Vol. 13, No. 11	Covering Cases Published in the Advance Sheets through Mar. 13, 2006

Designating Suspects as Terrorists and Then Locking the Courthouse Doors

• The Supreme Court declined to grant a writ of certiorari in the Qassim case, thus leaving in limbo the plight of two Chinese Muslims who have been held in the military prison at Guantanamo Bay for more than four years despite the fact that a military tribunal has since concluded that the two prisoners are not enemy combatants.
  
  
  
• In Afshari, the Ninth Circuit declined to rehear en banc an earlier decision in which it reinstated a terrorism indictment that Judge Takasugi (C.D.Cal.) had previously dismissed on due process grounds. In a colorful dissent, Judge Kozinski argued that it is unconstitutional to prosecute a defendant "for giving money to an organization that no one other than some obscure mandarin in the bowels of the State Department had determined to be a terrorist organization."
  
  

Conspiracy Issues

• In Lopez, the Eighth Circuit, sitting en banc, revised its long followed “slight evidence” standard required to support a conviction for conspiracy. It held that, while a defendant's role in a conspiracy may be minor, the government must offer enough evidence to prove a defendant's connection to a conspiracy beyond a reasonable doubt before a conspiracy conviction can be upheld.
  
  
  
• In Molina, the Eleventh Circuit held that the district court committed reversible error when it granted a judgment of acquittal on the grounds that a drug trafficking conviction and a separate gun conviction were based on mere presence. Writing for the Court, a testy Judge Pryor stated that the appeal was not about mere presence; and that the evidence was “more than sufficient” to prove the defendant’s knowledge of and participation in the conspiracy.
  

Fourth Amendment: The Good Faith Exception to the Exclusionary Rule

• In McClain, a divided Sixth Circuit declined to rehear en banc a panel’s earlier decision which held that the district court had erred in granting a suppression motion as the fruit of a poisonous tree. The panel reasoned that the good faith exception to the exclusionary rule applied to validate a search that was based “entirely” on information obtained as a result of the earlier illegal search. In dissent, Judge Martin argued that “to apply the good-faith exception to fruits of an illegal search -- in essence, because following the initial illegality, the officers decided to play nice -- would have the good-faith exception swallow the fruit of the poisonous tree doctrine.”
  
  

Portions of the PROTECT Act's Pornography Provisions Held Unconstitutional

• In Williams, the Eleventh Circuit held that certain provisions of the PROTECT Act, which criminalize promoting or “pandering” of child pornography, are unconstitutionally vague because they are not susceptible to uniform interpretation and application by law enforcement officials - a decision that is certain to exacerbate the fight between Congress and the Judiciary.

Qassim v. Bush, No. 05-892 (U.S.S.C. April 17, 2006) (Per Curiam)

Without any comment or recorded dissent, the Supreme Court declined to grant a writ of certiorari to review the case entitled Qassim v. Bush, 407 F.Supp.2d 198 (D.D.C. Dec. 22, 2005) (Qassim I). In that ruling, Judge Robertson concluded that the four-year detention of two Chinese Muslims, Abu Bakker Qassim and Adel Abdu al-Hakim, at Guantanamo Bay was unlawful; but he also concluded that he had no authority to order their release.

The two men were initially captured by Pakistani security forces in late 2001 as they were fleeing towards Pakistan after the inception of U.S. bombing in Afghanistan. They were then held in Afghanistan for some six months before being transferred to Guantanamo Bay in mid-2002 as suspected enemy combatants.

Ultimately, a U.S. military tribunal determined that the two men “should no longer be classified as enemy combatants” (a statement that begs the issue whether they were ever properly classified as such), but the Administration still opposed their release. Because both men were members of a Chinese ethnic separatist group known as Uighurs they do not want to be sent back to China where they believe that they would be imprisoned and tortured. However, wary of offending China, government officials also refused to grant them asylum in the United State; and diplomatic efforts to transfer them to other countries have been rebuffed.

In Qassim I, the Government claimed that its authority to continue to detain Qassim and al-Hakim was "the Executive's necessary power to wind up wartime detentions in an orderly fashion." That claim presented two fundamental questions to Judge Robertson: "Does the government have ‘wind up’ authority indefinitely to detain non-U.S. citizens at Guantanamo Bay, if they are not enemy combatants? If not, does a district court have the authority to fashion an effective remedy for the illegal detention?"

In rejecting the Government’s “wind up authority” argument, Judge Robertson concluded that the continued, indefinite detention of the two men was unlawful. However, he also concluded that he had no authority "to do what I believe justice requires" in ordering their release. He said that he could not grant the prisoners’ requests for asylum in the United States because the law gives that power solely to the president.

