Vol. 13, No. 5	Covering Cases Published in the Advance Sheets through Jan. 30, 2006

New Supreme Court Ruling

• In Scheidler, the Supreme Court ended 19 years of litigation by holding, 8 to 0, that the federal Hobbs Act does not outlaw the kind of violence that anti-abortion protesters have used to block access to abortion clinics nationwide, thus undercutting a verdict and a nationwide injunction that abortion clinics had won against anti-abortion demonstrators.
  
  

Failure to Give "Public Authority" Jury Instruction Sua Sponte Is Plain Error

• In an important decision about the “public authority” jury instruction, the Ninth Circuit, in Bear, held that the district court had committed plain error when it failed to give such an instruction sua sponte. Even though the defendant had failed to request such an instruction, the Court held that it was incumbent on the trial court to advise the jury that the defendant may have had a valid government authorization defense because the defendant’s testimony and closing arguments “clearly presented a claim of public authority” in a case involving a thoroughly corrupted DEA agent.
  
  

Sentencing Issues

• In Nichols, the Fourth Circuit became the second Federal appellate court to hold that statements obtained in violation of Miranda, if they are otherwise voluntary, may generally be considered at sentencing and used to enhance a defendant’s sentence, on the grounds that “there is nothing inherently unreliable about otherwise voluntary statements obtained in violation of Miranda.”
  
  
  
• In Eura, the Fourth Circuit joined with the First Circuit and held, categorically, that, in the post-Booker era, a district court may not “vary from the advisory sentencing range under the Guidelines by substituting its own crack cocaine/powder cocaine ratio for the 100: 1 crack cocaine/powder cocaine ratio chosen by Congress.”

Second Circuit Expresses Growing Concerns About the Inherent Fairness of Immigration Appeals

• In Xue, the Second Circuit raised some growing serious concerns about a recent tendency of some “overburdened immigration judges” to treat asylum cases too lightly, warning that trivial mistakes can “lead to flawed decisions with grave consequences.”

U.S. v. Bear, No. 04-50161 (9th Cir. Feb. 24, 2006) (Judge Thompson)

The Ninth Circuit may be the Supreme Court’s favorite punching bag, but it always seems alive with novel decisions. In the instant case, the Court vacated the drug conviction and 20-year sentence imposed on Bobbie Bear because the district court failed to give the jury, sua sponte, the public authority (or government authorization defense) jury instruction.

That instruction, from the Ninth Circuit’s Manual of Criminal Jury Instructions, Instruction 6.10, states:

“If a defendant engages in conduct violative of a criminal statute at the request of a government enforcement officer, with the reasonable belief that the defendant is acting as an authorized government agent to assist in law enforcement activity, then the defendant may not be convicted of violating the criminal statute, because the requisite criminal intent is lacking. The government must prove beyond a reasonable doubt that the defendant did not have a reasonable belief that [he] [she] was acting as an authorized government agent to assist in law enforcement activity at the time of the offense charged in the indictment.”

During her trial for conspiracy to manufacture and distribute methamphetamine, Ms. Bear’s defense was that she had been working for the government in a criminal investigation as a confidential informant when she engaged in the alleged illegal drug activities. She not only testified that she had informed a DEA task force agent, one Darren Hager, about her activities, her trial counsel “clearly presented a claim of public authority during closing arguments.”

Hager was one of those proverbial DEA agents from hell. He was actually a deputy for the Los Angeles County Sheriff's Department (“LASD”), who was assigned to the DEA. Shortly after Bear’s arrest in the instant case, the Government learned that Hager was the subject of an internal affairs investigation and disciplinary action by the LASD concerning allegations that he had wrongly accused another officer of assisting drug dealers. The government reported this to Bear by letter and informed her of a nine-volume investigative report in the custody of the LASD Internal Affairs Bureau.

That report made the DEA gag a bit, so it advised Bear that it did not plan to call Hager as a witness at trial. Defense counsel therefore agreed not to seek a continuance of several months to seek to obtain the nine-volume investigative report about Hager.

However, after Bear testified that she believed she was still cooperating with Hager and acting on behalf of the government when she engaged in the charged activities, the court allowed the prosecutor to call Hager in rebuttal. And, true to form, Hager, the suddenly born-again paragon of virtue, testified that he had not authorized the charged activities, and he denied that Bear ever told him about them. (Not surprisingly, the decision doesn’t report what benefits Hager received for his testimony.)

