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A Weekly Summary of Snippets of Justice From the Federal Courts

Vol. 8, No. 22              Covering Cases Published in the Advance Sheets through May 28, 2001

Highlights of this Issue:

Supreme Court Decisions:

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

Apprendi Watch:

Hyde Amendment Cases:

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 225 Apprendi decisions, links to numerous Apprendi articles and more than 100 Apprendi briefs and motions, and a listing of the 49 cases that the Supreme Court has vacated to date based on Apprendi.

Saucier v. Katz, No. 99-1977 (U.S. Sup. Ct. 06/18/2001) (Justice Kennedy)

In this rather complex and wordy decision, the Supreme Court added an extra layer of insulation to the already broad defense of qualified immunity that law enforcement officers enjoy in civil rights suits for damages arising out of their conduct. The Court held that a lawsuit against a police officer for using excessive force must be dismissed even if the officers behavior was unreasonable under existing law, as long as a reasonable officer could have made the same mistake under the particular circumstances at issue - a decision that will make it more difficult to get lawsuits against police officers before a jury.

The decision overturned a ruling by the Ninth Circuit, in Katz v. U.S., 194 F.3d 962 (9th Cir. 1999), that grew out of a brief altercation at the Presidio Army base there in 1994. During an appearance by then vice president Al Gore to mark the conversion of the base to a national park, the petitioner, Elliott Katz, an animal-rights activist, started to unfurl a banner at the front of the assembled crowd objecting to the possible use of an Army hospital there as a site for animal experiments.

Two military police officers quickly dragged Katz away and threw him into a nearby van.  Katz, who was then 60 years old and wearing a leg brace due to a fractured foot, was president of a group called In Defense of Animals. Although he was thrown to the floor of the van, Katz was not injured. After Katz was released (without any charges having been filed against him), he sued one of the arresting officers, Donald Saucier, for subjecting him to an unreasonable seizure in violation of his rights under the Fourth Amendment.

The officer asserted the defense of qualified immunity, arguing that, under Supreme Court precedent, he could not be found liable for behavior that was objectively reasonable under law that was clearly established at the time of the incident. The district court and the Ninth Circuit declined to grant Saucier summary judgment on the grounds of qualified immunity, concluding that since the issue of reasonableness was at the heart of both the immunity question and of excessive force itself, the issues merged and should be left to a jury to decide.

By a vote of 6-to-3, the Supreme Court disagreed and reversed. It concluded that the two issues were really not the same and held that the ruling on qualified immunity "requires an analysis not susceptible of fusion with the question whether unreasonable force was used in making the arrest."

Writing for the majority, Justice Kennedy emphasized that "[t]he concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct." Thus, he continued, even police behavior that is objectively unreasonable might be entitled to immunity. "If the officer's mistake as to what the law requires is reasonable, the officer is entitled to the immunity defense" and, in such a case, a ruling on that issue should be made early in the proceedings so that the costs and expenses of trial are avoided.

Having established that analytical framework, the majority went on to decide the merits of the case. It concluded that the officers behavior in this case "was within the bounds of appropriate police responses" given the particular circumstances at issue, including the presence of the vice president, the need for heightened security and the fact that Katz did not suffer any physical injury. After all, the majority reasoned, the police officer "did not know the full extent of the threat" or "how many other persons there might be" who could have posed a threat to the vice president.

In a separate, concurring opinion, Justices Ginsburg, Stevens and Breyer agreed that the police officer was entitled to immunity because "Katzs submissions were too slim to put Officer Saucier to the burden of trial." However, in an opinion written by Justice Ginsberg, they disagreed with the majoritys two-step analytical approach, concluding it holds a "large potential to confuse" by establishing a complex two-part reasonableness inquiry.

Justice Ginsberg wrote that the test should be the Ninth Circuit's simpler one: an officer whose use of force is objectively reasonable "simultaneously meets the standard for qualified immunity" while one whose conduct is objectively unreasonable "should find no shelter under a sequential qualified immunity test."

United States v. Resendez-Mendez, No. 00-40585 (5th Cir. 5/15/2001) (Judge Weiner)

In this case, the Fifth Circuit gave some meaningful teeth to the "presumption of vindictiveness" that the Supreme Court said arises whenever a defendant who succeeds in having a sentence overturned on appeal subsequently receives a harsher sentence from the same judge. (See, North Carolina v. Pearce, 395 U.S. 711 (1969)). Effectively, the Court said that it was not sufficient for the sentencing judge to recite various subjective factors to justify the imposition of the harsher sentence. Rather, it ruled, the sentencing judge must identify one or more objective reasons "grounded in particularized facts that arise either from newly discovered evidence or from events that occur after the original sentencing," to justify the harsher sentence and overcome the Pearce presumption.

The defendant in this case pled guilty to an immigration violation. At his initial sentencing hearing, the district judge (whose identity was not disclosed in the decision) granted the defendant a three-level reduction for acceptance of responsibility under the U.S. Sentencing Guidelines and sentenced him to 57 months in prison, at the bottom of the applicable Guideline range of 57-to72 months.

