Vol. 14, Nos. 38 & 39	Covering Cases Published in the Advance Sheets through Sept. 24, 2007

Obstacles to Resolving Disputes Regarding Facts Recited in Presentence Reports

• Two cases this week show some of the frustrating obstacles faced by defendants when attempting to correct erroneous information contained in their Presentence Reports (PSRs). In Saeteurn, the Ninth Circuit held that a sentencing judge is not required to resolve disputes regarding facts recited in a PSR, “when those facts do not affect the term of imprisonment imposed, but may affect how the sentence is served, including a possible early release from prison.” In Brown, Judge Kessler of the D.D.C. rejected, as improper, a prisoner’s attempt to utilize the Privacy Act as a means of amending erroneous statement contained in his PSR, leaving him no practical alternative to fixing errors that the Probation Office itself conceded had been made in the preparation of his PSR. .
  
  

Seventh Circuit Declines to Grant En Banc Review of Governor Ryan's Appeal

• In the Warner case, the Seventh Circuit declined to grant an en banc review of a divided panel’s ruling that affirmed the convictions of former Illinois Governor George H. Ryan, Jr. and his associate Lawrence E. Warner. The highlight of the prior panel’s ruling was the blistering dissent of Judge Kanne, who charged that the lengthy six-month trial was permeated with “dysfunctional jury deliberations.” The highlight of the instant ruling was Judge Posner’s blistering dissent in which he wrote that “harmlessness is not the test of reversible error when a cascade of errors turns a trial into a travesty."
  
  

Second Circuit Withdraws and Then Redacts Opinion to Protect FBI From Torture Claim

• The Second Circuit appeared to engage in some pretty fancy chicanery last week of behalf of the FBI. First, it posted on its website an opinion in the Higazy case which contained a passage to the effect that the FBI had threatened a suspect to confess to a crime he didn’t commit or the secret police in Egypt would give his family “hell.” Then, it quickly withdrew that opinion without explanation. Finally, the next morning, the Court reissued a redacted opinion with the details of the FBI’s threats of torture removed - on the grounds that information was “classified.” Welcome to Bush’s America!.
  
  

Court Orders Suspension of Garnishment Based on Restitution Order

• In Ogburn, Judge Kessler of the D.D.C. held, as a matter of first impression, that she had the authority, under the Federal Debt Collection Procedures Act, to stop, suspend or otherwise modify an order of garnishment of the defendant’s wages that was issued to satisfy an outstanding restitution order.
  
  

Court Holds Prison Guards Are Not Immune to Suit Under the FTCA

• In Samuels, District Judge Lindsay of the D.Mass. joined an on-going Circuit split by holding that BOP officers are not immune from suit as “any other law enforcement officer” under an exception to the Federal Tort Claims Act’s (FTCA) waiver of sovereign immunity.

U.S. v. Saeteurn, No. 06-10401 (9th Cir. Oct. 15, 2007) (Judge Bea)

Following a sting operation, the defendant in this case, Kae Chai Saeteurn, was arrested and indicted on several drug charges; and he ultimately pled guilty to one count of conspiracy to distribute MDMA, which is commonly referred to as “ecstacy.” Among other things, Saeteurn’s presentence report (PSR) listed his citizenship status a “legal permanent resident.” Saeteurn challenged that finding at his sentencing hearing, claiming that he had automatically become a U.S. citizen in 1996 when his mother became a citizen, because he was a minor at the time.

Saeteurn’s counsel argued that resolution of that issue was important because “it would affect the place where Saeteurn would be designated to serve his 63-month sentence, whether he would be eligible to participate in certain rehabilitative programs, and whether he would be eligible for early release from prison, but not from supervised release, upon successful completion of those programs.”

However, the district court (Judge Levi of the E.D.Cal.) expressed doubt as to whether it was “in a position to resolve” that “legal question”; and, therefore, instead of resolving the contested issue, simply ordered the PSR to be amended to state that Saeteurn was either a “legal permanent resident or a citizen.”

On appeal, Saeteurn argued, inter alia, that the district court had failed to comply with Rule 32(i)(3)(B) by not resolving Saeteurn’s objection to his citizenship status in his PSR. Rule 32(i)(3)(B) states in relevant part:

“(3) At sentencing, the court . . .

