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A Weekly Summary of Snippets of Justice From the Federal Courts

Vol. 8, No. 13              Covering Cases Published in the Advance Sheets through March 26, 2001

Highlights of this Issue:

Challenge to the Government's Selective Use of Immunity:

Apprendi Watch:

The Commerce Clause and the Felon-in-Possession Statute:

Miscellaneous Issues:

Dont forget to visit the Apprendi  Watch section 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 185 Apprendi decisions, links to numerous Apprendi articles and more than 100 Apprendi briefs and motions, and a listing of the 48 cases that the Supreme Court has vacated to date based on Apprendi.

United States v. Dolah, No. 00-1173(L) (2nd Cir. 3/26/01) (Judge Newman)

This case deals with an extremely controversial and sensitive issue - one that the Court bluntly described as "the essential unfairness of permitting the Government to manipulate its immunity power to elicit testimony from prosecution witnesses who invoke their right not to testify, while declining to use that power to elicit [testimony] from recalcitrant defense witnesses." Unfortunately, the Courts decision is frustratingly disappointing because, as often happens in such cases, the Court found a way to escape delving into the most controversial and sensitive aspects of the defendants arguments.

The two appellants in this case, Mohammad Dolah and Marshall Weinberg, were principals of a stock brokerage firm known as Stone Asset. They were convicted at trial of nine counts of security fraud and one count of conspiracy arising out of a series of false representations made by employee/co-workers of Stone Asset to various customers. The primary defense of Dolah and Weinberg at trial was that they lacked knowledge of the deceit practiced by their co-workers and that they believed that the companies whose securities were sold to the public were good investments.

The Government granted immunity to some of the former employees of Stone Asset and presented them at trial as live witnesses. Over the defendants objections, the Government also introduced into evidence the guilty pleas of three other co-defendants who had been indicted with Dolah and Weinberg. Those three co-defendants had pled guilty prior to trial and were awaiting sentencing. Not surprisingly, those co-defendants who were still facing sentencing, indicated their intent to plead their privilege against self-incrimination if called to testify; and the Government refused to grant them immunity.

Judge Newman described the impact of the Governments actions by observing: "As a result, the Appellants could cross-examine only the co-workers deemed so entirely helpful to the prosecution that immunity was provided them, but could not cross-examine the other co-workers, portions of whose statements, helpful to the prosecution, were placed into evidence."

On appeal, Dolah and Weinberg argued that the admission of the co-defendants guilty plea allocutions without any opportunity for cross-examination was extremely prejudicial (given the natural human tendency to assume that if the accomplice is guilty, the principal must also be guilty) and fundamentally unfair (given the reality that a witness who has pleaded guilty and is awaiting sentencing is available as a witness to the Government but not to the defendant).

The defendants challenged the admission of the co-defendants plea allocutions on two separate grounds. First, they argued that the district court had erred in admitting the plea allocutions as "statements against interest" within the meaning of Fed.R.Evid. 804(b)(3). Second, they argued that the Governments use of the co-defendants plea allocutions as a means of bolstering its case violated their constitutional rights, specifically their Confrontation Clause rights under the Sixth Amendment and their due process rights under the Fifth Amendment - and that, as a result, they were denied a fair trial.

Although the Court repeatedly expressed concerns about the "tactical advantage" that the Government has as a result of its ability to "manipulate its immunity power," and although it acknowledged that the facts of this case "arguably present[ ] a substantial claim of error," it ultimately rejected both challenges and held that if any error had occurred it was harmless.

The Rule 804 argument had two prongs. First, the defendants argued that one of the requisite conditions for the use of statements against interest had not been met in this case. Under Rule 804(b), such statements are admissible only if the declarant is "unavailable as a witness." Here, the defendants claimed that the Government made a mockery of the "unavailability" requirement of Rule 804 by refusing to produce the co-defendants as witnesses, which it easily could have done had it wanted to do so - by giving them use immunity, as it had done with the witnesses it did call.

Second, the defendants argued that, under Rule 804(a), a declarant is not "unavailable" as a witness if his unavailability "is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying." Citing that language, they argued that the "unavailability" of the three co-defendant witnesses was attributable to "wrongdoing" by the Government within the meaning of Rule 804(a) because the Government withheld immunity from the three co-defendants whose guilty pleas it wanted to use, after selectively conferring immunity on the witnesses who, in the words of Judge Newman, were "deemed entirely helpful to its case"

The Court rejected both the "unavailability" and the "wrongdoing" arguments espoused by the defendants. On the unavailability issue, it simply stated that "[i]t is settled in this Circuit that a witness who invokes the privilege against self-incrimination is unavailable within the meaning of Rule 804(b) even though the Government has the power to displace the witnesss privilege with a grant of use immunity."

The essence of the Courts rejection of any wrongdoing by the Government in this case can be summed up in a single statement: "The Appellants implicit premise that evidentiary rules for the prosecution and the defense must be mirror images is not always valid." From that starting point it was easy to conclude that the "wrongdoing" language from Rule 804(a) quoted by the defendants applies only to circumstances "where the Government takes positive action to preclude the witness from testifying." It also stated that there was no suggestion that the Government had urged the three witnesses to invoke their privilege against self-incrimination. Finally it added that "[a]lthough the Appellants suggest that a prosecutor has some opportunity to manipulate co-defendants sentencing dates to make sure that the risk of self-incrimination at sentencing remains at the time of another defendants trial, there is nothing in the record to indicate such tactics in this case."

