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Vol. 7, No. 30              Covering Cases Published in the Advance Sheets through July 24,  2000

Highlights of this Issue:

Sentencing Hearings and the Exclusionary Rule:

The Growing Use of Special Conditions of Supervised Release:

"Consensual" Searches of Probationers' Homes:

United States v. Haynes, 216 F.3d 789 (9th Cir. 2000) (Judge McKeown)

Both this case and the Brimah case discussed below deal with the application of the Fourth Amendments exclusionary rule to sentencing proceedings.  The instant case is particularly significant because it sharply defined the contours of an important issue: does a district court have the authority to suppress illegally obtained evidence at sentencing or is it required to consider and use all evidence no matter how outrageous the Governments conduct may have been in obtaining that evidence.

In Haynes, the district court ruled that certain evidence proffered by the Government at the defendants sentencing proceedings should be suppressed because it had been obtained through an egregious violation of the defendants attorney-client privilege.  The majority reversed that ruling on the grounds that district courts are required to consider and use unlawfully obtained evidence at sentencing.  Judge Reinhardt strongly disagreed; and his dissent presents a compelling and persuasive argument that the majoritys conclusion was simply wrong.  In his view, the law permits - but does not require - consideration of illegally obtained evidence at sentencing - especially if, as happened in this case, the use of such evidence would violate the dictates of fairness and due process.

Two defendants were prosecuted for an assortment of drug and money laundering crimes arising principally out of their efforts to grow more than 3,000 marijuana plants at two different rural locations in the State of Washington.  Critical to the Governments prosecution of this case were the undercover activities of one Dale Fairbanks, a private investigator who had worked for the defendants attorney during the initial phase of the investigation.  After Fairbanks was paid for his  services rendered on behalf of the defendants, he cavalierly decided to exploit the evidence he had uncovered by getting paid for it a second time - this time by selling it to the Government!

When the defendants learned of this, they filed a motion seeking dismissal of the indictment or, in the alternative, suppression of the evidence obtained in violation of the attorney-client privilege.  They charged the Government with a planned and deliberate invasion of their confidential attorney-client privilege by using Fairbanks as a paid informant.  (Id., at 794).  Calling those facts some of the most disturbing that he had even seen, District Judge Zilly concluded that [t]he government paid and agreed to pay this informant a total of $150,000 to cooperate and provide testimony.  Substantial questions were raised as to whether and to what extent the government exploited the information covered by the attorney-client privilege.  (Id., at 804).

Ultimately, Judge Zilly declined to dismiss the indictment, but he did suppress all evidence of privileged communications revealed by Fairbanks; and the defendants then pled guilty to the marijuana conspiracy and money laundering counts, specifically acknowledging responsibility for a quantity of marijuana plants between 1,000 and 4,000.

At sentencing, the district court decided to exclude from the sentencing calculations all evidence pertaining to some 2,200 marijuana plants found at one of the two grow sites (the Stanwood site) because [t]he information provided to the government . . . relating to the Stanwood grow was severely tainted by the violation of the defendants attorney-client privilege.  (Id., at 795).  Exclusion of those 2,200 plants meant that the ten-year mandatory minimum sentence did not apply.  Instead, the sentence was determined by the Guideline range for the money laundering counts (87-108 months), with a five year mandatory minimum for the balance of the marijuana plants.

On appeal, the principal issue before the Court was whether the district court could, as a matter of law, ignore the guilty plea, which acknowledged an admitted number of legally seized plants, and then exclude those plants from the quantity calculus on the basis of government misconduct.  (Id., at 798).

Although the majority grudgingly professed sympathy with the results the district court sought to achieve in this troubling case, it held that, under the circumstances presented here, the court lacked authority to use exclusion of the Stanwood plants as a cudgel to punish government misconduct.  (Id.).