(B) must--for any disputed portion of the presentence report or other controverted matter--rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing; and

(C) must append a copy of the court's determination under this rule to any copy of the presentence report made available to the Bureau of Prisons.” (Emphasis added).

The Ninth Circuit rejected Saeteurn’s appeal and held that the district court’s failure to resolve Saeteurn’s objection to his citizenship status did not violate Rule 32(i)(3)(B) because that Rule “is limited to factual disputes which affect the temporal term of the sentence the district court imposes.”

Although the Court acknowledged that it had, in the past, held that strict compliance with Rule 32 was required, and although it agreed that the district court had not resolved Saeteurn’s objection, it concluded that no violation of Rule 32(i)(3)(B) had occurred, in part because:

“Saeteurn's objection had no relevance to the district court's determination of the prison time of his sentence. The only relevance of Saeteurn's citizenship as listed in the PSR is its potential effect on the Board of Prison's (‘BOP’) post-sentencing decisions, such as where to house Saeteurn and Saeteurn's eligibility for prison programs and early release from prison, but not necessarily from supervised release. Because our cases which have applied Rule 32(i)(3)(B) are confined to factual disputes which affected the temporal prison term of the sentence the district court imposed, Saeteurn's contention the district court violated the rule in this case has no precedential support.”

In response to Saeteurn’s argument that the inaccuracy of his PSR would affect his eligibility for early release, the Court said “prison programs and policies may change from time to time.” The only solace that the Court offered Saeteurn was its suggestion that, “even if the BOP has no administrative procedure for resolving inaccuracies in the PSR, Saeteurn has the ability to bring a § 2241 habeas petition in which he may challenge his confinement.”

Considering the length of time that it typically takes just to get a hearing on a § 2241 petition, that suggestion is both woefully impractical and absurdly unrealistic - to say nothing about how it emasculates the plain language of Rule 32(i)(3)(B) and U.S.S.G. § 6A1.3(b).

Brown v. Bureau of Prisons, 498 F.Supp.2d 298 (D.D.C. Aug. 6, 2007) (Judge Kessler)

Whitney Brown is serving a 360-month sentence in a Federal prison. He brought a civil action against the Federal Bureau of Prisons (BOP), under the Privacy Act, 5 U.S.C. § 552a et seq., seeking a change in his presentence report (PSR).

Specifically, Brown contended that his PSR incorrectly included two juvenile convictions in his criminal history calculation and that those two convictions were erroneously factored into his sentence, leading to the imposition of 36 additional months imprisonment. He therefore sought to amend his PSR, under 5 U.S.C. § 552a(d), which permits an individual to access an agency’s records pertaining to him and to request an amendment to those records to the extent they are inaccurate.

Brown also contended that the BOP was improperly relying on his prior convictions to make adverse determinations regarding his security and custody classifications under BOP Program Statement 5100.07 - and he noted that the BOP is expressly permitted to rely on juvenile adjudications for purposes of such custody classifications unless those records have been “expunged or vacated.”

While Judge Kessler’s opinion is silent on the question of whether Brown had challenged his PSR at the time of his sentencing hearing, she does note that Brown did seek an amendment to his PSR through the BOP’s inmate grievance process; but that he was not successful in those grievance proceedings.

Judge Kessler also noted that, during the course of those proceedings, Brown had presented a letter from the Probation Office (who prepared his PSR) in which the Probation Office acknowledged at least one error in his PSR - namely that two criminal history points that had been assessed for one of Brown’s juvenile convictions should not have been assessed.

The BOP moved to dismiss Brown’s lawsuit pursuant to Fed.R.Civ.P. 12(b)(6), namely a failure to state a claim upon which relief could be granted; and Judge Kessler granted that motion. She held that because 28 C.F.R. § 16.97(a)(4), (b)(3) exempts the inmate central records system from 5 U.S.C. § 552a(d), Brown could not obtain the relief he was seeking, namely an amendment of his PSR.

Furthermore, Judge Kessler held that because regulations exempted the inmate central records system from § 552a(e)(5), Brown “was effectively barred from obtaining any remedy, including damages, for BOP's alleged failure to maintain records pertaining to him with the requisite level of accuracy.” (Id., at 302).

In the end, the only solace that Judge Kessler offered Brown was her suggestion that, to the extent his claim would have an impact on the duration of his confinement, he should assert that claim in a petition for a writ of habeas corpus.

