Vol. 8, No. 40	Covering Cases Published in the Advance Sheets through October 1, 2001

Highlights of this Issue:

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

• In Koczuk, Judge Block of the E.D.N.Y. issued an important sentencing memorandum in which he explained his reasons for granting a significant downward departure based on the "significant distinction" between uncharged conduct and conduct related to a charge for which the defendant was acquitted. He concluded that where relevant acquitted conduct produces the same sentencing result as if the defendant had been convicted of that conduct, or significantly increases the Guidelines range, a downward departure "invariably in warranted."
  

The Second Amendment and the Individual Right to Bear Arms:

• In Emerson, a panel from the Fifth Circuit has produced the most comprehensive ruling on the Second Amendment in recent history; and it concluded that the Second Amendment protects individual Americans in their right to keep and bear arms whether or not they are a member of a select militia or performing active military service or training - although it also concluded that Congress may limit that right through appropriate legislation.
  

Apprendi Watch:

• The Eleventh Circuit has chimed in on Apprendi with a monumental 185-page, en banc decision in Sanchez in which it concluded that, even after Apprendi, drug quantity is not necessarily a required element of an offense under 21 U.S.C. § 841 that must invariably be charged in the indictment, submitted to a jury and proven beyond a reasonable doubt; and that Apprendi has no application to, or effect on, either Guidelines calculations or mandatory minimum sentences.
  

The Rubber Stamp Aspect of Appeals:

• In Hunt, the Sixth Circuit reversed a conviction on the grounds that the appellant had been denied effective assistance of counsel when his lawyer was appointed on the day of his trial and then was denied a ten minute recess to meet with his client before proceeding to voir dire - but the reversal only came after four previous courts had refused to grant any relief.

Drug Crimes and Proceedings to Establish Prior Convictions under 21 U.S.C. § 851(a):

• In Severino, a divided panel from the Ninth Circuit held that the procedural requirements for filing an information to seek a sentencing enhancement under 21 U.S.C. § 851(a) is not jurisdictional in nature and can be waived - a position that is at odds with the holdings in eight other circuits.

Don't forget to visit the "Apprendi Watch" section of this Web site for the most current and comprehensive coverage of that watershed decision on the entire Internet. It now includes links to more than 350 published lower-court Apprendi decisions, all organized by Circuit.

United States v. Emerson, No. 99-10331 (5th Cir. 10/16/2001) (Judge Garwood)

Two years ago, Judge Cummings of the N.D.Tex. issued a highly controversial ruling about the Second Amendment's guarantee of a citizen's right to bear arms. In U.S. v. Emerson, 46 F.Supp.2d 598 (N.D.Tex. 1999) (Emerson I) (P&J, 4/12/99), Judge Cummings held that 18 U.S.C. § 922(g)(8) (the Federal statute that makes it a crime for someone to possess a firearm while subject to a domestic violence protection order) unconstitutionally infringes on the Second Amendment right to bear arms.

The case involved Timothy Joe Emerson, a Texas doctor who was prosecuted in Federal court for violating § 922(g)(8), a provision of the Violence Against Women Act of 1994 which prohibits persons subject to a protective order from possessing a gun. While a party in a divorce proceeding with his wife, the state court granted the wife a broad protective order. The panel in the instant case noted that the protective order was a "routine, boilerplate restraining order" that was issued by the court without making any findings and without advising Emerson regarding the prohibitions set forth in § 922(g)(8).

Emerson moved to dismiss his Federal indictment, asserting, inter alia, that § 922(g)(8), both facially and as applied to him, violated his rights under the Second Amendment and the Due Process Clause of the Fifth Amendment. Judge Cummings agreed with Emerson's contentions and dismissed the indictment. He reasoned that § 922(g)(8) was unconstitutionally overbroad because it allowed Second Amendment rights to be infringed without any express judicial finding that the person subject to the order posed a future danger.

The ruling was particularly noteworthy because it discussed at great length an issue that most courts have either ducked or simply refused to address in recent times: Does the Second Amendment provide for a constitutionally protected "individual right" to bear arms?

The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Interpreters of the Second Amendment generally fall into two camps: one that sees the Amendment as providing for an "individual right" to bear arms; and another that sees it as providing only for a "collective right" or "state right" to arm a militia. Providing citations to numerous scholarly articles addressing the issue, Judge Cummings sided with the "individual right" interpretation - an approach that automatically threatened the huge (and growing) body of Federal gun laws and one which caused instant apoplexy in Government circles.

The Government appealed; and after a long silence, the Fifth Circuit finally addressed Judge Cummings' ruling in Emerson I. The panel agreed with Judge Cummings that the Second Amendment does guarantee individuals a right to have firearms; and that decision is the first by a Federal Court of Appeals to declare that the Second Amendment gives individual citizens a right to firearms. (The Supreme Court has yet to chime in on the issue. For years, the scope of its only previous ruling on the topic, U.S. v. Miller, 307 U.S. 174 (1939), has been the subject of intense debate; and the Miller holding was discussed at length in the instant case.)

Although the panel endorsed Judge Cummings' view that the Second Amendment confers an individual right to own guns, it also declared that the right to possess firearms is subject to some Governmental regulation - leaving the door open for gun control legislation. Finally, the panel also rejected Emerson's contentions that § 922(g)(8) was overly broad. Thus, it reversed the dismissal of Emerson's indictment and remanded the case for trial.

The decision is a monumental opus that is clearly the most comprehensive ruling on the Second Amendment in modern times. The majority decision was written by the highly respected Judge Will Garwood, who in 1993 also wrote the Fifth Circuit's decision in U.S. v. Lopez, 2 F.3d 1342 (5th Cir. 1993), which struck down the Guns-Free School Zone Act - a decision that the Supreme Court subsequently affirmed. Judge Parker agreed that Emerson should be tried on the § 922(g)(8) gun charges - but he took sharp issue with the majority for even discussing the Second Amendment issue.

