Vol. 8, Nos. 48
Covering Cases Published in the Advance Sheets through November 26, 2001

Highlights of this Issue:

Apprendi Watch:

Rule 41(e) Motions for the Return of Forfeited Property:

The Fifth Amendment - Improper Comments on a Defendant's Silence:

The Validity of Waiver of Appeal Provisions in Plea Agreements:

We wish all of our friends and subscribers a Happy Holiday Season and a Prosperous and Peaceful New Year. Our next issue of P&J will be posted on Friday, January 4, 2002.

United States v. Kelly, No. 00-2705 (3rd Cir. 12/05/2001) (Per Curiam)

As most Apprendi-watchers know, on August 9, 2001, a divided panel from the Ninth Circuit issued a highly controversial ruling to the effect that 21 U.S.C. § 841(b)(1)(A) and (B), two of the main provisions of the most commonly used Federal drug statute, are facially unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000). (U.S. v. Buckland, 259 F.3d 1157 (9th Cir. 2001)). Approximately a month later, that decision was vacated when the Ninth Circuit agreed to rehear Buckland en banc. Although the case was reargued before the full court on September 26, 2001, the en banc court has not yet rendered its decision.

While everyone awaits the new Buckland ruling, many of the other Circuits have gradually joined that debate and, to date, they have unanimously concluded that Buckland was simply wrong. For example, in U.S. v. Brough, 243 F.3d 1078, 1079 (7th Cir. 2001), the Seventh Circuit concluded that constitutional challenges to § 841 based on Apprendi are not only "meritless", they are "confused."

In the instant case, the Third Circuit took a similar position; and it listed decisions from the Fourth, Fifth, Sixth, Seventh, Tenth and Eleventh Circuits where those courts have rejected claims that Apprendi has rendered § 841 unconstitutional on its face. [For the record, we note that the Fourth Circuit case cited for that proposition, U.S. v. Meyst, is one of that Court's 300-plus unpublished decisions relating to Apprendi and, to date, it is only available at 2001 WL 1126642 at *1 (4th Cir. Sept. 25, 2001)].

United States v. Rodriguez-Aguirre, 264 F.3d 1195 (10th Cir. 2001) (Judge Ebel)

In 1994, the four appellants in this case were convicted of various counts of drug and money laundering crimes; and, following their direct appeal, those convictions became final in 1997. As part of its criminal proceedings against the appellants, in 1992, the Government seized huge quantities of property, including 51 parcels of real estate, race horses, vehicles, cash and personal property; and it commenced forfeiture proceedings against those assets which the appellants did not contest.

However, included among the assets seized were 127 items of property for which the Government never commenced any forfeiture proceedings; it just seized those items and refused to return them. (Id., at 1211). The 127 items included $3,233,000 in U.S. currency, various vehicles, mobile homes, "portable buildings," and large quantities of personal clothes (e.g., 30 Italian wool suits, valued at $56,000). (Id., at 1202, n.3). After the statute of limitations ran on the Government's ability to commence forfeiture proceedings against the 127 items, the appellants commenced their own motion for the return of those items, pursuant to Fed.R.Crim.P. 41(e).

The Government argued that the motion should be dismissed on a number of grounds, including that it was barred by the applicable statute of limitations and that it was barred by the equitable doctrine of laches. The Magistrate who heard the motion recommended that the motion be dismissed, inter alia, on the grounds of laches, "because Appellants did not bring their motion until approximately seven years after the property was seized, and because the extended criminal litigation in which Appellants had been involved during that time was no excuse for the late filing of Appellants' motion. The magistrate made no finding as to whether the United States was materially prejudiced by Appellants' delay." (Id., at 1207). Judge Conway of the D.N.Mex. affirmed the magistrate's findings; and the appellants appealed.

The Tenth Circuit reversed, holding that (a) the doctrine of laches was inapplicable to this case (id., at 1207-1209); (b) Rule 41(e) motions are governed by the general six-year statute of limitations contained in 28 U.S.C. § 2401(a) (id., at 1209-1210); and (c) in cases where the government fails or refuses to commence formal forfeiture proceedings against property, the date on which that statute of limitations commences to run is the date on which the criminal proceedings against the claimant have concluded (id., at 1210-1213).

The Court rejected the magistrate's ruling on the applicability of the doctrine of laches for two reasons. First, citing a number of cases, it concluded that "[w]hen a limitation on the period for bringing suit has been set by statute, laches will generally not be invoked to shorten the statutory period." (Id., at 1208). Second, it noted that laches "is not mere delay, but delay that works a disadvantage to another. . . . Thus, in order to prove the affirmative defense of laches, the defendant must demonstrate that there has been an unreasonable delay in asserting the claim and that the defendant was materially prejudiced by the delay." (Id.) In this case, the Court found that "the United States has not established material prejudice due to Appellants' delay in filing their Rule 41(e) motion and that the district court erred in dismissing Appellant's complaint absent such a showing." (Id., at 1209).

Next, joining with the Second, Fourth and Seventh Circuits, the Court held that "the bringing of Rule 41(e) motions is governed by the general [six-year] statute of limitations set forth at 28 U.S.C. § 2401(a)." (Id., at 1210). However, the Court then immediately noted that "[t]he more difficult question in this case . . . is not whether the § 2401(a) limitations period applies but at what point that limitations period started running against the Appellants."

