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A Weekly Summary of Snippets of Justice From the Federal Courts

Vol. 8, No. 16              Covering Cases Published in the Advance Sheets through April 16, 2001

Highlights of this Issue:

"Fact Bargaining" - A Critical Analysis:

Apprendi Watch:

A Rare Restraint on Special Conditions of Supervised Release:

The Unpublished Decisions Debate - Revisited:

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 now contains summaries of more than 200 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.

Berthoff v. United States, Civ. No. 97-10883-WGY (D.Mass. 4/9/01) (Judge Young)

Every once in a while a judicial decision is handed down that forcefully reminds us of Hans Christian Andersons fairy-tale - "The Emperors New Clothes." With subtle power, Anderson mocked the reality that in politics and in government pretense is often more important than truth; and, when the whispered truth becomes too embarrassing, it must be emphatically denied.

Judge Wisemans brilliant decision in U.S. v. Datcher, 830 F.Supp. 411 (M.D. Tenn. 1993) was of that genre. There he forcefully argued that a jury should have the right to nullify a sentence that it deems excessive and that arguments against the concept of jury nullification evince "a fear that the jury might actually serve its primary purpose, that is, it evinces a fear that the community might in fact think a law unjust." (So unacceptable was that message, Datcher was subsequently reversed by the Sixth Circuit in an unpublished, one page order which, to our knowledge, still does not even appear in Shepards' Citations.) Another decision of the same ilk was Judge Cahills powerful decision in U.S. v. Clary, 846 F.Supp. 768 (E.D.Mo. 1994) where he concluded that the prevailing crack/cocaine sentencing disparity unconstitutionally discriminates against blacks who are subjected to a policy of "unconscious racism." (That decision was also quickly reversed, this time in a published decision, but one that studiously avoided discussing some of Judge Cahills most provocative findings.)

The instant decision is cut from a similar mold. It is an extraordinary decision from a number of different perspectives - but mostly because Judge Young took on one of those "whispered truths" that many judges would refuse to acknowledge even exists. In so doing he has presented a powerful and unusually blunt analysis of a sentencing practice he labels "fact bargaining." Although "expressly condemned" by U.S.S.G. 6B1.4(a)(2), Judge Young concluded that "fact bargaining" is nevertheless present "in a large percentage of cases" and has converted Federal sentencing into "a massive exercise of hypocrisy."

Judge Young defined "fact bargaining" as "the knowing abandonment by the government of a material fact developed by law enforcement authorities or from a witness expected to testify in order to induce a guilty plea. It usually involves ignoring a quantity of drugs or the possession or use of a firearm reasonably attributable to a defendant and forming part of his or her relevant conduct. It encompasses the still more execrable practice of taking two similarly situated defendants and reducing the drug quantity for the one who is willing to plead but attributing the full drug quantity to the one who goes on trial."

According to Judge Young, the impact of "fact bargaining", "beyond being a fraud on the courts," has brought several "negative consequences including: (1) unfettered prosecutorial discretion in that the judgment of offense-seriousness is placed in the hands of the prosecutor with little possibility of judicial oversight; (2) disparity under the guidelines because not all prosecutors engage in such under-the-table actions; (3) burdening a defendant's right to trial by jury because the inducement to plead guilty could become overwhelmingly powerful."

The history of the instant case is long and complex - and much of it is irrelevant to the second part of Judge Youngs decision in which he addressed the issue of "fact bargaining." The defendant, Frederic Berthoff, and five associates were indicted for various drug trafficking crimes that took place between 1984 and 1986. Berthoff (who was deemed the "kingpin") went to trial, where he was convicted; and he was sentenced to 21 years in prison. Three of the other associate/defendants pled guilty and cooperated with the Government; and they received sentences ranging from three to five years. The remaining two associate/defendants also went to trial, where they were convicted, and they received sentences of eight years and five years.

