Vol. 8, No. 35
Covering Cases Published in the Advance Sheets through August 27, 2001

Highlights of this Issue:

Apprendi Watch:

Waivers of Appellate Rights:

A Crack in the Wall of Absolute Immunity Accorded to Prosecutors?:

Suppression of Fingerprint Evidence:

Double Jeopardy and Successive Prosecutions:

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

The outpouring of messages of prayers and sympathy and hope in the aftermath of the terrorist bombings on September 11, 2001 has been nothing short of inspirational. One in particular caught our eye. Cantor Fitzgerald, the bond trading firm which lost more than 700 employees, published an ad in which it quoted the following thoughts from Mahatma Gandhi: "When I despair, I remember that all through history the way of truth and love has won. There have been tyrants and murderers and for a time they seem invincible, but in the end, they always fall - think of it, ALWAYS."

United States v. Teeter, 257 F.3d 14 (1st Cir. 2001) (Judge Selya)

This is an important decision on the validity of the highly-popular waivers of appellate rights that are now inserted in most plea agreements. We have frequently criticized such waivers on the grounds that, at the time a defendant signs a plea agreement, it really is impossible for him or her to make a "knowing and intelligent" decision about all the unknown and unpredictable factors that could affect his or her sentence. We argued that, although the law generally requires waivers to be "knowing and intelligent," the courts seem to apply a different principle when it comes to waivers of appeal rights. However, because we live in an era where shutting down appeals by prisoners has become politically proper, we found little support for our argument. If the courts addressed our concerns, they generally begged the question at issue by pointing to the plea colloquy where the defendant dutifully stated that he or she fully understood what was being waived.

Thus, we were certainly surprised to receive moral support from the First Circuit - and especially from Judge Selya, who rarely disagrees with the Government. With surprising candor, he said that he was not "unsympathetic" to the argument that "at the time the defendant signs the plea agreement, she does not have a clue as to the nature and magnitude of the sentencing errors that may be visited upon her." (Id., at 21) (Emphasis added). Even more significantly, he pointed to the advent of Rule 11(c)(6) of the Fed.R.Crim.P., which became effective on December 1, 1999, and concluded that a new approach was required to determine the validity of appeal waiver provisions - an approach which he acknowledged "represents a break from precedent." (Id., at 26). He then constructed a new framework "for determining when waivers of appellate rights will be enforced." (Id.). One of the key premises of that new framework was that henceforth appellate courts may refuse to honor such appeal waiver provisions if denying the right of appeal "would work a miscarriage of justice." (Id., at 25).

While the facts of this case are not vital to an understanding of the Court's broad ruling, they are colorful. As described by Judge Selya, Patricia Teeter, the defendant in this case, was a "forty-something-year-old woman whose story, insofar as relevant here, reflects misplaced affection, terrible judgment, and the gruesome depths of man's inhumanity to man." (Id., at 18). What she did was to forge a "close friendship" with one Steven Brown, despite warnings from friends that Brown had a propensity fro violence. When a court awarded custody of Brown's children to his estranged wife and ordered him to refrain from any contact with her or his children, he flipped out.

Brown asked Teeter to accompany him on a "vacation trip" to Maine, where his estranged wife and children were living. Without objection, Teeter watched as Brown loaded his car with a small arsenal of weapons, including an SKS assault rifle, and lots of duct tape and rope. When they arrived at the trailer where Brown's estranged wife was living, they discovered that she was living with her brother, her father, her children and "her new swain." Teeter then willingly helped Brown by enticing two of the males out of the trailer; and they were promptly killed by Brown. She also helped Brown abduct his estranged wife and flee back to New York, where the wife was held a captive in a motel room that Teeter rented until the police raided the motel and saved the wife.

Teeter was charged with a ton of crimes; and she ultimately pled guilty to a number of those crimes. The plea agreement contained a stipulation that, for sentencing purposes, her base offense level would be 43 (a figure derived by cross reference to the first-degree murder guideline); and Teeter waived her right to appeal any sentence imposed by the district court. At her plea colloquy, the district court queried the defendant as to her overall understanding of the plea agreement; confirmed that no unexpressed promises had been made to her; and concluded that the plea agreement had been voluntarily made. However, the district court neglected to mention the waiver of appellate rights, as now required by Rule 11(c)(6) of the Fed.R.Crim.P.

