Vol. 8, No. 30
Covering Cases Published in the Advance Sheets through July 23, 2001

Highlights of this Issue:

The Government's Power to Pursue:

Apprendi Watch:

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

The Different Standards for Determining Harmless Error:

Don't forget to visit the "Apprendi Watch" section of our Web site for the most current and comprehensive coverage of that watershed decision on the entire Internet. It now includes links to more than 300 published lower-court Apprendi decisions, all of which are organized by Circuit.

Doe v. United States, 253 F.3d 256 (6th Cir. 2001) (Judge Moore)

The plaintiff in this case, a podiatrist who operates a clinic in the Cleveland metropolitan area, has been under investigation for some time by the FBI and a Federal grand jury for an alleged "kickback" arrangement with two medical testing labs. Twice before he had been ordered to turn over a broad range of records and documents to the Government pursuant to subpoenas issued in 1998 and 1999. Now, pursuant to the provisions of the Health Insurance Portability and Accountability Act (18 U.S.C. § 3486), the Government sought still a third subpoena for additional records, including such things as "all professional journals, magazines and newsletters subscribed to or received by Doe from January 1990 through March 1998." (Id., at 260).

Doe moved to quash the latest subpoena on various grounds. He argued that it was "unreasonably burdensome," noting, inter alia, that it covered personal financial records and documents for any and all of his children; he questioned the relevance of some of the items requested; and argued that this third subpoena in a two year period constituted harassment. The district court denied the motion to quash; and the Sixth Circuit affirmed.

Despite stating several times that it was "troubled" by various aspects of the Government's subpoena, the Court emphasized that the judiciary plays a limited role - at best - in supervising administrative subpoenas. For example, it noted that the law was quite clear - "the DOJ need not make a showing of probable cause to issue an administrative subpoena under 18 U.S.C. § 3486." (Id., at 263). Rather, the agency need only show that the subpoenaed items meet "reasonable relevance" test. (Id., at 265). Thus, the Court explained that, while the Fourth Amendment "mandates a showing of probable cause for the issuance of search warrants, subpoenas are analyzed only under the Fourth Amendment's general reasonableness standard. . . . One primary reason for this is that, unlike the immediacy and intrusiveness of a search warrant,' the reasonableness of an administrative subpoena's command can be contested in federal court before being enforced." (Id., at 264).

For the record, we note that, despite those assurances, the Court's own decision raises questions about the ability of a target to contest - at least in any meaningful and effective way - the enforcement of an administrative subpoena. For example, citing its seminal decision on administrative subpoenas, U.S. v. Markwood, 48 F.3d 969, 979 (6th Cir. 1995), the Court emphasized that "when deciding whether to enforce an administrative subpoena, the scope of the issues which may be litigated in an enforcement proceeding must be narrow, because of the important governmental government interest in the expeditious investigation of possible unlawful activity'." Similarly, citing one of the leading Supreme Court cases on the enforcement of administrative subpoenas, U.S. v. Powell, 379 U.S. 48 (1964), the Court held that a subpoena is properly enforced "if (1) it satisfies the terms of its authorizing statute, (2) the documents requested were relevant to the DOJ's investigation, (3) the information sought is not already in the DOJ's possession, and (4) enforcing the subpoena will not constitute an abuse of the court's process." (Id., at 265).

While the Court did express some concerns with the Government's request for personal financial documents of the children of the target of the investigation, it concluded that the request was "sufficiently narrowly-tailored to pass the reasonable relevance standard." (Id., at 271). Likewise, the Court expressed some concerns about Doe's allegation that the subpoena was being used as an instrument of harassment. It acknowledged that the Powell court had said that the Government's subpoena power is abused where the subpoena is "issued for an improper purpose, such as to harass the taxpayer or to put pressure on him to settle a collateral dispute, or for any other purpose reflecting on the good faith of the particular investigation." (Powell, id., at 58). However, it concluded that Doe had proffered "no evidence" in support of his claim that the Government was motivated by an improper purpose - and thus Doe had failed to meet his "heavy burden" of showing institutional bad faith in this case. (Id., at 272).

