Vol. 13, No 37
Covering Cases Published in the Advance Sheets through Sept. 11, 2006

Anti-Terrorism Issues

Eleventh Circuit Vacates Earlier Ruling Granting the Cuba-5 Defendants a New Trial

Mandatory Minimum Sentence of 159 Years Derided as Irrational, Inhumane and Absurd

New Rederal Rule of Appellate Procedute 32.1

 

The Adam Walsh Child Protection and Safety Act of 2006

At the end of this issue, we have presented a summary of some of the many significant features of this new legislation that became effective on July 27, 2006 - the latest in a long string of surreptitious but significant bills enacted by Congress with little or no debate which will impact many areas of Federal criminal law.


U.S. v. Padilla, No. 04-60001-CR-Cooke/Brown (S.D.Fla. Oct. 4, 2006) (Judge Cooke)

An important element in the Government’s ongoing attempts to justify the use of torture on terrorists captured on foreign battlefields has been the assurance that such terrorists are different and that, whatever tactics may be appropriate or necessary for foreigners, torture would never be permissible if used on U.S. citizens. Well, the “Motion to Dismiss for Outrageous Government” that was filed on October 4, 2006 in this case by Jose Padilla, an American citizen, raises serious doubts about the credibility of that contention.

Quite aptly, the Argument section of this Motion turns to literature to emphasize how easy it is to expand the rules and to make sure that the end justifies the means. Quoting Friedrich Nietzsche, Padilla’s counsel notes:

"Whoever fights monsters should see to it that in the process he does not become a monster. And when you look long into an abyss, the abyss also looks into you." Friedrich Nietzsche, Beyond Good and Evil 89 (Walter Kaufmann trans., Vintage Books 1966) (1886).

Recounting a pattern of abject abuse and revolting misconduct that is reminiscent of the worst of Soviet Russia’s chain of gulags, Padilla’s Motion is a disturbing indictment of the torture tactics used by a variety of Governmental agencies and actors in their attempt to manipulate, dehumanize and - most of all - to break Padilla so they could convict him of something in order to justify their methods.

Padilla is an American citizen who was first arrested on May 8, 2002 on American soil on a material witness warrant. Then, almost as soon as counsel appeared on his behalf, he was scooted away in the middle of the night to the U.S. Navy Brig in Charleston, S.C., where he was then held incommunicado, without access to counsel or the courts, and without charges other than vague allegations that he was a terrorist.

For example, in 2002, then-U.S. Attorney General John Ashcroft trumpeted on TV that ''we have captured a known terrorist'' who was plotting to blow up a radioactive ''dirty bomb'' in the United States. (See, “Government’s case against terror suspect faces obstacles,” by Jay Weaver, Miami Herald, Aug. 28, 2006; and “Legal landmines emerge in ‘dirty bomber’ case,” by Warren Richey, Christian Science Monitor, Aug. 31, 2006.)

As problems with proving those claims developed, and as legal challenges to his detention mounted, the Administration switched tactics. It suddenly moved Padilla to a Federal prison in Miami; and, on November 17, 2005, it filed an indictment against his, essentially charging that Padilla broke the law by becoming an Al Qaeda recruit for a south Florida terror group and by filling out an application to become a holy warrior.

Finally, with access to the courts and counsel, Padilla was in a position to fight back; and the instant Motion is the first salvo to defeat the latest of the Government’s moving charges against him. In the instant Motion, Padilla charges that he was tortured for nearly the entire three years and eight months of his unlawful detention. The torture took myriad forms, each designed to cause pain, anguish, depression and, ultimately, the loss of will to live.

The base ingredient in Padilla’s torture was stark isolation for a substantial portion of his captivity. For nearly two years – from June 9, 2002 until March 2, 2004, when the Department of Defense finally permitted Mr. Padilla to have some limited contact with his lawyers - Padilla was in complete isolation. But even after he was permitted contact with counsel, his conditions of confinement remained essentially the same. The Motion continues, in part:

“[Padilla’s] tiny cell – nine feet by seven feet – had no view to the outside world. . . . In addition to his extreme isolation, Mr. Padilla was also viciously deprived of sleep. This sleep deprivation was achieved in a variety of ways. For a substantial period of his captivity, Mr. Padilla’s cell contained only a steel bunk with no mattress. . . .

“Efforts to manipulate Mr. Padilla and break his will also took the form of the denial of the few benefits he possessed in his cell. For a long time Mr. Padilla had no reading materials, access to any media, radio or television, and the only thing he possessed in his room was a mirror. The mirror was abruptly taken away, leaving Mr. Padilla with even less sensory stimulus. . . .

