Vol. 10, No. 3	Covering Cases Published in the Advance Sheets through January 20, 2003

Highlights of this Issue:

The Growing Web of "Overlapping, Incongruous and Draconian" Child Pornography Laws

• Calling the mish-mash of Federal child pornography laws “overlapping,” “incongruous,” and even “draconian,” Judge Lynch of the S.D.N.Y. cut through a broad swath of issues in the Pabon-Cruz case and helped bring some badly needed guidance to at least two of the many laws dealing with the receipt of child pornography over the Internet. Of particular note, even after being barred by the Second Circuit from telling the jurors about “the moral consequences of their decisions” (on the grounds that it would “encourage forbidden jury nullification”), Judge Lynch continued to express the view that “this was a mistaken conclusion.”

"Unlawful Users" of Drugs - Revisited (Somewhat)

• Last year a panel from the Fifth Circuit held that a defendant cannot be prosecuted, under 18 U.S.C. § 922(g)(1), for unlawful possession of a gun as an “unlawful user” of drugs unless he or she uses narcotics “so frequently and in such quantities as to lose the power of self control.” Based on that rationale, the panel vacated the defendant’s gun conviction. In Herrera II, a divided en banc court reinstated the gun conviction without ever addressing the definition of “unlawful user.” Rather, using what it agreed was a “very narrow standard of review,” the majority concluded that the defendant had waived that issue by failing specifically to raise that precise issue in his original Rule 29 motion.

The Admissibility of Handwriting Analysis Evidence - Another View

• The Hidalgo case from the D.Ariz. is noted for Judge Martone’s comprehensive review of the current state of the law on the admissibility of expert testimony regarding handwriting analysis; and his ruling barring the Government’s expert forensic document examiner from testifying that the handwriting on certain documents was the handwriting of the defendants.

Sentencing Guidelines

• In Clipper, the D.C. Circuit rejected a highly-creative request for a downward departure to mitigate the defendant’s inability to collaterally attack the validity of a prior conviction, used to enhance his sentence, which was now highly suspect based on recent rulings of the Supreme Court.

We have included in this issue a Special Report about a confidential proposal from the Department of Justice to Congress to enact a scary new domestic terrorist bill entitled the Domestic Security Enhancement Act of 2003, which would, among other things, enable the Justice Department to wiretap citizens for two weeks before bothering to ask a judge for a warrant.

U.S. v. Pabon-Cruz, 01 Cr. 1187 (S.D.N.Y. 02/04/2003) (Judge Lynch)

Anyone who believes that the Federal anti-child pornography laws are not directed at thought control should read this decision. With thoroughness, Judge Lynch has provided some meaningful guidance through the maze surrounding two of the most popular child pornography statutes - 18 U.S.C. § 2251(c)(1)(A) - which deals with advertising to receive or distribute child pornography; and 18 U.S.C. § 2252A(a)(2)(B) - which provides for criminal penalties for anyone who knowingly receives or distributes child pornography. Judge Lynch’s analysis of the parameters of both of those statutes is excellent.

In addition, he also highlighted with unusual candor some of the significant problems that criminal defense attorneys face when representing clients charged with violating either of those statutes. For example, Judge Lynch noted that the penalties for violating § 2252A are a maximum of fifteen years in prison (with no mandatory minimum); and the penalties for violating § 2251(c)(1) are a maximum of twenty years in prison (with a mandatory minimum sentence of ten years). Calling that sentencing structure “less than rational,” he wrote:

“Like the overlapping prohibitions and slightly different formulations of these various closely-related statutes, the incongruous penalty structure results from Congress' tendency to close loopholes in the law by enacting entirely new statutes rather than revising or amending old ones. The result is that statutes enacted at different times do not always rationally relate to each other. A complete revision of the entire chapter of Title 18 relating to child sexual exploitation and abuse to simplify and harmonize these various statutes would make their enforcement much easier and more effective.” He then concluded that those “overlapping” and “incongruous” statutes often lead to the imposition of “draconian” penalties - such as happened in this case.

The defendant, Jorge Pabon-Cruz, transmitted child pornography pictures from his computer in Puerto Rico to an undercover police officer’s computer in Rockland County, N.Y. Pabon-Cruz didn’t deny that he exchanged pornography over the Internet. In fact, he stipulated that the various photographs in evidence that were recovered from his computer were child pornography. His defense was that he was a good, but young kid, who had made a “big mistake” in that he “got in a chat room with an ugly name and traded ugly pictures with other people.”