The Government argued that the limitations period should have commenced when the property was seized in 1992. Citing U.S. v. Minor, 228 F.3d 352, 359 (4th Cir. 2000), the Court held that, in cases where "there has been an actual administrative forfeiture of which the claimant is or should be aware," the statute of limitations begins to run "on the earlier of the following: when he first became aware that the government had declared the currency forfeited, or when an inquiry that he could reasonably have been expected to make would have made him aware of the forfeiture." (Id., at 1211). However, in cases where the property in question "has not been the subject of formal criminal, civil or administrative proceedings," then the date on which the claimant can reasonably be expected to inquire after such property - and the date on which the statute of limitations therefore begins to run - is the date on which the criminal proceedings against the claimant have concluded." (Id., at 1212).

The Court reasoned that "[p]rior to that point in time, the government arguably has the right to possess the property as evidence (at least, absent a successful suppression challenge) and the defendant consequently has no reasonable expectation that it will be returned. After the criminal proceedings conclude, however, the government has no right to retain the property, absent the commencement of forfeiture proceedings, and its continued retention of the property from that point forward could legitimately be viewed as a deprivation of the defendant's due process rights. It is at this point, then, that a criminal defendant can reasonably be expected to make an inquiry that would place him on notice of the government's intention to retain the property, thus allowing him to discover that his property is being held by the government despite the lack of forfeiture proceedings." (Id., at 1213).

United States v. Hare, 269 F.3d 859 (7th Cir. 2001) (Judge Easterbrook)

It is hard to pinpoint precisely when appeal waiver provisions first came into vogue in plea agreements as a means of cutting off all appeals; but in the past few years they have certainly roared into common practice and have now become standard in most plea agreements. By our count, every Circuit but the D.C. Circuit has upheld the general validity of such provisions so long as they are knowingly and voluntarily made, although some Circuits, like the Second and Third, have added a further caveat that they may not be enforceable if they work a miscarriage of justice. (See, e.g., U.S. v. Yemitan, 70 F.3d 746 (2nd Cir. 1995) and U.S. v. Khattak, No. 00-4169 (3rd Cir. 12/06/01)).

Despite many appeals over the validity of such provisions, this is the first case we have seen in which the defendant challenged the enforceability of such provisions on the grounds that they represent a "contract of adhesion." Specifically, the defendant in this case argued that "public policy" forbids the enforcement of such provisions because "prosecutors refuse to enter plea agreements without waivers of appeal, and that as a result the agreement is a contract of adhesion'." (Id., at 862).

The Seventh Circuit gave relatively short shrift to that argument. First, in concluded that the defendant's underlying premise was "false" because (a) its own experience was that there are many plea agreements that do not contain a waiver of appellate rights, and (b) the prosecutor in the instant case had assured the Court during oral argument that while his office "always seeks [such] waivers as a negotiating position, . . . it makes some plea agreements without waivers when defendants refuse to consent." (Id.)

Second, the Court asked: "But what's wrong with a contract of adhesion anyway?" - and it then concluded that "[m]any contracts have standard terms that are not open to negotiation yet are routinely enforced." (Id.) Clearly, the issue raised by the defendant deserved more than a rhetorical question from the Court; and, equally clearly, hidden under the gloss of the Court's dismissive response are a lot of substantive and significant issues - some of which do indeed show "what's wrong with a contract of adhesion." For example, while the Supreme Court has never directly addressed the validity of appeal waiver provisions in plea agreements, it did address an analogous type of provision in Newton v. Rumery, 480 U.S. 386 (1987). In that case, a plurality of the Court upheld the general validity of "release dismissal agreements" - i.e., agreements under which the prosecutor agrees to drop all charges against a defendant provided the defendant agrees not to sue for any damages caused by his arrest, even if that arrest had no basis.

Like the Court in the instant case, the plurality's decision in Rumery appeared anxious to avoid discussing some of the meaty, substantive issues of the defendant's claim that "release dismissal agreements" are void as against public policy because they tempt prosecutors to trump up charges, suppress evidence of police misconduct, and leave deprivations of constitutional rights unremedied.

But Justice Stevens, joined by three other Justices, argued forcefully against a rule that automatically approves all provisions of a plea agreement solely by looking at whether the agreement was knowingly and voluntarily made. He wrote: "[E]ven though respondent's decision in this case was deliberate, informed, and voluntary, this observation does not address two distinct objections to enforcement of the release dismissal agreement. The prosecutor's offer to drop charges if the defendant accedes to the agreement is inherently coercive; moreover, the agreement exacts a price unrelated to the character of the defendant's own conduct." (Rumery, 480 U.S. at 411).

Justice Steven's comments in Rumery call to mind portions of Judge Gershon's recent decision in U.S. v. Duffy, 133 F.Supp. 213 (E.D.N.Y. 2001) in which she held that a common provision of the Government's "standard" proffer agreement that is used in the Eastern District of New York was so one-sided and unfair as to render it constitutionally defective and unenforceable - among other reasons because it violated the defendant's right to make "any sort of a meaningful defense." We would welcome any thoughts from our readers on cases in which they have argued that waiver of appeal provisions are void as against public policy - whether because they are contracts of adhesion or otherwise.

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