As noted above, Judge Reinhardt strongly disagreed with that conclusion.  He noted that the majoritys ruling was made in reliance principally on cases which hold that the exclusionary rule does not apply at sentencing. . . . The majority's conclusion that these cases support its holding, however, is based on an unwarranted and erroneous logical leap.  The cases cited by the majority hold only that a court may, in certain circumstances, consider evidence during sentencing even when that evidence was seized in violation of the Fourth Amendment and would therefore be inadmissible at trial.  The majority reads these cases to require sentencing courts to consider information seized in violation of Fourth Amendment rights.  The cases, however, say no such thing.  In fact, the principal reason underlying the holding in the cases cited by the majority is that courts have broad discretion to determine what evidence should be included for purposes of sentencing.  Thus, contrary to the majority's claim that these cases deprive district courts of discretion to decide what evidence to include in sentencing calculations, they actually reinforce that discretion.  Because the issue here is whether the district court had discretion to disregard the Stanwood evidence for sentencing purposes, the cases cited by the majority support affirmance, not reversal.  (Id., at 805-06) (Emphasis in original).

He then concluded: [M]y disagreement with the majority comes down to the following: The majority claims that, in the absence of any specific legislative rules or judicial holdings that district courts have discretion to exclude evidence at sentencing for legitimate reasons, it must conclude that they have no such discretion.  In contrast, I believe that, in the absence of any specific legislative rules or judicial holdings that district courts do not have discretion to exclude evidence at sentencing for legitimate reasons, we should conclude that they do. . . . To support its view, the majority relies on two sources of legal authority: (1) cases that affirm, rather than curb, the discretion of district courts to determine what evidence to include at sentencing; and (2) statutory language that makes certain minimum sentences mandatory, but that says nothing about the role of district courts in determining what evidence to include when arriving at those sentences.  Obviously, neither of these sources of legal authority supports the majority's presumption against district court discretion.  The presumption I apply, however, is supported by a long tradition of both judicial holdings and legislative rules affirming the broad discretion of district courts to determine what evidence to include for purposes of sentencing.

In short, the underlying legal principles regarding sentencing determinations support the district court's exercise of discretion in this case, and the majority has pointed to nothing that curtails that discretion. Moreover, the district court's decision to exclude the Stanwood grow from sentencing is supported by the dictates of fairness and due process.  By excluding that evidence, the district court simply prevented the government from benefitting from its complicity in the violation of the defendants' constitutional rights.  For these reasons, I would affirm the district court's decision.  (Id., at 807).

United States v. Pinjuv, No. 99-10597 (9th Cir. 7/21/00) (Judge Alarcon)

According to the latest Department of Justice Statistics, between 1990 and 1999, the fastest growing segment of our prison population was represented by a 54 percent increase in the number of parole violators returning to prison. (See,  With that in mind, it becomes increasingly important for defense counsel to pay attention to a growing reality: sentencing courts are becoming more and more prone to impose last-minute, never-previously-discussed conditions of probation and supervised release.  Many of those conditions, while politically popular, will be so difficult to achieve that they virtually guarantee a return to prison - and they certainly vest in the hands of the probation officers a powerful tool of bureaucratic harassment.

Pinjuv is a case that calls to mind the dark ages of Americas prisons when mentally disturbed persons were summarily dumped in large institutions for the criminally insane  - instead of being given proper medical treatment.

In that case, a defendant, who was clearly in need of medical and/psychiatric help, was sent back to prison for failing to comply with a condition of her supervised release that she successfully complete a mental health treatment program.  The defendant, who had at least one prior conviction and a long history of mental illness and emotional problems that resulted in constant disruptive behavior, pled guilty  in 1995 to bank robbery.  She received a sentence of three years in prison, followed by a three year term of supervised release, with a special condition that she participate in and successfully complete a mental health treatment program . . . as approved and directed by the probation officer.  After her release from prison, she was first placed in a group home; but she caused so many disruptions (such as refusing to eat, take her medications, and maintain her health) that she was soon removed from that home.

