do so would be to disregard the Supreme Court's directive in Booker/Fanfan to fashion a reasonable sentence in light of the § 3553(a) factors. As to the appropriate ratio to apply, this Court believes a 20:1 ratio (as suggested by the Commission in its 2002 report) makes the most sense. In this case, the 20:1 ratio would yield an advisory Guideline range of 97 to 121 months (subject, of course, to the application of the mandatory minimum 10-year sentence).”


U.S. v. Welch, No. 03-3638 (7th Cir. Nov. 21, 2005) (Judge Flaum)
U.S. v. Vaughn, No. 04-5136-cr(L) (2nd Cir. Dec. 1, 2005) (Judge Sotomayor)

In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court established the principle that “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory minimum must be submitted to a jury and proved beyond a reasonable doubt"; and that core principle was the driving force of its subsequent holdings in Blakely v. Washington, 542 U.S. 296 (2004) and U.S. v. Booker, 543 U.S. 220 (2005). As the Court noted in Blakely, “when a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment,' and the judge exceeds [her] proper authority." (Blakely, id., at 303.)

Many predicted that as a result of the Apprendi/Blakely/Booker trilogy, sentencing judges would no longer be allowed to use evidence of uncharged crimes and acquitted conduct, determined by a preponderance of the evidence, to increase a defendant’s sentence. These two cases hold otherwise.

In Welch, the district court nearly doubled the defendant's sentence based on its "finding, by a preponderance of the evidence, that the defendant had committed four other bank robberies" that apparently were never formally charged. The Seventh Circuit concluded that there is no problem with a judge's decision to enhance a defendant's sentence based on the trial court's conclusion, based on a preponderance of the evidence, that the defendant committed other offenses that apparently were never the subject of indictment or subject to true adversarial testing.

The Court quoted from the district court's "conviction" of the defendant on four crimes that it seems were never indicted or subject to adversarial testing:

"After reviewing all of the evidence, this Court finds that the Government has put forth sufficient "reliable" evidence to show by a preponderance of the evidence that Welch committed the three bank robberies at Tech Federal on February 7, March 25[,] and May 20, 1997, and the robbery of the Bank of Homewood on July 8, 1997. While no one piece of evidence clearly implicates Welch, the totality of the evidence meets the preponderance of the evidence standard. Of particular importance to this Court is the black jacket found at his residence, the yellow hard hat, the statement to Austin, and the bank surveillance photos. Moreover, even discrediting the identification by Judith Welch and the teller, this Court finds that their identification of Welch is sound. After closely observing Welch at the trial and the sentencing hearing and closely comparing him to the bank surveillance tapes, this Court firmly believes that Welch is the robber in those photographs."

In Vaughn the Second Circuit broadly held that "after Booker, a district court may sentence a defendant taking into account acquitted conduct." The Court explained its decision in part by stating:

"As we have stated recently and reiterate in this opinion, district courts remain statutorily obliged to calculate Guidelines ranges in the same manner as before Booker and to find facts relevant to sentencing by a preponderance of the evidence. See Garcia, 413 F.3d at 220 n.15; Crosby, 397 F.3d at 112. Consistent with that obligation, district courts may find facts relevant to sentencing by a preponderance of the evidence, even where the jury acquitted the defendant of that conduct, as long as the judge does not impose (1) a sentence in the belief that the Guidelines are mandatory, (2) a sentence that exceeds the statutory maximum authorized by the jury verdict, or (3) a mandatory minimum sentence under § 841(b) not authorized by the verdict. . . .

"On remand, the court is directed to consider all facts relevant to sentencing it determines to have been established by a preponderance of the evidence as it did pre-Booker, even those relating to acquitted conduct, consistent with its statutory obligation to consider the Guidelines. 18 U.S.C. § 3553(a)(4), (5). We restate, however, that while district courts may take into account acquitted conduct in calculating a defendant's Guidelines range, they are not required to do so. Rather, district courts should consider the jury's acquittal when assessing the weight and quality of the evidence presented by the prosecution and determining a reasonable sentence."


