Vol. 8, Nos. 49 & 50
Covering Cases Published in the Advance Sheets through December 10, 2001

Highlights of this Issue:

Apprendi Watch:

Bail Hearings Required for Aliens Waiting Deportation:

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

Improper Allen Charge Voids Conviction:

Are Court Deputies Automatically Entitled to "Quasi-Judicial" Immunity?:

We wish all of our friends and subscribers a Happy Holiday Season and a Prosperous and Peaceful New Year.

United States v. Guevara, No. 00-1133 (2nd Cir. 12/18/2001) (Judge Jacobs)

A mere six days after the Second Circuit released its long-awaited, but disappointingly timorous, en banc decision in U.S. v. Thomas, No. 98-1051 (2nd Cir. 12/12/2001) (see P&J, 11/26/01), a panel of Judges from that same Circuit (namely, Judges Jacobs, Calabresi and Rakoff) published one of the most significant Apprendi decisions of 2001. In this case, the panel held that the Government must charge, present to the jury, and prove beyond a reasonable doubt a drug quantity which would subject a defendant to a sentence which is higher than he would otherwise receive under the U.S. Sentencing Guidelines. In other words, if the statutory mandatory minimum exceeds the Guideline range, the maximum sentence is determined by the Guideline range, unless the statutory quantity has been pleaded and proved to the jury beyond a reasonable doubt.

The defendant, Jorge Guevara, was convicted by a jury of conspiring to distribute heroin. Although the indictment charged him with conspiring to distribute "one kilogram or more" of heroin, the district court (Judge Martin of the S.D.N.Y.) instructed the jury that the amount of drugs alleged to have been distributed or possessed was not an essential element of the crime; and that it only had to find that the co-conspirators had agreed to distribute "any quantity of narcotics." Guevara did not object to that jury instruction.

At sentencing, Judge Martin sentenced Guevara to the statutory minimum of 240 months in prison provided in 21 U.S.C. § 841(b)(1)(A), based on his findings that the drug conspiracy involved more than one kilogram of heroin (and that Guevara was a prior drug felon), even though Guevara's Guideline range was only 168 to 210 months. Effectively, Judge Martin concluded that the 240 month mandatory minimum sentence provided for in § 841(b)(1)(A) trumped the top of the applicable Guideline range.

The panel disagreed and concluded that the 240 month sentence violated the principles established in Apprendi v. New Jersey, 530 U.S. 466 (2000) - notwithstanding that the sentence did not exceed the 360 month statutory maximum for prior drug felons. Specifically, it stated: "We conclude that, by virtue of Apprendi, a statutory mandatory minimum sentence specified in either § 841(b)(1)(A) or § 841(b)(1)(B) cannot mandate a prison sentence that exceeds the highest sentence to which the defendant would otherwise have been exposed (i.e., the top of the federal Guideline range, based on district court findings under the Guidelines, with or without a departure) if the applicability of subsections (A) or (B) depends on a finding of drug quantity not made by the jury."

The panel also concluded that the error in question was plain error, that it affected Guevara's substantial rights, and that it seriously affected the fairness and the public reputation of judicial proceedings - thus requiring that the sentence be vacated and that the defendant be resentenced.

Interestingly, the Court noted that the only Circuit that has addressed the narrow issue presented by this case ("i.e., where a defendant's sentence falls within the range of penalties authorized under the penal statute but exceeds the top of the applicable Guideline range based on a judge's finding of drug quantity by a preponderance [of the evidence]") was U.S. v. Harris, 243 F.3d 806 (4th Cir. 2001). In Harris, the defendant was sentenced to a mandatory minimum sentence that exceeded the Guideline range based on the district court's determination that the defendant had "brandished" a firearm and thus was subject to the enhanced mandatory minimum sentence specified in 18 U.S.C. § 924(c)(1)(A)(ii). The Fourth Circuit rejected the defendant's arguments that the imposition of that mandatory minimum sentence violated Apprendi, on the basis that "the relevant maximum under Apprendi is found on the face of the statute rather than in the Sentencing Guidelines." (Harris, id., at 809 n. 2.).

As noted in the 11/19/01 issue of P&J, on December 10, 2001, the Supreme Court granted certiorari in Harris, limited to a single, but highly significant question: "Given that a finding of brandishing', as used in 18 U.S.C. Sec. 924(c)(1)(A), results in an increased mandatory minimum sentence, must the fact of brandishing' be alleged in the indictment and proved beyond a reasonable doubt?" Effectively, the Harris issue is the same issue as raised in the instant case; and here the panel took a strong position that categorically and persuasively rejected the position taken by the Fourth Circuit in Harris.

