Vol. 12, Nos. 48 & 49	Covering Cases Published in the Advance Sheets through Dec. 5, 2005

The Captivity of Jose Padilla Takes a Surprising New Turn

• In Padilla, the Fourth Circuit played mischief with the Government's plans to change - once again - its theory of prosecuting Jose Padilla, an American citizen, on terrorist charges. In a stern and surprising ruling, the normally submissive Circuit Court rejected the Government’s latest request to transfer Padilla back to civilian custody from military custody, concluding that by doing so "the government may be attempting to avoid consideration of our decision by the Supreme Court, and also because we believe that this case presents an issue of such special national importance as to warrant final consideration by that court."
  
  

Reasonableness of Sentences After Booker

• In U.S. v. Booker, the Supreme Court directed that a standard of reasonableness should henceforth apply to appellate review of Guideline sentences. In his dissent, Justice Scalia predicted that such a standard would produce a “discordant symphony of different standards” and would “wreck havoc” on the judicial system. More and more the lower courts seem to be making a prophet out of Justice Scalia - as decisions on what constitutes “reasonableness” seem to be all over the board. In Lister, the Seventh Circuit upheld as reasonable a sentence of nearly 40 years in a drug case that involved only a “moderate quantity” of crack cocaine. In Menyweather, a divided panel from the Ninth Circuit upheld as reasonable a sentence of probation for a woman who embezzled nearly $500,000 from the Government. And in Talley, the Eleventh Circuit rejected that Government’s contention that a sentence within the Guideline range is “per se reasonable.”

The Role of Judicial Fact-Finding After Booker

• Notwithstanding the principles established in the Apprendi/Blakely/Booker trilogy of cases, it is clear the judicial fact-finding still plays a major and proper role at sentencing - even when used to increase the sentences imposed. Thus, in Stone, the Sixth Circuit emphasized that judicial fact finding at sentencing is alive and well; and, in Hankton, the Seventh Circuit held that a district court’s reliance on hearsay evidence to determine drug quantity is not only “acceptable” but an “integral part of the sentencing process”; and in Cardwell, the Fourth Circuit held that even when a judge makes a finding of fact that constitutes a Booker-error, such an error is acceptable unless it affects “the fairness, integrity or public reputation of judicial proceedings” taken as a whole.
  

Affirmative Defenses - Jury Unanimity Required

• In Southwell, the Ninth Circuit held that a jury must unanimously reject an affirmative defense (in this case insanity); and that the failure to properly instruct the jury on the unanimity requirement was constitutional error that required reversal of the defendant’s conviction for arson.

Padilla v. Hanft, No. 05-6396 (4th Cir. Dec. 21, 2005) (Judge Luttig)

In a decision that represents a major setback for the Bush Administration’s legal strategy for its war on terrorism, a panel from the conservative and normally submissive Fourth Circuit denied the Government’s request to transfer U.S. citizen Jose Padilla out of military custody (where he has been held for more than three years) so he could face new criminal charges in a civilian court. The panel also rejected the Government’s request to vacate its prior decision in this much celebrated case, Padilla v. Hanft, 423 F.3d 386 (Sept. 9, 2005) (Padilla 1) (P&J, 8/15/05).

In Padilla I, the Fourth Circuit addressed the Government’s claim that it was imperative, in the interest of national security, that Padilla be held in a military prison; and the Court gave the Government a sweeping victory, broadly upholding presidential power to seize Padilla, a U.S. citizen who was arrested on American soil, and designate him as an "enemy combatants," thus subjecting him to prolonged detention without legal rights.

Within three months of that decision, the Government decided that it was no longer necessary that Padilla be held militarily." That change in position came with the announcement of a new criminal indictment of Padilla in Florida. Interestingly, the new indictment mentioned none of the acts that formed the basis for the Government's claim to detain Padilla in a military jail; and Attorney General Gonzales had attempted to dismiss Padilla’s past designation as an “enemy combatant” by stating that those prior charges are no longer “legally relevant.” (See P&J, 11/07/05).

The Court’s ruling in the instant case left no doubt that the judges felt betrayed by the Government’s latest maneuvering. In its sternly worded decision, written by Judge Luttig, who had been considered by President Bush as a potential nominee to the Supreme Court and who is generally recognized as one of the most conservative Federal appellate judges in the nation, the Court said “we cannot help but believe" that the government had underestimated the consequences of its differing treatment of Padilla in recent weeks.

