Vol. 8, No. 28	Covering Cases Published in the Advance Sheets through July 9, 2001

Highlights of this Issue:

Prosecuting Defense Counsel for Obstruction of Justice - a New Twist:

• In Kloess, the Eleventh Circuit addressed an obstruction of justice charge, under 18 U.S.C. § 1512(b)(3), against a criminal defense attorney for conduct in which he engaged while representing a defendant; and held that the "safe harbor" provisions of 18 U.S.C. § 1515(c) provide a complete affirmative defense to the charge - and a defense that the Government can disprove only by proof beyond a reasonable doubt.

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

• In Basalo, the Ninth Circuit reversed as improper an eight-level downward departure granted at sentencing based upon the failure of the Government to disclose potential impeachment material and the district court's finding of gross misconduct by trial counsel.
  
  
• In Torres the Third Circuit held that it lacked the jurisdiction to review a district court's discretionary decision to grant only a one month downward departure for substantial assistance to a defendant who spent some five years cooperating and whose efforts resulted in some 30 convictions.
  
  
• In Jiminez, the Ninth Circuit held that a defendant's acknowledgment of the accuracy of facts set forth in his presentence report will not automatically waive an appellate challenge to the report, although any review must occur under the plain error standard.

Apprendi Watch:

• Although we have not had a chance to fully digest this decision yet, on August 9, 2001, a divided panel from the Ninth Circuit held, in Buckland, that 21 U.S.C. § 841(b)(1)(A) and (B) are facially unconstitutional under Apprendi. Unless vacated, that decision is certain to wreck havoc with a lot of drug convictions in the Ninth Circuit.
  
  
• In Soltero-Corona, the Eighth Circuit held that a defendant's admission to drug quantity during his plea allocution will not necessarily cure an Apprendi error of failing to charge the drug quantity in the indictment. However, the Court also held that such an admission will make the sentencing sufficiently fair that the Apprendi error will not constitute reversible plain error.

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United States v. Basalo, No. 00-10457 (9th Cir. 8/02/2001) (Judge Wallace)

In this case, the Ninth Circuit rejected as improper an eight-level downward departure that had been granted by District Judge Walker of the N.D.Cal. to a defendant in a drug case on the basis of "two unusual postoffense circumstances - failure of the government to disclose potential impeachment material and gross misconduct by trial counsel." The Court reversed and remanded the case back to the district court for resentencing with instructions that neither circumstance qualified as a proper grounds for a departure under the Guidelines.

The defendant, Jaime Basalo, and three co-defendants were indicted and convicted for their roles in smuggling cocaine from San Francisco to Australia. Two of the co-defendants pled guilty and agreed to testify for the Government at trial. They received sentences of 24 months for their crimes. Basalo went to trial and testified on his own behalf. The Government sought a sentence of 292 months in prison. In a decision reported at 109 F.Supp. 1219 (N.D.Cal. 2000) (See P&J, 10/9/00) (Basalo I), Judge Walker granted a significant downward departure and imposed a sentence of 63 months.

Half of the sentence reduction was based on the Government's failure to disclose to the defendants a U.S. Customs Service incentive program (Customs Program), under which customs agents receive cash awards or days of work off for "outstanding job performance." Judge Walker concluded that a four-level sentencing departure was warranted because in his view "the defense was deprived, during key periods of the proceedings, of valuable information, i.e., that government witnesses participated in the Customs Service incentive program"; and that "such information would have been another arrow in defendant's quiver during plea negotiations and for purposes of impeachment at trial." As a result, he concluded that the defendant's plea bargaining position "had been subverted to an important extent" and that "the dynamic of the case was thereby affected enough to warrant departure." (Basalo I, id., at 1226)

Judge Walker also granted a four-level downward departure based on ineffective assistance of Basalo's original trial counsel. He wrote that "Counsel's flagrant disregard of Basalo's interests are the single greatest factor to explain the disparity in the government's recommended sentences for [the two cooperating co-defendants] (24 months) and Basalo (292 months) for identical convictions." (Basalo I, id., at 1227).

Pointedly noting that Judge Walker had failed to hold an evidentiary hearing on either basis for departure, the Ninth Circuit concluded that Judge Walker had abused his discretion on both grounds. For several reasons, it rejected Judge Walker's finding that the Government's withholding of information about the Customs Program warranted any departure. It concluded that the information was not material under Brady v. Maryland, 373 U.S. 83 (1963) as evidenced by Judge Walker's refusal to grant a new trial based on a Brady violation. It described the decision to withhold the information as a "prosecutorial policy decision," which is not a "mitigating circumstance" that justifies a downward departure, under the Court's ruling in U.S. v. Banuelos-Rodriguez, 215 F.3d 969, 973 (9th Cir. 2000) (en banc) (see, P&J 6/12/00), because such prosecutorial policy decisions do not serve to "lessen [ ] the severity of [a] Defendant's conduct or make [ ]his criminal or personal history more sympathetic."

Citing with approval the Second Circuit's decision in U.S. v. Bicaksiz, 194 F.3d 390, 398 (2nd Cir. 1999), the Court also held that using a Brady violation as the basis for a downward departure is "impermissible because it simultaneously assumes the validity of the defendant's conviction and conspicuously calls its validity into doubt." Finally, the Court disagreed with Judge Walker's conclusion that the Government's failure to disclose information "subverted to an important extent" Basalo's plea bargaining position. It concluded that the evidence in the record "does not support the position that knowledge of the alleged misconduct would have influenced Basalo's decision to proceed to trial."

