Vol. 14, Nos. 32 &33	Covering Cases Published in the Advance Sheets through Aug. 13, 2007

Antiterrorism Issues - Two New Rulings of Significance

• In Doe, Judge Marrero of the S.D.N.Y. has, for the second time, struck down as unconstitutional the portions of the U.S.A. Patriot Act that authorize the collection of information via National Security Letters (NSLs) - the secret administrative subpoenas that are issued by the FBI without the approval of any court. Rejecting the Government’s claims that a series of recent amendments to the Patriot Act had cured the previously noted constitutional deficiencies, Judge Marrero held that provisions regarding the NSLs still constitute an unconstitutional prior restraint on free speech and violate the Constitution’s Separation of Powers Clause.
  
  
• In the Electronic Privacy Information Center case, District Judge Henry Kennedy of the D.D.C. essentially rejected the Government’s “vague, broad and wholesale claims of exempt status” under the Freedom of Information Act as the basis for its refusal to disclose to the plaintiffs in this case information about the NSA’s secret eavesdropping program; and he ordered the Government to provide the Court with additional explanations about the basis for its claimed exemptions by Oct. 12, 2007.
  
  

Court Endorses Indigent Defendant's Right to a Forensic Expert in a Drug Case

• In Chase, the Ninth Circuit vacated a sentence imposed in a drug case after concluding that the district court had committed two significant (albeit rarely acknowledged) errors at sentencing: first, it abused its discretion by denying the defendant’s motion for the appointment of a forensic expert where the formulation of drug quantity was both disputed and critical to the sentence imposed; and, second, it relied on evidence lacking “sufficient indicia of reliability” when calculating the quantity of drugs attributable to the defendant.
  
  

Provision of Adam Walsh Act Authorizing Civil Commitment of Sex Offenders Held Unconstitutional

• In Comstock, Judge Britt of the E.D.N.C. held that the civil commitment provisions of the Adam Walsh Child Protection and Safety Act of 2006 [18 U.S.C. § 4248] which permits the Government to hold “sexually dangerous persons” in civil confinement after the completion of their Federal criminal sentences are constitutionally invalid. Judge Britt held that the civil commitment of sexually dangerous persons whose prison sentences are about to expire is not a necessary and proper extension of Congress's power to prosecute federal crimes; and he also held that the statute’s failure to require a court to find beyond a reasonable doubt that a person has engaged or attempted to engage in sexually violent conduct or child molestation prior to permitting the individual's indefinite involuntary civil commitment as a sexually dangerous person constitutes a violation of due process.
  
  

Sentencing and Guidelines Issues

• In Fisher, the Third Circuit held that its landmark sentencing decision in U.S. v. Kikumura, which called for judicial findings of certain sentencing facts by more than a preponderance of the evidence, was no longer valid in light of the Supreme Court’s decision in U.S. v. Booker.

Doe v. Gonzales, No. 04 Civ. 2614 (VM) (S.D.N.Y. Sept. 6, 2007) (Judge Marrero)

For the second time in three years, Judge Marrero has concluded that a key component of the USA Patriot Act, namely, 18 U.S.C. § 2709 relating to the issuance of a special form of administrative subpoenas known as National Security Letters (“NSLs”), is unconstitutional.

Ever since NSLs were first authorized, they quickly became a major investigative tool of our Government. By 2005, the FBI openly admitted that it was issuing more than 30,000 NSLs a year. (See, "The FBI's Secret Scrutiny: In Hunt for Terrorists, Bureau Examines Records of Ordinary Americans," by Barton Gellman, Washington Post Staff Writer, Sunday, November 6, 2005.) However, a March 2007 report by the Justice Department’s Office of Inspector General found that number to be a vast understatement: the actual number of data requests between 2003 and 2005 was 143,000. The same report found serious FBI abuses of the NSL power and more than 3,000 violations of the law by the FBI. (See, "FBI Violations May Number 3,000, Official Says," by R. Jeffrey Smith, Washington Post Staff Writer, Wednesday, March 21, 2007.)

