Vol. 8, No. 41
Covering Cases Published in the Advance Sheets through October 8, 2001

Highlights of this Issue:

Supervised Release Issues:

Attorney Gag Order Held Unreasonable:

Failure to Appoint Counsel for Indigent Defendant on Habeas Appeal Requires Automatic Reversal:


News From the Internet

New Anti-Terrorist legislation: Because of the enormous interest in the Patriot Bill that President Bush signed into law last week, and other proposed and pending anti-terrorist legislation, we have started a new section on the Bulletin Board page of the Member's Section of this Web site. There, we have posted a copy of the new Patriot Act as well as links to other materials of interest. We particularly note that the Thomas legislative site has started an excellent new section which lists all the anti-terrorist laws, resolutions and proposals that have been enacted or proposed since September 11, 2001. That new site, located at http://thomas.loc.gov/home/terrorleg.htm,
already lists 7 bills and joint resolutions that have been signed into law, 9 other resolutions that have been approved, 25 pieces of proposed legislation on which there has been some floor action, and 88 other legislative proposals on which there has been no floor action to date.

If all those bills became law, there will be little left of the Bill of Rights.

United States v. Merced, 263 F.3d 34 (2nd Cir. 2001) (Per Curiam)

Although supervised release is now an obligatory component of virtually every Federal sentence, it is sometimes amazing how much confusion reigns at sentencing about some very basic issues - including the scope and permissible terms of supervised release. Admittedly, the supervised release component of a sentence is usually the last item addressed by the sentencing court; and, for that reason, defense counsel, who has focused his prime energies on the term of imprisonment (which is imminent), often treats the term and conditions of supervised release (which won't even begin until years down the road) almost as an afterthought. A series of cases this week show that is a mistake because these cases present a spectrum of some of the many factors that can give rise to the imposition of improper terms and incredibly over-broad conditions of supervised release.

In the instant case, after serving a term of imprisonment for a prior drug offense, the defendant was transferred to a halfway house in New York City. He fled that facility, was caught, and ultimately pled guilty to a one count indictment charging him with escaping from a halfway house in violation of 18 U.S.C. § 751(a), a class D felony. He was sentenced to 24 months imprisonment, followed by three years supervised release.

He was released from prison in August, 1998; and, by December 1999, he was arrested and charged with a number of violations of his conditions of supervised release. He pled guilty to the charged violations and was sentenced to time served (which amounted to six months and eight days); an additional term of supervised release; and he was ordered to participate in a drug abuse program. A short time later, he again violated his conditions of supervised release by refusing to attend any drug treatment program; and Judge Batts of the S.D.N.Y. sentenced him to a new term of 24 months in prison, which she characterized as "the maximum statutory period to which he could be sentenced."

The defendant moved for re-sentencing under Rule 35(c), arguing that his sentence of 24 months, when coupled with the previous term of six months and eight days he had served in connection with his first violation of supervised release, exceeded the two year statutory maximum authorized for a violation of supervised release on a class D felony under 18 U.S.C. § 3583(e)(3). The Government actually agreed with the defendant "that the two-year statutory maximum [set forth in § 3583(e)(3)] was an aggregate maximum for all violations of supervised release relating to the same underlying conviction and was not a per violation maximum." (Id., at 36).

Judge Batts was not persuaded; and she denied the defendant's motion. The Second Circuit reversed. It joined with decisions from the Seventh and Eighth Circuits in holding that the provisions of § 3583(e)(3) "provide for aggregated, rather then per violation, statutory maximum terms of imprisonment for violations of supervised release." (Id., at 37). That position, the Court concluded, was not only supported by the plain language of the statute, but also by the legislative history of the amendments to § 3583 that were enacted in 1994. (Id.) Thus, it remanded the case for resentencing with instructions that the new sentence not exceed the two-year statutory maximum in the aggregate.