After tracing the history of the Second Amendment to its origins in the 1787 Constitutional Convention, Judge Garwood concluded that the Second Amendment "protects individual Americans in their right to keep and bear arms whether or not they are a member of a select militia or performing active military service or training." He also wrote that the Second Amendment "protects the right of individuals to privately keep and bear their own firearms that are suitable as individual, personal weapons . . . , regardless of whether the particular individual is then actually a member of a militia."

He then continued: "Although, as we have held, the Second Amendment does protect individual rights, that does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country. . . . As we have previously noted, it is clear that felons, infants and those of unsound mind may be prohibited from possessing firearms."

Hunt v. Mitchell, 261 F.3d 575 (6th Cir. 2001) (Judge Cole)

The decision in this case sends a clear and disturbing message: sometimes, no matter how egregious the facts may be, appellants will have a difficult time obtaining justice simply because there is an appalling rubber-stamp approach to the handling of many criminal appeals.

Wayne Hunt was convicted in state court of felonious assault and domestic violence; and he was sentenced to 11 to 15 years in prison. The state trial judge appointed counsel for Hunt on the day the trial was to commence and then "refused to grant counsel ten minutes to consult with Hunt before proceeding to voir dire." (Id., at 577).

On direct appeal, the Ohio Court of Appeals rejected Hunt's claim of "per se" ineffective assistance of counsel under U.S. v. Cronic, 466 U.S. 648 (1984). Then the Ohio Supreme Court denied Hunt leave to appeal. Finally, having exhausted his state remedies, Hunt filed an application for a writ of habeas corpus with Judge Patricia Gaughan of the N.D. Ohio. She, too, denied any relief.

Fortunately, the Sixth Circuit finally looked at the facts and concluded that, under the "egregious circumstances" of this case, all the previous courts were wrong - they "unreasonably applied clearly established Supreme Court precedent in [their] review of Hunt's claim." It therefore reversed Hunt's conviction and ordered him released unless he was granted a new trial within a reasonable time.

Hunt was arrested after he attacked his pregnant wife. He was plopped in jail - where he remained for 87 days before he was indicted. On the eighty-ninth day after his arrest, he was finally arraigned in the Court of Common Pleas in Cuyahoga County, Ohio and he was appointed counsel, who immediately asked for "ten minutes" to meet with his client. Realizing that he was facing a potential violation of Ohio's speedy trial law, the judge gave Hunt a choice: "he could either waive his right to a speedy trial and receive more time for his counsel to prepare, or he could proceed immediately to trial that same afternoon." (Id., at 584).

After Hunt chose to go to trial, his counsel asked for ten minutes to meet with this client. The trial judge refused. "There is no ten minutes. He's got to be taken downstairs [to change out of his prison garb]. It's pretty straight forward. He's gone through the drill before. He's also gone to trial in the past, so he understands what is going on." (Id., at 578-79). The Sixth Circuit noted that Hunt's counsel "was not even afforded ten minutes to confer with his client to discuss the possibility of entering into a plea agreement." (Id., at 583).

Astonishingly, even the Sixth Circuit had initially refused to hear the appeal. Finally, however, on a motion for a rehearing, the Court granted a certificate of appealability to consider a single question: "whether [Hunt] was denied his Sixth Amendment right to the effective assistance of counsel due to the appointment of an attorney on the day of trial." After digging into the facts, the Court concluded that "the undisputed facts of this case reveal that Hunt was denied the presence of counsel during a critical stage' of the prosecution" (id., at 582) and that "[t]he egregious circumstances surrounding the trial court's appointment of counsel . . . justified a presumption of ineffective assistance under Cronic." (Id., at 584).

News From the Internet

Federal Defender Training Materials: The Federal Public Defender's office in Washington, D.C. has made available an outstanding resource for criminal defense attorneys. It has put together a 1,120 page collection of articles and training materials on a broad range of timely topics that were used at its 2001 National Seminar for Federal Defenders. That compilation can be viewed, in PDF format, at http://www.dcfpd.org/2001seminar/2001%20New%20Approaches.pdf/.

New Anti-Terrorist legislation: While no one really questions the need for effective measures to combat terrorism in the United States, some of the items included in the proposals now pending before Congress are truly scary. Two examples should suffice.

Author Marty Jezer of Brattleboro, Vt. has prepared one analysis of this new legislation, part of which reads as follows: "The most dangerous part of the bill is Section 803 of the Senate Bill which creates a new crime, that of domestic terrorism.' Domestic terrorism is defined vaguely as to include the intention to intimidate or coerce a civilian population' and to influence the policy of a government by intimidation or coercion.' Any political demonstration can be deemed coercive and intimidating, as can speech or writing. A demonstrator (or an undercover police agent) who throws a rock or damages property (already illegal under existing law) could provide the government with the pretext to charge demonstrators with an act of terrorism. Moreover, any person who provides assistance to the demonstrators would also be liable for prosecution as a terrorist. The provisions regarding domestic terrorism' are not meant to protect the country from real terrorists. They are, instead, an intimidating and coercive threat to free speech and public assembly." The full text of Mr. Jezer's article can be viewed at http://www.commondreams.org/views01/1019-07.htm/.

Almost as important as provisions needed to fight terrorism, the pending legislation appears to be a wish list for everything DOJ has wanted for the past five years and has not gotten. For example, the Senate bill would allow federal prosecutors to be exempt from state ethical rules. What that has to do with fighting terrorism is anyone's guess -- but it is one example of how the DOJ is using the psychology of September 11, 2001 to change forever the rights of Americans.

Copyright © 2001 Punch and Jurists, Ltd.