Bear never requested a public authority jury instruction; and none was given. After she was convicted of the charges against her, and sentenced to 235 months in prison, she appealed, arguing that the district court had committed reversible error by not giving the jury a sua sponte instruction on a public authority defense, since that was the crux of her defense.

In its ruling, the Court first noted that, because defense counsel had neither requested a public authority instruction, nor objected to the instructions the trial court did give the jury, its review was for plain error. Thus, as the Court explained, there must be there must be (1) “error,” (2) that is “plain,” and (3) that “affects” substantial rights; and, if all three of those conditions are found to exist, the Court “may” exercise its discretion to reverse, but "only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings."

Turning to the facts of this case, the Court noted that Bear had acted as a confidential informant in the past; that she testified that she believed she was cooperating with the Government through Deputy Hager, until the moment of her arrest; and that the public authority defense “was her sole theory of defense.” Based on those factors, the Court first found that there was error because “when a defendant actually presents and relies upon a theory of defense at trial, the judge must instruct the jury on that theory even where such an instruction was not requested.”

Second, It concluded that the error was plain. “Given the public authority defense's longstanding presence in our circuit, and that Bear clearly presented it as the crux of her defense, the district court's error in omitting the instruction was plain.” Next, the Court concluded that Bear satisfied the third prong of the plain error test because the error affected her substantial rights, since the jury might not have convicted her had it been properly instructed on the public authority defense.

Finally, the Court held that the error seriously affected the fairness, integrity, or public reputation of public proceedings because “allowing defendant’s conviction[ ] to stand, given the likelihood that the jury may not have convicted had they been properly instructed, would be a 'miscarriage of justice’."

In sum, this is a significant decision on the public authority defense; and it should be particularly helpful to defense counsel in cases where a public authority instruction has been requested but denied by the trial court.

U.S. v. Nichols, No. 04-5020 (4th Cir. Feb. 28, 2006) (Judge Wilkins)

This is another one of those decisions which confirms the adage that “sentencing is different.” The defendant, James Nichols, was originally indicted on three counts: bank robbery, in violation of 18 U.S.C. § 2113(a); armed bank robbery, in violation of 18 U.S.C. § 2113(d); and using or carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). However, “the only direct evidence that a firearm was present” came from a statement that Nichols made to the police shortly after his arrest.

Nichols moved to suppress that statement on the ground that it was obtained in violation of his rights under Miranda v. Arizona, 384 U.S. 436 (1966) and Edwards v. Arizona, 451 U.S. 477 (1981). He claimed that he had twice requested an attorney before being interrogated, but the police had denied him access to counsel until after he had made the incriminating statements.

Following an evidentiary hearing, a Magistrate Judge found that Nichols’ rights had been violated and granted the motion to suppress. After the district court affirmed that ruling, the Government decided to dismiss the armed bank robbery charge and the firearms charge; and Nichols then pled guilty to a single count of bank robbery.

At sentencing, the Government sought to enhance Nichols’ sentence, pursuant to U.S.S.G. § 2B3.1(b)(2)(C) (2004), for possession of a firearm during the robbery. The Probation Department refused to recommend the enhancement on the grounds that "one of [Nichols'] fundamental rights under the United States Constitution was violated in securing this statement," and that enhancing Nichols' sentence based on that statement "would only compound the violation." At sentencing, the district court adopted the probation officer's recommendation not to apply a firearm enhancement; and Nichols was sentenced to 46 months in prison.

The Government appealed, arguing that the district court had erroneously excluded from consideration at sentencing Nichols' statement that he possessed a firearm during the robbery. The Fourth Circuit agreed with the Government’s position and reversed the district court and remanded the case for resentencing.

To date, only one other Federal appellate court has specifically addressed whether statements obtained by police in violation of Miranda are admissible at sentencing. In Del Vecchio v. Ill. Dep't of Corr., 31 F.3d 1363, 1388 (7th Cir. 1994) (en banc), the Seventh Circuit held that even if a Miranda violation were established, "that violation would not require exclusion of the confession during the sentencing proceedings" because "the exclusionary rule is generally inapplicable during sentencing."

