Vol. 10, No. 4	Covering Cases Published in the Advance Sheets through January 27, 2003

Highlights of this Issue:

Vindictive Resentencing: The Gap Between Reality and Legal Fiction

• The Evans decision from the Eighth Circuit is noted for its debate on the issue of whether a defendant, who successfully appealed his sentence on two Mann Act counts, was subjected to vindictive sentencing, in violation of North Carolina v. Pearce, when he received the identical sentence on remand after the court readjusted his sentence on four money laundering counts that had not been appealed. The majority held that the new sentence did not violate the defendant’s due process rights because the new sentence was not harsher than the old one, but Judge Arnold dissented, arguing that such legal tap-dancing means that defendants “gain nothing” from a successful appeal on individual counts.

The Unmasking of Forensic Lab Drug Reports

• In Rosacker, the Ninth Circuit literally blasted the validity of a purchased state forensic lab report that the Government used to enhance the defendant’s drug sentence, stating that it contained “no reliable evidentiary basis for any of the pivotal assumptions [used] in the drug quantity approximation” of how much methamphetamine [if any] could be produced from ephedra tea.

The Corroboration Rule

• The Jones case from the E.D.Va. is noted for Judge Payne’s comprehensive review of the corroboration rule, which stands for the proposition that an accused may not be convicted on her own uncorroborated confession or admission - even if voluntarily made.

Sentencing Guidelines

• In Nava-Sotelo, Judge Vazquez of the D.N.M. granted a six-level downward departure to a defendant convicted of kidnapping a Federal officer while helping his brother escape from prison, based on a “combination of exceptional mitigating factors, including family circumstances, incomplete duress, lesser harms, community support, and civic, charitable and public support.”

The DNA Analysis Backlog Elimination Act of 2000 - Revisited

• In Henderson, Chief Judge Randa of the E.D.Wisc. enjoined the U.S. Probation Office from attempting to collect DNA samples from persons convicted only of bank larceny under 18 U.S.C. § 2113(b), holding that the crime was not a qualifying offense under the provisions of the intrusive DNA Act.

This week we continue our review of some of the principal features of the proposed new domestic terrorist bill entitled the Domestic Security Enhancement Act of 2003, which the Department of Justice has been circulating to selected Members of Congress to drum up support. Some of those new provisions would make real the concept that “Big Brother is Watching You.”

U.S. v. Evans, 314 F.3d 329 (8th Cir. 2002) (Judge Loken)

This is one of those cases that shows that the chasm between the world of reality and world of legal mumbo jumbo can sometimes be quite large. The defendant, Monroe Evans, was convicted, inter alia, of two counts of transporting individuals in interstate commerce for prostitution in violation of the Mann Act (18 U.S.C. § 2421 ff.) and four counts of money laundering - and he was sentenced to 396 months (33 years) in prison. Evans appealed both his convictions and sentence. In a previous decision reported at 272 F.3d 1069 (8th Cir. 2001), the Eighth Circuit affirmed the convictions, but remanded for resentencing on the grounds that the sentences imposed on the two Mann Act counts were based on increases to the statutory maximums enacted after Evans had committed his crimes, in violation of the Ex Post Facto Clause.

On remand, the district court (Judge Jean Hamilton of the E.D.Mo.) again imposed the same 396-month sentence, which she calculated this time by offsetting reduced sentences on the two counts that the Eighth Circuit had ruled were improper with increased sentences on four other counts. (At his initial sentencing, Judge Hamilton imposed 24-month consecutive sentences on each of the four money laundering counts. Even though the sentences on those counts were not challenged on Evan’s appeal, at the resentencing Judge Hamilton sua sponte increased the sentence on each of the four money laundering counts by 30 months in order to reach the same 396-month sentence that had been vacated.)

Evans again appealed to the Eighth Circuit, arguing that the new sentence was improper in a number of ways, but principally on the grounds that the new sentence violated his due process rights, as defined in North Carolina v. Pearce, 395 U.S. 711 (1969). Pearce established that a trial judge may not act vindictively in resentencing a criminal defendant who has successfully appealed an element of his conviction. Without expressly so stating, the Supreme Court implicitly recognized the enormous difficulty of proving judicial vindictiveness. Thus, to put some teeth into its ruling, the Court established a presumption against increasing a defendant’s sentence on remand after a successful appeal.

To that end, the Court specifically stated that "whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear [and] be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding." (Pearce, id., at 726). The same principle applies to resentencing after a sentence is vacated on appeal, as well as to resentencing after a second conviction. (See U.S. v. DiFrancesco, 449 U.S. 117, 135-36 & n.14 (1980)).

In the instant case, the majority of the panel held that Evans had no due process claim under Pearce. First, it stated that the “record contains no hint of judicial vindictiveness, so Evans must establish that the Pearce presumption of vindictiveness applies.” (Id., at 334). [The flaw in that legal fiction, of course, is that the chance of proving any actual judicial vindictiveness is probably more remote than the chance of President Bush and Saddam Hussein becoming good friends.]

