Vol. 14, Nos. 28 & 29	Covering Cases Published in the Advance Sheets through July 16, 2007

Court Reaffirms Most of 1988 Injunction Regarding Treatment of Aliens in U.S. Detention Centers

• In Orantes-Hernandez, Judge Margaret Morrow of the C.D.Cal. rejected a Government motion to dissolve a 1988 nationwide injunction that continues to govern the rights of aliens being held in more than 200 separate detention centers in the United States. Citing evidence of a “significant number” of ongoing violations of relevant provisions of that injunction, and stating that she could not conclude that the problems addressed by the injunction have been eliminated “to the extent practicable,” Judge Morrow decided to leave intact all but two of the original 14 paragraphs of the injunction.
  
  

Court Again Orders New York City to Release Details of Mass Arrests at Republican Convention

• In Schiller, Magistrate Judge Francis ordered New York City to release of nearly 2,000 pages of raw intelligence reports and other documents detailing the Police Department’s controversial and covert surveillance of protest groups and individual activists before the Republican National Convention in 2004. Those activities led to the arrest and detention of more than 1,800 individuals, many of whom were held for several days. Scores of lawsuits have since been filed by the protestors; and the City has opposed the release of most information concerning its surveillance plans and activities on the grounds that they are protected by the law enforcement privilege. Judge Francis concluded that the plaintiffs had a “substantial need” for the information; and he observed that information is not privileged “simply because it was obtained as a result of an undercover investigation.”
  
  

Administrative Searches at Airports Post 9/11 - The Changing Legal Rights of Passengers

• In Aukai, the Ninth Circuit, sitting en banc, expanded its jurisprudence on the standards for approving airport screening searches. Previously, a prior panel had upheld an airport search principally on the grounds that the defendant had given his implied consent to the search. While the en banc court agreed that the search was legal, it did so on other grounds: the Court emphasized that the reasonableness of such administrative searches does not depend upon the consent of the passenger being searched - but only on the passenger’s election to enter a secured area of the airport.
  
  

Sentencing and Guidelines Issues

• In Gammicchia and Paul, the Seventh and Ninth Circuits, respectively, took diametrically opposed views of the legitimacy of appeals of within-Guidelines sentences in the aftermath of Rita v. U.S. The Seventh Circuit (a la Judge Posner) scoffed that such appeals are essentially frivolous; while the Ninth Circuit (in an unpublished decision) held that a 16-month, within-Guidelines sentence was clearly “unreasonably high.”
  
  
• In Hurn, the Seventh Circuit almost summarily rejected a defendant’s challenge to a dramatic increase in his sentence based on the very conduct for which the jury had acquitted him - showing, once again, how limited an impact cases like Booker and Rita have had on Guideline sentencing in the U.S.

Orantes-Hernandez v. Gonzales, No. cv-82-01107-MMM (C.D.Cal. July 23, 2007) (Judge Morrow)

This is an important decision that affects the rights of some 230,000 immigrants who are detained by the U.S. each year in some 201 separate detention centers. This particular order had its origins in a landmark ruling entered nearly 20 years ago by retired District Judge David Kenyon of the C.D.Cal. in a case entitled Orantes-Hernandez v. Meese, 685 F.Supp. 1488 (C.D.Cal. Apr. 29, 1988) (“Orantes I”). In that case, Judge Kenyon granted a sweeping, permanent and nationwide injunction (hereinafter the “Orantes Injunction”) on behalf of a class of present and future Salvadorans who had been, or would be, taken into custody by the former Immigration and Naturalization Service (INS) (whose functions have now been taken over by the Dept. of Homeland Security, of which Immigration and Customs Enforcement (ICE) is now a bureau).

Judge Kenyon found numerous due process violations and deplorable detention conditions at various INS detention centers where the Salvadoran immigrants were being held. Accordingly, he ordered the INS to provide the detained and future Salvadoran immigrants with information about their basic legal rights (including access to phones, visits by legal counsel, and access to law libraries while in detention), and he directed the INS to improve those conditions for all immigration detainees.

In 2005, the Government sought to dissolve the Orantes Injunction, arguing in part that there had been “significant factual changes” in the circumstances that led to the issuance of the injunction, as evidenced by the absence of any enforcement or contempt proceedings by the plaintiffs for over 18 years. The Government also argued that there had been an intervening change in the law - i.e., the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), which provides for the expedited removal of inadmissible aliens.

The plaintiffs, who were represented by the National Immigration Law Center (NILC), opposed the dissolution of the injunction. They pointed to the recent discovery of the NILC of nearly 20,000 pages of never before released documents from ICE, as well as similar reports by a United Nations office and the American Bar Association. For further information about these reports see www.nilc.org/immlawpolicy/arrestdet/ad090.htm and www.nilc.org/immlawpolicy/arrestdet/UNspecialrapporteur_presentation_2007-05-03.pdf.

