Vol. 8, Nos. 46	Covering Cases Published in the Advance Sheets through November 12, 2001

Highlights of this Issue:

Traffic Stops - and the Reinterpretation of Terry v. Ohio:

• In Holt, a divided en banc court from the Tenth Circuit, reversed its existing Circuit precedent, rewrote the rules established in Terry v. Ohio, and held that a police officer conducting a traffic stop was justified in asking a motorist about the presence of a weapon in the car, even in the absence of any particularized suspicion that he possessed such a weapon.
  

Prosecutorial Delays - and Remedies:

• In Gross, a decision that contains an excellent analysis of the burdens of proof required to justify the dismissal of an indictment based on pre-indictment delay, Judge Johnson of the E.D.N.Y. dismissed an indictment for bank fraud against three defendants based on an unjustified and "extremely" prejudicial ten year pre-indictment delay.
  
  
  
• In Garcia, Judge Sweet of the S.D.N.Y. granted an alien who pled guilty to illegal reentry a nine month reduction in his sentence because the Government had delayed prosecuting him on that charge for nine-months until after he had completed his sentence on a different charge that could have been grouped with the illegal reentry charge.

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

• In Astronomo, Judge Gertner of the D.Mass. presented a damning critique of the Government's practice of using the sentencing hearing (where it can litigate complex legal and factual issues in a "second string fact finding process") as a means of bypassing the more stringent burdens of proof required by the Constitution. She then rejected the Government's call for a series of sentencing enhancements for a defendant who pled guilty to money laundering because the evidence proffered in support of those enhancements bore "little relation to the allegations contained in the indictment, the facts to which the defendant pled guilty, or his actual criminal conduct."
  
  
  
• In Maung, the Eleventh Circuit reversed the imposition of an "in the business" sentencing enhancement under U.S.S.G. § 2B6.1(b)(2) (sometimes called the "fencing enhancement") on a defendant who helped process phony paperwork for stolen cars but who did not personally participate in receiving and selling the stolen cars.

United States v. Holt, 264 F.3d 1215 (10th Cir. 2001) (En Banc) (Judge Ebel)

This is an important Fourth Amendment decision that deals with the permissible scope of police questioning during routine traffic stops. The law governing that topic was established by the Supreme Court in its seminal decision, Terry v. Ohio, 392 U.S. 1 (1968). As noted by Judge Lucero in his dissent, Terry established the proposition that a police officer may not search a car during a routine traffic stop without an "articulable and reasonable belief [that] the motorist is potentially dangerous." (Id., at 1239). In fact, the Supreme Court went further in Terry and made clear that courts will defer "not to [the officer's] inchoate and unparticularized suspicion or hunch,' but to the specific reasonable inferences which he is entitled to draw." (Terry, id., at 27).

In this en banc case, a 5 to 4 majority of judges from the Tenth Circuit expressly overruled its own line of prior precedent, and effectively adopted a new "bright-line rule" that substantially revamps Terry by holding that "[d]uring a routine traffic stop, an officer may ask the stopped motorist whether there is a loaded firearm in the car even in the absence of particularized suspicion of the existence of such a firearm." (Id., at 1218) (Emphasis added).

That ruling overturned a suppression order that had originally been granted by the district court on the grounds that the defendant's Fourth Amendment rights had been violated. The defendant, Dennis Holt, was stopped at a vehicle checkpoint in Oklahoma, allegedly on the basis of a seatbelt violation. He was asked to leave his car and sit in the police officer's patrol car. He was then asked whether he had any guns in his car. The police officer later testified that Holt admitted he had a gun in the car and that Holt gave his consent to search the car. Holt denied both statements at a suppression hearing; but the district court rejected Holt's testimony on those issues as "incredible." (Id., at 1238, n. 1).

In any event, the car was searched. A gun and some drug paraphernalia were found; and that led to a subsequent search of Holt's residence, where drugs were found. After Holt was arrested on drug and gun charges, he filed a motion to suppress evidence seized. The district court granted the suppression motion on the grounds that Holt's Fourth Amendment rights were violated when he was questioned about the presence of weapons in his vehicle incident to a traffic stop. In a decision previously reported at 229 F.3d 931 (10th Cir. 2000), a panel from the Tenth Circuit affirmed the suppression order. The Government then filed an interlocutory appeal and here the en banc court reversed the suppression order.

There were six different opinions in this case, including three separate dissenting opinions; and, because some of the opinions overlapped with each other, it is difficult at times to divine the full scope of the Court's ruling. [For example, Judge Henry, one of the concurring judges, expressed the view that the majority's decision merely established "a narrow personal safety exception to the Terry scope and duration." (Id., at 1237)]. Whatever the intended scope of the majority's ruling, there are, however, a number of factors which make that ruling remarkable - if not problematic.