The rationale of the panel's decision was that the Federal Sentencing Guidelines "constitute an overlay of binding law" that limits a sentencing judge's discretion; and, therefore, "the sentencing court must impose a sentence within the Guideline range absent a finding made as to an aggravating or mitigating circumstance not adequately considered under the Guidelines."

Thus, it continued: "Because the Guideline range is law that binds the sentencing court, we believe that the maximum sentence justifiable under the Guidelines (if less than the maximum sentence authorized under the applicable penal statute), is the prescribed maximum sentence to which a defendant may be exposed and sentenced. Following Apprendi . . . , therefore, if drug quantity is used to trigger a mandatory minimum sentence that exceeds the top of the Guideline range that the district court would otherwise have calculated (based on the court's factual findings, with or without departures), that quantity must be charged in the indictment and submitted to the jury."

The Supreme Court could not have asked for a better delineation of the issue raised in Harris; and now all Apprendi watchers must await that Court's decision in that case to see the future direction of Apprendi.

Patel v. Zemski, No. 01-2398 (3rd Cir. 12/19/2001) (Judge Sloviter)

In an important immigration decision that could affect thousands of immigrants detained while they fight deportation, the Third Circuit has ruled that an alien who is jailed at the beginning of deportation proceedings that stem from an "aggravated felony" conviction must be granted a bail hearing - despite an explicit prohibition against even considering bail release contained in the applicable statute - 8 U.S.C. § 1226(c) (which in commonly referred to as INA § 236(c)).

The panel concluded that "mandatory detention of aliens after they have been found subject to removal but who have not yet been ordered removed because they are pursuing their administrative remedies violates their due process rights unless they have been afforded the opportunity for an individualized hearing at which they can show that they do not pose a flight risk or danger to the community."

Since 1998, the Government has required that all immigrants who face deportation because of crimes that they have committed must remain in detention after they finish serving their time, no matter how long the deportation process lasts.

Although the panel stopped short of declaring the statute unconstitutional, it wrote that "[t]o deprive those individuals of their fundamental right to freedom furthers no government goal, while generating considerable cost to the government, the alien, and the alien's family. The goals articulated by the government - to prevent aliens from absconding or endangering the community - only justify detention of those individuals who present such a risk."

The petitioner in the instant case was a 55-year old citizen of India who has lived in the United States since 1984 and has been a lawful resident since 1990. He owns several Dunkin' Donuts franchises, bagel shops and hotels. His wife and four children also reside in the United States; and, in 1996, the INS approved Patel's application for naturalization. Prior to the completion of his naturalization process, the INS revoked its approval when it learned that Patel had pled guilty to a charge of harboring an undocumented alien. Patel was sentenced to five months in prison; and, while serving that sentence, the INS commenced deportation proceedings against him on the grounds that his conviction constituted an "aggravated felony."

After Patel finished his five-month sentence, he was transferred to an alien detention center in Pennsylvania, where he remains today. The Court noted that the Government has never suggested that Patel was either a flight risk or that he posed a risk to the community.

Since the mandatory detention policy went into effect, only one other Circuit Court of Appeals has addressed the validity of that policy, and it went the other way. In Parra v. Perryman, 172 F.3d 954 (7th Cir. 1999), the Seventh Circuit concluded that Congress has "plenary power" over the treatment of aliens, and since most aliens who face deportation as aggravated felons are ultimately deported, they have no liberty interest in being free from detention pending that final order. Parra, however, was decided before the Supreme Court's landmark decision in Zadvydas v. Davis, 533 U.S. 678 (2001), where the Supreme Court ruled that immigrants who had received a final deportation order could not be detained indefinitely, but must be released after six months, unless it was likely that some country would accept them in the reasonably near future.

The Third Circuit rejected Parra's reasoning, finding that aliens facing deportation do have a "fundamental" interest in their liberty that does not evaporate until the day their deportation is finalized. Since the right at issue was a fundamental right, the Court held that the Government must show a "compelling" interest that is furthered by a statute that deprives them of that right. "Due process requires an adequate and proportionate justification for detention - a justification that cannot be established without an individualized inquiry into the reasons for detention." Since the Government failed to show such an "adequate and proportionate justification" in this case, the Court reversed the denial of Patel's petition for habeas corpus and ordered him released from custody unless the Government makes a "prompt individualized determination" that his continued detention is necessary to prevent risk of flight or danger to the community.