The plaintiffs claimed that these various reports demonstrated the agency’s failure to adequately monitor the conditions of immigration detention throughout the United States.

After extensive hearings, Judge Margaret Morrow (who took over the case from Judge Kenyon) wrote the instant 78-page ruling in which she granted the Government’s motion to dissolve two relatively insignificant provisions of the Orantes Injunction, but otherwise denied the Government’s motion “in all other respects.” She firmly concluded that the totality of the evidence “suggest that the incidence of non-compliance [with the Orantes Injunction] is higher, perhaps substantially higher, than that reported by ICE . . .”

She also noted that the applicable standard required for the dissolution of “a reform decree that imposes judicial oversight on an institution properly governed by a branch of government other than the Federal judiciary” is twofold: (a) elimination, “to the extent practicable,” of the underlying problem the injunction sought to address, and (b) good faith efforts to comply with the injunction. She then concluded:

“[T]he court cannot conclude that the problems addressed by the injunction have been eliminated ‘to the extent practicable,’ given the evidence that at detention facilities for which reports were produced there have been a significant number of violations of critical provisions of the injunction dealing with detainees’ access to legal materials, telephone use, and attorney visits. This substantial evidence of non-compliance persuades the court that detention center conditions are not so changed as to warrant dissolution of paragraphs 1, 3-9 and 13-15 of the Orantes injunction. By contrast, the evidence shows only isolated (or no) violations of paragraphs 10 and 12 of the injunction, i.e., provisions regarding administrative segregation and legal presentations. Accordingly, the court finds it appropriate to dissolve paragraphs 10 and 12 of the Orantes injunction.” (Id., at pp. 75-76).

In sum, Judge Morrow’s ruling is a noteworthy depiction of the sometimes deplorable, if not shocking, conditions in which aliens are detained in the United States, as well as valuable compendium of much of the jurisprudence governing the legal standards that apply to alien detainees in the United States.

U.S. v. Gammicchia, No. 06-3325 (7th Cir. Aug. 9, 2007) (Judge Posner)
U.S. v. Paul, No. 06-30506 (9th Cir. Aug. 17, 2007) (Per Curiam) (unpublished)

It is, by now, well recognized that the sentencing revolution started by the Apprendi/Blakely/Booker line of cases threatened the ongoing existence of the Federal Sentencing Guidelines. Those cases seemed to say that the Guidelines violated the Sixth Amendment to the extent they exposed a defendant to an increased penalty beyond the range for a basic crime, based on facts determined exclusively by a judge.

To remedy that constitutional infirmity, the Supreme Court, in U.S. v. Booker, 543 U.S. 220 (2005), resorted to a bit of creative judicial tailoring and concluded that if the then-mandatory Guidelines could be altered and made advisory, the Sixth Amendment problems would go away.

The trouble was that the appellate courts, perhaps fearful of opening the floodgates of appeal that many predicted, never really followed the mandates of the Apprendi line of cases. Rather, they took the easy course and gradually re-altered the newly fashioned advisory Guidelines system back into a de facto mandatory sentencing regime.

The Supreme Court passively sat by as that transformation took place until a majority of the Circuits adopted a presumption of reasonableness standard for all within-Guidelines sentences. At that point, the Supreme Court could no longer duck the inherent conflict between the rigid, must-follow-the-Guidelines philosophy that was developing in the appellate courts and the Apprendi/Blakely/Booker rule that a mandatory Guidelines system violated the Sixth Amendment.

So, in Rita v. U.S., 550 U.S. ___, 127 S.Ct. 2456 (2007) (P&J, 05/21/07), a woefully imprecise and quixotic decision, the Supreme Court devised another ruling that seemed (like Booker) to have but one overarching goal - the preservation of as much of the Federal Sentencing Guidelines as possible in the aftermath of the Apprendi/Blakely/Booker line of cases.

Rita held that appellate courts may apply a presumption of reasonableness to within-Guidelines sentences, so long as they also provided for the possibility of rebutting that presumption under some vague and unspecified conditions. And largely because of that theoretical ability to rebut the presumption of reasonableness in certain cases, the majority concluded that any reliance on a quasi-mandatory Guidelines system would not violate the Sixth Amendment.

Thus, for example, Justice Breyer gamely assured us that Rita’s acceptance of a presumption of reasonableness would not violate the Sixth Amendment because the appellate courts would “always defer to the sentencing judge’s individualized sentencing determination.” In fact, he even went on to assert that “the presumption, even if it increases the likelihood that the judge, not the jury, will find ‘sentencing facts,’ does not violate the Sixth Amendment.”