There was one unusual sidelight to this case that is worth noting. Judge Batts went out of her way to deny relief to the defendant in this case by ruling that his Rule 35(c) motion was untimely. The defendant has been resentenced on December 18, 2000; and he submitted his motion to the court on December 22, 2000 - well within the seven day period specified in Rule 35(c). Judge Batts, however, took the position that her chambers were closed for the Christmas holidays from December 22, 2000 through January 1, 2001 - and that, by the time she received the motion, the seven-day time period had expired.

The Second Circuit simply observed: "We find implausible the notion that, because the district judge's chambers were closed from December 22, 2000 through January 1, 2001,' the district court was unable to receive Appellant's motion on a date that was timely under Fed.R.Crim. P. 35(c)." (Id., at 36).

Yahweh v. U.S. Parole Com'n., 158 F.Supp.3d 1332 (S.D.Fla. 2001) (Judge Moore)

In 1979, a man named Hulon Mitchell, Jr. moved to Miami, where he began spreading his message that "blacks are the true Jews, that God and Jesus are black, and that he has been chosen by 'the Terrible Black God, Yahweh' to lead blacks from years of oppression to the promised land of Israel." As his following grew, Mitchell claimed to be the Son of God; and he adopted the name Yahweh Ben Yahweh, which means "Son of God." The Eleventh Circuit recognized the Nation of Yahweh as a legitimate religion. (Id., at 1335).

Problems began to arise with the law when a small group of men developed within the Nation of Yahweh known as the "Brotherhood." As reported in an earlier decision, U.S. v. Beasley, 72 F.3d 1518, 1521 (11th Cir. 1996), "[t]o become a member of the Brotherhood, one had to kill a white person and bring proof of the kill to Yahweh in the form of a head, an ear, or some other body part. Between April and October 1986, Yahweh sent his death angels into the Miami community on multiple occasions to kill white people randomly and to commit acts of retribution against blacks who interfered with the Yahwehs' sales of products and collection of donations. Yahweh also directed the killings of white people as retribution for 400 years of oppression and for specific acts of alleged police brutality against blacks occurring at the time."

Ultimately, Yahweh was convicted of violating 18 U.S.C. § 1962(d), which makes it a crime to conspire to violate RICO; and he was sentenced to prison for 17 years under the "old law", and thus was subject to parole for the final third of his sentence upon his release from prison. His mandatory parole release date was August 17, 2001; and just prior to that date the U.S. Parole Commission imposed the following conditions upon him as a condition of his release:

"You shall not associate or have any contact with members of the Black Hebrew group. This includes direct or indirect contact through any means, to include internet, television, radio, phone, written form or in person. This includes residence, employment, social or other activities, without the prior written approval of your U. S. Probation Officer . . . .

"In addition, you shall be precluded from employment provided by members of the Black Hebrews or the group itself or associated in any manner with group members without prior written approval of the U. S. Probation Officer.

"Further, you shall be prohibited from use of the internet as a means of communication with members of the Black Hebrews. You shall not possess a computer with internet access either personally or as part of any employment unless approved in writing by your U. S. Probation Officer."

Yahweh filed this action challenging those conditions and seeking declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2202 and the Religious Freedoms Restoration Act, 42 U.S.C. § 2000bb-1 (RFRA). That proceeding raised three issues: (a) whether habeas corpus is the exclusive remedy by which parolees may challenge conditions imposed on their release; (b) whether a parolee must exhaust his administrative remedies before seeking relief from the conditions of parole; and (c) whether the challenged provisions were invalid and warranted some form of relief.

In this lengthy decision, Judge Moore of the S.D.Fla. answered each of those questions in the negative. Reasoning that suits challenging the conditions of parole were somewhat akin to suits challenging prison conditions (where a broad range of non-habeas civil rights actions are available as a remedy), he rejected the Parole Commission's contention that habeas corpus is the exclusive remedy by which parolees may challenge such conditions. (Id., at 1337).

