Vol. 8, No. 36
Covering Cases Published in the Advance Sheets through September 3, 2001

Highlights of this Issue:

When Does a Defendant Have the Right to Make Decisions About Her Criminal Case?:

Can a Magistrate Judge Hear a § 2255 Motion?:

Unpublished Decisions - Another View:

Forfeiture and Proof of Probable Cause:

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. Burke, 257 F.3d 1321 (11th Cir. 2001) (Judge Edmondson)

This case involves the authority of defense counsel to make certain decisions during federal criminal proceedings - particularly when they are contrary to what the defendant requests or directs. Here, the defendant went to trial on a number of charges arising from his alleged taking of a bribe while holding public office, in violation of 18 U.S.C. § 666(a)(1)(B). Some five days after the jury began deliberating, the jury notified the trial judge that it had reached a verdict on all but two counts: bribery of a government official and money laundering. The Government asked the district court to accept the verdict and to declare a mistrial on the remaining counts.

The defendant said that he also wanted to accept the verdict as it stood and to accept the mistrial; and that he requested his counsel to do so. However, the defendant clearly never notified the trial court of his desire; and had he done so the outcome may have been different. In any event, defense counsel did not join in the request for a mistrial and instead requested the district court to instruct the jury with a modified Allen charge. The Court ultimately gave the Allen charge and, two hours later, the jury returned a guilty verdict on the bribery count. (The jury told the court it was still hung on the money laundering count; so the court then declared a mistrial on that count.)

The defendant then filed a motion for a new trial, claiming he had been denied effective assistance of counsel when his counsel sought an Allen charge and disregarded his request that counsel join with the Government's request for a mistrial. The district court denied the motion, concluding that counsel's decision about the mistrial was a tactical one which defense counsel was entitled to make. The defendant then appealed - and the Eleventh Circuit affirmed.

The Court noted that the Supreme Court had determined that a defendant has the ultimate authority to make "fundamental decisions" regarding his own case - but it has only listed "four decisions which it characterizes as fundamental: whether to plead guilty, waive a jury, testify in his or her own behalf or to take an appeal." (Id., at 1322).

It then continued: "Although a represented defendant does retain the absolute right to make limited choices for his case, neither the Supreme Court, nor this Court, has ever expanded the narrow class to include the choice of whether to accept a mistrial or to request an Allen charge. In the absence of case law on point, we decline to add to the list of a client's fundamental decisions. Put differently, we decline to expand the circumstances that erode defense counsel's authority at trial. Defense counsel in a criminal trial is more than an adviser to a client with the client's having the final say at each point. He is an officer of the court and a professional advocate pursuing a result - almost always, acquittal - within the confines of the law; his chief reason for being present is to exercise his professional judgment to decide tactics.

"Federal courts are forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added.' Douglas v. Jeannette, 319 U.S. 157, 63 S. Ct. 877, 879, 87 L. Ed. 1324 (1943) (Jackson, J., concurring in part and dissenting in part). When the defendant is given the last word about how his case will be tried, the defendant becomes his own trial lawyer. If we add to the list of circumstances in which a defendant can trump his counsel's decision, the adversarial system becomes less effective as the opinions of lay persons are substituted for the judgment of legally trained counsel. The sound functioning of the adversarial system is critical to the American system of criminal justice. We intend to defend it." (Id.)

United States v. Johnston, 258 F.3d 361 (5th Cir. 2001) (Judge DeMoss)

The defendant in this case was convicted of various drug charges and sentenced to 135 months in prison. After his conviction and sentence were affirmed on direct appeal, he timely filed a motion, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence on a number of grounds not relevant to this discussion. For purposes of that motion, both the defendant and the Government consented to proceed before a magistrate judge, under the general authority of 28 U.S.C. 636(c)(1). That statute provides that upon the consent of the parties, a magistrate judge may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case when specially designated to exercise such jurisdiction by the district court or the courts she serves.

After the magistrate judge denied the § 2255 motion on the merits, the defendant appealed, raising the question whether magistrate judge was lawfully empowered to hear § 2255 motions - a question which, in turn, raised the question of whether a § 2255 proceeding constitutes a civil matter for purposes of § 636(c). Surprisingly, the Court stated that "very few courts have directly addressed this precise issue." (Id., at 364); and it cited only one case, U.S. v. Bryson, 981 F.3d 720, 723 (4th Cir. 1992), in which the Fourth Circuit "indirectly found that a § 2255 proceeding is a civil matter for purposes of § 636(c) when it concluded in dicta that a magistrate judge could adjudicate a § 2255 proceeding under § 636(c)." (Id.) (Emphasis added).

