Vol. 8, No. 43	Covering Cases Published in the Advance Sheets through October 22, 2001

Highlights of this Issue:

Judicial Rarities - Dismissals of Indictments:

• In Correa-Gomez, Judge Wilhoit of the E.D.Ky. dismissed with prejudice an indictment charging a Hispanic defendant with the harboring of illegal aliens - after finding that the Government's proposed criminal prosecution reeked of selective prosecution when compared to 17 previous cases against similarly-situated non-Hispanic defendants who were given mere fines and warnings.
  
  
  
• In Gregory, Judge Mollway of the D.Hawai'i dealt with a series of increasingly severe superseding indictments filed against a husband and wife in an effort to get them to plead guilty. She ultimately dismissed the third superseding indictment against the husband on the grounds that it violated his rights to a speedy trial and involved excessive pre-indictment delay; but declined to do so against the wife because she could not show any "actual prejudice." Judge Mollway also concluded that the wife had failed to establish any presumption of prosecutorial vindictiveness.
  

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

• In Idarraga, Judge Preska of the S.D.N.Y. granted a defendant a significant downward departure pursuant to U.S.S.G. § 5K2.12, after accepting his arguments that he had been coerced into committing his drug crime by Columbian gangsters to whom he owed money, who threatened his life and the lives and safety of his wife and daughter unless he distributed drugs to pay off his debt.
  
  
  
• In Reed, the Sixth Circuit reversed as improper and unwarranted a 22-level departure granted to a former criminal defense attorney based on the district court's determinations that her money laundering convictions were atypical and her family circumstances were extraordinary.

Apprendi Watch:

• In McAllister, the Fourth Circuit rejected the position taken by a panel from the Ninth Circuit in the Buckland case, and joined with decisions from the Fifth, Sixth, Seventh and Tenth Circuits in holding that Apprendi did not render the provisions of 21 U.S.C. § 841 facially unconstitutional.
  

Restitution and The Supremacy Clause:

• In Bollin, the Third Circuit held that Federal forfeiture law supersedes the garnishment protection that state law provides for funds in an individual retirement account - in a decision that also explores the ever-growing tentacles of a plethora of new collection laws relating to restitution obligations.
  

Do Prisoners Have a Constitutional Right to Procreate?:

• In Gerber, a divided panel from the Ninth Circuit upheld a state prisoner's right to artificially inseminate his wife, rejecting the prison's contentions that legitimate penological objectives outweighed the exercise of that fundamental protected right.

United States v. Correa-Gomez, 169 F.Supp.2d 748 (E.D.Ky. 2001) (Judge Wilhoit)

In U.S. v. Armstrong, 517 U.S. 456 (1996), the Supreme Court held that, to prove a selective prosecution case, the claimant must prove two elements: first, he must demonstrate that the Federal prosecutorial policy had a discriminatory effect; and, second, that it was motivated by a discriminatory purpose.

Since Armstrong, there have been few cases which have found that the Government did engage in selective prosecution; and, indeed, because proof of a discriminatory purpose is so difficult to achieve, many commentators have suggested that Armstrong renders many meritorious claims to selective prosecution impossible to prove. See, e.g., Richard H. McAdams, "Race and Selective Prosecution: Discovering the Pitfalls of Armstrong", 73 Chi. Kent L.Rev. 605, 606 (1998); Melissa L. Jampol, "Goodbye to the Defense of Selective Prosecution", 87 J.Crim.L. & Criminology 932 (1997); Note, "Race-Based Selective Prosecution", 110 Harv.L.Rev. 165 (1996). See also, Randall Kennedy, "Race Crime and the Law" 357-59 (1967).

The instant case is noted as a rare example of a judicial finding of selective prosecution.

The defendant, who owned a chain of restaurants in Kentucky, was charged with seven counts of inducing illegal aliens to enter the United States and harboring them during their tenure as his employees, in violation of 8 U.S.C. § 1324(a)(1)(A). He moved to dismiss his indictment on the grounds of selective prosecution. In Armstrong, the Supreme Court held that "a selective-prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution." (Armstrong, id., at 464).

After a number of hearings on the defendant's claim, the Court ordered the Government to produce the records of all INS raids within the Eastern District of Kentucky from 1996 to 2000. In response to that order, the Government produced charts showing that, during the relevant time period, the INS had conducted seventeen raids against businesses within the District. As explained by Judge Wilhoit: "Fourteen of [those] businesses, more than eighty-two percent, are either publically held corporations or are owned and managed by non-Hispanics. The raids of these businesses resulted in the apprehension of 218 illegal aliens. . . . The sum total of these raids [was] six fines, six warnings and zero criminal prosecutions." (Id., at 752).

