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Vol. 7, No. 34              Covering Cases Published in the Advance Sheets through August 21,  2000


Highlights of this Issue:

Juror Questioning During Criminal Trials:

Rare Censure of an Assistant U.S. Attorney:

Ignorance of the Law as a Defense:

The Appointments Clause - Revisited:


In Re Lightfoot, 217 F.3d 914 (7th Cir. 2000) (Judge Posner)

As reported in Lindstrom v. Graber, 203 F.3d 470 (7th Cir. 2000), a fugitive sought a stay of his pending extradition to Norway.  Although Circuit Judge Rovner granted the requested stay, the petitioner, Lars Erik Lindstrom, was deported anyway because the Assistant U.S. Attorney in charge of the case, one Lori E. Lightfoot, deliberately misled Judge Rovner in a manner that thwarted the court and prevented it from acting as it intended.  So angry was the Seventh Circuit about Lightfoot’s “professional misconduct” (id., at 918), that it took the rare step of issuing a formal notice of disciplinary proceedings against Lightfoot; and it gave her 30 days to show cause why she should not be disciplined “for conduct unbecoming a member of the bar.”  (Lindstrom, id., at 477).  The Government responded in typical fashion: not only did it deny any wrongdoing, it requested the Court to “depublish” its decision in Lindstrom.  Those events precipitated the Court’s unusually harsh language in the instant decision.

The background of what happened is as follows.  In 1997, a Norwegian court convicted Lindstrom of fraud and sentenced him to prison.  He fled to the United States and the Norwegian government requested that he be extradited back to Norway under its treaty with the United States.  Lindstrom was subsequently arrested and held in U.S. prisons for nearly two years before he was ultimately extradited.  On August 19, 1999, the day of his scheduled extradition, his defense counsel sought an emergency stay of extradition.  Immediately after the district court denied any stay, the U.S. Marshals commenced the process of arranging for the transfer of custody to Norwegian officials, by driving him to O’Hare airport for a 5:00 p.m. flight to Norway.  In the meantime, defense counsel sought an emergency stay from Circuit Judge Rovner, who immediately granted it at 2:20 p.m.

When Lightfoot learned of Judge Rovner’s ruling, she did two things.  First, after checking with her superiors, she advised the Marshals that Judge Rovner’s stay was “moot” (on the theory that Lindstrom had technically been transferred to the custody of the Norwegian agents who were by now accompanying the U.S. Marshals), and that the Marshals would now proceed to complete the formalities of the extradition.  Judge Posner, writing for the Court in the instant case, concluded that the advice Lightfoot gave to the Marshals was “not only unsound, but unreasonable.”  (Id., at 916).

Second, belying her own belief that the stay was really moot, at 4:40 p.m., Lightfoot filed a motion to lift the stay that Judge Rovner had granted.  That motion was immediately denied, but, by the time word of that decision was transmitted to the Marshals’ office, Lindstrom’s plane had taken off.  What particularly incensed the Court was Lightfoot’s total lack of candor in her motion papers.  Among other things, she told Judge Rovner that, by the time she had learned about the issuance of the stay, Lindstrom was already in Norwegian custody - a fact that was simply not true.

Bluntly, Judge Posner concluded that Lightfoot’s motion papers were false and misleading.  He stated: “The motion . . . created a thoroughly false impression of the government's position, an impression that could not but cause Judge Rovner to believe that unless she vacated the stay Lindstrom would remain in the United States until the merits of his appeal could be considered.  The impression was false because we know that the Justice Department was proceeding on the premise that the stay which Judge Rovner had issued did not stay the removal of Lindstrom from the United States--the stay had no effect, was moot, would not prevent the 5:00 p.m. departure.  Had Judge Rovner received timely notice that her stay was being so interpreted by the officials to whom it was directed, she would no doubt have issued a further order making clear that the stay was a stay of removal and not merely of some metaphysical act of "extradition" that had occurred hours before in the basement of the federal courthouse.  Had Lightfoot's motion informed the court that unless it took further action Lindstrom would be on his way to Norway within minutes, Judge Rovner might have issued an order directly to the airline, and the order might have been timely; for the motion was filed at 4:40, and the plane didn't take off until 5:45.”  (Id., at 918).

Judge Posner concluded: “It is one thing for a lawyer to advocate an unreasonable position to a court;  usually the court can prevent any serious harm to anyone just by rejecting the position.  It is another thing for a lawyer to defeat an opposing party's claims by misleading the court, whether by a misrepresentation or by a pregnant omission.  That is misconduct.”  (Id., at 917).