Richman v. Sheahan, 270 F.3d 430 (7th Cir. 2001) (Judge Williams)

This is one of those barbaric, police brutality cases that makes your blood curdle. It is also a case that shows the arrogance of power and makes one wonder whether the ever-growing shield of immunity so often and so easily granted to law enforcement officials actually encourages the type of despicable acts of excessive force as those described in this case.

Here's what happened - as described by the Court: "Marcella Richman appeared in the Circuit Court of Cook County, Illinois, to challenge a traffic citation. She was accompanied by her son, Jack Richman, who planned to testify as a witness. The Richmans waited in the courtroom for several hours before their case was called, and then the judge continued the hearing to a future date. The Richmans attempted to ask a question but the judge quieted them, and when Jack continued to speak, the judge ordered him restrained. Two Cook County sheriff's deputies began to take him into custody and twelve more deputies then entered the courtroom. According to the complaint, the fourteen deputies attacked Jack, forced him to the floor, sat on and handcuffed him. Jack, who was physically disabled and required the use of a cane, did not resist the deputies' attempt to restrain him, nor did his mother, who was restrained by four other deputies. While Jack was handcuffed and on the floor, he emptied his bladder and bowels, and he appeared to have stopped breathing. Paramedics rendered emergency assistance at the scene and then transported him to a hospital, where he was pronounced dead." (Id., at 433-34)

Marcella Richman ultimately brought a civil rights suit under 42 U.S.C. § 1983 seeking damages against the deputies in their individual capacities, arguing, inter alia, that they had violated her and her son's right to be free from unreasonable searches and seizures under the Fourth and Fourteenth Amendments.

The deputies obviously recognized that their gang-style-attack against an unarmed, disabled man and his mother was an overreaction of monumental proportions. To escape the consequences of their excessive force, they sought to convince the court that they should be granted a form of absolute "quasi-judicial" immunity from damages on the grounds that they were simply carrying out the court's order to restrain the now-deceased Jack Richman. In other words, rather than relying on the normal defense of qualified immunity (which takes into account the reasonableness of their actions in light of the particular circumstances they faced), they sought to protect themselves from any damages for the mayhem they wrought by claiming that, as court officers, they should be protected from damages even if the plaintiff proved that their conduct was "knowingly unlawful or plainly incompetent." (Id., at 438).

When the district court (Judge Gottschall of the N.D.Ill) denied the deputies' motion with respect to all the claims asserted under both State and Federal law, the deputies appealed. On appeal, a divided panel from the Seventh Circuit agreed that, simply because the deputies had acted in a courtroom and in response to a judge's order to restrain Jack Richman and his mother, the 18 deputies who participated in the brutal attack were not entitled to any "quasi-judicial" immunity under Federal law. (The Court did find that district court had erred in not granting the motion to dismiss the state law claims that were filed, on the grounds that the actions of the deputies would be attributed to the state for purposes of sovereign immunity under the applicable state statutes).

According to the Court, only two Circuit courts have had occasion to consider whether law enforcement officials charged with using unreasonable force when seizing a person pursuant to a judge's order were entitled to quasi-judicial immunity. (Id., at 435). In Martin v. Board of County Commissioners, 909 F.2d 402 (10th Cir. 1990), the Tenth Circuit held that officers charged with employing excessive force to execute a bench warrant were not entitled to absolute immunity. The Eighth Circuit reached the opposite conclusion in Martin v. Hendren, 127 F.3d 720 (8th Cir. 1997), a case in which the plaintiff was restrained in the courtroom by order of the judge. The Eighth Circuit rejected the Tenth Circuit's reasoning, and held that the alleged impropriety of the officers' acts (using excessive force to effectuate the seizure) did not strip the acts of their quasi-judicial character."

In the instant case, the majority of the panel agreed with the Tenth Circuit's approach and refused to extend "quasi-judicial" absolute immunity to the court officers under the circumstances of this case. First, it noted that the Supreme Court has "cautioned against [courts] being overly solicitous of claims of immunity involving the judicial function." (Id., at 438). While the majority recognized that a "secure courtroom is necessary to protect the judicial function from interference or intimidation," it concluded that "this function is adequately protected by immunizing a judge's order to restrain a person . . . and by barring lawsuits that challenge a judge's decision through claims aimed at officers who do nothing more than implement it." (Id.)

The majority firmly concluded, however, that it is "not necessary to the judicial function . . . to also deny a remedy to plaintiffs who were harmed not by the judge's order, but by unlawful conduct by those who enforce it." (Id., at 439). For the record, we note that Judge Bauer, who dissented, concluded that reversing the district court's decision was both "logical and necessary, if courtroom decorum is to be preserved at all." (Id., at 444).

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