In light of the breadth of the Court’s decision in Padilla I, the instant ruling was a huge surprise. In denying the Government’s motions, the Court wrote:

"Because we believe that the transfer of Padilla and the withdrawal of our opinion at the government's request while the Supreme Court is reviewing this court's decision [in Padilla I] would compound what is, in the absence of explanation, at least an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court, and also because we believe that this case presents an issue of such especial national importance as to warrant final consideration by that court, even if only by denial of further review, we deny both the motion and suggestion.”

The Court said that it would not evaluate the Government’s motives for its shifting position - since the Government had given the court no explanations. However, it cited various media accounts anonymously quoting Government officials as to why those shifts were made, and commented tartly: "The information that the government would provide to the media with respect to facts relevant to a pending litigation, it should be prepared to provide to the court."

The decision clearly signals an escalation of the pending battle over the President’s ever-expanding claims of executive power to deal with perceived terrorist threats without interference from the courts, and it raises pointed questions about the Government’s credibility for claiming a dire need to designate Padilla as an “enemy combatant” and hold him in a military court, without charges and without access to counsel and the courts. For example, the Court skeptically commented:

"as the government surely must understand . . . . , its actions have left not only the impression that Padilla may have been held for these years, even if justifiably, by mistake -- an impression we would have thought the government could ill afford to leave extant. They have left the impression that the government may even have come to the belief that the principle in reliance upon which it has detained Padilla for this time, that the President possesses the authority to detain enemy combatants who enter into this country for the purpose of attacking America and its citizens from within, can, in the end, yield to expediency with little or no cost to its conduct of the war against terror -- an impression we would have thought the government likewise could ill afford to leave extant. And these impressions have been left, we fear, at what may ultimately prove to be substantial cost to the government's credibility before the courts, to whom it will one day need to argue again in support of a principle of assertedly like importance and necessity to the one that it seems to abandon today. While there could be an objective that could command such a price as all of this, it is difficult to imagine what that objective would be.”

In the end, and very much to the dismay of the Government, the Court concluded “we believe that the rule of law is best served by maintaining on appeal the status quo in all respects and allowing Supreme Court consideration of the case in the ordinary course, rather by an eleventh-hour transfer and vacatur on grounds and under circumstances that would further a perception that dismissal may have been sought for the purpose of avoiding consideration by the Supreme Court."

U.S. v. Stone, No. 04-6184 (6th Cir. Dec. 23, 2005) (Judge Kennedy)
U.S. v. Cardwell, No. 03-4585 (4th Cir. Dec. 30, 2005) (Judge Williams)
U.S. v. Hankton, No. 03-2345 (7th Cir. Dec. 29, 2005) (Judge Coffey)

In the eyes of many, the sentencing revolution that was expected to flow from the Supreme Court’s trilogy of rulings in Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296 (2004), and U.S. v. Booker, 543 U.S. 220 (2005) has been far less dramatic than expected - in large part because the lower courts have consistently whittled away at the core principle of that trilogy of cases.

In Apprendi, the Supreme Court forcefully stated 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 and Booker.

Then, in Blakely, the Supreme Court narrowed that principle even further by stating that “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.)

Almost as soon as Booker made clear that “the Sixth Amendment is violated by the imposition of an enhanced sentence under the United States Sentencing Guidelines based on the sentencing judge's determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant,” the lower courts rebelled and began to carve out a series of legal theories to justify the continued use of extensive judicial fact-finding at sentencing.

Thus, for example, it has become clear that sentencing courts (rather than juries) are permitted to determine drug quantity - no matter how that finding impacts the ultimate sentence - so long as the finding is supported by some “minimal indicia of reliability.” (See, e.g., U.S. v. Green, 426 F.3d 64 (1st Cir. 2005) (P&J, 09/26/05)).

Another huge exception that the appellate courts routinely use to excuse a so-called “Booker error” is the “plain error” rule. In effect, a sentencing court is excused for making a factual finding that increases a sentence beyond that which the jury’s verdict allows so long as the error is deemed to be one which, in the eyes of the reviewing court, did not seriously affect “the fairness, integrity or public reputation of judicial proceedings” in general.

A number of recent cases exemplify this almost complete make-over of the Apprendi/Blakely/Booker rule as it applies to judicial fact-finding at sentencing:

• In Stone, the Sixth Circuit rejected the defendants’ contentions that the district court's determination of the amount of tax loss and the imposition of an obstruction of justice enhancement violated their Sixth Amendment rights under Booker, stating:

“Insofar as Defendants argue that the district court should not make judicial findings of fact as to the amount of tax loss, or as to whether Defendants obstructed justice, those assignments of error are not well taken. Booker did not eliminate judicial fact-finding. Instead, the remedial majority gave district courts the option, after calculating the Guideline range, to sentence a defendant outside the resulting Guideline range. Booker, 125 S. Ct. at 764, 769; U.S. v. Williams, 411 F.3d 675, 678 (6th Cir. 2005). District courts, in cases such as these, must, therefore, calculate the Guideline range as they would have done prior to Booker, but then sentence defendants by taking into account all of the relevant factors of 18 U.S.C. § 3553, as well as the Guidelines range. ” (Emphasis added).