In appealing Judge Robertson’s ruling directly to the Supreme Court, lawyers for the two prisoners acknowledged that it is rare for the Supreme Court to hear such a case before an appeals court issues its ruling. (At the time of their filing with the Supreme Court, Qassim I was already being appealed to the D.C. Circuit.) Nevertheless, the lawyers argued in their petition that "[t]he district court's decision once again renders Guantanamo Bay a place and a prison beyond law. Liberty can never be secure when the judicial branch declares its impotence."

The effect of the Supreme Court’s action is that Qassim and al-Hakim remain stuck in a state of limbo at Guantanamo Bay. For the benefit of our readers, we have posted on our website a copy of the amicus curiae brief filed by the ACLU in support of the petition for a writ of certiorari that was filed in this case.

Also, as a matter of interest, we note that the Government’s lawyers attempted to minimize the plight of Qassim and al-Hakim by telling the Supreme Court justices that both men have access to various amenities including television, a stereo system, books and a number of recreational activities, including soccer and ping pong. (See, “Guantanamo Detainees Fail in Bid for High Court Review,” The Wall Street Journal, April 17, 2006.) We suggest that this unique “ping pong defense” may go down in history as a serious competitor to Marie Antoinette’s equally ludicrous “let them eat cake” comment.

U.S. v. Afshari, No. 02-50355 (9th Cir. Apr. 17, 2006) (en banc) (Per Curiam)

In U.S. v. Rahmani, 209 F.Supp.2d 1045 (C.D.Cal. 2002) (P&J, 06/17/02), Judge Takasugi of the C.D.Cal. dismissed an indictment filed against seven defendants, which charged them with conspiracy and 58 substantive counts of providing material support to an organization known as the People’s Mojahedin Organization of Iran, or MEK, in violation of 18 U.S.C. § 2339B(a)(1). MEK had been designated as a foreign terrorist organization under one of the key provisions of the 1996 antiterrorism laws, namely 8 U.S.C. § 1189. Judge Takasugi concluded that § 1189 was facially unconstitutional since it provided the organization no notice or opportunity to contest its designation as a terrorist organization.

Subsequently, the Ninth Circuit reversed Judge Takasugi’s ruling in a decision reported sub nom. U.S. v. Afshari, 426 F.3d 1150 (9th Cir. Oct. 20, 2005) (P&J, 10/10/05) (“Afshari I”). The panel not only upheld the constitutionality of § 1189, it stated:

“The sometimes subtle analysis of a foreign organization's political program to determine whether it is indeed a terrorist threat to the United States is particularly within the expertise of the State Department and the Executive Branch. Juries could not make reliable determinations without extensive foreign policy education and the disclosure of classified materials. Nor is it appropriate for a jury in a criminal case to make foreign policy decisions for the United States. Leaving the determination of whether a group is a ‘foreign terrorist organization’ to the Executive Branch, coupled with the procedural protections and judicial review afforded by the statute, is both a reasonable and a constitutional way to make such determinations. The Constitution does not forbid Congress from requiring individuals, whether they agree with the Executive Branch determination or not, to refrain from furnishing material assistance to designated terrorist organizations during the period of designation.” (Afshari I, id., at 1162).

In the instant ruling, the Ninth Circuit declined, over the dissent of five judges, to rehear Afshari I en banc. Five judges, representing some of the most conservative and liberal factions on the Court (Judges Kozinski, Pregerson, Reinhardt, Thomas, and Paez), dissented. In a colorful opinion written by Judge Kozinski, the dissenters first pointed out that the D.C. Circuit initially held that MEK’s designation as a terrorist organization violated its due process rights. After remand to the State Department, the D.C. Circuit ultimately affirmed the designation, but this did not occur until two years after the contributions at issue.

Thus, while the dissenters agreed that “it goes without saying that the United States government may prohibit donations to terrorist organizations,” they also argued that “the procedural history of this case perfectly illustrates the patent unconstitutionality of the terrorist organization designation process.” They explained:

“Contributing material support to an organization not designated a terrorist organization cannot subject a person to criminal sanction just because the same organization is later so designated. Had the D.C. Circuit revoked MEK's designation in 2001 - as it was required to do under the statute - Rahmani's donations from 1997 to 2001 would have been perfectly legal, even if MEK was subsequently re-designated.”

In the end, Judge Kozinski forcefully stated it is unconstitutional to prosecute a defendant "for giving money to an organization that no one other than some obscure mandarin in the bowels of the State Department had determined to be a terrorist organization." He continued:

“I can understand the panel's reticence to interfere with matters of national security, but the entire purpose of the terrorist designation process is to determine whether an organization poses a threat to national security. Under the Constitution, the State Department does not have carte blanche to label any organization it chooses a foreign terrorist organization and make a criminal out of anyone who donates money to it. Far too much political activity could be suppressed under such a regime.”

U.S. v. Molina, No. 04-13114 (11th Cir. Mar. 24, 2006) (Judge Pryor)

This is one of the first significant criminal law decisions written by Judge William Pryor, the former Attorney-General of the State of Alabama, who was one of President Bush’s most controversial recess appointments to the Federal bench.