The majority then continued and held that the Pearce presumption did not apply to this case because that presumption “only applies if the second sentence is ‘more severe’.” (Id.)

Judge Richard Arnold responded to - and highlighted - the flaw in that legal fiction by writing:

“The dispositive question in this case is whether the District Court imposed a more severe sentence on Mr. Evans upon his resentencing on remand. I disagree with my colleagues' conclusion that the Court did not enhance his sentence. Mr. Evans was convicted of seven counts -- two counts of violating the Mann Act, one count of conspiring to violate the Mann Act, and four separate counts of money laundering. The counts of interest are the four money-laundering counts. At the initial sentencing, Mr. Evans received 24 months on each count of money laundering. Following his successful appeal, the District Court sentenced him to 54 months on each of these counts. I would hold that the Court's increasing of each of these sentences represented a more severe sentence for Pearce purposes.

“The government contends that Mr. Evans's sentence is not more severe because his total term of incarceration remained the same -- 396 months. This fact does not insulate the judge's order, however. The government's rationale would wholly undermine Pearce. If the District Court is free to adjust the sentences for each count against the defendant, so long as the overall sentence remains constant, then defendants gain nothing from a successful appeal against sentences on individual counts. Thus, the government's rationale creates a right to appeal that carries no consequent remedy for the defendant.

“Because I consider the District Court's decision to enhance the sentences on each of Mr. Evans's convictions for money laundering as imposing a more severe sentence, I would find that his sentence deprives him of liberty without due process of law. Therefore, I respectfully dissent.” (Id., at 335-36) (Emphasis added).

U.S. v. Rosacker, 314 F.3d 422 (9th Cir. 2002) (Judge T.G. Nelson)

This is a significant case because it shatters another legal fiction - namely that a defendant doesn’t have a prayer of disputing the quantity of drugs charged if the Government presents a forensic lab report. The case is also a testimonial to the perseverance of defense counsel - here the Federal Public Defender’s Office in Portland, OR.

The defendant in this case, James Rosacker, was turned in to the local Sheriff’s office by his own mother after she discovered “what appeared to be a drug lab in a shed on her property.” (Id., at 424). A swarm of law enforcement officers immediately descended on the shed and discovered 26 plastic bags labeled “Herba Ephedrae” and filled with one pound each of “Ma Huang” tea (the Herbal Tea”), together with a number of pots and - significantly - book entitled “Secrets of Methamphetamine Manufacture.”

No drugs were found; but samples from the shed and from Rosacker’s room at his Mom’s house allegedly tested positive for “ephedrine” and “pseudoephedrine,” which are precursor chemicals used to manufacture methamphetamine and are listed as such in U.S.S.G. § 2D1.11(d) and in various Schedules to the Federal drug laws.

Rosacker told the law enforcement officers “that he was attempting to extract ephedrine from the Herbal Tea in order to make methamphetamine, but he was unsure how to create a ‘good batch’ of the drug.” (Id.) In the mysterious ways of dealing with Federal criminal charges, Rosacker ultimately pled guilty to a charge of “using a telephone to facilitate the attempted manufacture of a controlled substance, in violation of 21 U.S.C. § 843(b).”

The Probation Department was somewhat sanguine about the severity of the crime alleged, principally because it wasn’t clear whether one could derive ephedrine or pseudoephedrine from Herbal Tea. In fact, the presentence report (“PSR”) specifically stated that Rosacker “may not have been able to [extract] the precursor chemical, pseudoephedrine, from the Ma Huang tea.”

The problem for the Government was that, if it could not establish that Rosaker was capable of extracting drugs from the Herbal Tea, he only faced a sentencing range of 10 to 16 months - hardly worth the bother and certainly not a fitting reward for Rosacker’s mother! So, the matter was quickly farmed out to the Oregon State Police Forensic Laboratory (the “OSP Lab”).

In any event, the OSP Lab prepared a tailor-made “one-page” forensic lab report in which it stated that Rosacker “could have produced 80-grams of methamphetamine” from his mother’s Herbal Tea. (Id., at 424). Giving full credence to that report, the Probation Department and the prosecutor recommended a base offense level for Rosacker of 32. Sadly, for the Government, the statutory maximum sentence for that quantity of drugs was only four years - far short of the applicable Guideline sentencing range of 108-135 months. But four years was much more respectable than the 10 to 16 months that Rosacker argued was proper - and that’s what the Government asked the court to impose.

Rosacker hired his own expert who challenged the assumptions and conclusions contained in the OSP Lab report. He unequivocally stated that, even assuming it was possible, Rosacker “had neither the knowledge nor the equipment necessary to extract ephedrine” for the Herbal Tea. (Id., at 425). He further stated that “over the course of fifteen years, I have never seen a case where the methamphetamine was made from ephedrine or pseudoephedrine extracted from Ma-Huang tea.” (Id.) (Emphasis added).