• In Cardwell, the defendants argued that their sentences for their murder-for-hire convictions violated the Sixth Amendment "because the district court mandatorily applied judge-found enhancements in the United States Sentencing Guidelines to enhance their sentences above those authorized by the jury verdict alone."

The Sixth Circuit agreed (1) that the district court had committed error, (2) that the error was plain, and (3) that the error affected their substantial rights. However, the Court also noted that even if the defendant makes this three-part showing, "correction of the error nevertheless remains within our discretion, which we should not exercise unless 'the error seriously affects the fairness, integrity or public reputation of judicial proceedings'."

Then, without further explanation and without giving any guidance as the basis for its subjective conclusion, the Court simply held: "We conclude that failing to notice the error - which would result in [the defendants] serving sentences that were unconstitutional - would ‘seriously affect[] the fairness, integrity or public reputation of judicial proceedings’."

• In Hankton, the defendants were convicted of various drug related crimes arising out of their membership in the Mickey Cobras (MCs) street gang in Chicago. Among the many issues raised on appeal was a challenge by one defendant, Clarence Hankton, who contended that the district court had committed error by concluding that Hankton was responsible for distributing more than 500 grams of crack cocaine, as opposed to the 150 grams he admitted to distributing in his plea agreement. Specifically, Hankton charged that statements made by government witnesses at his sentencing constituted unreliable hearsay and should not have been considered by the district court in determining the 500 grams.

After reviewing the record, the Seventh Circuit rejected Hankton’s claim of error, stating that it was “convinced that the district court did not impermissibly consider unreliable evidence in enhancing Hankton’s . . . sentence for drug quantity.” In fact, it concluded, “the rules of evidence do not apply during sentencing proceedings and ‘hearsay is not only an acceptable basis for a sentencing determination,’ it is often an ‘integral part of the sentencing process’.“

U.S. v. Southwell, 04-30521 (9th Cir. Dec. 30, 2005) (Judge Kozinski)

The defendant in this case was charged with the crime of arson. At trial he raised the affirmative defense of insanity. During deliberations, the jury asked whether it could convict if it found the defendant guilty of the charge but was not unanimous on the question of the defendant’s sanity. The court refused to answer that question directly, stating instead: "Please use your best recollection of the evidence and the instructions of the law you have been given. If you are able to reach a verdict, only one unanimous verdict may be returned.”

On appeal, the Ninth Circuit found that the instructions were unclear “as to what the jury should do in the very situation outlined in the jury's question.” Accordingly, it reversed the defendant’s conviction stating: “The error here was particularly serious because it concerned the burden of proof. Southwell has a right under the Constitution to a unanimous jury verdict. . . . The failure to properly instruct the jury on the unanimity requirement was constitutional error, and requires reversal . . . ."

On the precise question of whether a jury must unanimously reject an affirmative defense, the Court stated: “We are aware of no prior federal court having resolved this issue. Although some members of the Supreme Court have expressed opposing views, none commanded a majority of the Court.” However, guided by state precedent, the Court firmly concluded: “Since a jury verdict must be unanimous, a jury united as to guilt but divided as to an affirmative defense (such as insanity) is necessarily a hung jury.”

In Brief

BOP - Good Time Calculation: Bernitt v. Martinez, No. 05-2508 (8th Cir. Dec. 28, 2005) - In this brief per curiam decision, the Eighth Circuit rejected claims by more than two dozen inmates at the Yankton Federal Prison Camp who argued that the BOP incorrectly calculates time off for good behavior. Under 18 U.S.C. § 3624(b), Federal inmates can receive up to 54 days credit for good behavior at the end of each year served; but, under a complex formula used by the BOP, inmates actually receive only 47 days of good conduct time (GCT). The inmates argued that credit for good behavior should be calculated based on the length of sentence imposed by a judge, rather than on the time actually served by an inmate. In joining with all the other Circuit Courts that have addressed the same issue, the Court concluded: “We conclude that section 3624(b) is ambiguous because it does not clearly indicate whether a prisoner's GCT is based on the time served in prison or the sentence imposed. Because section 3624(b) is ambiguous, we must defer to the BOP's interpretation if it is reasonable.”

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