As for the portion of the departure based on ineffective assistance of counsel, the Ninth Circuit rejected outright the contention that the receipt of ineffective assistance of counsel may be used as a mitigating factor to reduce a sentence. It noted that, since the Supreme Court's decision in Koon v. U.S., 518 U.S. 81 (1996), only two Circuits have addressed the issue of whether ineffective assistance of counsel can be used to justify a downward departure - namely, the Second Circuit in Bicaksiz and the Fourth Circuit U.S. v. Martinez, 136 F.3d 972 (4th Cir. 1998) - and both courts held that "ineffective assistance is never an appropriate basis for departure." The Ninth Circuit firmly joined those decisions in holding that "ineffective assistance of counsel may not be used" as a mitigating factor to justify a downward sentencing departure because such a decision "necessarily calls into question the validity of the conviction."

United States v. Torres, 251 F.3d 138 (3rd Cir. 2001) (Judge Nygaard)

Each week, out of the 70-odd new criminal decisions published by the Federal courts, there are, on average and by our count, some 10% of those cases that involve claims by defendants who argue that they were improperly denied the sentencing relief they were promised based on their "substantial cooperation" to the Government. It is, of course, impossible to determine how many defendants attempt to cooperate with the Government - although the correct figure is certainly well in excess of the average of nineteen (19%) percent of all defendants who have received sentencing departures based on substantial assistance over the past five years. (See, the 1999 Sourcebook of Federal Sentencing Statistics, published by the U.S. Sentencing Commission.)

While there are no statistics that show the percentage of defendants who claim that they were led down the garden path by the Government only to be denied any sentence reduction, it is clear that there appears to be a growing number of reported cases in which defendants are claiming that the Government breached its obligation to make a motion for a sentence reduction under U.S.S.G. § 5K1.1. It is also equally clear that, in the overwhelming majority of those cases, relief is denied because the defendants are unable to "prove" that the prosecutors had some unconstitutional motive in refusing to move for a downward departure.

On a much smaller scale, we also see a number of cases in which the defendant contends that the sentencing court abused its discretion by awarding a downward departure that was too low when measured against the cooperation rendered. Once again, while there are no statistics on the numbers of such claims, what is clear from our weekly review of all the published criminal decisions is that relief is denied in an overwhelming majority of those cases - both because it is almost impossible to prove that the judge abused his or her discretion in determining the extent of the appropriate departure - or because, as the Third Circuit held in this case, an appellate court simply lacks jurisdiction to review a district court's discretionary decisions regarding the extent of an appropriate departure.

The defendant in the instant case pled guilty in 1995 to one count of bank fraud; and he was originally sentenced to 24 months in prison. However, he appealed that sentence and, in a decision reported at 92 F.3d 1174 (3rd Cir. 1996), the Third Circuit concluded that the district court (Judge Walls of the D.N.J.) had abused its discretion by declining to reduce Torres' offense level for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. Thus, it vacated the sentence and remanded for resentencing.

Upon remand, the district court granted the parties' joint requests for a continuance to allow Torres to cooperate in a broad federal investigation of police corruption and illegal gambling activities in northern New Jersey. And cooperate he did. As the Court explained: "According to the government, which submitted a six-page letter to the District Court exhaustively detailing and commending Torres's assistance, the cooperation lasted for approximately five years and eventually resulted in the criminal convictions of thirty individuals on charges of racketeering, extortion, and obstruction of justice."

When the resentencing finally came about in 2000, the district court did grant the defendant a two-level sentence reduction for acceptance of responsibility as directed by the Third Circuit; but the principal issue at the resentencing became the size of the downward departure that would be granted by the district court for the defendant's cooperation. Despite the key role played by Torres, the government's unusually strong presentation, and its recommendation of a sentence of probation, Judge Walls chose to reduce Torres's sentence by only one month below the applicable twelve to eighteen month Guideline range, sentencing Torres to eleven months incarceration.

Torres appealed, essentially making two main arguments. First, he argued that Judge Walls had failed to examine and weigh § 5K1.1's enumerated factors in a sufficiently thorough manner. Since that issue involved an incorrect application of the Guidelines, the Court acknowledged that it had appellate jurisdiction to review the claim. Nevertheless, despite concluding that Judge Wall's review of the relevant factors was only "minimally adequate," the Court denied any relief on that issue. It held that while § 5K1.1 "includes a list of relevant factors for measuring substantial assistance and determining the extent of a reduction," it "does not explicitly require the consideration of these factors. . . . Thus, a sentencing judge is not confined to § 5K1.1's enumerated factors."

Torres' second argument was that Judge Walls had abused his discretion in granting only a one-month sentence reduction. Since that issue involved the extent of a district court's discretionary departure, rather than a mistake of law or an incorrect application of the Guidelines, the Third Circuit held that it lacked jurisdiction to review the claim. For the record, we note that there is no mention in the decision about whether Torres argued that Judge Walls' decision at resentencing was a vindictive response to his successful first appeal.

United States v. Buckland, No. 99-30285 (9th Cir. 8/09/2001) (Judge Tashima)

The big news this week is that a divided panel from the Ninth Circuit has held in this case that 21 U.S.C. § 841(b)(1)(A) and (B) (key parts of the principal drug prosecution statute used by Federal prosecutors) are facially unconstitutional under Apprendi. While we have not yet had a chance to fully digest that decision, we wanted to alert our readers to this significant ruling. Clearly, if this decision is not vacated by an en banc ruling, it is certain to have an enormous impact on drug cases in the Ninth Circuit - and we will have much more to say about this decision in coming weeks.

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