The jury obviously rejected that defense and Pabon-Cruz was convicted on both counts. He then moved for a judgment of acquittal, or alternatively for a new trial, on a number of grounds including insufficiency of the evidence and alleged confusing instructions to the jury. Judge Lynch denied both of those motions in this decision and in the process he carefully reviewed the burdens of proof required to sustain convictions under both statutes and under prevailing precedent. Although he obviously disagreed with the penalty that he was forced to impose on Pabon-Cruz, he also concluded that the “interests of justice” would not be served by setting aside a verdict that was “carefully determined” by the jury.

Apart from his painstaking analysis of the two statutes involved in this case, Judge Lynch’s decision is significant for another reason. Before the case was submitted to the jury, Pabon-Cruz asked the court to advise the jury of the mandatory penalties attached to a conviction under § 2251(c)(1). He contended that if the jury was being asked to convict him “for the mere act of advertising one’s desire to receive” child pornography, it should be made aware “of the moral consequences” of its decision. Judge Lynch was persuaded by that argument - particularly since “the average juror might well not remotely imagine that advertising child pornography not only carries a higher penalty that actually delivering it, but that the penalty is a mandatory ten years in prison, even for a defendant who is little more than a child himself.”

When Judge Lynch proposed to give such an instruction to the jury, the Government immediately sought an unusual mid-trial writ of mandamus from the Second Circuit, forbidding such an instruction. The Second Circuit granted the writ, concluding that the proposed instruction was “ clear abuse of discretion” and that it “would encourage forbidden jury nullification.”

Bound by the Second Circuit’s ruling, Judge Lynch declined to give the requested instruction - but he didn’t go away quietly. He reiterated that he would have “preferred to give the jury all the information relevant to its moral task,” and he expressed the view that the Second Circuit’s ruling was based on “a mistaken conclusion.” He emphasized that he had not only forbidden the defense to argue nullification to the jury, he would have given “the usual injunctions against such nullification, adding only a pale sentence advising the jury of the maximum and minimum prison terms available for each offense.”

He then tweaked the Government and the Second Circuit by writing: “Unless one believed that the jurors, or a substantial number of them, would find the penalties morally repugnant, it is difficult to understand how this simple information could be perceived as an ‘invitation’ to the jury not to do its duty.”

U.S. v. Hidalgo, 229 F.Supp.2d 961 (D.Ariz. 2002) (Judge Martone)

This is an important decision regarding the current state of the law regarding the admissibility of evidence regarding handwriting analysis under Rule 702 of the Fed.R.Evid.. In his decision, Judge Martone has presented a comprehensive review and analysis of the two Court of Appeals decisions and the nine Federal district court decisions on that topic since the Supreme Court rendered its landmark decisions regarding the admissibility of scientific evidence in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). As Judge Martone noted, Daubert and Kumho Tire “have changed the general rules of admissibility” of scientific evidence. (Id., at 966).

The defendants in this case moved to exclude certain expert testimony that the Government proposed to use to prove that the handwriting on certain documents was in fact the handwriting of one of the defendants. They challenged the scientific validity of such expert testimony, arguing that it did not meet the standards established by the Supreme Court in Daubert and Kumho Tire.

Ultimately, Judge Martone granted the defendants’ motion to exclude any expert opinion testimony on whether the handwritings in question matched that of the defendant; but it also permitted the Government to introduce evidence “on the mechanics and characteristics of handwriting or handprinting, methodology, comparisons of similarities and dissimilarities, and any other factors that would be helpful to the jury in making a finding of identity or non-identity, short of an ultimate opinion.” (Id., 968).

The basis of that ruling was that the Government had failed to establish the critical premise that each person’s handwriting is unique. Although the Government pointed to numerous scientific studies on the topic (five of which are cited in this decision), Judge Martone concluded that they “fail[ed] to establish uniqueness. At most, we can reasonably infer that among 1,500 writers, very few write in a similar way.” (Id., at 962).

In reviewing and analyzing the eleven Federal court decisions on the topic of handwriting analysis since Daubert and Kumho Tire, Judge Martone expressed the view that no “consensus” has yet emerged - but in fact seven of those courts have agreed with Judge Martone that expert opinion testimony is not based on sufficiently reliable principles and methodology to meet the Daubert/Kumho Tire standards.

Judge Martone’s decision mirrors much of the same reasoning and analysis set forth in Judge Gertner’s leading decision in U.S. v. Hines, 55 F.Supp.2d 62 (D.Mass. 1999) (P&J, 6/28/99), and together those two cases represent an excellent starting point for anyone wishing to challenge the admissibility of expert testimony regarding handwriting analysis.

