Vol. 8, No. 27              Covering Cases Published in the Advance Sheets through July 2, 2001

Highlights of this Issue:

Fair Trials and the Forced Use of Antipsychotic Medications:

• In Weston, the D.C. Circuit approved the forced use of antipsychotic drugs on a pretrial detainee who has been accused of killing two policemen in an attempt to make him competent to stand trial - principally on the ground that the government's interest in identifying and convicting the person responsible for such crimes outweighs the rights of the defendant to refuse medication.

Affirmative Defenses:

• We note three cases this week for their discussions of various affirmative defenses. In Fulcher, the Fourth Circuit examined the "public authority" defense in the context of a strange prison drug case; in Sewell, the Second Circuit examined the intoxication defense in the context of a bank robbery; and in Farner, the Fifth Circuit examined the defense of legal and factual impossibility in a sex sting case.

Double Intent Required for Money Laundering Convictions:

• In Frigerio-Migiano the First Circuit held that to obtain a money laundering conviction, the Government must prove more than that the defendant knew he was handling money derived from an illicit activity; it must also prove he knew that his role was part of a money laundering scheme.

Is Bail Permitted Pending an Appeal of a Felon-in-Possession-of-a Gun Charge?:

• In Lane, the Seventh Circuit held that a defendant appealing a conviction of being a felon in possession of a firearm is not automatically precluded from bail under the Bail Reform Act since a felon in possession conviction is not a disqualifying "crime of violence."

Apprendi Watch:

• In Clemmons, the Sixth Circuit became the first appellate court to deny an application to file a second or successive motion for habeas relief based Apprendi due to the Supreme Court's recent recision in Tyler v. Cain, which it said made crystal clear that Apprendi does not qualify for retroactive treatment in collateral appeals under 28 U.S.C. § 2255.

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United States v. Weston, No. 01-3027 (D.C. Cir. 07/27/01) (Judge Randolph)

This is the fourth court decision involving the same defendant to address the issue of whether the Government may administer antipsychotic drugs to a pretrial detainee against his will in order to render him competent to stand trial. The decision also contains a detailed review of the Supreme Court's two leading rulings on the legal and constitutional issues involved in the forced medication of prisoners, namely Washington v. Harper, 494 U.S. 210 (1990) and Riggins v. Nevada, 504 U.S. 127 (1992).

In 1998, Russell Eugene Weston, Jr. shot and killed two officers of the United States Capitol Police. He has told doctors that he came to Washington to save the world from cannibals and went to the Capitol to retrieve a top-secret satellite surveillance system that could reverse time and fight disease. The Government has attempted to try Weston for those murders but has been unable to do so because the district court (Judge Sullivan) found Weston incompetent to stand trial. That ruling was based in part on the testimony of a court-appointed forensic psychiatrist that Weston suffers from paranoid schizophrenia, and that the severity of his symptoms rendered him incapable of understanding the proceedings against him and assisting in his defense. (For a detailed account of the extensive procedural history of this case, see, U.S. v. Weston, 69 F.Supp.2d 99 (D.D.C. 1999) (Weston I)).

Judge Sullivan then committed Weston to the custody of the Attorney General "for treatment in a suitable facility for a reasonable period of time." Weston has never been "treated" for his mental disorders. He was sent to the Federal Correctional Institute in Butner, North Carolina, and placed in solitary confinement (which the Bureau of Prisons concluded was necessary "to mitigate his dangerousness"), and he remains in that limbo today. Judge Sullivan has characterized Weston's confinement status as "simply the warehousing of Weston in a psychotic state. It is not treatment; at best it contains dangerousness." U.S. v. Weston, 134 F.Supp.2d 115 (D.D.C. 2001) (Weston III).

[For a fitting and timely look at the phenomenon of "warehousing" prisoners in so-called "correctional" institutions (a misnomer if there ever was one), see our Book Review below of the recently-published "Inside Rikers: Stories From the World's Largest Penal Colony," by Jennifer Wynn.]