As the Government itself conceded, part of the reason for the lack of criminal prosecutions in the seventeen previous raids was the fact that an illegal alien's presentation of paperwork that appears genuine is a valid affirmative defense to a criminal charge under § 1324(a)(1)(A). In fact, citing Garcia v. Secretary of Labor, 10 F.3d 276, 283-84 (5th Cir. 1993), Judge Wilhoit noted that "[i]f an employer proves that he checked the required documents and retained the attested verification forms, he has established a rebuttable presumption' that he did so in good faith'." (Id.)

Judge Wilhoit then noted that "[t]he benefit of this rebuttable presumption has been extended to every business owner prior to Mr. Correa-Gomez. . . . Yet, in proceeding against Mr. Correa-Gomez as a criminal, the government has elected to not give him the same benefit of the doubt that it has extended to other, similarly situated, non-Hispanic business owners." (Id., at 753).

To prove a claim of selective prosecution, the defendant, of course, still had to prove both discriminatory effect and discriminatory purpose; but Judge Wilhoit concluded that the defendant had met both of those burdens. "Discriminatory effect is proven by showing that similarly situated individuals of a different race were not prosecuted'" (id., at 750) - a fact which he deemed was evident from the Government's own charts of the 17 previous raids. Judge Wilhoit was particularly perturbed by the Government's admission that it had decided to seek a different punishment in its case against Mr. Correa-Gomez: "Most stunning, however, is the government's admission that INS officials affirmatively predetermined the appropriate punishment for offenses which had not yet been uncovered. The discriminatory effect of such a prosecutorial policy is disenchantingly evident." (Id., at 754).

Proof of discriminatory purpose is more difficult because "it involves an inquiry into whether the government acts because of' the defendant's status rather than in spite of' his status." (Id., at 753). However, Judge Wilhoit concluded, "[w]here direct evidence of discriminatory purpose is unavailable, the alleged unconstitutional purpose must be examined in the context of: 1) disparate impact; 2) historical background; 3) specific events leading up to the challenged decision; and 4) any associated legislative or administrative history." (Id., at 751, citing Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266-67 (1977)).

Applying those factors to this case, Judge Wilhoit held: "While there is no legislative or administrative history associated with the decision to prosecute [Mr. Correa-Gomez], the impact, background and events leading up to this prosecution are viewed as significant by the Court. Reviewing the government's disclosures, it becomes apparent that this defendant is not unlike those defendants whom the government has chosen to simply fine or warn. . . . The stark and dramatic differences between this case and previous cases demonstrates that something other than the allegation of his employment of illegal aliens motivated the government's decision to prosecute Mr. Correa-Gomez. When a facially neutral law is applied in a selective and inequitable manner, the very foundation of the rule of law is challenged." (Id., at 753).

The Government of course attempted to defend the non-discriminatory purpose of its criminal case against Mr. Correa-Gomez, by pointing to some esoteric distinctions and justifications of its prosecution. Barely pausing, Judge Wilhoit dismissed those arguments outright, stating: "These hindsight justifications are illusory and belittle the travesty of immigration enforcement." (Id., at 754). Based on all those findings, Judge Wilhoit granted the defendant's motion to dismiss his indictment with prejudice!

United States v. Gregory, 160 F.Supp.2d 1166 (D.Hawai'i 2001) (Judge Mollway)

Judge Mollway started her decision in this case by stating: "This case presents the unusual circumstance in which a defendant pleads guilty to the charges in an indictment, is sentenced to a prison term, and then, after he has completed that prison term, faces related charges in a superseding indictment in the same case." (Id., at 1170). The case is another graphic example of the maxim: "Don't cross the Government!"

Here's what happened. In 1999, defendant Miguel Gregory (Gregory) and two co-defendants were charged with conspiracy to distribute marijuana (Count 1) and possession of approximately 16 pounds of marijuana (Count 2). Some four months later, a second superseding indictment was filed, principally to add Challa Johnson (Johnson) as a defendant. (At that time Johnson was Gregory's girlfriend; and they ultimately married.) After Johnson was arrested, the Government sought Gregory's cooperation against her; and it threatened to file additional money laundering charges against him if he did not cooperate. (Id., at 1171). He refused to cooperate - which of course didn't endear him to the Government.

On March 13, 2000, Gregory pled guilty to both counts of the second superseding indictment without a plea agreement; and he asserted that Johnson had not been involved in any illegal activities - which again didn't endear him to the Government. Gregory was then sentenced to 247 days in prison and 8 months home confinement.

Johnson, on the other hand, refused to plead - which didn't endear her to the Government; so she was scheduled to go to trial on the two drug counts on March 20, 2001. By that time Gregory had completed his sentence; and Johnson informed the Government that she might call him as a witness in her trial - which again didn't endear her to the Government.