Notwithstanding the Fourth Circuit's ruling in Bryson, the panel in this case held that a magistrate judge is not empowered to hear § 2255 motions, and that even a consensual delegation of § 2255 motions to magistrate judges is unconstitutional. Accordingly, it vacated the judgment entered by the magistrate judge and remanded the case back to the district court.

Much of the Court's discussion focused on whether the parties' consensual delegation of the hearing on the § 2255 motion to a magistrate judge "offended the structural guarantees of Article III" of the Constitution. (Id., at 367). Because the origins and purposes of Article III are somewhat pedantic and philosophical in nature, debates over the subtleties of that topic are usually of little practical use or interest to most criminal defense attorneys. Nevertheless, the Court's summary of that topic is a clear and concise guide to the constitutional importance of Article III - and one that is worth reading.

As a preliminary matter, the Court noted that while habeas petitions in general "have customarily been viewed as civil in nature" (id., at 364), and while most courts, including the Fifth Circuit, "have generally construed a § 2255 proceeding as being civil in nature" (id., at 365), there is also general agreement that "a section 2255 motion is a hybrid, with characteristics of both civil and criminal proceedings." (Id.) However, even assuming that § 2255 motions are deemed civil in nature for purposes of § 636(c), the Court concluded that a number of problems arise when § 2255 cases are assigned to magistrate judges - all of which clearly implicate the "strictures of Article III."

Article III, Section 1 of the Constitution provides that "the judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish" and that "the Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office." As explained by the Court, "[t]he primary structural guarantee of Article III is to ensure respect for separation-of-powers principles by barring congressional attempts to transfer jurisdiction to non-Article III tribunals for the purpose of emasculating' constitutional courts, and thereby preventing the encroachment or aggrandizement of one branch at the expense of the other'." (Id., at 372).

The Court also explained that Article III serves two distinct purposes: "1) to safeguard litigants' right to have claims decided before judges who are free from potential domination by other branches of government' and 2) to protect the role of the independent judiciary within the constitutional scheme of tripartite government.' . . . The former concerns a defendant's personal right to have his case heard by an Article III judge. That right may be waived. The second purpose pertains to certain structural guarantees which ensure respect for separation-of-powers principles'." (Id., at 366-67) (Internal citations omitted).

Viewed in that context, the Court pointed to three "major" problems that derive directly from the assignment of § 2255 cases to magistrate judges. "First, unlike the average civil case or a § 2254 proceeding, a § 2255 motion directly questions the validity of a prior federal court ruling. [Thus,] [i]f the parties to a § 2255 motion consent to proceed before a magistrate judge [who is not an Article III judge], that magistrate judge could attack the validity of an Article III judges rulings." (Id., at 368-69).

Second, "the consensual delegation of a [§ 2255 proceeding] may unwittingly embroil a magistrate judge in the unconstitutional conduct of a felony trial." (Id., at 369-70). While the panel acknowledged that the Supreme Court has allowed for the consensual delegation of certain components of a felony trial to magistrate judges (such as voir dire and accepting plea allocutions), it stated that "sentencings are not ministerial in nature and require the legal judgment and acumen of a learned jurist, who may, at times who must, do the unpopular and, therefore, may need the shield of independence afforded Article III jurists. . . . Therefore, if a magistrate judge were unable to do felony sentencings, then it would be odd for such a judge to have the power under § 2255 to resentence or even vacate a prior sentence resulting from a felony conviction." (Id., at 370).

Finally, "the consensual delegation of § 2255 proceedings under § 636(c) presents reviewability problems severe enough to create the impression that magistrate judges are not adjuncts, but are independent of Article III control. The Supreme Court and our sister courts have consistently asserted that the ability of Article III district courts to control and review a magistrate judge's decision provides compelling support for the constitutionality of increased magistrate judge participation in the federal court system. . . . But if a magistrate judge were allowed to enter a final order in a consensual § 2255 proceeding, that order would not be reviewable by the district court. . . . Allowing magistrate judge authority over such proceedings turns the concept of reviewability on its head." (Id., at 370-71).


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