Section 2709 empowers the FBI to compel communications firms, such as internet service providers or telephone companies, to produce certain customer records whenever the FBI certifies that those records are "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities." As originally enacted, § 2709 barred all NSL recipients from ever disclosing that the FBI had even issued an NSL. This “gag rule” not only applies to the mere fact that the FBI has issued an NSL but also, in the words of Judge Marrero, “most troubling to the Court, statements critical of the way that the government uses NSLs.”

The lead plaintiff in this case was an internet access firm that received an early NSL from the FBI. After it received the NSL, that party contacted the ACLU for assistance in this case; and the ACLU became a party to this lawsuit and acted as counsel. The Government then moved to seal the identity of the lead plaintiff in order to prevent disclosure to the public of any details of the FBI’s ongoing investigation; and from that point on the lead plaintiff was identified only as “John Doe.”

In their lawsuit, the plaintiffs contended, inter alia, that § 2709 gives the FBI extraordinary and unchecked power to obtain private information without any form of judicial process in violation of numerous provisions of the Constitution; and that § 2709's non-disclosure provision burdens speech categorically and perpetually, without any case-by-case judicial consideration of whether that speech burden is justified.

In Doe v. Ashcroft, 334 F.Supp.2d 471 (S.D.N.Y. Sept. 28, 2004) (“Doe I”) (P&J, 09/06/04), Judge Marrero agreed with the plaintiffs’ arguments and he concluded that § 2709 was unconstitutional, both facially and as applied to the plaintiffs. In his sharply worded 120-page ruling, he held that § 2709:

“violates the Fourth Amendment because, at least as currently applied, it effectively bars or substantially deters any judicial challenge to the propriety of an NSL request. In the Court’s view, ready availability of judicial process to pursue such a challenge is necessary to vindicate important rights guaranteed by the Constitution or by the statute.”

Judge Marrero called the NSL subpoena an “ominous writ” issued by the FBI “in tones sounding virtually as a biblical commandment.” He also said that he worried that anyone who received a NSL, except “the most mettlesome and undaunted” targets, would feel barred from even consulting with a lawyer.

The Government quickly appealed Judge Marrero’s ruling in Doe I; and, while that appeal was pending, the Bush Administration rushed through a number of amendments to the Patriot Act by having Congress enact the USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177, 120 Stat. 192 (Mar. 9, 2006) (the "Reauthorization Act"). The changes in the law now require the FBI to decide in each case whether disclosure would result in a danger to national security. The law was also changed to give NSL recipients a limited right to challenge the gag orders in court, but it required courts to accept as “conclusive” testimony of FBI officials who concluded that secrecy was needed. (18 U.S.C. § 3511).

In the eyes of the Second Circuit, those new amendments “dramatically altered § 2709" and “substantially shifted the legal footing of the parties.” Thus, in Doe v. Gonzales, 449 F.3d 415 (2nd Cir. May 23, 2006) (P&J, 04/17/06), the Second Circuit ducked ruling on the merits of Judge Marrero’s decision, and instead it vacated Doe I as moot and remanded the case back to him for reconsideration in light of the new amendments to § 2709 contained in the Reauthorization Act.

On remand, Judge Marrero has written another powerful, 106-page decision which again struck down as unconstitutional the provisions of the law that authorized the use of NSLs. Expanding on a theme from Doe I that "democracy abhors undue secrecy," he firmly stated that the secrecy provisions of § 2709 empower “an ominous free pass to the hijacking of constitutional values.” Thus he wrote:

“The risk of investing the FBI with unchecked discretion to restrict such speech is that government agents, based on their own self-certification, may limit speech that does not pose a significant threat to national security or other compelling government interest.”

Judge Marrero also rejected the Government’s arguments that the new amendments to § 2709 had solved the constitutional deficiencies of the NSLs that he had discussed in Doe I. He concluded that the new protections written into the law in the Reauthorization Act were “overly deferential” to the Government and still forestalled any “meaningful judicial review.”

Finally, Judge Marrero held that, to meet constitutional scrutiny, “the government’s use of nondisclosure orders must be narrowly tailored on a case-by-case basis,” and that “the nondisclosure orders must be subject to meaningful judicial review.” He then concluded that, as currently written, “several aspects of the revised nondisclosure provision of the NSL statute violate the First Amendment and the principle of separation of powers.”