At sentencing, Teeter requested a number of downward departures and adjustments, most of which were rejected by the district court; and she was ultimately sentenced at the bottom of her adjusted Guideline range to 292 months in prison, plus a mandatory consecutive sentence of 60 months on various firearm counts. The district court then advised the defendant that she had the right to appeal her sentence if she wished to do so - a statement that was clearly in conflict with the waiver provision at issue. Although the prosecutor did not object to that statement at sentencing, when Teeter appealed her sentence, the prosecutor argued that she was barred from appealing her sentence because of the appeal waiver provisions contained in the plea agreement.

The Court addressed the waiver of appellate rights first. It wrote: "The basic argument against presentence waivers of appellate rights is that such waivers are anticipatory: at the time the defendant signs the plea agreement, she does not have a clue as to the nature and magnitude of the sentencing errors that may be visited upon her. Her waiver typically embraces all determinations later made by the sentencing court -- some of which may never have occurred either to her or to the government, and some of which may be quite different than either thought possible. In a certain sense, then -- though not in the usual criminal law sense -- a waiver of the right to appeal cannot be knowing.' In the appellant's view, this is a fundamental defect -- and one that distinguishes presentence waivers of appellate rights from other waivers contained in a plea agreement. We are not unsympathetic to this argument." (Id., at 21).

Despite voicing such sympathies, Judge Selya concluded that "three reasons counsel persuasively in favor of a rule that accords general validity to presentence waivers of appellate rights." (Id.) His first reason was actually a jumble of thoughts that came down to the premise that "guilty pleas are a staple of our criminal justice system" (id.) and such "widespread acceptance . . . is itself a clear indication that . . . presentence waivers of appellate rights are not forbidden." (Id., at 22). In other words, repetition and widespread acceptance can give validity to certain practices.

His second reason was that "[c]onsiderations of public policy furnish a second pillar on which to rest a holding that breathes vitality into presentence waivers of appellate rights." (Id.) And "[t]he third reason supporting a rule that accords vitality to presentence waivers is the sheer weight of authority" - namely that "presentence waivers of appellate rights have been accepted by all nine of the circuit courts which have passed on their validity." (Id., at 23).

While Judge Selya concluded that those reasons counseled "persuasively" in favor of the validity of waivers of appellate rights, at least "in theory," he also stated "[w]e do not lend our imprimatur to such waivers indiscriminately," because "there are obvious dangers attendant to the practice." (Id.) He also noted that the enactment of Rule 11(c)(6) on December 1, 1999 has "alter[ed] the decisional calculus": from now on the district courts "must inquire specifically at the change-of-the-plea hearing into any waiver of appellate rights" and the failure to do so "will constitute error and may serve to invalidate the waiver." (Id., at 24)

Finally, Judge Selya added a "coda." While such waivers of appellate rights are "presumptively valid (if knowing and voluntary)" they are also subject to "a general exception under which the court of appeals retains inherent power to relieve the defendant of the waiver, albeit on terms just to the government, where a miscarriage of justice occurs." (Id., at 25-26).

Applying all those concepts to the facts of this case, the Court concluded that it could not say "with the requisite assurance" that the defendant's surrender of her appellate rights was "sufficiently informed" -in large part because of the district court's failure to explore that provision with her at her plea colloquy and because of the "new" requirements of Rule 11(c)(6). (Id., at 27). Thus, it decided to grant her a "full right of appeal," notwithstanding the appeal waiver provision. After that "full review," however, the Court still rejected all of the defendant's claims of error and affirmed her sentence.

