Vol. 8, No. 39
Covering Cases Published in the Advance Sheets through September 24, 2001

Highlights of this Issue:

Fair Trials and the Prompt Release of Brady/Giglio Materials to the Defense:

Apprendi Watch:


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

Federal Prison Industries (UNICOR) Case:



We highly recommend the Internet site located at http://www.powforum.org/wtc/. Although it is lengthy and takes a while to load, it is one of the most moving tributes we have seen to the many heroes who died in the World Trade Center tragedies.

United States v. Coppa, No. 01-3031 (2nd Cir. 10/05/2001) (Judge Cabranes)

In this keenly awaited decision, a panel from the Second Circuit (consisting of Judges Cabranes, Newman and Underhill) has restricted the prosecution's obligations to make timely disclosures of exculpatory and impeachment materials within the meaning of Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972). This ruling comes on the heels of two decisions by District Judge Glasser of the E.D.N.Y. in which he held that the Constitution requires the Government to provide a defendant with all exculpatory and impeachment materials "immediately upon request" by a defendant, even if the request is made far in advance of trial.

In both his unreported order in the instant case, and in a similar ruling in a prior case, U.S. v. Shvarts, 90 F.Supp.2d 219 (E.D.N.Y. 2000), Judge Glasser concluded that the Supreme Court had held that a defendant's constitutional rights are violated if the prosecution fails to produce exculpatory evidence "on demand of an accused." In quoting that phrase, taken from Brady (373 U.S. at 87-88), Judge Glasser reasoned that the Supreme Court's use of those precise words "indicates that the prosecution has an obligation to turn over all exculpatory material - including impeachment evidence relating to potential government witnesses - as soon as a defendant requests such material." Moreover, according to Judge Glasser, the "materiality" of the exculpatory or impeachment material (that is, whether its suppression would deprive defendants of a fair trial) "need not be considered when defining the scope of a defendant's constitutional right to disclosure." Based on that rationale, Judge Glasser therefore ordered the prosecutor in both the instant case and in Shvarts to disclose immediately to the defendants all impeachment material in its possession.

While the Government did not appeal Judge Glasser's order in Shvarts, it did use the instant case to challenge his interpretation of the law by means of a petition for a Writ of Mandamus. The Government argued that Brady and Giglio required only that impeachment materials be disclosed in time for trial; and it refused to provide any impeachment materials relating to potential government witnesses. As noted in its brief to the Second Circuit, the Government expressed concern that Judge Glasser's rulings would "result in the identification of virtually all [the Government's] important witnesses" and that its "[f]ear of intimidation of witnesses and concern over efforts to suborn perjury were not flights of fantasy."

The Government's appeal attracted widespread interest; and several defense bar associations, including the New York Council of Defense Lawyers, filed briefs as amicus curiae, urging the Second Circuit to adopt a uniform rule regarding when disclosure is required (as many courts have done), rather than leaving the timing decision either to prosecutorial discretion or different rules of the various judges. In that vein, defense counsel Jay Goldberg, Esq. of New York provided us with a copy of his brief, which has been posted on the Member's secion of this Web site. That brief lists the local rules of a number of the courts, many of which require require the type of disclosure at issue in this case within a specified number of days following a defendant's arraignment. The brief also cites Judge Glasser's opinion in a case where he declined to reconsider his decision in Shvarts:

"[T]he notion that it is the government's determination as to when the defendant can make effective use of the Brady material is a notion that is fundamentally flawed and inimical to the role each side plays in the prosecution and defense of a criminal case. A belated prosecutorial determination in that regard can emasculate the constitutional right of the defendant announced in Brady. An understanding and assessment of their respective roles should compel the conclusion that it is for the defendant and not the government to decide when and how most effectively to use Brady material in preparation for trial." U.S. v. Schwartz, __ F.Supp.2d __, 2000 WestLaw 804629, at *1 (E.D.N.Y.) (ILG).

The Second Circuit rejected those arguments and reversed Judge Glasser's order. Accusing him of "reinterpreting Brady and its progeny," the Second Circuit held that Judge Glasser had erred "with respect to both the scope and the timing of the disclosure required by the Constitution," as interpreted in Brady.

On the scope of his ruling, the panel concluded that Judge Glasser was wrong in ordering disclosure of all impeachment evidence in its possession without regard to materiality. It emphasized that "the scope of the government's constitutional duty - and, concomitantly, the scope of a defendant's constitutional right - is ultimately defined retrospectively, by reference to the likely effect that the suppression of particular evidence had on the outcome of the trial." Under that rationale, the Government therefore "has a so-called Brady obligation' only where non-disclosure of a particular piece of evidence would deprive a defendant of a fair trial. . . . To demonstrate such a deprivation, a defendant must show that: (1) the Government, either willfully or inadvertently, suppressed evidence; (2) the evidence at issue is favorable to the defendant; and (3) the failure to disclose this evidence resulted in prejudice."