United States v. Hill, No. 00-30023 (9th Cir. 7/27/2001) (Judge Nelson)

This case offers a disturbing look at the virtually unlimited power of the Government to pursue a target - relentlessly - even if the purpose of that pursuit is to gain leverage so it can get at someone else. The defendant in this case, Patricia King Hill (Patricia), an attorney, was convicted after a bench trial of harboring a fugitive (her husband), in violation of 18 U.S.C. § 1071, and of being an accessory after the fact, in violation of 18 U.S.C. § 3. After Patricia was sentenced to three years probation, she appealed on numerous grounds.

The Court explained that the appeal raised three questions: (a) whether it is constitutional to prosecute a wife for harboring her fugitive husband or for being an accessory after the fact to his crime; (2) whether the federal proscription against harboring a fugitive confers jurisdiction even if the harboring occurs outside the United States; and (3) whether an accessory indictment that fails to specify the principal's crime is legally sufficient. The Court answered the first two questions "yes" and the third question "no" - and thus it affirmed Patricia's harboring conviction, but reversed her accessory after the fact conviction.

Here's what happened. Patricia's husband, Charlie Hill (Charlie), owed more than $100,000 in past due child support to his children by a prior marriage. He ultimately fled to Mexico, allegedly to avoid payment of that child support, and he lived on a ranch in Mexico that Patricia purchased. Over a period of time, Patricia spent more than $300,000 of her own money improving the Mexico ranch property; and she periodically wired money from her U.S. accounts to Charlie in Mexico. Sometime after Charlie fled to Mexico, he was indicted for a felony violation under 18 U.S.C. § 228 (formerly known as the Child Recovery Support Act, but now known as the Deadbeat Parents Punishment Act).

Because Charlie's whereabouts were unknown, Patricia was served with a subpoena commanding her to appear before a grand jury. When she appeared, she refused to answer any questions, invoking both her right against self-incrimination and the privilege not to testify against one's spouse. After that appearance, Patricia flew to Mexico to join her husband. Shortly thereafter, a Federal judge in Oregon signed a criminal complaint charging Patricia with being an accessory after the fact and a warrant was issued for her arrest. She was eventually arrested at the Miami airport during a stopover on a flight from the Cayman Islands to Mexico - and she agreed to the bench trial that led to her convictions.

On her appeal, the Ninth Circuit found "no merit" to her claims that the harboring and accessory statutes were unconstitutional as applied to her because they criminalized conduct in which she was entitled to engage under the First and Fifth Amendments to the Constitution - including her rights of association, marriage, privacy and due process. The Court held that the Government's "enforcement of criminal laws . . . furthers compelling state interests that justify intrusion."

The Court also rejected Patricia's contention that, because the harboring activities took place outside the United States, the harboring conviction was invalid on jurisdictional grounds. While the Court agreed that § 228 did not "explicitly state that the United States has jurisdiction over anyone who violates the statute outside its borders," it affirmed the harboring conviction on a number of grounds. For example, it used the "strong suggestion" theory - stating that other provisions of the law (under which Charlie was not charged) "strongly suggest[ ] that Congress intended to case a broad net and apply the statute to all offenders, whether or not they are found in the United States." It used the "nationality" theory to conclude that it is proper for a country "to apply its statutes to extraterritorial acts of its own nationals." And it used the "passive personality" theory - which it said bases jurisdiction on the nationality of the victim - to justify the extraterritorial application of the harboring statute in the instant case.

Finally, the Court turned to Patricia's conviction for being an accessory after the fact to Charlie's crime - his alleged violation of § 228. The Court agreed that the conviction had to be reversed because Patricia's indictment failed to specify the crime to which she was an accessory. The accessory statute (18 U.S.C. § 3) provides that "whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact." The Court observed that "[t]he first part of this statute, knowing that an offense against the United States has been committed' is intentionally ambiguous, and for good reason: It would be tremendously burdensome and inefficient to have a separate accessory statute for every possible principal crime. The phrase a crime against the United States' simply fills in a blank for administrative ease; obviously, however, a conviction based on something so vague would not be constitutional. [Therefore], if a defendant may not be convicted of being an accessory to a crime against the United States,' with no underlying crime specified, then she should not be able to be indicted for the same. If an element is necessary to convict, it is also necessary to indict, because elements of a crime do not change as criminal proceedings progress."


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