“Mr. Padilla’s dehumanization at the hands of his captors also took more sinister forms. Mr. Padilla was often put in stress positions for hours at a time. He would be shackled and manacled, with a belly chain, for hours in his cell. Noxious fumes would be introduced to his room causing his eyes and nose to run. The temperature of his cell would be manipulated, making his cell extremely cold for long stretches of time. Mr. Padilla was denied even the smallest, and most personal shreds of human dignity by being deprived of showering for weeks at a time, yet having to endure forced grooming at the whim of his captors.

“A substantial quantum of torture endured by Mr. Padilla came at the hands of his interrogators. In an effort to disorient Mr. Padilla, his captors would deceive him about his location and who his interrogators actually were. Mr. Padilla was threatened with being forcibly removed from the United States to another country, including U.S. Naval Base at Guantanamo Bay, Cuba, where he was threatened his fate would be even worse than in the Naval Brig. He was threatened with being cut with a knife and having alcohol poured on the wounds. He was also threatened with imminent execution. He was hooded and forced to stand in stress positions for long durations of time. He was forced to endure exceedingly long interrogation sessions, without adequate sleep, wherein he would be confronted with false information, scenarios, and documents to further disorient him. Often he had to endure multiple interrogators who would scream, shake, and otherwise assault Mr. Padilla. Additionally, Mr. Padilla was given drugs against his will, believed to be some form of lysergic acid diethylamide (LSD) or phencyclidine (PCP), to act as a sort of truth serum during his interrogations. . . .

“In sum, many of the conditions Mr. Padilla experienced were inhumane and caused him great physical and psychological pain and anguish. Other deprivations experienced by Mr. Padilla, taken in isolation, are merely cruel and some, merely petty. However, it is important to recognize that all of the deprivations and assaults recounted above were employed in concert in a calculated manner to cause him maximum anguish. It is also extremely important to note that the torturous acts visited upon Mr. Padilla were done over the course almost the entire three years and seven months of his captivity in the Naval Brig. For most of one thousand three hundred and seven days, Mr. Padilla was tortured by the United States government without cause or justification. Mr. Padilla’s treatment at the hands of the United States government is shocking to even the most hardened conscience, and such outrageous conduct on the part of the government divests it of jurisdiction, under the Due Process clause of the Fifth Amendment, to prosecute Mr. Padilla in the instant matter.”

We have posted the entire Motion on our Website; and it is well worth reading. It will be interesting to see how the Government responds to this Motion and what new surprises the Government has in store for Padilla.


U.S. v. Hungerford, No. 05-30500 (9th Cir. Oct. 13, 2006) (Judge Graber)

Few cases can describe with greater clarity than this gem the absolute insanity that can result from the imposition of some mandatory minimum sentences. Marion Hungerford, a 52-year old, mentally-disturbed, mother of four was sentenced to 159 years in prison for helping her live-in boyfriend commit a string of robberies in Montana in 2002 - while the boyfriend, who pled guilty, got “only” 32 years. Most of Mrs. Hungerford’s sentence was based on the provisions of 18 U.S.C. § 924(c), which require the sentencing court to impose a 5-year consecutive sentence for a single conviction of use of a firearm during and in relation to any crime of violence and mandatory consecutive sentences of 25 years for each additional count of a crime of violence.

Even though the Ninth Circuit agreed that Mrs. Hungerford had never touched a gun and had no prior criminal record, it stated that it was powerless to vacate or change the obscene sentence imposed on her. In affirming her 159-year sentence, the Court specifically rejected Mrs. Hungerford’s argument that her sentence violated the Eighth Amendment’s prohibition against cruel and unusual punishment.

In a bitter concurring opinion, Judge Reinhardt agreed that existing precedent foreclosed Mrs. Hungerford's Eighth Amendment argument, but he continued:

“it cannot be left unsaid how irrational, inhumane, and absurd the sentence in this case is, and moreover, how this particular sentence is a predictable by-product of the cruel and unjust mandatory minimum sentencing scheme adopted by Congress."

He then continued:

“Because § 924(c) gives the sentencing judge no choice or discretion, except to impose the statutory mandatory sentences, the judge was forced to sentence Hungerford, a 52 year-old mentally disturbed woman with no prior criminal record, to over 159 years in prison. What the judge was not permitted to take into account when sentencing Hungerford should shock the conscience of anyone who believes that reasonable proportionality between a crime and the sentence is a necessary condition of fair sentencing. . . .

“Although Congress may be permitted under the Constitution to adopt a cruel sentencing scheme, though not a cruel and unusual one, surely the people's representatives should aim above this dismally low mark. Here, it is difficult to escape the conclusion that the current mandatory sentencing laws have imposed an immensely cruel, if not barbaric, 159-year sentence on a severely mentally disturbed person who played a limited and fairly passive role in several robberies during which no one was physically harmed. . . .