Justice Scalia quickly recognized that the Court was hoist in its own petard; and, in his separate partial concurrence (that is actually much more like a dissent), he lamented the illogic of the Court’s approach, stating:

“Under the scheme promulgated today, some sentences reversed as excessive will be legally authorized in later cases only because additional judge-found facts are present; and, . . . some lengthy sentences will be affirmed (i.e., held lawful) only because of the presence of aggravating facts, not found by the jury, that distinguish the case from the mine-run. The Court does not even attempt to explain how this is consistent with the Sixth Amendment. No explanation is given because no explanation is possible. The Court has reintroduced the constitutional defect that Booker purported to eliminate.”

The instant decisions from the Seventh and Ninth Circuits are solid examples of the confusion sowed by Rita. Both cases deal with appeals from within-Guidelines sentences - and the results achieved were dramatically different.

In Gammicchia, the defendant, a political appointee in the office of the Clerk of the City of Chicago, pled guilty to obstruction of justice. He was indicted for attempting to persuade a witness to testify falsely in a case where a co-defendant from the Clerk’s office was accused of accepting bribes. Gammicchia’s Guideline sentencing range was 30 to 37 months; and he was sentenced to 37 months. He appealed, contending that his sentence was unreasonably long.

The Seventh Circuit made short shrift of Gammicchia’s appeal. Noting that the Seventh Circuit was one of the Circuits to hold that sentences within the Guidelines range were presumed to be reasonable, Judge Posner caustically dismissed the appeal as frivolous, suggesting that virtually any appeal of a within-Guidelines sentence would be considered a waste of time. In fact, to shut off all further debate on the topic of appeals from within-Guidelines sentences in the Seventh Circuit, Judge Posner pontificated:

“The appeal bespeaks a misunderstanding of federal sentencing law under the regime created by the Booker decision. When as in this case a criminal appeal is frivolous, the defendant's attorney should file an Anders motion rather than waste the court's time on a lost cause. We write in the hope of heading off what is assuming the proportions of an avalanche of utterly groundless sentencing appeals.”

(So much for Justice Steven’s assurance in his concurring opinion in Rita that the Court's majority opinion "makes clear . . . that the rebuttability of the presumption [for within-guideline sentences] is real.")

In contrast to the Seventh Circuit’s approach in Gammicchia, the Ninth Circuit, in Paul, became the first Federal appellate court to reverse a within-Guidelines sentence on the grounds that it was objectively unreasonable.

In this case, Patricia Paul received a within-Guidelines, 16-month prison sentence following her conviction for theft from a local government receiving federal funding, in violation of 18 U.S.C. § 666(a)(1)(A). Because the decision is unpublished, there is not a great deal of information about the nature of her crime or the details of her sentencing.

However, the panel emphatically concluded that her 16 month sentence was unreasonably high; and, unlike the Seventh Circuit, the instant panel agreed that, based on Rita, defendants do have a solid, non-frivolous right to challenge the reasonableness of a within-Guidelines sentence. The panel explained its decision as follows:

“Paul’s 16-month sentence is unreasonable. Several factors that are absent from the district court’s sentencing analysis demonstrate that this case does not fall within the ‘heartland’ of cases to which the guidelines are most applicable, as described by the Supreme Court in Rita v. United States, 127 S. Ct. 2456, 2465 (2007). All of the following facts demonstrate that a 16-month sentence was unreasonably high: Paul was a first-time offender with absolutely no criminal record whatsoever; she promptly returned all of the funds to the school district; she displayed remorse in two statements given to the Department of Labor prior to the filing of criminal charges; and the misappropriated funds represented compensation for work that she had performed for the district. The district court did not adequately consider this strong mitigating evidence in sentencing Paul to the very top of the guidelines range. Accordingly, we vacate Paul’s 16-month sentence and remand with instructions for the district court to resentence Paul after giving appropriate consideration to the above-mentioned factors.”

It’s kind of a shame that when we finally get a Circuit Court decision declaring that a within-Guidelines sentence is plainly unreasonable, the opinion is labeled as a “Not for publication” ruling; which means that it can’t be cited as precedent in most jurisdictions.

U.S. v. Hurn, No. 06-3666 (7th Cir. Aug. 3, 2007) (Judge Flaum)

Judge Hugh Bownes of the First Circuit once commented on the insidious effect of using acquitted conduct to increase a defendant’s sentence by stating:

“[W]e believe that a defendant's Fifth and Sixth Amendment right to have a jury determine his guilt beyond a reasonable doubt is trampled when he is imprisoned (for any length of time) on the basis of conduct of which a jury has necessarily acquitted him. Moreover, we believe that the Guidelines' apparent requirement that courts sentence for acquitted conduct utterly lacks the appearance of justice.” U.S. v. Lanoue, 71 F.3d 966 (1st Cir. Dec. 15, 1995).