The Government then struck back. As explained by Judge Mollway: "On March 14, 2001, four working days before Johnson's trial was scheduled to start, a Third Superseding Indictment was filed against Gregory and Johnson. The Third Superseding Indictment repeated the two drug charges against Johnson and added nine money laundering counts . . . against Johnson and Gregory." (Id., at 1172). Given the new indictment, the trial was continued until August 14, 2001.

Gregory and Johnson moved to dismiss the Third Superseding Indictment on a number of grounds. They each claimed that it violated their rights to a speedy trial under the Sixth Amendment and that it violated their due process rights under the Fifth Amendment due to excessive preindictment delay. Johnson also moved to dismiss the indictment on the grounds of prosecutorial vindictiveness, claiming that the addition of the money laundering charges was in retaliation (a) for her exercise of her right to go to trial rather than plead guilty and (b) for her exercise of her right to have her husband to testify on her behalf.

Ultimately, Judge Mollway granted Gregory's motions to dismiss the Third Superseding Indictment against him; but declined to grant Johnson's motion to dismiss the indictment against her.

In a textbook analysis of Gregory's Sixth Amendment speedy trial claim, Judge Mollway concluded that he had met at least three of the four criteria established by the Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972) to justify dismissal of the indictment against him. She concluded that the 22-month delay between Gregory's original indictment and his new trial date passed the point of a "presumptively prejudicial delay." (Id., at 1173). She concluded that there were "no legitimate prosecutorial objectives that justified the government's delay." (Id., at 1174). And she concluded that Gregory had established "actual prejudice" because, when he pled guilty to the original drug charges, he "made admissions under oath to some of the predicate facts that the government must prove under the Third Superseding Indictment"; because his earlier guilty plea "limits his ability to testify" at his new trial; and because he would loose certain benefits at sentencing, including the right to have his offenses grouped. (Id., at 1176). The only one of Barker's four balancing tests that were not clearly in his favor was his assertion of his rights. Judge Mollway concluded that factor was "neutral" because "the mere fact of a proper, timely assertion [of a speedy trial violation] does not warrant dismissal." (Id., at 1175).

Similarly, Judge Mollway concluded that Gregory had met the two-part test to show that the lengthy preindictment delay had denied him his Fifth Amendment rights to due process: he showed "actual, nonspeculative prejudice from the delay"; and he showed that "the length of the delay, when balanced against the reason for the delay, [offended] those fundamental conceptions of justice that lie at the base of our civil and political institutions." (Id, at 1178).

Johnson's position was far, far different. Because she had not previously been tried on any charges, her claim of prejudice was significantly different than her husband's. While she argued that the delay in her trial had prejudiced her ability to mount a defense to the charges, she could not point to any witnesses or evidence that was lost to her because of the delay. Thus, Judge Mollway denied Johnson's motions for dismissal of her indictment based on the delays that occurred.

While most rational observers would agree that the Government had engaged in vindictiveness against Johnson, her claim of prosecutorial vindictiveness was effectively foreclosed by the Supreme Court's patently unrealistic ruling in U.S. v. Goodwin, 457 U.S. 368 (1982). In that case, the majority concluded that a prosecutor's decision to file additional charges against a defendant who has refused to plead guilty does not give rise to a presumption of vindictive prosecution. Justices Brennan and Marshall dissented on the grounds that the majority simply ignored the fact that such a prosecutorial decision "can easily support the inference of a realistic likelihood of vindictiveness'" (Goodwin, id., at 391); but Goodwin is the law of the land and the conduct of prosecutors is governed by its rule of law.

But not all was lost. We have learned from Johnson's counsel, James A. Bustamante of San Francisco, that the Government finally decided to drop the money laundering charges against Johnson in exchange for her guilty plea to the same two drug counts for which her husband was convicted.

United States v. Idarraga, No. 00 Cr. 979 (LAP) (S.D.N.Y. 10/31/01) (Unpublished Order) (Judge Preska)

In theory, the Guidelines recognize that a person may commit a crime under the pressure of coercion or duress; and, while that is not a complete defense to the commission of the crime, the Guidelines do permit the sentencing court to take those circumstances into account as extenuating factors when sentencing the defendant. Thus, U.S.S.G. § 5K2.12 states in part: "If the defendant committed the offense because of serious coercion, blackmail or duress, under circumstances not amounting to a complete defense, the court may decrease the sentence below the applicable guideline range."

In practice, departures based on § 5K2.12 are extremely rare. We have seen a few cases in which courts have granted "coercion and duress" departures where the defense was able to argue successfully the concept of "imperfect entrapment" - i.e., the government agents had engaged in a form of coercion or "aggressive encouragement" that didn't rise to the level of entrapment but which contributed to the commission of the crime. (See, e.g., U.S. v. McClelland, 72 F.3d 717 (9th Cir. 1995) and U.S. v. Garza-Juarez, 992 F.2d 896 (9th Cir. 1993)). We have also seen a few cases in which the courts granted a departure pursuant to § 5K2.12 in cases where the defendant asserted the "battered woman" defense. (See, e.g. U.S. v. Sammoury, 74 F.3d 1341 (D.C.Cir. 1996) and U.S. v. Hall, 71 F.3d 569 (6th Cir. 1995)).