Within fifteen days of Weston's admission to Butner, the BOP sought a court order to treat him with antipsychotic medication. It argued that the forced medication of Weston was "medically appropriate" and "necessary" to attain two essential government interests: "to render him non-dangerous for medical/safety concerns, and to render him competent to stand trial." That motion set off a series of hearings which, in turn, raised a plethora of constitutional, medical and ethical issues.

For example, in both Riggins and Harper, the Supreme Court had concluded that a prisoner possesses a significant (albeit not an absolute) liberty interest in avoiding the unwanted administration of antipsychotic drugs - and that issue was debated at length in this case. In all four decisions generated by the instant case, the courts attempted to balance the potential efficacy of antipsychotic medication against the likelihood and severity of its potential side effects - and in each of the decisions the courts acknowledged that the possibility of side effects from the use of antipsychotic medications was "undeniable." The courts were also called upon to evaluate a number of ethical objections to the proposed treatment that were raised by Weston's lawyers.

And, in the instant decision, the Court acknowledged the existence of another intriguing issue - namely the "possibility that the medication could affect Weston's behavior and demeanor on the witness stand such that the jury might regard his synthetically sane' testimony as inconsistent with a claim of insanity." In his concurring opinion in U.S. v. Weston, 206 F.3d 9 (D.C.Cir. 2000) (Weston II), Judge Tatel amplified on that issue by stating: "The tendency of psychotropic medication to flatten or deaden emotional responses could also be damaging, particularly if the government seeks the death penalty, for the jury would then be especially sensitive to Weston's character and any demonstrations of remorse (or lack thereof)."

After a number of hearings, Judge Sullivan granted the BOP an order, in Weston I, authorizing it to administer antipsychotic medications against Weston's will, on the dual grounds of Weston's perceived dangerousness and a finding that Weston's claim that his forced medication would interfere with this right to a fair trial was not ripe. A panel of the D.C. Circuit reversed, in Weston II, concluding that Judge Sullivan's dangerous finding was not supported by the record. It also disagreed with Judge Sullivan's conclusion that the fair trial claim was not ripe on the grounds that, "because antipsychotic medication may affect the defendant's ability to assist in his defense, postmedication review may come too late to prevent impairment of his Sixth Amendment right." (Weston II, id., at 14).

On remand, after more hearings, Judge Sullivan again held, in Weston III, that the BOP could forcibly medicate Weston on the grounds that it was "medically appropriate" and "essential to control and treat Weston's dangerousness to others" and because the "government has an essential interest in bringing Weston to trial" given "the serious and violent nature of the charges, that the immediate victims were federal law enforcement officers performing their official duties, and that the killings took place inside the U.S. Capitol amid a crown of innocent bystanders." (Weston III, id., at 127, 131-32).

Once again Weston appealed; and this time around, a different panel affirmed. Two of the judges concluded that the panel's earlier decision in Weston II "may have embodied a serious error" in holding that Weston was not sufficiently dangerous to warrant forcibly medicating him - particularly since Weston's "near total isolation" made the issue of whether he posed a danger to himself or others less relevant than other issues. Judge Judith Rogers, the only judge who served on both panels, took issue with that conclusion; but, otherwise, she joined the other judges in holding that the government's interest in identifying and convicting Weston for his crimes outweighed his rights to refuse medication. Writing for the panel, Judge Randolph wrote: "The government's interest in finding, convicting and punishing criminals reaches its zenith when the crime is the murder of federal police officers in a place crowded with bystanders where a branch of government conducts business."

The panel also stated that "[w]e also do not believe that the governmental interest in medicating a defendant in order to try him is diminished . . . by the option of civil commitment'. . . . [Such an argument] ignores the retributive, deterrent, communicative, and investigative functions of the criminal justice system, which serve to ensure that offenders receive their just deserts, to make clear that offenses entail consequences, and to discover what happened through the public mechanism of trial. Civil commitment addresses none of these interests."

Federal Public Defender A.J. Kramer, who headed Weston's defense team, has announced that he was almost certain that he would appeal the ruling, either to the full appeals court or the U.S. Supreme Court.