The Supreme Court subsequently shut off further debate on that topic when it held, in U.S. v. Watts, 519 U.S. 148, 154 (1997), that when calculating a defendant's relevant conduct under § 1B1.3 of the Guidelines, "a sentencing court may consider conduct of which a defendant has been acquitted." While Watts may have shut off debate on the topic, cases like the instant one show why the use of acquitted conduct “utterly lacks the appearance of fairness.”

The defendant, Mark Hurn, was tried on charges of possession with intent to distribute both powder cocaine and crack cocaine; but he was acquitted by the jury of the crack charges. If he was sentenced solely on the basis of the charges for which he was convicted, he would have been sentenced to 27 to 33 months in prison. At sentencing, however, the district court (the ever tough Judge John Shabaz of the W.D.Wisc.) concluded that the Government had proved, by “clear and convincing evidence,” that Hurn had distributed cocaine base, notwithstanding the jury's acquittal on that count. Thus, it calculated a Guidelines range of 188 to 235 months in prison; and ultimately sentenced Hurn to 210 months in prison - a huge increase over the penalty for Hurn’s crime of conviction!

Hurn appealed, arguing, inter alia, that the district court violated his Sixth Amendment and due process rights by using acquitted conduct to enhance his sentence. The Seventh Circuit quickly rejected that argument, stating that it was foreclosed by the Supreme Court’s decision in Watts. The Court also noted that the Seventh Circuit had decided that Watts survived U.S. v. Booker; and it declined to reconsider that position.

Hurn also argued that his sentence was substantively unreasonable under Rita v. U.S. because the sentencing court did not adequately consider the various sentencing factors outlined in 18 U.S.C. § 3553(a); but that argument was also quickly dismissed by the Court.

The Court’s rigid adherence to a strict Guideline sentence, and its unwillingness even to consider the fact that the U.S. Sentencing Commission has repeatedly concluded that the punishments called for by the crack guidelines are excessive is just one more disappointing example of the appellate courts’ unwillingness to use Booker and Rita as the lynchpins to fairer sentencing under the Guidelines that meet the appearance of justice.

In Brief

Court Awards $101.7 Million in Damages Against the FBI for Wrongful Convictions: Limone v. U.S., Civ. No. 02cv10890-NG (D.Mass. July 26, 2007) - In a scathing rebuke of the FBI, Judge Nancy Gertner ordered the Government to pay a record $101.7 million in damages to four men and their families for its role in wrongfully sending those men to prison for a 1965 gangland murder in Massachusetts. In this momentous 235-page decision, Judge Gertner found that found that the FBI deliberately withheld evidence that the men had been framed, as a result of which two of the defendants died in prison and two others spent more than three decades behind bars. Noting it took more than 30 years to uncover this injustice, Judge Gertner wrote: “This case is about intentional misconduct, suborning of perjury . . . the framing of innocent men." For more on this decision, see “Framed by the Feds,” a Boston Globe Editorial, published on July 28, 2007.

Sex Offender Registration Indictments Dismissed: U.S. v. Kapp, 487 F.Supp.2d 536 (M.D.Pa. May 16, 2007) - Here, Chief Judge Yvette Kane held that the provisions of the Sex Offender Registration and Notification Act, 18 U.S.C. § 2250 (“SORNA”), which were recently amended in part by the Adam Walsh Child Protection and Safety Act of 2006, did not apply to the two defendant sex offenders in this case, both of whom were convicted before SORNA’s effective date of July 27, 2006. The Court reasoned that the indictments of the two defendants “occurred in the brief window during which SORNA’s scope remained undefined as to past offenders.” Although the Attorney General ultimately issued regulations on Feb. 28, 2007, making clear that SORNA applied to past offenders, during the period from July 27, 2006 to Feb. 27, 2007 there were no such regulations in effect. Accordingly, Judge Kane concluded that SORNA did not apply to the two indictments at issue in this case, and she therefore granted the defendants’ motions to dismiss their indictments. As a matter of interest, in footnote 1, Judge Kane noted that, to date, only four district courts have addressed this issue, with varying results, all of which are listed. But see U.S. v. Hinen, 487 F.Supp.2d 747 (W.D.Va. May 12, 2007) (Docket No. 07CR00005), where Judge Jones held that a defendant was required to register as a sex offender regardless of whether the Attorney General had adopted a rule specifying the applicability of SORNA to sex offenders convicted before its enactment.

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