Ultimately, because it felt that Lightfoot’s conduct was only an “isolated lapse” in an otherwise “unblemished” career, and because she had received “misleading advice” from her superiors, the Court concluded that she deserved only a “reprimand,” rather than a more severe sanction such as suspension or disbarment.  (Id., at 918).

Judge Posner reserved his harshest comments for the Government’s request that it “depublish” its previous decision in Lindstrom - obviously to make it disappear so there would be no record of any claims of professional misconduct against one of its employees.  Judge Posner wrote: “The request to vacate our decision, which we of course deny, suggests to us that the U.S. Attorney still does not appreciate the gravity of the situation demonstrated by the uncontested facts, which reveal that the Justice Department's failure to equip its attorneys with the necessary expertise to opine on difficult issues relating to extradition precipitated the filing of a misleading motion by the Department that caused this court to lose jurisdiction over an appeal by a person who claims that he had been ordered extradited in violation of law.”  With all due respect, we submit that had defense counsel misled the Court in a similar fashion, that attorney’s career would be in serious jeopardy!


United States v. Hutzell, 217 F.3d 966 (8th Cir. 2000) (Judge Arnold)

One of the more controversial statutes that Congress has enacted in recent years was 18 U.S.C. 922(g)(9) which makes it unlawful for any person who has been convicted in any court of a misdemeanor crime of domestic violence to possess a firearm.  While Congress has been expanding the list of “prohibited persons” with increasing frenzy in recent years, it has never before focused on a class of misdemeanants; and, predictably, the statute has generated a flurry of litigation.

Most of the challenges to date have been based on what the Government must prove to obtain a conviction under 922(g)(9) - in part because a related provision of the law, 18 U.S.C. 924(a)(2), requires the Government to prove that the defendant “knowingly” violated the law.  In this case, and in numerous other cases that have addressed the meaning of “knowingly,” the courts have generally acceded to the Government’s contention that “knowingly” requires the Government to prove only that the defendant knew of the facts  constituting the offense, but not that he knew it was illegal for him to possess a gun.  (Id., at 968).

In this case the defendant raised another defense - namely the defense of ignorance of the law.  While that defense is rarely raised any more, District Judge Bennett of Iowa expressed the view in his dissent  that, in certain cases, and certainly in this one, the Due Process Clause “requires that ignorance of the law stand as an excuse.”  Due to its length and persuasiveness of Judge Bennett’s exegesis in his dissenting opinion, we felt it was particularly noteworthy.

Six months before Congress enacted 922(g)(9), the defendant in this case pled guilty to a state misdemeanor charge of “domestic abuse assault.”  More than two years later, during an argument with his girlfriend, the defendant fired a gun, and he was subsequently charged with violating 922(g)(9). Ultimately, he entered a conditional guilty plea to the charge, and moved to dismiss the indictment.  His principal argument was that his conviction was improper because he was personally unaware of 922(g)(9) at the time of his argument with his girlfriend; and because no one could be presumed to have had notice that the conduct described in the statute was in fact unlawful.  (Id., at 967).  Although he acknowledged the general maxim that ignorance of the law is not a defense, he argued that he fit within the narrow class of exceptions established by the Supreme Court in Lambert v. U.S., 355 U.S. 225 (1957).

In Lambert, the Supreme Court carved out a limited exception to the rule that ignorance of the law is no excuse by holding that the prerequisites of due process may allow the assertion of that defense in cases where the conduct of the person charged with the crime is (a) "wholly passive" and (b) must not be per se blameworthy.  Lambert involved a Los Angeles city ordinance that imposed criminal penalties on felons who remained in the city for more than five days without registering with the police. The Supreme Court held that the defendant's conviction violated the due process clause of the fourteenth amendment because the city failed to establish that the defendant, who had resided in Los Angeles for more than seven years, had any notice that her "wholly passive" conduct (staying in Los Angeles for more than five days without registering) could result in criminal prosecution.