United States v. Fulcher, 250 F.3d 244 (4th Cir. 2001) (Judge Luttig)

Michael Fulcher was an inmate at Bland Correctional Center in Virginia (BCC) - an institution that was apparently renowned for its "pervasive presence of drugs" that was the result of an "extensive" network of drug distribution which involved inmates, prison officials, and girlfriends and relatives of the inmates. Michael Fulcher (Michael), his wife and his mother - along with 22 other defendants - were convicted at trial of various counts of money laundering and drug violations for their roles in participating in the ongoing sale of drugs at BCC. Prior to trial, Michael and his mother filed the requisite notices under Fed.R.CrimP. 12.3(a)(1) indicating that they would be relying on the "public authority" defense.

The public authority defense allows a defendant to seek exoneration "based on the fact that he reasonably relied on the authority of a government official to engage him in a covert activity." As the Court explained, "in contrast to the innocent intent doctrine, this affirmative defense allows a defendant to seek exoneration based upon his objectively reasonable reliance on the authority of a government official."

The decision contains virtually no information about what evidence the defendants presented at trial to support their public authority defense. However, after Michael, his wife and his mother were convicted, they filed a motion for a new trial pursuant to Fed.R.Crim.P. 33 based on newly discovered evidence - and that motion clarified their public authority defense. On the eve of sentencing, the district court received a rather extraordinary ex parte letter from a DEA agent, Donald O. Lincoln, who acknowledged that he may have led the defendants to believe that they were acting pursuant to governmental authority, and that such authority included tacit approval to investigate drug dealing at BCC and to help set up sting operations. Among other things, Agent Lincoln admitted (a) that he may have told Fulcher that his actions would be "covered," and (b) that a local Sheriff, who was serving both as a DEA Task Force Officer and as a contact for Fulcher at the time, believed that Lincoln had approved a sting operation for BCC.

Based on the information contained in that letter (as amplified by testimony at a subsequent post-trial evidentiary hearing), the district court (Judge Kister), granted the motion for a new trial, after concluding that the newly discovered evidence "would probably produce an acquittal."

The Government desperately wanted this case to go away - and it certainly didn't want the publicity that would come from a retrial. So it appealed the district court's order granting a new trial. It argued, in part, that the district court erred in granting a new trial based on newly discovered evidence on the grounds that the evidence presented did not qualify as newly discovered evidence under the Fourth Circuits's five-part test under Rule 33. That test requires the district court to find that: "(a) the evidence must be, in fact, newly discovered, i.e., discovered since the trial; (b) facts must be alleged from which the court may infer diligence on the part of the movant; (c) the evidence relied on must not be merely cumulative or impeaching; (d) it must be material to the issues involved; and (e) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal."

After reviewing each of those elements in light of the facts of the case, the Fifth Circuit concluded that the district court had not abused its discretion in determining that a new trial was appropriate, including its finding that a new trial "would probably produce an acquittal."

The Government also argued that the district court had misapplied the defense of public authority, contending that Lincoln and his colleagues at the DEA "possessed, at most, apparent authority to approve the operation undertaken by the Fulchers, and that such authority was insufficient to support the public authority defense."

While the Fourth Circuit had not previously ruled on whether the defense of public authority may be asserted in reliance upon the apparent authority of a Government agent, it joined with the unanimous view of the other Circuits in concluding that "the defense of public authority requires reasonable reliance upon the actual authority of a government official to engage him in a covert activity." (Emphasis added). The Court reasoned that "reliance on the apparent authority of a government official is nothing more than a mistake about the legal prerogatives attached' to such status and thus constitutes a mistake of law."

However, while the Forth Circuit agreed with the Government's position that reliance on apparent authority is insufficient to support the defense of public authority, it still refused to reverse the district court. It stated: "[I]f defendants can establish at a new trial that DEA officials authorized them to conduct the operation and that such officials had the actual authority to do so, defendants would be entitled to appropriate jury instructions on the defenses of public authority and innocent intent. Since the jury would then be entitled to acquit the defendants if it concluded that defendants' activities were legitimately authorized, we hold that the district court did not abuse its discretion in concluding that the newly discovered evidence is material to the issues involved'."