Berthoff appealed his conviction and sentence; which were affirmed in an unpublished decision. He then commenced the instant habeas proceeding pursuant to 28 U.S.C. 2255, complaining principally about the adequacy of his trial counsel. Judge Young denied that petition, but he granted a Certificate of Appealability, because he was "concerned over the far-reaching implications" of a recent decision of the First Circuit, U.S. v. Rodriguez, 162 F.3d 135 (1st Cir. 1998) (P&J, 12/21/98), where that Court rejected a series of arguments that enormously disparate sentences imposed on those who pled guilty compared with those who went to trial constituted an improper chilling of the defendants constitutional right to a trial.

The First Circuit vacated that Certificate of Appealability and remanded the case back to Judge Young for further findings on five specific questions. (While none of those questions are relevant to the "fact bargaining" issue, some of Judge Youngs responses are extremely interesting, and well worth reading because they raise other questions beyond the scope of this discussion. For example, on one issue he noted that The American College of Trial Lawyers has, after careful study, concluded that "[e]mpircal evidence establishes that prosecutors are making substantial assistance determinations [pursuant to U.S.S.G. 5K1.1] for reasons unrelated to whether the defendants assistance is substantial." In fact, he concluded, "prosecutors not infrequently use substantial assistance departures to obtain guilty pleas where evidence in the prosecutors case is weak or where there is some other defect in the case.")

More significantly, Judge Young planted a bombshell by granting a new Certificate of Appealability on a different question, namely "whether the conduct of the prosecutor or this court unduly and unconstitutionally burdened Berthoffs Sixth Amendment right to a trial by jury?"

Focusing on the "700% difference" between one defendants three year sentence and Berthoffs twenty-one year sentence, Judge Young answered his own question in the affirmative, suggesting that Berthoffs right to a trial by jury had been so unconstitutionally burdened.

It is extremely hard to pick and choose from among the many noteworthy observation made by Judge Young in his decision. Indeed, much of what he wrote constituted a philosophical evaluation of our criminal justice system; but this is an important, must-read decision - and both the decision and its four Appendices are crammed with nuggets of wisdom that will force the First Circuit to squirm. (See, for example, the Quote of the Week below.) Among the items that attracted our attention were the following:

In bemoaning the erosion of jury trials in general - "the central vehicle for citizen participation in the legal system" - Judge Young observed that "[i]t is not too much to say that the greatest threat to Americas vaunted judicial independence comes - not from any external force - but internally, from the judiciarys willingness to allow our jury system to melt away." He then concluded that the "virtually untrammeled power over sentencing that Congress has ceded to the Presidents agents is today resulting - through a combination of grants for substantial assistance, lawful charge bargaining, and illegal fact bargaining - in a steady erosion of Americas criminal jury system with profound and as yet unknown results."

Judge Young noted that the First Circuit had held, in U.S. v. Mazzaferro, 865 F.2d 450, 460 (1st Cir.1989), that "[t]he law is clear beyond peradventure that a sentence based on retaliation for exercising the constitutional right to stand trial is invalid." He responded: "Well, not really. At least not today in the First Circuit. Evidence of sentencing disparity visited on those who exercise their Sixth Amendment right to trial by jury is today stark, brutal, and incontrovertible. True, there has always been a sentencing discount for those who plead guilty and turn state's evidence. In this District, that discount used to range from 33% to 45%. Today, under the Sentencing Guidelines regime with its vast shift of power to the Executive, that disparity has widened to an incredible 500%. As a practical matter this means, as between two similarly situated defendants, that if the one who pleads and cooperates gets a four-year sentence, then the guideline sentence for the one who exercises his right to trial by jury and is convicted will be twenty years.