Viewing those three components in light of the evolving law, the panel concluded that the extent of the disclosure required by Brady is now "dependent on the anticipated remedy for violation of the obligation to disclose: the prosecutor must disclose evidence if, without such disclosure, a reasonable probability will exist that the outcome of a trial in which the evidence had been disclosed would have been different." In short, even though "many cases continue to use the phrase Brady material' to mean all exculpatory evidence and the phrase Giglio material' to mean all impeachment evidence, these characterizations no longer have such broad meaning."

On the timing of the disclosure obligation, the panel stated that "[n]either the Supreme Court nor any Court of Appeals has given the words in Brady, on demand of an accused,' the temporal significance attributed to these words by the District Court. . . . In nearly four decades of jurisprudence, the Supreme Court has never suggested that the reference reflected a constitutional duty to disclose Brady and Giglio materials as soon after indictment as such materials are requested. Indeed, a rule that makes the timing of disclosure dependent on the defendant's demand is directly contrary to the principle that a prosecutor's Brady obligation is independent of a defendant's request for Brady materials."

Based on that premise, the Court concluded that "as long as a defendant possesses Brady evidence in time for its effective use, the government has not deprived the defendant of due process of law simply because it did not produce the evidence sooner. There is no Brady violation unless there is a reasonable probability that earlier disclosure of the evidence would have produced a different result at trial . . . or at a plea proceeding." (Emphasis added). Because the phrase "in time for its effective use" is so vague and so subjective, we fear that the Second Circuit has done nothing to resolve the "fundamentally flawed" problems noted by Judge Glasser - other than to give the prosecutors even more power "to emasculate the constitutional right of the defendant announced in Brady."

Murphy v. United States, No. 01-1291 (8th Cir. 10/12/01) (Judge Gibson)

In early August, 2000, barely a month after the Supreme Court issued its decision in Apprendi v. New Jersey, District Judge Doty of Minnesota wrote a decision that instantly became an important part of the Apprendi landscape. That decision, U.S. v. Murphy, 109 F.Supp.2d 1059 (D.Minn. 2000) (Murphy I), not only showed how Apprendi could become an important tool in habeas litigation, it also became a beacon of hope to thousands of prisoners. Judge Doty forcefully concluded that Apprendi was a watershed decision of such constitutional magnitude and dimension that it clearly should be available for use retroactively by prisoners who were seeking collateral relief from their now clearly unlawful sentences.

As Judge Doty explained in Murphy I, if the Supreme Court announces a new constitutional rule of criminal procedure, that new rule generally applies retroactively only to cases which are on direct state or federal appeal at the time the rule is announced. Thus, in the interests of the finality of litigation, a new rule is generally not to be applied retroactively to cases on collateral review - unless the rule falls within one of two narrow exceptions, namely: (1) the new rule places certain kinds of primary conduct beyond the power of the criminal lawmaking authority to proscribe, or (2) the rule requires the observance of "those procedures that ... are 'implicit in the concept of ordered liberty.' "

That general rule, of course, stems from the Supreme Court's seminal habeas corpus ruling in Teague v. Lane, 489 U.S. 288 (1989). Looking back, it is clear that no case has ever tested and probed the outer limits of Teague more severely than Apprendi. Almost instantly, every court became an expert on the meaning of Teague; and the judicial world divided into two camps.

On one side were the courts that held that Apprendi was not available retroactively to cases on collateral review - and that quickly became the majority view. It is worth noting that included in that group were many courts that were openly concerned about the impact Apprendi could have on habeas litigation. Fearful that Apprendi would lead to an unmanageable flood of appeals, they went out of their way to limit the use of Apprendi - sometimes even by ignoring the fact that Teague limits the retroactive use of new constitutional rules of criminal procedure - but not new constitutional rules of substantive law.

On the other side were a much smaller number of courts which agreed with Judge Doty's analysis that Apprendi was a watershed decision that fell within the second of the two Teague exceptions.

Whatever the merits of the Teague/Apprendi debate, it is now effectively over. In the instant case, the Eighth Circuit has finally specifically overruled Murphy I. While the Court's previous decision in U.S. v. Moss, 252 F.3d 993 (8th Cir. 2001), had effectively held that Apprendi does not apply retroactively on collateral review, some diehards continued to believe that ways could be found to argue that Murphy I lived on. Now such hopes are dead. In this brief opinion, relying solely on Moss, the Court vacated Murphy I and reimposed the petitioner's original sentence of 300 months in prison, even though his sentence exceeded the prescribed statutory maximum due to the district court's determination of both the type and quantity of drugs involved - circumstances that would clearly be improper under Apprendi if the petitioner were tried for his crimes today.