The Court also rejected the constitutional challenges raised by the defendants. They had argued that the Supreme Courts recent decision in Lilly v. Virginia, 527 U.S. 116 (1999), has interpreted the Confrontation Clause to forbid the use of one defendants plea allocution at another defendants criminal trial, even though such an admission might be within the scope of Rule 804. The Court responded: "Our Circuit has not read Lilly so broadly. On the contrary, we have viewed the plurality opinion as rejecting an accomplices confession because it was largely "non-self inculpatory" (i.e., the declarant minimized his own criminal responsibility and shifted blame to the defendant."

The due process issue was far more interesting. As noted above, the defendants claimed that the selective immunization of only some of the former employees of Stone Asset, combined with the evidentiary use of the plea allocutions of the non-immunized former employees, was so fundamentally unfair as to deny them procedural due process. The Court agreed that the argument deserved "careful consideration" because "using the immunity device in a one-sided manner can result in a basic unfairness that rises to the level of a violation of procedural due process." From that point on, the Courts decision just seemed to fall through the cracks!

The Court started its analysis by stating that "[a]lthough as a general rule, the Government may not be required to confer immunity for the benefit of the defense, . . . we have recognized that in narrowly defined circumstances the Government will face a choice between either not immunizing witnesses who invoke the self-incrimination privilege and whom the prosecution might wish to call, or else immunizing both its own recalcitrant witnesses and those the defense might wish to call. That choice confronts the Government where the following special circumstances are present: (1) the government has engaged in discriminatory use of immunity to gain a tactical advantage or, through its own overreaching, has forced the witness to invoke the Fifth Amendment; and (2) the witness' testimony will be material, exculpatory and not cumulative and (3) is not obtainable from any other source." (Citing U.S. v. Burns, 684 F.2d 1066, 1077 (2nd Cir. 1982)).

We then anticipated an exciting discussion about whether the facts of this case sufficiently met the three-part test established in Burns to constitute the type of manipulation of the Governments immunity power that did render the trial fundamentally unfair. We were sadly disappointed. One could almost hear the Courts sigh of relief as it found a way to escape that wrenching analysis. Rather than establish some meaningful guidelines for the future, the Court simply concluded: "However, we need not adjudicate the merits of that argument because we conclude that the admission into evidence of the plea allocutions, even if error, was harmless."

We feel two comments about that ruling are appropriate. First, in light of the Courts many statements about the potential evils of the Governments manipulation of its immunity power, we found it difficult to point to any facts that convincingly supported the Courts conclusion that the error in this case was, indeed, harmless - and we note that the Government itself never even argued harmless error. Second, it would appear to us that, ultimately, the validity of the Courts ruling depends on the real reasons behind the Governments insistence on using the untouchable plea allocutions of the co-defendants. And what were those reasons? Well, the Government apparently claimed - and the Court certainly accepted without question - that "[i]n this case, the plea allocutions were offered only to prove the element of the existence of the alleged conspiracy, not the Appellants participation in it." (Emphasis added). Can the judges really be that naive?

Doe v. Otte, No. 99-35845 (9th Cir. 4/09/2001) (Judge Reinhardt)

In this decision, the Ninth Circuit struck down Alaskas version of "Megans Law" on narrow grounds, holding that a provision of the law requiring the posting of the sex offenders home and work addresses on the Internet, as well as requiring them to report to the police every three months, was an unconstitutional punishment. While the Court declined to decide the case on due process grounds, it held that the law violated the Ex Post Facto Clause because, in this case, the Alaska Sex Offender Registration Act was used in the case of individuals who had committed sex crimes and completed their sentences before the Act's effective date.

In his typically thoughtful style, Judge Reinhardt explained that the case involved "an extremely sensitive and difficult question, both from a social and legal standpoint. How may society deal with convicted sex offenders after they have been punished for their crimes? How can society protect itself against future offenses and at the same time safeguard the constitutional rights of persons who have fully paid the price imposed by law for their crimes? The issues treated in the Alaska Sex Offender Registration Act we consider here differ only in degree from a host of other issues the citizens of this country regularly face in trying to resolve the inherent tensions between safety and freedom that exist in any democracy."

Because the debate about the validity of the sex offender registration statutes is destined to go on for years as the restrictions on sex-offenders become more creative and onerous, this decision is noteworthy as a timely and comprehensive review of some of the many weighty issues involving that a topic that is both highly controversial and politically charged.

QUOTE OF THE WEEK - The importance of the reasonable doubt standard.

Recently the Ninth Circuit reversed a drug trafficking and gun conviction of an alien on the grounds that mere proximity to some duffle bags of marijuana was insufficient to support the convictions; and that the Government had failed to prove the crimes beyond a reasonable doubt. In his decision, Judge Reinhardt observed: "The reasonable doubt standard is among the most venerable and fundamental of our constitutional protections. It plays a vital role in the American scheme of criminal procedure because it operates to give concrete substance to the presumption of innocence, to ensure against unjust convictions, and to reduce the risk of factual error in a criminal proceeding." U.S. v. Corral-Gastelum, 240 F.3d 1181, 1185 (9th Cir. 2001).

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