"Not surprisingly, such a disparity imposes an extraordinary burden on the free exercise of the right to an adjudication of guilt by one's peers. Criminal trial rates in the United States and in this District are plummeting due to the simple fact that today we punish people - punish them severely -simply for going to trial. [In 1999, the U.S. District Courts completed the fewest number of trials in 30 years, while filings were two and one-half times higher than in 1970.] It is the sheerest sophistry to pretend otherwise. This is nothing new, of course. Sugarcoat it as we may with terms like acceptance of responsibility for those who cooperate, we have always punished those who demand that the government carry its constitutionally-mandated burden of persuasion beyond a reasonable doubt before an American jury. What is new and unprecedented is the severity of the punishment we are meting out to those whose only differentiating factor is that they ask for the chance to have an independent jury evaluate the evidence."

He wrote: "We are told there is a war on crime. As is true in any ,war, however, truth is the first casualty. With fact bargaining an accepted way of life in our federal criminal courts, and unconscionable disparities in sentencing imposed on those who ask for an independent jury, the American jury system withers. While the future cannot be foreseen, I respectfully suggest that history will not judge kindly an acquiescence in the eclipse of our greatest bulwark of personal liberty. Surely the Sixth Amendment to the Constitution of the United States requires something more."

Finally, Judge Young made the following observation: "While the evils of fact bargaining have not yet emerged into the public consciousness, it lies at the heart of the derision bordering on contempt with which knowledgeable observers in this District today regard our approach to sentencing. . . . As the power of the Executive over criminal sentencing has grown relative to that of the other two branches, so too has cynicism over our methods of law enforcement. . . .This may, perhaps, explain the steady rise in acquittals in federal criminal trials so that today nearly one in four defendants who goes to trial is acquitted."

United States v. Peterson, No. 00-1373 (2nd Cir. 04/30/2001) (Per Curiam)

Lately, it is beginning to appear as if judges, frustrated perhaps by the rigid constraints of the Guidelines, are relying more and more on the imposition of special conditions of supervised release as the only available means to express their personal views about what should be done to punish a defendant for his or her crime. It is a pretty safe area. The law says that the district court has discretion to set conditions of supervised release "to the extent that such conditions are reasonably related to the factors set forth in [18 U.S.C. ] 3553(a)(1) and (a)(2) and to the extent that such conditions involve only such deprivations of liberty or property as are reasonably necessary for the purposes indicated in section 3553(a)(2)." 18 U.S.C. 3563(b). That statutory scheme is mirrored in the Guidelines at U.S.S.G. 5B1.3(b) and 5D1.3(b).

However, the Court does not have to give any advance notice to the defendant or defense counsel of what conditions it intends to impose; and the imposition of such special conditions is usually the last part of the sentencing hearing - just before the defendant is whisked away by the Marshals. Practically speaking, the defendant and his counsel have no time to discuss the impact of those special conditions; and compared to the shock of the prison sentence they dont seem terribly important at that moment. Besides, they wont come into play for years down the road - long after the defendant is no longer represented by the same attorney (and, in fact, probably at a time when the defendant has no money to hire an attorney).

The important point, however, is that if the defendant fails to object immediately, he runs the risk that he may be deemed to have waived his rights to object or at least that his claim will be judged under the plain error standard; and, under that standard, the appellate courts are extremely reluctant to conclude that the trial court abused its discretion.

The defendant in this case pled guilty to bank larceny arising out of the issuance of bad checks that he wrote in connection with his failing computer business. He was sentenced principally to a five year term of probation, with six months to be served in "intermittent confinement" and six months in home detention. Influenced by a 1996 state conviction for incest involving the defendants 14-year old daughter, the district court (Judge Skretny) also imposed a series of special conditions of probation on the defendant which, inter alia, (a) restricted his ability to possess or use computers or the Internet; (b) required him to enter a mental health program for the treatment of "sexual predators"; (c) required him to notify third parties, including potential employers and academic educational programs in which he might enroll, of his state conviction for incest as well as his bank larceny conviction; and (d) prohibited him from being in "any recreational facility or in any area in which children are likely to congregate."

