Vol. 8, Nos. 44 & 45
Covering Cases Published in the Advance Sheets through November 5, 2001

Highlights of this Issue:

Supreme Court Decision - Limitation on Bivens Actions:

Batson Challenge Rejected - Italian-Americans Not a Cognizable Racial Group:

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

Apprendi Watch:

Limitations Period under 28 U.S.C. § 2255(4):

Rico v. Leftridge-Byrd, No. 00-4841 (E.D.Pa. 11/8/2001) (Judge Yohn)

In Batson v. Kentucky, 476 U.S. 79, 86 (1986) the Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment governs the exercise of peremptory challenges by a prosecutor in a criminal trial and that the "[p]urposeful racial discrimination in selection of the venire violates a defendant's right to equal protection . . . ." In the instant case, Judge Yohn of the E.D.Pa. held that Batson does not bar prosecutors from using peremptory strikes to keep persons of Italian-American ancestry off a jury, because Italian-Americans are not a "cognizable racial group" for purposes of Batson.

The petitioner in this case, Joseph Rico, was sentenced to life imprisonment after he was found guilty of first-degree murder in a state court trial. During jury selection, the prosecutor struck six jurors with Italian surnames. The defendant was granted a new trial when the Pennsylvania Superior Court held that the prosecutor's peremptory strikes were illegal under Batson. The Pennsylvania Supreme Court, in a decision that evoked five separate opinions, reversed and reinstated Rico's conviction.

Rico then filed his claim in Federal court, arguing that the Pennsylvania Supreme Court had violated "clearly established Federal law" within the meaning of 28 U.S.C. § 2254(d). Judge Yohn disagreed and held that the Pennsylvania Supreme Court's decision was neither "contrary to" nor an "unreasonable application of" Federal law. While he acknowledged that the U.S. Supreme Court "might eventual hold" that the Pennsylvania decision was incorrect, he wrote that "the potentially incorrect result of an application of law does not make the application unreasonable."

In refusing to expand the scope of Batson, he noted that Rico had pointed "to no other U.S. Supreme Court precedent that recognizes Italian-Americans as a cognizable racial group." He also concluded that the Supreme Court's decision in J.E.B. v. Alabama, 511 U.S. 127 (1994) (which expanded Batson to include the intentional use of peremptory challenges based on gender) signaled "the end of the expansion of groups to be specially protected during voir dire."

Finally, Judge Yohn noted that Batson and its progeny had established a method for recognizing cognizable racial groups - and that the petitioner had failed to establish those factors. Citing cases from the Third Circuit and the First Circuits, he stated that those factors require a defendant to show that the ethnic group is first defined and limited by some clearly identifiable factor or factors; second, that it possesses a common thread of attitudes, ideas or experiences; third, that it shares a community of interests such that the group's interest cannot be adequately represented if the group is excluded from the jury selection process; and fourth, that the ethnic group has experienced or is experiencing discriminatory treatment and is in need of protection from community prejudices. (US. v. DiPasquale, 864 F.2d 271, 277 (3d Cir. 1988) and U.S. v. Bucci, 839 F.2d 825, 833 n.11 (1st Cir. 1988)).

United States v. Busekros, 264 F.3d 1158 (10th Cir. 2001) (Judge Henry)

This case presents a microcosm of the puritanical nature of some of the new breed criminal laws that seem to permeate much of our current criminal justice system. No matter how feckless and counterproductive those statutes may be, they seem to stem from the ivory tower thinking that despair is better for ex-felons than rehabilitation.

One such statute (and the one at issue in this case) is 21 U.S.C. § 862, which is entitled "Denial of Federal Benefits to Drug Traffickers and Possessors." That statute is matched in its severity by its closely intertwined cousin, 21 U.S.C. § 862a, which is entitled "Denial of Assistance and Benefits for Certain Drug-Related Convictions." Both of those statutes authorize Federal judges to order the denial of a broad range of Federal benefits and assistance programs to persons convicted of State and Federal drug crimes. Depending on the severity of the crime for which the person is being sentenced and his or her prior record, the court is authorized to order a lifetime ban on eligibility for such benefits.

As with many of this new breed of wonderfully wistful criminal laws, they have their own novel patchwork of strange idiosyncrasies. Some of the more noteworthy examples include a denial of benefits to innocent "family members" of the convicted drug users (under the provisions of , 21 U.S.C. § 862a(b)), apparently on the theory that they too deserve some form of deprivation for the crimes committed by their relative. Similarly, while § 862(d)(1)(B) exempts certain retirement, welfare, Social Security, health, disability and similar benefits from the category of benefits that may be denied, § 862a(a) specifically states that the targeted individual shall not be eligible for "assistance under any State program funded under part A of title IV of the Social Security Act" or any food stamp benefits and programs. Even an addict can be denied the benefits of drug treatment programs unless the addict "declares" himself to be an addict and "submits" himself to a long-term treatment program for addiction. (21 U.S.C. § 862(a)(2)).

The instant case focused attention on another idiosyncrasy contained in these laws. The defendant pled guilty to a single count of using a telephone to facilitate a sale of 5.68 grams of methamphetamine. At his sentencing, the district court issued an order, pursuant to § 862, denying him any federal benefits for five years. The defendant appealed, arguing that the district court had erred since he was statutorily ineligible for any denial of benefits because he had cooperated and assisted the authorities in two state prosecutions. The Tenth Circuit agreed and reversed the order. It noted that, under the provisions of 21 U.S.C. § 862(e), a person who is a cooperating or testifying witness in the prosecution of a Federal or State offense may not be denied any Federal benefits. (Id., at 1160).