Judge Marrero did stay his order for 90 days to permit the Government to file its expected appeal; and, aware that his ruling would be sharply attacked, he emphasized the significance of his ruling by stating:

"In light of the seriousness of the potential intrusion into the individual's personal affairs and the significant possibility of a chilling effect on speech and association - particularly of expression that is critical of the government or its policies - a compelling need exists to ensure that the use of NSLs is subject to the safeguards of public accountability, checks and balances, and separation of powers that our Constitution prescribes."

For more on the significance of this ruling, see "A Federal District Judge Holds the Amended Patriot Act Unconstitutional," by Michael C. Dorf, as published on FindLaw's Writ on Sept. 12, 2007.

U.S. v. Chase, No. 06-30242 (9th Cir. Aug. 27, 2007) (Judge Ferguson)

This is an important decision which not only emphasizes an indigent defendant’s right to expert witnesses; it also provides some clarity to process by which methamphetamine quantity should be determined. Here the Court vacated a drug sentence for two significant (and rarely cited) reasons: first, the Court held that the district court’s decision denying the defendant’s request for the appointment of a forensic expert under the facts of this case was “unreasonable”; and, second, the Court also held that the district court had erred in the calculation of the drug quantity attributable to the defendant by relying on “unreliable evidence.”

David Chase pled guilty to two counts of conspiracy to manufacture methamphetamine and one count of possession of a firearm in a drug trafficking crime. However, the Government and Chase strongly disagreed about the quantity of methamphetamine attributable to Chase for sentencing purposes. At issue was the quantity of drugs that Chase had allegedly manufactured at two of his former residences, during a five month period from June to October, 2003.

No actual drugs were found at either of those two locations; so the Government produced an expert witness who calculated that, based on the number of glass containers found by the state police at those two sites (including a 5,000-milliliter flask which contained no evidence of any chemical traces), the amount of drugs that “could have been produced” was between 500 and 750 grams of methamphetamine - or enough to push Chase’s sentence up considerably.

Chase, in turn, claimed that he had produced far less methamphetamine; and he took the stand in his own defense at his sentencing hearing to explain that he had produced the drugs for his own personal use only; that he had never used the 5,000-milliliter flask; and that each time he had made the drug he had produced only seven grams of meth - far less than the Government alleged. Prior to his sentencing hearing, Chase filed a motion to hire a forensic chemistry expert to help dispute the Government’s allegations; to rebut the Government’s witness; and to help his attorney formulate a theory about the drug quantity at issue.

The district court (Judge Molloy of the D.Mont.), however, denied Chase’s motion for an expert; and he accepted the Government’s estimates that Chase had produced between 500 to 750 grams of meth at his former residences. He then based Chase’s sentence on those drug calculations.

On appeal, the Ninth Circuit held that Judge Molloy had erred in denying Chase’s motion for an expert witness - particularly where, as here, no drugs were found and therefore the quantity of drugs involved could only be estimated based upon scientific calculations. Writing for the Court, Judge Ferguson stated:

“Upon a timely request by an indigent defendant, ‘[t]he statute [18 U.S.C. § 3006A(e)(1)] requires the district judge to authorize [expert] defense services . . . in circumstances in which a reasonable attorney would engage such services for a client having the independent financial means to pay for them.’ . . .

“In a drug case, the sentence depends primarily on the quantity of narcotics that the court attributes to the defendant. Therefore, from the perspective of defense counsel, formulating a theory of drug quantity is critical. In this case in particular, the only disputed issue was the quantity of methamphetamine produced at [two locations], where no methamphetamine was found, so the determination of drug quantity demanded a scientific calculation. Chase reasonably requested the appointment of an expert in forensic chemistry to assist his attorney in formulating a theory of the quantity of methamphetamine and to rebut that of the government's expert. . . .

“Although the burden of proof of drug quantity lies with the prosecutor, Chase had a right to put on a defense, and to retain an expert if ‘a reasonable attorney would [have] engage[d] such services for a client having the independent financial means to pay for them.’ . . . The Supreme Court has ‘long recognized . . . that . . . justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.’ In this case, Chase had a right to hire an expert who could have produced his or her own ‘investigation, interpretation, and testimony’.”