“Not only is the sentence cruel, it is absurd. . . . Hungerford's case is a textbook example of how § 924(c) permits a prosecutor, but never a judge, to determine the appropriate sentence. Hungerford's co-conspirator, Canfield, was the principal in all of the robberies - he owned and brandished the .22 pistol in each robbery, and testified that Hungerford had nothing to do with the firearm - yet he reached an agreement with the government and received a sentence of 32 years. On the other hand, Hungerford, who refused to plead guilty, in large part due to her mental illness, was aggressively charged, convicted, and sentenced to 159 years in prison. The prosecutor used his discretion to send the mentally-ill Hungerford to prison until she turns 208, while he administered a far lesser punishment - only one-fifth as great - to the principal who put the lives of others at risk. In Hungerford's case, only the prosecutor and not the district judge had the authority to exercise discretion.

“Hungerford received her 159-year sentence because she refused to enter into a plea agreement with the government. Had she been able and willing to do so, she undoubtedly would have received a significantly lesser term than the principal's 32-year sentence. Hungerford tragically refused to cooperate with the government and plead guilty, most likely because her mental illness caused her to hold a fixed belief that she was innocent.”


The Adam Walsh Child Protection and Safety Act of 2006 -
Another Congressional Election Year Profundity

With thanks to Attorney Richard Palma of New York City for bringing this Act to our attention, we note that the current Congress has passed another one of those proverbial “can’t miss,” election year child pornography laws, this one called the “Adam Walsh Child Protection and Safety Act of 2006” (herein the “CPSA”). The 83-page CPSA was another one of those wonderful bills sponsored by Congressman James F. Sensenbrenner of Wisconsin. The CPSA was enacted into law on July 27, 2006 as Public Law 109 P.L. 248; and it can be found at various sites including Thomas (http://thomas.loc.gov/).

The CPSA is a classic example of modern law legislation: a catch-all law that amends (sometimes in dramatic ways) numerous provisions of the Federal criminal code - with little debate and no legislative history (there was no Report from either the House or the Senate); and which was probably never even read by most of the Congressmen who voted for it.

Among other provisions, the CPSA:

Another provision in the CPSA that could create enormous obstacles for criminal defense attorneys is a new subsection that has been added to 18 U.S.C. § 3509 (which deals with Child Victims’ and Child Witnesses’ Rights). The new subsection (m), which is labeled “Prohibition on reproduction of child pornography,” makes it a crime for the prosecutor to duplicate and send to defense counsel copies of the evidence upon which the pornography charges of his client are based. That new provision reads in its entirety as follows:

“(m) Prohibition on reproduction of child pornography.

(1) In any criminal proceeding, any property or material that constitutes child pornography (as defined by section 2256 of this title [18 U.S.C. § 2256]) shall remain in the care, custody, and control of either the Government or the court.

(2) (A) Notwithstanding Rule 16 of the Federal Rules of Criminal Procedure, a court shall deny, in any criminal proceeding, any request by the defendant to copy, photograph, duplicate, or otherwise reproduce any property or material that constitutes child pornography (as defined by section 2256 of this title [18 U.S.C. § 2256]), so long as the Government makes the property or material reasonably available to the defendant.

(B) For the purposes of subparagraph (A), property or material shall be deemed to be reasonably available to the defendant if the Government provides ample opportunity for inspection, viewing, and examination at a Government facility of the property or material by the defendant, his or her attorney, and any individual the defendant may seek to qualify to furnish expert testimony at trial.”

So, from now on, defense counsel will no longer be able to have the alleged pornographic materials sent to them for inspection, viewing and examination; rather they (and any experts they propose to use) will have to go to the prosecutor’s office (where they may well be taped) to make whatever analysis of the evidence they feel is appropriate or necessary. As Mr. Palma noted to us, examining the evidence in the prosecutor’s office will probably make it very difficult to determine whether a statute of limitations defense applies, since the Government is unlikely to give access to the defendant’s computer - only the pornography that it alleges was found on the computer.

And finally, the CPSA contains the usual dosage of obscene, vote-grabbing “earmarks” that we have grown accustomed to expect from this spendthrift Congress. Thus, the CPSA includes grants for a variety of pet projects of various Congressmen, including funds to pay for the fingerprinting of children, operating funds for “McGruff Clubs” (named after the well known “McGruff the Crime Dog”), and $7 million for the “Crime Prevention Campaign Grant” (which is probably a pseudonym for Halliburton!).

Ah, the joys of modern day legislation!!! We can only hope that one day, in a more perfect world, Congress will actually be required to read and debate the laws it passes!!

For more commentary on the CPSA, see "Major New Sex Offense Bill," as published on the Fourth Circuit Blog, on September 18, 2006.


Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court
This Week
Year to Date
Since 1996
Courts of Appeal
46
1,987
25,825
District Courts
24
986
14,428

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