Lambert should be read in conjunction with several other Supreme Court decisions on the same issue.  For example, in U.S. v. Freed, 401 U.S. 601 (1971), the Court refused to extend the Lambert exception to a little-known statute prohibiting the unregistered possession of hand grenades.  Conversely, the Court did apply the Lambert exception in Cheek v. U.S., 498 U.S. 192 (1991), which dealt with complex tax laws; and in Ratzlaf v. U.S., 510 U.S. 135 (1994), without specifically referring to the Lambert exception, the Court held that, in order to convict a defendant of a money-structuring crime, the jury first had to find that the defendant knew that the structuring in which he had engaged was unlawful.

The defendant also relied heavily on Judge Posner’s dissent in U.S. v. Wilson, 159 F.3d 280, 293 (7th Cir. 1998), in which he concluded that the "knowing violation" language of 924(a)(2) should be interpreted "to require the government to prove that the violator [of 922(g)(8)] knew he was committing a crime," because "this is the standard device by which the courts have avoided having to explore the outer boundaries of the constitutional requirement of fair notice of potential criminal liability."

The majority disagreed, stating that the Lambert exception is not available if the “lack of awareness of the prohibition was objectively unreasonable.”  (Id., at 968).  It then supported its conclusion that the prohibition on gun possession by domestic violence misdemeanants was reasonable by adopting the Sixth Circuit’s “shock test” as the standard to judge the reasonableness of a person’s awareness of a new Government prohibition.  In U.S. v. Beavers, 206 F.3d 706, 710 (6th Cir. 2000), the Sixth Circuit used the novel concept that “it should not surprise anyone that the government has enacted legislation in an attempt to limit the means by which persons who have a history of domestic violence might cause harm in the future."

As noted above, Judge Bennett dissented with one of his patented prolific decisions.  He started by acknowledging the reason for the maxim at issue by quoting the 17th Century jurist and scholar, John Selden, who wrote: “Ignorance of the law excuses no man; not that all men know the law, but because it is an excuse every man will plead, and no man can tell how to refute him.”  (Id., at 969).  He then engaged in a detailed and lengthy analysis of the legislative history of 922(g)(9); the leading cases that have dealt with the issue of whether it should be obvious to a person convicted of a misdemeanor of domestic abuse that he is prohibited from possessing a gun; and the scope of the Supreme Court’s holding in Lambert and its surprisingly lengthy progeny.

Ultimately, he concluded that “due process requires us to sail the course charted in Lambert: Due process requires proof that the defendant knew or reasonably should have known  that his possession of a firearm after a conviction for a misdemeanor crime of domestic violence was prohibited in order to sustain a conviction under 922(g)(9). No such knowledge or probability of knowledge was shown in Mr. Hutzell's case. Therefore, I would hold that his conviction should be overturned on due process grounds.” (Id., at 983).


QUOTE OF THE WEEK - An apology from the Nation  

Last week the Government abruptly abandoned its case against Wen Ho Lee, the former Los Alamos scientist who was originally charged with high espionage.  After holding Lee in prison for more than nine months, the Government agreed to a single charge of “mishandling nuclear secrets” and no additional jail time.  As reported in The New York Times on September 14, 2000, District Judge James A. Parker “stunned” the Government at the sentencing hearing “by implicitly singling out Attorney General Janet Reno, Energy Secretary Bill Richardson and senior officials in the Clinton White House for what he said was a questionable indictment, for misleading him about Dr. Lee's supposedly deceptive behavior and then for ignoring his urgings that the government ease the ‘demeaning, unnecessarily punitive conditions’ under which Dr. Lee was being held. . . . ”

Judge Parker said he felt so deeply troubled by the government's consistent pattern of abusive actions that he expressed to Dr. Lee his dismay that the government had unleashed the full force of its powers so arrogantly. "I have no authority to speak on behalf of the executive branch, the president, the vice president, the attorney general, or the secretary of the department of energy," the judge said, but "as a member of the third branch of the United States government, the judiciary, the United States courts, I sincerely apologize to you, Dr. Lee, for the unfair manner you were held in custody by the executive branch."

At another point, the judge added that he felt he had improperly denied bail to Dr. Lee because he was misled into thinking that Dr. Lee posed a threat to national security. "I tell you with great sadness that I feel I was led astray last December by the executive branch of our government through its Department of Justice, by its Federal Bureau of Investigation and by its United States Attorney for the District of New Mexico.”  He continued that those Government officials involved “have embarrassed our entire nation and each of us who is a citizen of it.”


Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court

This Week

Year to Date

Since 1996

Courts of Appeal

60

1,452

10,889

District Courts

22

    846

   5,884


Copyright 2000 Punch and Jurists, Ltd.