Similarly, he rejected the Parole Commission's contention that the parolee must exhaust his administrative remedies with the Parole Commission before proceeding to the Federal courts - principally because the provisions of the Prison Litigation Reform Act which require such exhaustion "have not yet [been] expanded . . . to include parolees, whether by design or oversight." (Id., at 1342, n. 30). He also noted that "it is fair to conclude that the administrative appeal presented little hope for Yahweh Ben Yahweh that the Parole Commission would, under [its] established procedures, reverse its underlying determination that Yahweh Ben Yahweh poses an extreme risk to the community." (Id., at 1343).

Finally, Judge Moore rejected Yahweh's contention that the broad anti-association conditions imposed by the Parole Commission violated his rights under either the First Amendment or the RFRA. He concluded that the conditions at issue in this case satisfied both the "strict scrutiny" test of the RFRA and the "less onerous reasonably related'" test that applies to the First Amendment claim.

Yahweh argued that the broad parole conditions were unconstitutional because "the deprivation of his right to association puts his life in jeopardy . . . [and that] without the protection of his followers, he could be assassinated." (Id., at 1351). While Judge Moore acknowledged that Yahweh had presented some evidence of threats to his life, he reasoned that "the Court cannot conclude that Yahweh Ben Yahweh's tight to associate, and thus to receive physical protection from his followers, tumps the Parole Commission's duty to protect the public." (Id., at 1352).

He wrote: "In order to show that his parole conditions violate his First Amendment freedoms of religion, speech, or association, Yahweh Ben Yahweh must show that the parole conditions are not reasonably related' to his rehabilitation or to the protection of the public ." That determination, he then wrote, must be ascertained in light of (1) the purpose sought to be served by the probation; (2) the extent to which constitutional rights enjoyed by law-abiding citizens should be accorded to probationers; and (3) the legitimate needs of law enforcement." (Id., at 1344) (Internal citations omitted).

Judge Moore agreed that the parole conditions did "substantially burden" Yahweh's exercise of religion. "A restriction that prohibits an individual from engaging in group worship, but allows solitary worship, must be characterized as a substantial burden when group worship has been shown to be an important aspect of the religion." (Id., at 1346). However, he also relied on the fact that Yahweh "was not absolutely prohibited" from engaging in the various prescribed activities. "Rather, each contested parole condition is tempered by the phrase, without the prior written approval of your parole officer'. . . . This Court simply will not assume, before the conditions are implemented, that the parole officer will arbitrarily and capriciously deny any request that might be made by Yahweh Ben Yahweh." (Id., at 1348).

Judge Moore agreed that "[t]he RFRA standard . . . provides statutory protection for religious practice that is broader than the core constitutional right,' and therefore, demands more of the Parole Commission. [However], in order to state a claim under RFRA, Yahweh Ben Yahweh must first show that his parole conditions substantially burden the exercise of his sincerely held religious beliefs; if he does so, the Parole Commission must then demonstrate that (1) the parole conditions were imposed in furtherance of a compelling government interest, and (2) the parole conditions are the least restrictive means of furthering that compelling government interest. (Id., at 1344) (Internal citations omitted).

Under those standards, Judge Moore concluded that Yahweh had not produced "any evidence" to overcome the Parole Commission's determination that Yahweh posed an "extreme" risk to the community - or to overcome the Parole Commission's determination that the conditions imposed were the "least restrictive means capable of protecting that interest." (Id., at 1347).

While he agreed that "there are followers of the Nation of Yahweh who are peaceful, law-abiding individuals - indeed, exemplary citizens," Judge Moore also concluded that there is "no readily apparent mechanism for distinguishing the peaceful, law-abiding followers from those who are not peaceful, and not law abiding." (Id., at 1349). He also observed that "[t]he Parole Commission need not wait for harm to occur before awakening to its responsibility of protecting the community." (Id., at 1350).

Although the Court refused to change the special conditions at this time, defense counsel Jon May of Fort Lauderdale was pleased with the ruling because it established a means of challenging Parole Commission actions without having to risk a violation, it insured that there will be an impartial arbiter over future, expected challenges, and the Court's decision recognized the First Amendment interests at stake.

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