In the instant case, the Fourth Circuit stated that even if "there are . . . constitutional limitations" on the generally broad scope of information a court may consider at sentencing,” it agreed with the Seventh Circuit that “statements obtained in violation of Miranda, if they are otherwise voluntary, may generally be considered at sentencing.” The Court continued:

“In sum, we conclude that in cases such as this one — where there is no evidence that an illegally obtained statement was actually coerced or otherwise involuntary — the substantial burden on the sentencing process resulting from exclusion of that statement outweighs any countervailing concerns about police deterrence or unreliable evidence. As with evidence obtained in violation of the Fourth Amendment, the disadvantages of applying the Miranda exclusionary rule at sentencing are large, and the benefits small or non-existent.”

U.S. v. Eura, No. 05-4437 (4th Cir. Feb. 24, 2006) (Judge Hamilton)

The principal issue addressed by the Court in this case was “whether a district court in the post-Booker world can vary from the advisory sentencing range under the Guidelines by substituting its own crack cocaine/powder cocaine ratio for the 100: 1 crack cocaine/powder cocaine ratio chosen by Congress.”

That issue arose after District Judge Payne (E.D.Va.) imposed a lighter sentence than recommended by the Guidelines on Vincent Eura, who had been convicted of a number of crimes, including the distribution of between five and twenty grams of crack cocaine. Although the sentence differential on the crack count was not large in absolute terms (60 months versus a Guideline range of 78-to-97 months), the Government probably took umbrage at some of Judge Payne’s sentencing comments - including particularly his comment that “the crack guideline does not provide an appropriate, fair and just punishment, and so the Court will not impose a sentence within the guidelines in this case.”

The Government appealed the crack portion of the sentence, arguing that the sentence imposed on Eura was unreasonable because it was based on the district court's disagreement with the policy decisions of Congress regarding the appropriate punishment for crack cocaine dealers. The government also contended that the sentence imposed by Judge Payne “does not reflect the seriousness of the offense, promote respect for the law, or provide just punishment for the offense.” Finally, the Government argued that the sentence imposed in this case would unquestionably lead to sentencing disparities.

The Fourth Circuit agreed with the Government’s position and reversed; it not only remanded for resentencing, it assumed the mantle of sentencing judge by instructing the district court to impose a specific within-Guidelines sentence. The Court stated, inter alia, that “sentencing courts should not be in the business of making legislative judgments concerning crack cocaine and powder cocaine.” Then, parroting the Government’s arguments, it continued that “allowing sentencing courts to subvert Congress' clearly expressed will certainly does not promote respect for the law, provide just punishment for the offense of conviction, or result in a sentence reflective of the offense's seriousness as deemed by Congress.”

While the Court did pay lip service to the principle that, post-Booker, not all defendants convicted of crack cocaine offenses “must receive a sentence within the advisory sentencing range,” it left very little room for deviations from the sentencing range recommended by the Guidelines. Citing the rationale of the First Circuit in its recent decision in U.S. v. Pho, 433 F.3d 53 (1st Cir. Jan. 5, 2006) (P&J, 12/12/05), the Court stated:

“The [First Circuit] reasoned that Congress' selection of the 100: 1 ratio was a policy judgment made by Congress and that courts were bound by this judgment. We wholeheartedly agree with the Pho court's conclusion that a ‘district court's categorical rejection of the 100: 1 ratio impermissibly usurps Congress's judgment about the proper sentencing policy for cocaine offenses’."

The Court’s decision in this case immediately drew the ire of a lot of commentators on the Internet, including an “outraged” Prof. Doug Berman, the reigning Booker guru, who wrote on his Website, Sentencing Law and Policy:

‘On page 10, the majority in Eura, in the course of describing post-Booker sentencing, states: ‘If a sentence within the sentencing range serves the factors set forth in § 3553(a), the court should impose a sentence within that range that best serves those factors.’ But this is clearly and absolutely not what Congress has told sentencing courts to do in section 3553(a) of the Sentencing Reform Act. The clear plain textual command of 3553(a) set forth by Congress states very simply: ‘The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.’ Tellingly, the Eura majority never discusses this provision of 3553(a). As I read Eura, it strikes me as an example of judicial activism at its worst.”

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