The Court also held that the district court, in calculating the drug quantity attributable to Chase for sentencing purposes, relied on evidence “lacking sufficient indicia of reliability.”

Citing U.S.S.G. § 2D1.1 cmt. n. 12, the Court acknowledged that "[w]here there is no drug seizure or the amount seized does not reflect the scale of the offense," a district court may estimate the quantity of the drug and may consider "the size or capability of any laboratory involved." However, it continued, all such approximations of drug quantity must meet three criteria: "First, . . . the government is required to prove the approximate quantity by a preponderance of the evidence . . . . Second, the information which supports an approximation must possess sufficient indicia of reliability to support its probable accuracy. Third, . . . the district court must err on the side of caution in calculating approximated drug quantity."

After reviewing the record, the Court noted that Judge Molloy had “explicitly stated” that his estimate was based on the expert witness’ letter and testimony, which opined that a 5,000-milliliter flask could yield 500 to 750 milligrams of methamphetamine. Judge Ferguson bluntly concluded: “The [district] court relied on evidence lacking sufficient indicia of reliability. The approximation of drug quantity and resulting sentence were therefore erroneous.”

For an excellent analysis of this decision, as well as some helpful advice about how this decision can be used by defense counsel, see “Case o' The Week: Ninth Rewards Defense Expert Chase, United States v. Chase,” by Steven Kalar, Senior Litigator, Federal Public Defender’s Office, N.D.Cal., as posted on the Ninth Circuit Blog, on Aug. 31, 2007.

U.S. v. Fisher, No. 06-1795 (3rd Cir. Sept. 10, 2007) (Judge Hardiman)

In U.S. v. Kikumura, 918 F.2d 1084 (3rd Cir. 1990), a landmark sentencing decision, the Third Circuit held that, while the Due Process Clause of the Fifth Amendment ordinarily requires a district court to find facts that support a sentencing enhancement by a mere preponderance of the evidence, in cases where the enhancements were so substantial as to constitute “the tail that wags the dog” of the defendant's sentence, the facts underlying those enhancements must be established by clear and convincing evidence.

The issue before the Court in the instant case was whether the holding in Kikumura is still valid, particularly in light of the Supreme Court’s decision in U.S. v. Booker, 543 U.S. 220 (2005).

Booker was a sharply divided two-part decision which addressed the constitutionality of the Federal Sentencing Guidelines. In that decision, first one 5-to-4 majority of Justices held that a defendant’s Sixth Amendment rights to a trial by jury are violated by the imposition of an enhanced sentence under the 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.

Then, a separate 5-to-4 majority devised a novel a scheme to save the Guidelines: it concluded that the constitutional deficiency could be cured if the Guidelines were made advisory - rather then mandatory. Thus, the Court, in the second part of Booker, excised the provision of the Sentencing Reform Act that made the Guidelines mandatory [i.e., 18 U.S.C. § 3553(b)] in order to make the Guidelines “effectively advisory."

Following Booker, a number of Circuit courts have concluded that the rationale of Kikumura no longer exists because that decision rested on the premise that the Guidelines were mandatory - which they no longer are. Thus, to date at least three Circuits have held that the “tail-wagging-the-dog debate” had been rendered academic by Booker, and that the authority to determine sentencing factors by a preponderance of the evidence does not violate the Due Process Clause of the Fifth Amendment (see, U.S. v. Vaughn, 430 F.3d 518 (2nd Cir. Dec. 1, 2005); U.S. v. Reuter, 463 F.3d 792 (7th Cir. Sept. 19, 2007); and U.S. v. Brika, 487 F.3d 450, 460-62 (6th Cir. May 23, 2007)).

Those cases reasoned that “challenges to "large enhancements . . . should be viewed through the lens of Booker reasonableness rather than that of due process”; and, therefore, “[a]fter Booker, . . . it is clear that sentencing on facts found by a preponderance of the evidence does not infringe upon a defendant's rights, whether those rights are derived from the Guidelines or the Constitution.”