Zhang v. U.S., No. 04-cv-3261 (ADS) (E.D.N.Y. Nov. 18, 2005) (Judge Spatt)

In this case, Judge Spatt granted the petition of Sean Zhang to vacate his sentence on the grounds that he had been misinformed about his pending deportation. Judge Spatt concluded that the misrepresentations made to Zhang in this case - even though unintentional - were sufficient to render Zhang’s plea “constitutionally involuntary.”

Zhang emigrated to the U.S. from China in 1985 with his family, when he was seven years old. His father was granted political asylum in the U.S.; and Zhang only speaks English. He studied in America and became a chemist. He is married to an United States citizen and is a permanent resident, but he is not a citizen of the United States.

Zhang was arrested in 2001 and charged with various crimes based on his sale over the Internet of a metabolic stimulant that he manufactured which is banned by the FDA. One man died after ingesting that substance; and another man was in a coma for 10 days. Zhang ultimately pled guilty to a single count of mail fraud; and he waived his right to appeal if his sentence was 60 months or less. [He was sentenced to 60 months in prison].

During his plea negotiations his attorney told him that his background, his marriage to an American citizen, and his lack of a criminal record would be considered by the immigration authorities; and at his plea allocution, the Magistrate Judge asked Zhang whether he was aware that his conviction “could result in your deportation.” The prosecutors also argued that there was a possibility that Zhang would not be deported, saying that he could attempt to have his removal deferred or his immigration status modified.

Judge Spatt concluded that those arguments had “no merit” and that Zhang’s conviction for mail fraud - an aggravated felony - required deportation. Although Judge Spatt agreed that a failure to inform a defendant about deportation is not necessarily fatal, he also concluded that a constitutional violation occurs when a defendant is actively told that deportation is not mandatory.

Judge Spatt noted that, under Rule 11 of the Fed.R.Crim.P., a guilty plea must be voluntary; and that the affirmative representations made to Zhang about the collateral consequences of his conviction had rendered his plea constitutionally infirm. “[A]lthough a judge may not be required to inform a defendant about deportation, if he or she makes a statement that misleads the defendant into thinking that deportation is not mandatory, then a constitutional violation occurs which provides sufficient grounds to vacate a plea.”

It should also be noted that Zhang never challenged the voluntariness of his plea on direct appeal. Judge Spatt, however, concluded that fact did not bar raising the claim on the instant motion pursuant to 28 U.S.C. § 2255. He reasoned:

“A direct appeal of the issues brought in this collateral challenge would have been unnecessary for several reasons. First, Zhang's claim includes ineffective assistance of counsel, which is properly brought before this Court for the first time on collateral review to develop the factual record. Second, Zhang was led to believe that deportation was only a possibility and only learned of the automatic nature of his deportation long after the time for a direct appeal had expired. Finally, any direct appeal would have been futile since Zhang waived his right to a direct appeal in his plea agreement.”

With his guilty plea vacated, Zhang will now either go to trial or seek to negotiate a different plea that does not subject him to mandatory deportation.


In Brief

Blanket Shackling Policy of Pretrial Detainees Held Not Justified: U.S. v. Howard, No. 03-50524 (9th Cir. Nov. 15, 2005) - In this consolidated interlocutory appeal involving 17 defendants whose motions to unshackle were denied without an evidentiary hearing, the Ninth Circuit has struck down, as unjustified, a blanket policy of the U.S. Marshal’s Service to shackle every defendant at their initial appearance in the huge Central District of California. Writing for the Court, Judge Schroeder held: “At a minimum, due process requires that before there is any district-wide policy affecting all incarcerated defendants whom the government must transport to a first appearance, there must be some justification.”

The Court was careful not to hold that a blanket shackling policy is a per se violation of due process. Rather it stated: “Defendants contend that due process requires that there be no restraining whatsoever without an individualized determination. We observe, without deciding the issue, that this may go farther than due process requires. But we do not have to reach this question. The record here gives no justification or describes any circumstances existing district-wide that would support the district requiring such restraint.”


Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court
This Week
Year to Date
Since 1996
Courts of Appeal
88
2309
23,498
District Courts
76
1317
13,131

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