First, the majority's decision unquestionably rewrote the rules laid down by the Supreme Court in Terry. As Judge Lucero commented: "Allowing the police in this case, and in all future cases in which there is no particularized suspicion, to interrogate stopped motorists as to the presence of loaded weapons is contradictory to the rule laid down in Terry. . . . It seems extraordinary to me that we, as a court, are arrogating unto ourselves the right to alter the clearly established Supreme Court precedent in Terry, and are thereby eroding the constitutional rights of American citizens. If the jurisprudence of the United States Supreme Court is to be altered, that task belongs to the Court itself." (Id., at 1239).

Second, the search at issue in this case was far from a "routine" traffic stop. Even the majority conceded the pretextual nature of the stop in question: a police checkpoint had been established as a ruse simply to catch this particular defendant. "The admitted impetus for establishing a checkpoint at this location was the officers' suspicion that the defendant, Dennis Holt, who lived in the area, was transporting drugs" along that road. (Id., at 1218). The pretextual nature of the stop was further emphasized by the fact that Holt was never even given a ticket for his alleged seatbelt violation.

Finally, the majority's justification for its ruling is highly suspect under the facts of this case. To support its ruling, the majority first recited a list of gory statistics about the number of police officers killed in the line of duty each year. It then expressed the concern that "[t]he terrifying truth is that officers face a very real risk of being assaulted with a dangerous weapon each time they stop a vehicle." (Id., at 1223). Those two factors led it to conclude that police officers in today's society must be given "wide latitude" to discern the threat the motorist may pose to officer safety, and thus a new rule was needed to assure them of that safety.

Unfortunately, whatever the validity of that police-safety concern generally, the uncontested facts of this case belie any claim of any threat - credible or otherwise - to the safety of the police officer in this case. The Government never argued that the police officer believed that Holt was armed and dangerous. (Id., at 1231). The police officer even testified at the suppression hearing that he did not "remember feeling threatened" by Holt prior to asking him about the presence of a loaded weapon in his car. (Id., at 1238). And, most significantly, by the time the officer asked Holt if there was a weapon in his now-vacated car, Holt had been neutralized: he was siting in a patrol car, safely removed from the weapon that was found.

In short, the cornerstone of the majority's ruling in this case was its perception that police officers needed greater protection. Building on that perception (but ignoring both (a) the pretextual nature of the vehicle checkpoint that was established in this case to catch this particular defendant and (b) the absence of any articulable threat to the police officer involved in this case), the majority obviously decided that the time had come to legislate, by judicial fiat, a new rule that gives the police the right to interrogate stopped motorists about guns that may be in the car, whether or not they have any suspicions that such guns exist. Thus, we have another broad expansion of the category of permissible police interrogations that do not require protections such as the reading of Miranda rights - based on concerns that simply did not exist in this case.

U.S. v. Astronomo, Crim. No. 00-10311-NG (D.Mass. 11/26/2001) (Judge Gertner)

Once again, Judge Gertner of the D.Mass. has firmly rejected a Government attempt to allow it to seize virtual control over the sentencing process - here by attempting to engineer a dramatically increased sentence based on facts which, she concluded, bore "little relation to the allegations in the indictment, the facts to which the defendant pled guilty, or his actual criminal record." Judge Gertner's ruling touched on a number of important sentencing topics, including an important distinction between the law of conspiracy and the law of attempts.

Based largely on information supplied by one Roger Nelson, a cooperating witness who masterminded the sting operation that led to the charges in this case, the Government filed not one - but two - money laundering indictments against Edwin Bacus Astronomo - one before Judge Gertner, and (probably to hedge its bets) a separate one before Judge Tauro.

And who was Astronomo? Judge Gertner described him as a 46-year old, naturalized citizen from the Philippines, who scratched out a living as a maintenance man by day, . . . and as a doorman at a nude bar and later at the counter of an adult' bookstore . . . at night. He lived modestly, and received at best a few hundred dollars from his participation in the charged money laundering scheme." Apart from a single arrest for disorderly conduct some eight years earlier (which was continued without a finding and then dismissed), Astronomo had no criminal record.

Perhaps blinded by visions of career-making prosecutions, the Government jumped at the chance to make a pact with Nelson. He became one of those highly-paid confidants of the Government despite his congenital unreliability. Unfortunately for the Government, Nelson provided little more than suggestion, innuendo, exaggeration; and even then his reports were "rife with fabrication and recollection of events which never occurred" and filled with "misinformation, speculation and inaccuracies." Nevertheless, as so often happens, even after the lead FBI agent recommended that Nelson's services be terminated "for his egregious' conduct and misrepresentations," the Government stubbornly and tenaciously clung to him until his death in 1998. A more discerning Judge Gertner described Nelson as "perhaps the greatest puffer' of all"; and quite clearly she recognized that the magnified charges against Astronomo were an attempt by the Government to salvage something out of its embarrassing pact with Nelson.

In the case before Judge Gertner, Astronomo was charged with and pled guilty to one count of money laundering conspiracy (in violation of 18 U.S.C. § 1956(h)), and one count of attempted money laundering (in violation of 18 U.S.C. § 1956(a)(3)(B)). Those two charges arose out of four separate transactions in which the total amount attempted to be laundered was alleged to be $84,000.