Conversely, at least two Circuits have specifically held that Kikumura remains good law after Booker (see, U.S. v. Archuleta., 412 F.3d 1003 (8th Cir. June 28, 2005) and U.S. v. Staten, 466 F.3d 708 (9th Cir. Aug. 31, 2006)).

In the instant case, the defendant, Tracy Fisher, was sentenced to a term of 108 months in prison, almost three times greater than the top of his unenhanced Guidelines range, after the trial judge found that Fisher had pointed a handgun at another person during the commission of a felony and applied the four-level enhancement of U.S.S.G. § 2K2.1(b)(5). Relying on Kikumura, Fisher appealed his sentence, arguing that the district court had violated his constitutional right of due process of law when it trebled his sentence based on sentencing factors found by a mere preponderance of the evidence.

The Third Circuit rejected Fisher’s argument and joined with those courts that have concluded that Kikumura in no longer valid. Writing for the Court, Judge Hardiman reasoned as follows:

“If, after calculating the appropriate Guidelines, a district judge finds that the imposition of a within-Guidelines sentence would visit an injustice upon the defendant pursuant to 18 U.S.C. § 3553(a), it is incumbent upon the judge to say so, and sentence below the Guidelines range. Conversely, when the Guidelines range is too low to satisfy 18 U.S.C. § 3553(a), the district judge must explain why this is so and vary upward. In sum, because the Guidelines are now advisory and district judges are empowered to discharge their duties fully in the first instance, it is a logical impossibility for the ‘tail to wag the dog,’ as could occur when the Guidelines were mandatory.”

Judge Marjorie Rendell concurred in the majority’s decision, but only on the narrow grounds that there was nothing in the record to suggest that Fisher’s sentence “was based predominantly on the collateral conduct.” She stated, “although I do not agree with the majority's view that Kikumura's concern for the ‘tail wagging the dog’ scenario no longer has relevance post-Booker, I concur in the judgment affirming Fisher's sentence.” She disagreed, however, with the majority’s contention that a due process concern no longer exists, stating:

“A defendant's due process rights are implicated when facts found by a judge under a preponderance standard concerning a separate, uncharged crime result in a dramatic increase in the sentence actually imposed on the defendant for the crime of conviction, so as to suggest that the defendant is really being sentenced for the uncharged crime rather than the crime of conviction. . . . The transition from the mandatory Guidelines regime in place at the time that Kikumura was sentenced to the current advisory one alters, but does not eliminate, the potential for due process concerns to arise at sentencing.”

In Brief

BOP Regulations - Inmate Financial Responsibility Program: Geiger v. Federal Bureau of Prisons, 487 F.Supp.2d 1155 (C.D.Cal. May 11, 2007) - This is an interesting decision involving a series of creative challenges by Ronald Geiger, a pro se inmate, to the BOP’s power to collect restitution payments under the Inmate Financial Responsibility Program (“IFRP”) (28 C.F.R. 545.10 and 11). As part of his life sentence for various crimes of violence, Geiger was ordered to pay $17,000 in restitution to USAA Insurance, a private party. In the instant habeas proceeding, Geiger challenged the authority of the BOP to collect those restitution payments from him, arguing, inter alia, that the BOP was unlawfully acting as a debt collector and engaging in unfair debt collection practices, in violation of both (a) the Fair Debt Collection Procedures Act (FDCPA) (28 U.S.C. § 3001-3008), and (b) Section 1692g of the Consumer Credit Protection Act (CCPA) (15 U.S.C. § 1692g).

Relying principally on a number of unpublished decisions, the Court rejected all of Geiger’s claims. It held that the IFRP was not prohibited under the FDCPA (“the FDCPA ‘does not affect the government’s capacity under the [Victim and Witness Protection Act] to collect restitution owed to private parties’.”) The Court also held that the BOP is not a “debt collector” within the meaning of the CCPA and that federal criminal restitution is not a “debt” under the CCPA (“the CCPA ‘excludes United States employees from the definition of “debt collectors”; therefore [defendant’s] CCPA challenge to the IFRP is without merit.”) Finally, the Court held that the IFRP did not represent an improper delegation of scheduling of an inmate’s restitution payments.

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