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A Weekly Summary of Snippets of Justice From the Federal Courts

Vol. 8, No. 11              Covering Cases Published in the Advance Sheets through March 12, 2001

Highlights of this Issue:

Supreme Court Case:

Apprendi Watch:

The Courts' Deference to the Presumed Regularity of Grand Jury Proceedings

U.S.S.G. and Sentencing Issues:

Dont forget to visit the Apprendi  Watch section of the Member's portion of our Web site each week - the most current and comprehensive site on the entire Internet for all the latest developments involving that watershed decision. That section contains summaries of more than 165 Apprendi decisions, links to numerous Apprendi articles and more than 100 Apprendi briefs and motions, and a listing of the 47 cases that the Supreme Court has vacated to date based on Apprendi.

Texas v. Cobb, No. 99-1702 (U.S. Sup.Ct. 4/02/2001) (Justice Rehnquist)

Proving once again that the rights of criminal defendants are often determined by word games played on slippery slopes, a sharply divided Supreme Court held last week that a criminal suspects constitutional right to have an attorney present during a custodial interrogation is "offense specific" and does not extend to a police interrogation on a "factually related" offense. As a result, the majority upheld a Texas capital conviction based on a defendants uncounseled confession given at a time when he was represented by counsel (albeit on an "unrelated" burglary charge, not the murders for which he was questioned) even though both crimes arose out of the same events.

The defendant, Raymond Cobb, was a suspect in a 1993 Texas burglary, during which a double murder occurred. Due to a lack of evidence, he wasnt charged with either crime initially. A year later, while he was under arrest for a different, unrelated crime, Cobb was interrogated by the police and he confessed to the burglary - but denied the murders. He was charged with the burglary; counsel was appointed; and he was released on bail. Later, Cobb told his father that he committed the murders and the father told the police. The defendant was rearrested and interrogated - but the police did not call his burglary court-appointed lawyer. During those interrogations, Cobb confessed to the murders.

After Cobb was convicted, the Texas Court of Criminal Appeals vacated the murder convictions, holding that the police should have notified Cobbs counsel before questioning Cobb about the murders. It relied on Michigan v. Jackson, 475 U.S. 625 (1986), where the Supreme Court adopted the prophylactic rule that once a defendant has invoked his Sixth Amendment right to counsel, any subsequent waiver of that right is invalid in the absence of counsel, even if the waiver is knowing and intelligent.

The Texas court concluded that "[o]nce the right to counsel attaches to the offense charged, it also attaches to any other offense that is very closely related factually to the offense charged." Thus, it concluded that Cobbs confession had been obtained in violation of the defendants Sixth Amendment right to counsel.

A majority of the Supreme Court disagreed and reversed the Texas court. It held that Cobb had been advised of his rights and had waived them; and that both the waiver and the confession were valid. It also noted that the two crimes (burglary and murder) were different because they contained different elements and it concluded that the fact that the two crimes were "inextricably intertwined" with each other did not matter for Sixth Amendment purposes.

The majority also questioned the continuing validity of Jackson - but stopped short of overruling it entirely. Rather, the majority focused on - and strongly affirmed - its decision in McNeil v. Wisconsin, 501 U.S. 171, 175 (1991), where the Court explained that "[t]he Sixth Amendment right [to counsel] . . . is offense specific. It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced, that is, at or after the initiation of adversary judicial criminal proceedings - whether by way of formal charge, preliminary hearing, indictment, information, or arraignment."

Writing for the majority, Justice Rehnquist stressed the law and order philosophy of the current Court - stating that "it is critical to recognize that the Constitution does not negate societys interest in the ability of police to talk to witnesses and suspects, even those who have been charged with other offenses."

The majority also rejected claims by the NACDL and others who filed briefs amici curiae that the offense-specific rule would prove "disastrous" to suspects constitutional rights because the offense specific rule would permit law enforcement officers "almost complete and total license" to conduct unwanted and uncounseled interrogations.

Emphasizing the wide ideological differences on the current Court, four Justices dissented and joined in a decision written by Justice Breyer. He wrote that the Constitution "does not take away with one hand what it gives with the other" and he concluded that the police "may not force a suspect who has asked for legal counsel to make a critical legal choice without the legal assistance that he has requested and that the Constitution guarantees."

Justice Breyer also argued that "the majoritys rule permits law enforcement officials to question those charged with a crime without first approaching counsel, through the simple device of asking questions about any other related crime not actually charged in the indictment." To accentuate that point, he noted that criminal codes "are lengthy and highly detailed, often proliferating overlapping and related statutory offenses to the point where prosecutors can easily spin out a startlingly numerous series of offenses from a single . . . criminal transaction."

Justice Breyer also concluded that the majoritys rule "threatens the legal clarity necessary for effective law enforcement" because it "imports into Sixth Amendment law the definition of offense set forth in Blockburger v. United States, 284 U.S. 299 (1932)." Essentially, the Blockburger test says that two offenses are the "same offense" unless each requires proof of a fact that the other does not.