She was then placed in a Salvation Army Pathways Program.  Her probation officer warned her that, if she failed to comply with that programs rules or exhibited any disruptive behavior, he would seek to revoke her supervised release and have her sent back to prison.  When she continued to exhibit such disruptive behavior, he moved to have her reimprisoned, concluding that she would receive better mental health treatment in a penal facility.  District Judge George of Nevada agreed and issued an order remanding her to the custody of the Attorney General for a term of incarceration of one year and one day.

At the revocation hearing, the defendant argued that the release condition was unreasonable and unenforceable because she lack[ed] the power of volition to comply with such a requirement.  The Court summarily rejected that argument, expressing his (medical?) opinion that "[w]hile I appreciate that her mental condition creates a problem, I don't have any difficulty finding that she has voluntarily created the difficulties she has."

On appeal, the Ninth Circuit affirmed the new prison sentence.  First, it emphasized that wonderful judicial fiction that Revocation proceedings do not punish a defendant for a new offense.  Instead, they trigger the execution of the conditions of the original sentence for the offense of which the defendant has already been convicted.  Then it concluded with one of those great the-ends-justify-the-means arguments that we have recently seen: Even conditions of release which are beyond a convicted person's control may be necessary to  facilitate the rehabilitation process or to ensure the safety of society.  Based on that rational, the Ninth Circuit concluded that the special condition imposed on the defendant in this case was sufficiently related to the remedial goals of supervised release to be valid and enforceable.

It has always seemed strange to us why the courts and legislators profess such great concern about the rehabilitation process after a person is released from prison, especially since, during the many years that the person has spent in prison, there was absolutely no concern for, or program designed to assist, the process of rehabilitation.  In that connection we note that Congress has specifically decreed that "imprisonment is not an appropriate means of promoting correction and rehabilitation." (18 U.S.C. 3582(a)).  Maybe, in the la-la land of ivory tower justice,  they really believe that waving the magic wand of special and onerous conditions will make up for the many years of neglect and provide an incentive to become law abiding!

QUOTE OF THE WEEK  -  Is the Writ of Habeas Corpus Being Destroyed by Judicial Semantics?  

"Judicial interpretation of the Great Writ during the past three decades has spun a cascading web of confounding and labyrinthine procedural obstacles . . . . This large and increasingly complex web has now virtually obscured the core purpose of the Writ.

"Not only has this procedural web taken on a life of its own, it has developed its own unique nomenclature, a procedural cant further obscuring the merits of most habeas corpus actions:  Rather than addressing the underlying merits of the constitutional claims asserted by a petitioner for habeas corpus relief, opinions in habeas actions are now riddled (in both the primary and secondary sense of the word) with terms like 'procedural default,' 'cause and prejudice,' 'abuse of the writ,' 'successive petitions,' 'mixed petitions,' 'adequate and independent state law grounds,' 'the "look through" presumption,' 'the total exhaustion rule,' 'state waiver of the exhaustion defense,' 'non-retroactivity,' 'non-cognizable constitutional claims,' 'fairly presented claims,' 'unintended claims,' 'objective factors external to the defense,' and 'the presumption of correctness.'  The vast majority of federal habeas petitioners find themselves entangled in this omnipresent and perplexing procedural web, which effectively precludes federal courts from ever reaching the merits of their constitutional claims.  For example, when the Third Circuit Court of Appeals recognized that a case before it 'illustrate[d] the complexity engendered by the current federal habeas corpus doctrine of procedural default,' Hull v. Freeman, 991 F.2d 86, 88 (3d Cir.1993), the court also expressed its concern that its method for breaking free of the procedural web, so that it could reach the merits of the petitioner's claim, might instead 'have placed [the petitioner] into an enclosed loop from which he cannot escape.'  Id. at 94 n. 6.

"With the inevitable focus on this bewildering array of convoluted procedural obstacles, it is all too easy to look past some crucial, simple truths [one of which is that] the mystifying procedural web most often traps and snares all but the most sophisticated or just plain lucky petitioners, and [the petitioner in this case] is neither."  District Judge Mark W. Bennett, dissenting in Lee v. Kemna, 213 F.3d 1037, 1048 (8th Cir. 2000).


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