On his direct appeal, the defendant argued that the district court had erred in imposing those special conditions of probation based on his prior state sex-offense conviction; and, in a rare reversal of the imposition of such special conditions, the Second Circuit agreed.

It concluded that the broad restrictions on the defendants computer ownership and Internet access were "occupational restrictions" that did not meet the requirements of U.S.S.G. 5F1.5; they were not "reasonably related" to "the nature and circumstances of the offense" or the defendants "history and characteristics"; that their breadth was "excessive"; and that they were not reasonably necessary to protect the public or the defendants family from "future crimes, or any of the numerous broad sentencing grounds set forth in 3553(a)(2)."

Next, it addressed the special condition that required the defendant "to enroll, attend and participate in mental health intervention specifically designed for the treatment of sexual predators, as directed by the U.S. Probation Office." While the Court agreed that a district court may require a defendant to participate in a mental health program "if the court has reason to believe that the defendant is in need of psychological or psychiatric treatment" (U.S.S.G. 5B1.3(d)(5) and 5D1.3(d)(5)), in this case the condition, as written, "was an excessive delegation to the probation officer" that required remand to the district court to eliminate any right of the probation officer to determine "whether" the defendant should undergo such counseling - since that decision is a non-delegable judicial function.

The Court also vacated the third-party notification condition. It acknowledged that one of the "standard" conditions of probation and supervised release is that "as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendants criminal record or personal history or characteristics." (U.S.S.G. 5B1.3(c)(13) and 5D1.3(c)(13)). However, the Court concluded, any such "occupational restriction must be based on the offense of conviction." Accordingly, it held that the requirement that the defendant notify third parties of his incest conviction was unauthorized by statute, since that crime was not the offense of conviction."

Finally, The Court concluded that the condition which prohibited the defendant from being in "any recreational facility or in any area in which children are likely to congregate" was "excessively broad" and "ambiguous." It questioned, for example, whether the condition would bar the defendant from visiting such places as the Yellowstone National Park or joining an adult gym.

QUOTE OF THE WEEK - Some of the evils of "fact bargaining."

"Plea bargaining gets away from the facts. First, as is widely recognized, justice is not done when premeditated murder, for example, is reduced to a lesser charge. But, more fundamentally and perhaps less obvious, plea bargains corrupt the prosecutorial function by severing it from the discovery of truth.

"The practice of having people admit to what did not happen in order to avoid charges for what did happen creates a culture that, as it [ ] develops, eventually permits prosecutors to bring charges in the absence of crimes. As a little yeast leavens the whole loaf, systematized falsehoods about crimes corrupt the entire criminal justice process. . . .

"In effect, collusion is going on between the prosecution and defense, and the defendant learns that if he will plead guilty to a lesser charge, the prosecution will not try to convict the defendant on the charge for which the defendant was arrested. Pressures on a defendant can be overwhelming. They are well illustrated, for example, by the defendant who told the judge (North Carolina v. Alford, 400 U.S. 25, 28 [1970]), I ain't shot no man, but ... I just pleaded guilty because they said if I didn't they would gas me for it.

"Defendants assess whether they can afford to keep on paying lawyers during a trial. An indigent defendant with a public defender may wonder if the public defender, who is dependent on the court to assign him cases, has the inclination to mount a spirited defense. Judges contending with crowded dockets are inclined to assign cases to public defenders who are content to settle cases with pleas instead of taking them to trial.

"In effect, coercive pressures push all parties to a settlement in which the accused admits to having committed a fictional offense in order to avoid being tried for a real one. The crime that is punished is in fact created by negotiation. Thus, the process works to create a lie that can be accepted by all parties, including the judge, who perfunctorily asks the defendant to state that no deals prompted the plea."   Paul Craig Roberts & Lawrence M. Stratton, The Tyranny of Good Intentions: How Prosecutors and Bureaucrats Are Trampling the Constitution in the Name of Justice 87-89 (2000).

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