IN BRIEF

Death Penalty: Singleton v. Norris, No. 00-1492 (8th Cir. 02/10/2003) (En banc) - Reversing a prior panel decision, a divided en banc court ruled that the State of Arkansas can force a Black inmate on death row to take antipsychotic medication to make him sane enough to be executed for a 1979 murder of a white woman. Quoting Justice Marshall, Judge Heaney wrote, in dissent, that the decision represented “the pinnacle of ‘the barbarity of extracting mindless vengeance’.”

Guidelines: U.S. v.Carrasco, 313 F.3d 750 (2nd Cir. 2002) - Downward departures based on "lesser harm" (U.S.S.G. § 5K2.11) and "exceptional family circumstances" (§ 5K2.0) grounds are unavailable in a case against a deported alien reentering the country illegally, a strict liability crime; U.S. v. Worrell, 313 F.3d 867 (4th Cir. 2002) - Affirming a six-level enhancement under U.S.S.G. § 2A6.1(b)(1) for conduct evidencing an intent to carry out a threat, based on district court’s determination that the enhancement covers conduct that occurred prior to the offense of conviction.

Ineffective Assistance of Counsel: Armienti v. U.S., 313 F.3d 807 (2nd Cir. 2002) - Affirming lower court finding that petitioner failed to establish an actual conflict of interest based on counsel’s alleged unwillingness, due to his purported connections with a crime family, to pursue plea negotiations that were dependent upon petitioner’s cooperation in testifying against a member of that crime family; Johnson v. U.S., 313 F.3d 815 (2nd Cir. 2002) - Defendant was prejudiced by counsel's failure to object to calculation of base offense level at level 32 (rather than level 30) which resulted in an increased period of incarceration.

The Law of the Case Doctrine: Ellis v. U.S., 313 F.3d 636 (1st Cir. 2002) - The principal holding of this decision was that, although a trial judge used an incorrect procedure in dealing with a jury note, the error was harmless under the circumstances. The decision is noted however for the Court’s in depth discussion of the two branches of the “law of the case” doctrine - namely the “mandate rule” (which, with few exceptions, forbids a court from relitigating issues that previously were decided by a higher court at an earlier stage of the same case), and the rule that frowns upon reconsideration of orders within a single proceeding by a successor judge.

The Domestic Security Enhancement Act of 2003

Last week, the Center for Public Integrity (“CPI”), a non-profit watch-dog organization based in Washington, D.C., somehow obtained a copy of a confidential legislative proposal prepared by the staff of Attorney General John Ashcroft, entitled the Domestic Security Enhancement Act of 2003 (herein “Patriot II”). This hitherto secret document, long rumored to be in the making, represents a startlingly comprehensive sequel to the USA Patriot Act which, if enacted, would give the Government “broad, sweeping new powers to increase domestic intelligence-gathering, surveillance and law enforcement prerogatives, and simultaneously decrease judicial review and public access to information.”

The draft bill obtained by CPI is dated January 9, 2003; and it includes a section-by-section analysis of the 87 pages of Patriot II. As a matter of interest, although the Justice Department was clearly taken by surprise at the revelation of its “confidential” proposal, it did not deny its existence. In an article that appeared in The New York Times on February 8, 2003, a spokesman for General Ashcroft claimed that the draft represented nothing more than “staff discussions” - although she then went on to acknowledge that copies of the draft bill had been sent to House Speaker J. Dennis Hasert and Vice President Dick Cheney in his capacity as President of the Senate.

CPI posted a copy of the full legislative proposal on its Web site at http://publicintegrity.org/dtaweb/home.asp - although access to that site instantly became problematic. Whether due to sabotage or otherwise, the files became corrupted and were unable to be fully downloaded so that it was (and still is) impossible to review the proposed legislation on that site. Fortunately, we were able to obtain our own copy of the January 9 draft and post it on our Web site - where (at least so far) access to the entire 87-page draft bill is available for review. It is a scary and disturbing document that should be read by all who still value preserving freedom in America.

As soon as news of the new bill became public, the American Civil Liberties Union issued a statement which read in part: “The initial USA Patriot Act undercut many of the traditional checks and balances on government power -- the new Ashcroft proposal threatens to fundamentally alter the Constitutional protections that allow us to be both safe and free. . . . By seeking to overturn court-approved limits against police spying on political and religious activities, allowing for increased government surveillance and the ability to wiretap without going to court, the latest Ashcroft proposal would do serious harm to civil liberties in America.”

Over the course of the next few weeks, we will highlight some of the more egregious features of this proposed legislation and its “damn-the-Constitution-and-damn-judicial-review” approach to law enforcement. It’s no wonder “they” wanted to keep it confidential: some of it will blow your mind.

Copyright © 2003 Punch and Jurists, Ltd.