Milstein v. Cooley, 257 F.3d 1004 (9th Cir. 2001) (Judge Hug)

This is a compelling and informative decision from the Ninth Circuit on the topic of absolute prosecutorial immunity in civil rights suits for damages. In the context of some chilling allegations of a vindictive misuse of prosecutorial powers to punish a defense attorney who won an acquittal for his client, the panel held that, while the defense of absolute prosecutorial immunity is broad, it is not limitless: prosecutors can be sued civilly for damages when they misbehave in the manner alleged in this case.

The plaintiff in this case, Leonard R. Milstein, was an up-and-coming criminal defense lawyer in 1988 when he represented a defendant, Brad Millward, who was tried for two counts of homicide. To the chagrin and embarrassment of the Los Angeles D.A.'s office, Milstein probably represented his client too well. Millward was acquitted on one murder charge and the jury deadlocked on the other count. Shortly afterwards, Defendant-Appellee Stephen L. Cooley [who happens to be the reigning District Attorney for Los Angeles] and a cohort, Robert B. Foltz, had a grand jury indict Milstein for suborning perjury, offering false documents, and soliciting bribery.

When that indictment was dismissed by the California Superior Court, Cooley and Foltz filed a criminal information against Milstein, which was not dismissed. Milstein was tried and convicted, and Foltz commented to the Los Angeles press, "That's what you get when you step over the line."

Milstein's conviction was subsequently reversed on appeal for insufficiency of the evidence; and Milstein then brought the instant civil rights lawsuit against Cooley and Foltz pursuant to 42 U.S.C. § 1983. He charged that they had conspired to deny him due process and subject him to malicious prosecution in a number of ways. He alleged, for example, that Cooley and Foltz had knowingly procured false statements from a witness - specifically by approaching "one Gutierrez, a defense witness in the Millward trial who was then serving a California penal sentence, for the purpose of inducing Gutierrez to agree to testify falsely in a contemplated prosecution of Milstein for subornation of perjury, offering false documents, and solicitation of bribery. Gutierrez agreed."

Milstein also charged that Cooley and Foltz had engaged in a number of other activities which were not protected by the defense of absolute immunity, such as filing a crime report as witnesses, participating in the investigation of Milstein's alleged crime, and making improper statements to the media.

On a motion by Cooley and Foltz, District Judge Dean Pregerson dismissed Milstein's complaint in its entirety, with prejudice, on the grounds of absolute prosecutorial immunity. Milstein then appealed to the Ninth Circuit which reversed, reinstated the complaint, and remanded the case back to the district court for a trial on a number of issues including the charges of fabricating evidence, filing a false crime report, and giving false statements to the press.

The decision traces the evolution of absolute prosecutorial immunity by reviewing the significant Supreme Court cases on that topic. In a codification and careful explanation of when prosecutors can be sued, the Ninth Circuit held that the defense of absolute immunity applies "only for actions that are connected with the prosecutor's role in the judicial proceedings, not for every litigation-inducing conduct."

Of particular interest, the Court noted a number of Supreme Court cases in which absolute immunity had been denied. Citing Burns v. Reed, 500 U.S. 478, 495-96 (1991), the Court also dispelled the myth that a prosecutor is entitled to absolute immunity simply by asserting that his actions were related to the initiation of proceedings: "Almost any action by a prosecutor, including his or her direct participation in purely investigative activity, could be said to be in some way related to the ultimate decision whether to prosecute, but we have never indicated that absolute immunity is that expansive. Rather, as in Imbler [v. Pachtman, 424 U.S. 409 (1976)] , we inquire whether the prosecutor's actions are closely associated with the judicial process. Indeed, we implicitly rejected the United States' argument in Mitchell v. Forsyth, 472 U.S. 511, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985) where we held that the Attorney General was not absolutely immune from liability for authorizing a warrantless wiretap. Even though the wiretap was arguably related to a potential prosecution, we found that the Attorney General was not acting in a prosecutorial capacity' and thus was not entitled to the immunity recognized in Imbler."

As a result of this decision, Milstein will now get his chance to prove his allegations against Cooley and Foltz, and it will be their burden to prove the only defense left available to them: that everything they did was objectively reasonable (the qualified immunity defense) - a burden that may prove to be difficult.

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