[In the case before Judge Tauro, Astronomo was also charged with a money laundering conspiracy arising out of a separate transaction that allegedly involved some $20,000 in laundered money. Astronomo pled guilty to that charge; and he was scheduled to be sentenced in that case at a later date. However, the charges in the case before Judge Tauro impacted the sentencing in the instant case, because the Government contended that the two cases "should be considered separate and unrelated under U.S.S.G. § 3D1.3 and 4, which would increase the Guideline Range." Judge Gertner rejected that contention, stating: "There is no basis to do so. Both cases are related, due to the similar nature, the individuals involved . . . and the time period."]

In the instant case, the Guideline range for the crimes to which Astronomo pled guilty was 37 to 46 months. The Government, however, advocated a sentencing range of 78 to 97 months based on three enhancements which it proposed: an increase in the amount of funds laundered; and an increase in Astronomo's criminal history; and an enhancement based on his role in the offense.

Judge Gertner rejected each of those proposed enhancements, concluding that "[b]y raising these issues at sentencing, the government bypasses the more stringent mechanisms of proof under the Constitution -- indictment, trial -- and chooses to litigate complex factual and legal issues in what one commentator described as a second string fact finding process.' Not only were the accusations the government now makes not subject to any trial, the government did not bother to investigate many of them."

The Government contended that the Guidelines required a sentencing court to consider as "relevant conduct" not just the amount of funds actually laundered, but also the amount that the parties intended to launder. While Judge Gertner agreed with that proposition in principle, she stated that, in making a relevant conduct determination, she could not "jettison the common law standards for criminal liability." In that context, she had two major problems with the Government's evidence in support of its position.

First, she concluded that the Government had confused the substantive law of attempts and the substantive law of conspiracy. The Government argued that Astronomo should be sentenced based on a greater amount of laundered funds than was charged because of numerous conversations he had with potential targets fed to him in the Government's sting. But, Judge Gertner countered, the "substantive law of attempts does not criminalize bad intentions or bad thoughts."

Citing various authorities, she held that the crime of attempt "consists of (1) an intent to do an act or to bring about certain consequences which would in law amount to a crime; and (2) an act in furtherance of that intent which, as it is most commonly put, goes beyond mere preparation"; and that there are two elements to attempt: "(1) an intent' to commit the substantive offense and (2) a substantial step towards its commission."

Put otherwise, she emphasized that to include "attempt" conduct as part of "relevant conduct" for sentencing purposes, the evidence must show that the crime "will take place unless interrupted by independent circumstances." Here, she concluded, the "evidence" proffered by the Government was little more than "a glimmer in the eyes" of some of the Government's pre-selected targets - and, as such, was insufficient to support the Government's proposed increase in the amount of funds that should be attributed to Astronomo for sentencing purposes.

Second, citing numerous instances of the evidence that was proffered at sentencing, she concluded that the Government's evidence was "farfetched" and based on testimony that "could not have been more vague, speculative or, for that matter, inappropriate." She also emphasized that the "centerpiece" of many of the conversations noted by the Government was Roger Nelson - "the greatest puffer' of all."

Judge Gertner also rejected the Government's suggestion that Astronomo's sentence should be enhanced as a leader or organizer of an otherwise extensive' criminal scheme pursuant to U.S.S.G. 3B1.1(a) - for two reasons. First, that suggestion was belied by the Government's own description of Astronomo's role in the indictment. Second, "even if Astronomo laundered money multiple times, his role in each transaction remained the same. Just as a courier in a drug transaction remains a courier no matter how many trips she has taken, so a facilitator, like Astronomo, remains a facilitator no matter how often he plays the role."

Finally, Judge Gertner rejected the Government's contention that an upward departure was warranted in Astronomo's Criminal History Category pursuant to U.S.S.G. § 4A1.3 - in large part because of his own puffing to various Government agents that he was an experienced and polished criminal. (For example, he allegedly talked about a prostitution business in which he was engaged; but no one ever even investigated that claim.)

On that issue Judge Gertner first noted that the Guidelines "direct the Court to look at the formal record of conviction first, precisely so that judges do not try offenses long after memories dimmed, or are wrongly refreshed, after witnesses scatter and evidence degrades." Second, she observed that "the government would have me try not just similar adult criminal conduct, but wholly different conduct, and conduct never investigated, charged or remotely corroborated. to boot. While § 4A1.3 is phrased broadly, in fact the cases in which upward departures have been granted typically involve some sort of formal proceeding - a formal investigation by the police, a vacated sentence, or some official act that gives credence to the additional criminal conduct.

Judge Gertner concluded that Astronomo "may have been all that the Government portrays him to be. But the government has the burden of proof and notwithstanding how limited that burden is - fair preponderance of the evidence - it was not met here. . . . And in this second string fact-finding process, made even more second string' by the evidence the government presented, I cannot make head or tail of what the facts are."

Copyright © 2001 Punch and Jurists, Ltd.