The instant case is the first case we have seen in which the defendant was granted a "coercion and duress" departure based on his claim that he was forced to become involved in distributing heroin because he was being threatened by gangsters to whom he owed money.

Luis Fernando Casallas-Orjuela (Casallas), a Columbian citizen and one of the defendants in this case, was arrested by the DEA in August, 2000 after a consensual search of his hotel room produced 4.8 kilograms of heroin, some $14,000 in cash, and several emeralds. He was charged with conspiracy to possess with intent to distribute in excess of one kilogram of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). In March, 2001, he pled guilty without a plea agreement (a practice, sometimes called entering a "blind" plea of guilty, that seems to be growing in use principally to avoid the prosecutors' increasingly rigid and standard position that defendants who sign plea agreements must agree to waive their rights both to appeal their sentences and to seek any downward departures - at least not unless approved by the prosecutors.)

From the outset, defense counsel Joseph A. Bondy of New York argued that Casallas had been forced into committing his crime by unscrupulous emerald dealers in Columbia to whom Casallas had become indebted in an emerald transaction gone awry. Mr. Bondy contended that Casallas was made an offer that "he was powerless to refuse": he had been directed to enter the United States and work off his debt by engaging in heroin distribution to avoid death pr physical harm to himself, his wife and his six-year old daughter.

In numerous proffer sessions with the U.S. Attorney's Office, and in Casallas' written statement of acceptance of responsibility, Mr. Bondy repeatedly emphasized that, while Casallas was guilty of the charged drug crime, his crime was the result of coercion and duress. Ultimately, those efforts paid off: in its Presentence Report, the Probation Department recommended a downward departure, pursuant to U.S.S.G. § 5K2.12, on the grounds of coercion and duress.

As part of his sentencing strategy, Mr. Bondy also submitted a 12-page Sentencing Memorandum, and eight supporting Exhibits, to Judge Preska, urging the court to grant a significant downward departure from the Guideline sentencing range of 108-135 months "due to the extreme duress and coercion that drove Mr. Casallas to deviate from an otherwise law abiding life to commit the crimes charged against him. But for the pressure being exerted upon him by unscrupulous people in a country ravaged with war, crime and government corruption, Mr. Casallas would not be before this Court. His conduct was solely the result of his fear that he and his family would be harmed, kidnapped, or killed if he did not pay off the debt he incurred through being sold bad quality emeralds."

The Government opposed any such departure. It argued that the alleged threats were not specific enough to support a departure; and that, if Casallas was being pressured, he could have told Columbian authorities, or DEA authorities in Columbia, or the American police once he arrived in the U.S. Casellas countered that those arguments ignored the corruption of the Columbian authorities and the vulnerability of his wife and child in Columbia.

Judge Preska ordered a Fatico hearing (U.S. v. Fatico, 579 F.2d 707 (2nd Cir. 1978)), during which Casallas testified as to his duress. Obviously relying on the defendant's demeanor and the credibility of his testimony, as well as the legal arguments raised and the precedents cited in the Sentencing Memorandum, she ultimately granted a significant departure and imposed a sentence of 60 months imprisonment.

While there is a paucity of clear precedent on the scope of § 5K2.12, one of the most detailed statements that we have seen was Judge Katz's ruling in U.S. v. Pacheco, 67 F.Supp.2d 495 (E.D.Pa. 1999), where he wrote: "Although the standard of coercion is broader than that needed to prove a complete defense at trial, a defendant still must prove duress at the sentencing by a preponderance of the evidence to qualify for such a departure. See U.S. v. Cheape, 889 F.2d 477, 480-81 (3d Cir.1989). A defense of duress requires a defendant to show an immediate threat of death or serious bodily injury, a well-grounded fear that the threat will be carried out, and no reasonable opportunity to escape the threatened harm. See U.S. v. Santos, 932 F.2d 244, 249 (3d Cir.1991). A defendant requesting a sentencing departure for duress need not show proof of immediacy or inability to escape, nor is the feared injury the defendant must show limited to bodily injury. See Cheape, 889 F.2d at 480. Moreover, the Sentencing Guidelines allow a court to adopt a subjective standard for determining duress, rather than the objective standard needed to prove duress as a defense. See United States v. Ezeibuaku, Crim. A. No. 94-42, 1995 WL 263983, at *4 (D.N.J. May 3, 1995); U.S.S.G. § 5K2.12."

The clear message from these rulings is that, because departures based on coercion and duress are so heavily dependant on subjective factors, their success will depend heavily on careful planning and the credibility of the defendant.

Copyright © 2001 Punch and Jurists, Ltd.