The sentence was vacated on appeal on the ground that the defendant had not been given an opportunity to speak in mitigation of his sentence, and the case was sent back to the same district judge. At the resentencing, the district judge allowed the defendant to speak to the court - and he promptly concluded that the defendant was "inadequately remorseful" - stating that he was not convinced that he was being "sincere" and "genuine." Without changing the calculation of the sentencing range, or changing the acceptance of responsibility reduction, the district judge simply resentenced the defendant to imprisonment for 71 months - the top of the Guideline range.

In an opinion written by Judge Weiner, the panel said the district judge failed to rebut the presumption of vindictiveness established by the Supreme Court in Pearce since it failed to identify any particularized, objective facts in support of the harsher sentence. Here, it concluded that no such objective reasons were articulated by the sentencing judge. The only apparent basis for the higher sentence was the judge's subjective assessment that the defendant was not sincere or honest in his expression of remorse. Noting that the judge did not rescind the acceptance-of-responsibility adjustment, the court said it appears that the sentencing judge "was requiring the defendant's allocution to justify not increasing the original sentence, a purpose opposite from allocation's opportunity to seek a lesser sentence."

The court acknowledged some ambiguity in the defendant's allocution but said that the sentencing judge's "subjective discrediting" of those remarks was "neither relevant to the question of vindictiveness nor probative in dispelling it," the court said. The defendant's remarks were neither newly acquired objective information nor sentence-enhancing occurrences post-dating the original sentencing, the court said as it reinstated the original 57-month sentence.

In reality, of course, the reinstatement of the original sentence was somewhat of a Pyrrhic victory for the defendant. It effectively rendered nugatory the value of his successful appeal which gave him the chance to speak to the court in mitigation of his sentence - an issue that the Fifth Circuit never addressed.

United States v. Banks, No. 99-2031 (6th Cir. 5/24/2001) (Judge Polster)

This case is noted as a rare example of a defendant successfully challenging a district court's refusal to grant him a sentence reduction based on acceptance of responsibility, pursuant to U.S.S.G. 3E1.1. Because a district courts decision regarding acceptance of responsibility is normally a factual issue, its ruling is granted great deference and it is usually affirmed unless "clearly erroneous."

In this case, the defendant pled guilty to one count of possession of cocaine with intent to distribute. Because he offered to cooperate with the Government he was released on bail, pending sentencing. Two months later he was arrested and charged with an assault against his girlfriend and her daughter. At sentencing, the district court (Judge Cleland) used that assault and the defendants "history of assaultive behavior" as one of the reasons justifying its refusal to grant an acceptance of responsibility sentence reduction.

In addition, the probation officer recommended that the defendant receive no acceptance of responsibility sentence reduction for another reason: she claimed that the defendant and/or his attorney had repeatedly failed to provide any verbal or written statement to her concerning the particulars of the defendants offenses. In fact, counsel had asked the probation officer not to discuss the particulars of the offenses with the defendant during his presentence interview; and told her that a written statement would be forthcoming. Despite several requests, that written statement was never given to the probation office. The district court used that failure to provide the probation office with the statement it had requested as an additional reason for denying the acceptance of responsibility sentence reduction.

The Sixth Circuit reversed on both grounds. It noted that the defendant's post-plea assault charges "were plainly unrelated to the offenses for which he was being sentenced (drug trafficking and firearm possession), signaling that he was denied the sentence reduction due to a general criminal disposition."

The Court cited its decision in U.S. v. Morrison, 983 F.2d 730, 735 (6th Cir. 1993), where it vacated a sentence in which the district court had considered the defendant's subsequent positive drug test and indictment for attempted theft as factors in determining whether he had accepted responsibility for a firearms violation. The Morrison court found that the defendant's conduct while out on bond was unrelated to the firearms charge and that it was not probative of whether the defendant accepted responsibility for the firearms offense. The Court stated: "We hold that acceptance of responsibility, as contemplated by the United States Sentencing Commission, is 'acceptance of responsibility for his offense,' . . . , not for 'illegal conduct' generally. Considering unrelated criminal conduct unfairly penalizes a defendant for a criminal disposition, when true remorse for specific criminal behavior is the issue."

Based on Morrison, the Sixth Circuit concluded in the instant case that "[c]onsideration of the unrelated post-plea charges as a factor in determining whether Banks accepted responsibility for the sentencing offenses was, thus, improper."

The Court also concluded that the district court had erred when it refused to credit Banks for acceptance of responsibility because he failed to provide the probation department with a written account of his offenses. It noted that the defendant had cooperated fully with his arresting officers, had offered to assist the Government, and had timely pled guilty. "Based on these facts, the government entered into a Rule 11 plea agreement with Banks wherein the government recommended a sentence reduction because defendant has accepted responsibility for the offense as demonstrated by pleading guilty. . . . In light of [those factors], . . . the subsequent failure of defense counsel or Banks to provide the probation officer with a written account of the offenses does not constitute a deliberate refusal to cooperate with the government sufficient to justify denying Banks a sentence reduction for acceptance of responsibility."

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