The retrial of this case promises to be wild and woolly; and we will attempt to follow it and report back to our readers.

In Re: Clemmons, No. 00-3941 (6th Cir. 8/01/2001) (Judge Siler)

As we predicted, it did not take long for the Supreme Court's recent decision in Tyler v. Cain, 121 S.Ct. 2478 (2001) (see P&J, 6/11/01) to make its mark on litigation based on Apprendi v. New Jersey, 530 U.S. 466 (2000). Barely a month after Tyler was decided, the Sixth Circuit used that decision as the basis of its ruling in the instant case that Apprendi cannot be relied upon retroactively by petitioners seeking to file a second or successive habeas petition.

Under the so-called "gatekeeping requirements" of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a Federal prisoner must obtain permission from the court of appeals in order to submit a second or successive § 2255 motion to the district court. The appellate court may authorize the filing of the second motion "only if it determines that the application makes a prima facie showing" that it contains . . ."a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." (See 28 U.S.C. §§ 2244(b)(2)(A) and 2244(b)(3)(A)).

In the instant case, the Sixth Circuit acknowledged that Apprendi had announced a new rule of constitutional law by holding that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury, and proved beyond a reasonable doubt." The Court also acknowledged that Apprendi had "radically" changed the Court's prior treatment of the quantity of drugs as a sentencing factor rather than as an element of the crime, and that the new rule established in Apprendi was clearly applicable to cases on direct appeal.

However, it continued that Tyler made it clear that the new rule established in Apprendi does not become retroactive to cases on collateral review simply by virtue of "the decisions of the lower courts or by the combined action of the Supreme Court and the lower courts' or by the [Supreme] Court's dictum. Rather, the Supreme Court must explicitly hold that its decision is retroactive to cases on collateral review in order for a second or successive petition under § 2244(b)(2)(AS) and § 2255 ¶ 8(2) to qualify for consideration."

Based on that reasoning, the Court denied the application of petitioner Clemmons in the instant case for an application to file a second or successive habeas motion pursuant to § 2255 - and, in so doing, dashed the hopes of thousands of petitioners all across the country who have sought or who have contemplated a review of their sentences based on Apprendi.

BOOK REVIEW - "Inside Rikers: Stories From the World's Largest Penal Colony," by Jennifer Wynn, 223 pp., New York, 2001, St. Martin's Press, $24.95

Jennifer Wynn, a Member of our Board of Advisors, has produced a literary gem and a penetrating analysis of prison life at Rikers Island - New York's vast "penal colony." Her new book is must reading for anyone interested in and concerned about criminal justice. It combines chilling statistics and often-ignored truths about prison life in America with rich and memorable studies of accounts from prisoners she has met over the years. In a style that is often reminiscent of the deep character development of Shawshank Redemption, Ms. Wynn's book moves, inspires and often shocks the reader.

Ms. Wynn is well-qualified to write this book. She is a journalist and a former editor of the now-defunct Prison Life Magazine. For seven years, she has taught writing classes at Rikers, as part of the Fresh Start Program sponsored by the Osborne Association, one of the few sources of rehabilitation aid offered to the 16,000 inmates who are housed there. She is pursuing a Doctorate in Criminal Justice at the John Jay College of Criminal Justice. She is an articulate and respected spokesperson for prisoners' rights in her role as the Director of the Prison Visiting Project at the Correctional Association of New York, the oldest criminal justice agency in New York City.

In her Introduction, Ms. Wynn explained that her experiences transformed her from a dispassionate journalist into a teacher, social worker, and advocate for criminal-justice reform. "It added purpose to my life, and it made me compassionate," she wrote. Reading her book is its own reward, but with some 30,000 inmates being released back to society each year in New York State alone, the book also helps one understand why 75 percent of all released Rikers inmates return there within a year!

Copyright © 2001 Punch and Jurists, Ltd.