Coalition for Gov. Procurement v. Federal Prison Industries, 154 F.Supp.2d 1141 (W.D.Mich. 2001) (Judge Bell)

This case is noted as one of the rare, published cases to probe some of the internal workings of the secretive and highly pampered entity known as the Federal Prison Industries, Inc. (FPI), the multi-million- dollar manufacturing conglomerate of the Department of Justice. FPI was chartered in 1934 by a special Act of Congress "to provide work programs and training opportunities for inmates confined within the Federal Bureau of Prisons system." (28 C.F.R. § 345.11(a)). Since 1977, FPI has been known as UNICOR (a completely-made-up acronym).

UNICOR manufactures products in five broad categories: textiles, electronics, furniture, metals and graphics. In its latest reported fiscal year UNICOR operated 103 factories in 68 Federal prisons and employed some 22,000 inmates (approximately 18% of the Federal inmate population). According to its Web site at www.unicor.gov, in its 1999 fiscal year, UNICOR had profits of some $16 million; and in its 2000 fiscal year it had losses of some $11 million. Critics of UNICOR have always questioned where its profits go; and it is an issue that is not easy to ascertain. Although UNICOR releases "audited" financial statements, those statements are highly qualified. For example, in its latest published financial statements, UNICOR's outside auditors, Urbach Kahn & Werlin, significantly qualified their auditing report due to "material weaknesses" in a number of areas, including "a lack of adequate controls" over critical items such as inventories, accounts receivable, and cash reconciliation procedures.

UNICOR benefits from many unique competitive advantages over private industry. Because it is not subject to any minimum wage laws pays, it pays its inmate workers from $.23 to $1.15 per hour. (That wage structure is substantially in excess of what other inmates are paid - which makes UNICOR jobs attractive to the inmates.) UNICOR also pays no social security taxes, no unemployment insurance, and no workers compensation. It doesn't have to deal with federal and state regulations of such things as occupational safety and health, pollution, employment discrimination, and the hiring of illegal aliens. It also pays no rent; and its carries no insurance for property damage, product liability, or other customary business loss exposure.

UNICOR's customers are also guaranteed: Federal agencies are required to purchase FPI products unless they procure a waiver from FPI. (Federal Acquisition Regulations 8.602, 8.605). About the only limitations on its operations are that UNICOR (a) may not sell to the public in competition with private enterprise and (b) may not produce a new product or "significantly expand" production of an existing product until it obtains approval from its own Board of Directors. (18 U.S.C. §§ 4121-4122)

The plaintiff in the instant case, Coalition for Government Procurement (the Coalition), is a trade association whose membership consists of over 300 private sector manufacturers, distributors, and dealers. The Coalition alleged that UNICOR had overstepped its statutory authority and the Administrative Procedures Act by illegally producing and selling office furniture to the detriment of the Coalition's members.

The lawsuit involved nine separate counts, most of which related to the provisions of §§ 4121 and 4122. Even though FPI's Board of Directors can - and usually does - rubber stamp just about anything needed to produce sales and profits, the Coalition alleged that there were "four unauthorized significant increases between 1990 and 1996." (Id., at 1148). In fact, UNICOR conceded that in at least two of those cases, its Board of Directors did not approve the increases at issue until after the fact; but it argued that the retroactive approvals were sufficient as a matter of law to defeat the Coalition's claims.

The Coalition argued that any such retroactive approval was "illegitimate" (id., at 1149); and it pointed to an unpublished decision, Quarters Furniture Manufacturers Association v. Federal Prison Industries, et al., No. 95 Civ. 2237 (D.D.C. Aug. 28, 1998), where the court concluded that "the Board's subsequent approval of the prior significant increases could not stand because private industry was not adequately apprised, as part of the procedures leading up to the administrative hearing, that the Board would take up the question of ratifying those past increases." (Id., at 1149).

The FPI moved for summary judgment on all counts, pursuant to Fed.R.Civ.P. 56. The Court acknowledged that summary judgement is appropriate only where the pleadings show that "there is no genuine issue as to any material fact" and that, to reach that conclusion, the court "must view the evidence in a light most favorable to the nonmoving party." (Id., at 1144). Nevertheless, despite that difficult burden of proof, and despite FPI's admission that at least two of the "significant increases" at issue "should have been approved in advance," the Court granted FPI summary judgment on all nine counts!

We weren't surprised by the decision because we have yet to see a decision that has ruled against UNICOR on any issue relating to its privileged position in American industry. But we do see the day or reckoning coming. Lately there has been a groundswell of interest in some of the sacrosanct activities of UNICOR, among which are the following: (a) the Report of the House Committee on Small Business, entitled "Federal Prison Industries Procurement and Its Effect on Small Business," June 1, 2001, at http://www.house.gov/smbiz/hearings/107th/2001/010606/, (b) a Press Release from the Office of Senator Carl Levin of Michigan, complaining about the unfair impact that UNICOR has on competition in America, at http://levin.senate.gov/issues/prison.htm and (c) "Federal Prison Industries, Inc.: Occupational Training or Slave Labor," an investigative report by economist David Martin, which, at the very least, is fun to read - at http://zolatimes.com/v2.13/FPI.html.


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