But Justice Breyer noted that "the simple-sounding Blockburger test has proved extraordinarily difficult to administer in practice. Judges, lawyers, and law professors often disagree about how to apply it. . . . The test has emerged as a tool in an area of our jurisprudence that The Chief Justice has described as a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator. . . . Yet the Court now asks, not the lawyers and judges who ordinarily work with double jeopardy law, but police officers in the field, to navigate Blockburger when they question suspects."

United States v. Flemmi, No. 00-1968 (1st Cir. 3/30/2001) (Judge Selya)

This decision is another chapter in the explosive, headline-grabbing saga that resulted from an "unholy alliance" between Stephen J. Flemmi and the FBI. Flemmi, who the First Circuit has described as "one of Bostons most notorious gangsters," served as a prized, secret and well-protected confidential informant of the FBI for more than 30 years, despite openly engaging in a life of crime and racketeering during most of that tenure.

The details of some of Flemmis more shocking activities, and their cover-ups by the FBI, were first recounted in Judge Wolfs 661-page decision, U.S. v. Salemme, 91 F.Supp. 141 (D.Mass. 1999). Later they were again reviewed by the First Circuit in U.S. v. Flemmi, 225 F.3d 78 (1st Cir. 2000) (Flemmi I) - a case that we described as "a troubling expose of a very dark side of the FBI which tacitly condoned many crimes, probably including murder, to protect its star informants." (See, P&J, 9/25/00).

So outrageous and embarrassing was the "unholy alliance" between Flemmi and the FBI that it ultimately led to the publication, on January 8, 2001, of Special Guidelines Regarding the Use of Confidential Informants by the Department of Justice. The Guidelines, which are available on the Internet at, were deemed necessary to prevent a repetition of similar abuses by Government agents in the future.

Ultimately the Government severed its ties with Flemmi and decided to prosecute him for a broad range of crimes. As can be expected, that prosecution led to a tangled web of motions, counter-motions and appeals, as the hostilities between the two sides escalated.

The instant decision (herein Flemmi III) grew out of Judge Wolfs decision, U.S. v. Flemmi, 108 F.Supp.2d 39 (D.Mass. 2000) (Flemmi II) in which he concluded that the Government had abused the grand jury process in its efforts to crush Flemmi. He focused on the Governments third superseding indictment which added five new predicate acts to the already long list pf racketeering charges against Flemmi. Four of those predicate acts dealt with murders that were brought to the attention of the grand jury by the immunized testimony of two witnesses.

In his decision, Judge Wolf reviewed some of the very few - but "well established" - restraints on the Governments virtually untrammeled power in grand jury proceedings. He then concluded that the Government had abused the grand jury process in the instant case in at least two ways: (a) it had used the grand jury process "for the purpose of merely discovering or preserving testimony for use against a person who is already under indictment"; and (b) it had used the grand jury process to "freeze" the testimony of a witness, such as a reluctant witness the Government fears may change his testimony in the future. (Flemmi II, id., at 43).

Judge Wolf expressed concern for the "substantial" potential for abuse once a defendant is indicted because "[t]he government has at its disposal one of the most effective discovery mechanisms yet devised - the grand jury. This body may call witnesses under compulsory process and examine them in secret under oath, unhampered by the rules of evidence or an adversary counsels cross-examination, or in the case of a prospective defendant by Fifth Amendment immunity." (Flemmi, id., at 44, quoting from U.S. v. Doe, 455 F.2d 1270, 1275 (1st Cir. 1972)).

Having concluded that the raison detre for the ongoing grand jury investigation against Flemmi was "trial preparation," he then reasoned that the Government had improperly altered the nature of the charges previously lodged against Flemmi - and as a result had violated his double jeopardy rights because the second and third indictments "necessarily" charged the same offenses. For that reason, he suppressed the immunized testimony that led to the addition of the four murders in the third superseding indictment.

The Government appealed - and the First Circuit reversed. It concluded that Judge Wolfs double jeopardy approach was "innovative, but unsound." It simply ignored the "well established" restraints on the grand jury process to which Judge Wolf had referred; and instead repeatedly stressed that a grand jury is an "independent institution" and that the courts must "afford grand jury proceedings a presumption of regularity."

From there it was easy to jump to the essence of its sweeping holding: "Accusations of grand jury abuse can be conclusively rebuffed by a showing that the challenged proceeding led to the joinder of new defendants or the inclusion of new charges"; and that "any different result would unfairly hamstring the government in its pursuit of legitimate law enforcement objectives." Read literally, we guess that means there can never be a showing of an abuse of the grand jury process (at least in the First Circuit) so long as the resumed grand jury proceedings lead to the inclusion of new charges or new defendants!

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