In the end, there may be a positive side to these "denial of benefits" statutes. After all, a defense attorney may be able to cross-examine a Government witness extensively about the exemption from the denial of benefits he or she has received in exchange for his or her testimony!

United States v. Ardley, No. 98-7033 (11th Cir. 11/20/2001) (Judge Anderson)

This decision is noted for Judge Tjoflat's highly persuasive dissent on the topic of the retroactive use of Apprendi on appeals. That dissent is particularly noteworthy because it eschews the common approach to the Apprendi retroactivity arguments ("My God, it will open up the floodgates of appeals") and instead focuses on, and crystalizes, the law and many of the arguments on retroactivity with unusual clarity.

In 1999, in an unpublished decision, the Eleventh Circuit affirmed the conviction and sentence of Barry Leon Ardley for unspecified drug crimes. Ardley appealed to the Supreme Court, arguing, inter alia, that his sentence was invalid because it exceeded the statutory maximum. After the Supreme Court rendered its decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), it granted Ardley's writ of certiorari, vacated the panel's earlier decision, and remanded the case back to the Eleventh Circuit "for reconsideration in light of Apprendi." (Ardley v.U.S., 531 U.S. 1063, 121 S.Ct. 751, 148 L.Ed.2d 654 (2001))

On remand, the panel never even got to the merits of the case - ruling instead that Ardley had "abandoned" his Apprendi claim because he had failed to raise his Apprendi argument in his initial brief on appeal. (U.S. v. Ardley, 242 F.3d 989 (11th Cir. 2001))

Appalled by the panel's refusal to consider the case on the merits, and the Eleventh Circuit's refusal to reconsider that ruling en banc, Judge Tjoflat penned his memorable dissent. He started by quoting from Griffith v. Kentucky, 479 U.S. 314 (1987), the case in which the Supreme Court "announce[d] and appl[ied] the rule of full retroactivity to criminal cases on direct appeal." In Griffith, the Supreme Court held that "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exceptions for cases in which the new rule constitutes a clear break' with the past." (Griffith, id., at 328).

Arguing that Ardley's sentence and conviction were not yet final when Apprendi was decided, Judge Tjoflat concluded that Ardley was absolutely entitled to the retroactive application of Apprendi and that the Eleventh Circuit had wrecked havoc with the law of retroactivity "by invoking a procedural rule regarding abandonment. The panel thus limits the reach of retroactivity by giving retroactive application to an intervening Supreme Court decision only if a litigant placed an argument mirroring the Supreme Court's decision in his initial brief on appeal, even if such argument ran counter to circuit precedent at the time the litigant submitted his brief." That approach, he maintained, "will have sweeping effects far beyond Apprendi cases."

[One of those "sweeping effects" was predicted by Judge Wood in her memorable dissent in U.S. v. Smith, 250 F.3d 1073 (7th Cir. 2001). In that case, she forcefully argued against a rule that would require defense counsel to be prescient enough to predict all future changes in the law by stating: "After this, defense counsel will have no choice but to file one kitchen sink' brief after another, raising even the most fanciful defenses that could be imagined based on long-term logical implications from existing precedents."].

While the arguments made by Judge Tjoflat do not necessarily apply to habeas appeals (since, in Teague v. Lane, 489 U.S. 288 (1989), the Supreme Court declined to extend Griffith's full retroactivity rule to cases on collateral review), his exegesis on the law of retroactivity is a repository of enlightening materials for anyone interested in that topic in the context of direct appeals.

A Reminder

Effective November 1, 2001, the Sentencing Commission enacted a new and dramatically different sentencing scheme for money-laundering crimes. By virtue of Guideline Amendment 634, the provisions of U.S.S.G. §§ 2S1.1 (which provided for a starting Base Offense Level of 23 (or 20 in some cases)) and 2S1.2 (which provided for a starting Base Offense Level of 17) have been stricken in their entirety and replaced by a new § 2S1.1 (Laundering of Monetary Instruments; Engaging in Monetary Transactions in Property Derived from Specified Unlawful Activity)

Under the new § 2S1.1, the starting Base Offense Level for money laundering crimes is now:
"(1) The offense level for the underlying offense from which the laundered funds were derived if (A) the defendant committed the underlying offense (or would be accountable for the underlying offense under subsection (a)(1)(A) of §1B1.3 (Relevant Conduct)); and (B) the offense level for that offense can be determined; or

(2) 8 plus the number of offense levels from the table in §2B1.1 (Theft, Property Destruction, and Fraud) corresponding to the value of the laundered funds, otherwise."

One of the principal benefits of the new provisions is that it will eliminate the ability of prosecutors to hold the threat of high-penalty money laundering charges over every fraud offense from bounced checks to Medicare fraud. As the Commission explained, these amendments are "designed to promote proportionality by providing increased penalties for defendants who launder funds derived from more serious underlying criminal conduct, such as drug trafficking, crimes of violence, and fraud offenses that generate relatively high loss amounts, and decreased penalties for defendants who launder funds from less serious underlying conduct, such as basic fraud offenses that generate relatively low loss amounts."

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