Once again, a suggestion that Brown should seek habeas relief is both impractical and toothless. It is impractical because, since Brown was effectively challenging only the last three years of a 30 year sentence, it is probable that he would be precluded from even filing a habeas petition until he had served 27 years. It is toothless because Brown appears to have no remedy at all to challenge the BOP’s reliance on an admittedly erroneous PSR for purposes of making its security and custody classifications of Brown.

Samuels v. Bureau of Prisons, 498 F.Supp.2d 415 (D.Mass. July 27, 2007) (Judge Lindsay)

After exhausting his inmate grievance procedures, Julian Samuels, a Federal prisoner, filed a lawsuit, under the Federal Tort Claims Act (FTCA) (18 U.S.C. §§ 1346(b) and 2671-2680)), against the Federal Bureau of Prisons (BOP), alleging that certain of his personal property was lost during his transfer from the Federal Corrections Institute in Fairton, NJ to the Federal Medical Center in Devens, MA, and seeking damages for the lost property.

The FTCA constitutes a limited waiver of sovereign immunity under which the United States may be held liable for claims for money damages; but that statute also has a number of exceptions which define the limits of Federal subject matter jurisdiction, one of which, namely 18 U.S.C. § 2680(c), was the principal issue raised in this case.

Section 2680(c) of the FTCA excepts from the waiver of sovereign immunity "[a]ny claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise or other property by any officer of customs or excise or any other law enforcement officer."

Citing the provisions of § 2680(c), the BOP argued that its officers are included in the category described by the words “any other law enforcement officer.” Thus it asserted that the FTCA does not apply to the detention of property by law enforcement officers at federal prison facilities since sovereign immunity has not been waived for such claims. Therefore, it contended that Samuel’s complaint failed as a matter of law and must be dismissed pursuant to Fed. R. Civ. P. 12(b)(1) and (6) for lack of subject-matter jurisdiction and for failure to state a claim respectively.

In responding to that issue, the Court noted that the Circuits are split on whether BOP personnel are deemed to be “any other law enforcement officers” for purposes of § 2680(c). It stated:

“The Fourth, Sixth, Seventh, and District of Columbia circuits have held that ‘any other law enforcement officer’ in § 2680(c) refers only to law enforcement officers working in the enforcement of tax or customs laws. . . . [Conversely,] the Fifth, Eighth, Ninth, Tenth, and Eleventh Circuits have interpreted the language more expansively . . . holding that BOP officers are law enforcement officers for the purposes of § 2680(c).” (Id., at 419) (Internal citations omitted).

Although there are no First Circuit cases interpreting the language of § 2680(c), Judge Lindsay analyzed the competing positions and ultimates adopted the approach followed by the Fourth, Sixth, Seventh and District of Columbia Circuits.

Judge Lindsay reasoned that, if the language of the statute included BOP employees, then the words "any other officer of customs or excise," which preceded "or any other law enforcement officer," would become unnecessary, as officers acting in customs or excise capabilities would fall within the broader category. Thus, he stated:

“In concluding that phrase ‘any other law enforcement officer’ in § 2680(c) applies only to law officers acting in the customs or excise context, other federal Courts of Appeals have applied the ‘related canons’ of ejusdem generis and noscitur a sociis, which ‘remove the phrase from the abstract and give it the meaning the context demands’." (Id., at 421)

Based on his ruling, Judge Lindsay concluded that a BOP officer transporting a prisoner’s personal property was not immune from suit under the FTCA; and he denied the BOP’s motion to dismiss the case.

In Brief

Huh??? Statutory Rape is Not Categorically a Crime Involving Moral Turpitude: Quintero-Salazar v. Keisler, No. 04-72128 (9th Cir. Oct. 9, 2007) - Here a divided panel from the Ninth Circuit held that California's statutory rape law, which makes it a crime to engage in intercourse with a minor who is under 16 years of age when the perpetrator is 21 years of age or older, is not categorically a crime involving moral turpitude within the meaning of 8 U.S.C. § 1182(a)(2)(A)(i)(I), thus making an alien-defendant removable. The majority reached that conclusion despite agreeing that, for a conviction to be a “crime of moral turpitude” under immigration law, it “must be a crime that (1) is vile, base or depraved and (2) violates societal moral standards.” The majority reasoned that “where an act is only statutorily prohibited, rather than inherently wrong, the act generally will not involve moral turpitude.”

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