The case involved an appeal by the Government from a judgment of acquittal (JOA) entered in favor of Eliany Molina after a jury convicted her of knowingly participating in a drug trafficking conspiracy and possessing a firearm in furtherance of a drug trafficking crime. The district court concluded that the only evidence connecting defendant to the conspiracy, beyond her mere presence, was defendant's post-arrest statement that a relative gave her a shoe box of money and asked her to store it. The district court also concluded there was no nexus between defendant, the firearm, and any drug trafficking crime which was taking place at the moment law enforcement apparently awakened her in her bedroom that morning.

Sorry, wrote Judge Pryor. Where I come from there was sufficient evidence for a reasonable jury to have convicted the defendant on both counts - even if I wasn’t present at the trial. Therefore, both convictions are reinstated.

In reaching that conclusion, Judge Pryor tartly stated that “this appeal is not about mere presence.” He then wrote: "In considering a motion for the entry of a judgment of acquittal, a district court 'must view the evidence in the light most favorable to the government, and determine whether a reasonable jury could have found the defendant guilty beyond a reasonable doubt’."

Addressing the drug trafficking conviction, Judge Pryor concluded that a reasonable jury could have found that the defendant knowingly participated in a drug trafficking conspiracy because law enforcement agents discovered, in Molina’s closet, a garbage that contained nearly $300,000 in cash; and because Molina was arrested in her bedroom, where agents also found drugs and a digital scale. Even though another defendant testified that Molina had no knowledge of either the drugs or the bag of money in the closet, Judge Pryor wrote that “the jury was free to discredit his testimony.” He then concluded: “Taken together, this evidence was more than sufficient to prove Molina's knowledge of and participation in the conspiracy.”

Addressing the gun conviction, Judge Pryor noted that to establish constructive possession, the government must prove "ownership, dominion, or control" over the firearm; to establish that a firearm was possessed "in furtherance" of a drug trafficking crime, the government must show "some nexus between the firearm and the drug selling operation"; and that the nexus between the gun and the drug operation can be established by “accessibility of the firearm, . . . proximity to the drugs or drug profits, and the time and circumstances under which the gun is found." (Internal citations omitted.)

Applying those principles, Judge Pryor noted that a firearm had been found in Molina's bedroom, in the drawer of the nightstand that also contained both her passport and the passport of her brother. Once again, even though another defendant testified that the gun belonged to him, “the jury was free to discredit entirely” that testimony. Accordingly, because a reasonable jury could have found that Molina exerted "ownership, dominion, or control" over the firearm, the district court erred in granting a JOA.

U.S. v. McClain, No. 04-5887 (6th Cir. Mar. 31, 2006) (en banc) (Per Curiam)

In U.S. v. McClain, 430 F.3d 299 (6th Cir. Dec. 2, 2005) (“McClain I”), the Sixth Circuit addressed a suppression order that had been issued in a case where there was (1) an illegal warrantless search of the defendant's home, followed by (2) additional surveillance based on the information obtained as a result of the initial illegal search, and finally (3) a warrant application that relied entirely on the evidence obtained as a result of the first illegal search and the fruits obtained therefrom. The district court ordered the suppression after finding that the warrantless search of the defendant’s residence was not justified by exigent circumstances; that the good faith exception to the exclusionary rule did not apply to these circumstances; and that the derivative evidence must be suppressed as fruits of the poisonous tree.

The Sixth Circuit reversed in McClain I. While the panel agreed with the district court’s conclusion that there was neither probable cause nor exigency to justify the initial warrantless search of the defendant’s residence, it also concluded that suppression is not warranted under the good faith exception to the exclusionary rule that was established in U.S. v. Leon, 468 U.S. 897 (1984). The panel reasoned that the officers who conducted the sweep had acted in good faith because they conducted their sweep on the belief that there might be burglars in the defendant’s house, and the second set of officers reasonably relied on the search warrant.

The defendant then sought a rehearing en banc, which the Sixth Circuit denied in the instant decision over the dissent of four judges. Writing for the dissenters, Judge Boyce Martin started with the observation that "Because the Fourth Amendment already has more holes in it than a piece of Swiss cheese, and the panel’s opinion adds an errantly-fired cannon-sized hole, I dissent from the Court’s decision denying rehearing en banc." He then continued with an informative and carefully researched opinion explaining why the panel’s application of Leon was wrong. He concluded by stating:

“Severing the police officers' illegal search of the home from the subsequent surveillance and applying the good-faith exception to the subsequent surveillance is . . . an unacceptable outcome. To apply the good-faith exception to fruits of an illegal search -- in essence, because following the initial illegality, the officers decided to play nice -- would have the good-faith exception swallow the fruit of the poisonous tree doctrine. Fruits of initial illegal conduct are essentially always gathered in good faith.”

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