Without any discussion, the district court (Chief Judge Ancer Haggerty of the D.Or.) simply adopted the Government’s arguments (and the validity of the OSP Lab Report) in toto - and it sentenced Rosacker to 48 months in prison. Rosacker appealed his sentence; and the Ninth Circuit reversed.

Judge Nelson was blunt in his assessment of the purchased OSP Lab Report. He wrote: “The state police forensic laboratory report was not sufficiently reliable to support the district court's drug quantity approximation. Drug quantity calculations in the forensic lab report rested on four unsupported assumptions: (A) that 1% of the mahuang was extractable ephedrine or pseudoephedrine, (B) that the ephedrine and pseudoephedrine could be extracted from the mahuang, (C) that Rosacker was personally capable of extracting ephedrine or pseudoephedrine and converting it to methamphetamine, and (D) that 100% of the ephedrine and pseudoephedrine present in the mahuang could be extracted.” (Id., at 425) (Emphasis added).

In the ensuing discussion, Judge Nelson explained in detail why all four assumptions of the OSP Lab were unsupported, unreliable, and incorrect. He noted, for example, that the Report “supplied no data, rationale, discussion, or any other evidentiary basis in support of the 1% figure.” (Id., at 426). On the issue of whether any precursor chemicals could have been extracted from the Herbal Tea, he noted that the Report “does not describe, explain, refer to, or even offer conjecture regarding any process by which any precursor chemicals could have been extracted from the mahuang.” (Id.).

Judge Nelson concluded by writing that “the PSR and the forensic lab report contain no reliable evidentiary basis for any of the pivotal assumptions in the drug quantity approximation. Accordingly, the district court erred in adopting the PSR's conclusion (based on the forensic lab report) that Rosacker could have extracted pre-cursor chemicals and converted them to methamphetamine.” (Id., at 429) (Emphasis added). Thus, the 48-month sentence was vacated and the case was remanded for resentencing.

The Domestic Security Enhancement Act of 2003 - Part II

Last week, we noted that the Justice Department has been circulating to its friends in Congress a confidential legislative proposal to expand the Government’s powers to investigate suspected terrorist activities, in most cases without giving aggrieved parties any type of remedy or review. The proposal, entitled the Domestic Security Enhancement Act of 2003, 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 87-page draft bill (herein “Patriot II”), together with an accompanying 33-page section-by-section analysis of the bill (herein the “DOJ Analysis”) have been posted on the Member’s portion of our Web site and can be accessed by going to the statutes page of the Anti-Terrorism section of our Web site. Because the significance of those documents, we promised to provide our subscribers with a summary of some of the more significant features of Patriot II.

For ease in following these proposals, our comments set forth below have been set forth in the same Section order as they appear in Patriot II. The provisions we have noted are only intended to give the flavor of Patriot II to show the scope and intended sweep of that bill. In addition, in many cases we have simply set forth verbatim the remarkably blunt language contained in the DOJ Analysis to describe what is at stake.

Section 102: Clandestine Intelligence Activities by Agent of a Foreign Power. The DOJ Analysis notes that, at present, persons may be prosecuted as agents of a foreign power only if their activities “involve or may involve violation of” U.S. law. Arguing that such a requirement is both “unnecessary and counterproductive,” the new bill would eliminate the requirement that the Government prove a violation of U.S. law - we assume on the theory that the Attorney General should have the power to determine what is contrary to the best interests of national security - whether or not some U.S. law has been violated.

Section 106: Defense of Reliance on Authorization. The DOJ Analysis notes with some trepidation that the law today protects law enforcement agents against prosecution and damages if they engage in unauthorized surveillance or searches - so long as those activities were authorized by the Foreign Intelligence Surveillance Court (FISC). Even though FISC has been a virtual puppet to the DOJ (rejecting only one of more than 10,000 requests for surveillance over the past 20 years - see P&J, 8/05/02), the Attorney General doesn’t want even the potential of such judicial review hanging over his head. Thus, Patriot II proposes to exempt agents from liability for unauthorized surveillance and searches so long as they were acting on the orders of the President or the Attorney General.

Section 123: Extension of Authorized Periods Relating to Surveillance and Searches in Investigations of Terrorist Activities. This provision would extend the normal duration of wiretap orders from 30 days to a minimum of 90 days. See also Section 111, which would extend the duration of surveillance periods from 90 days to “up to a year.” And see Section 125, which would authorize “nationwide” search warrants.

Section 126: Equal Access to Consumer Credit Reports. Complaining that today law enforcement agents can obtain credit reports on suspects “only in response to a court order or a federal grand jury subpoena,” this section would authorize law enforcement officers to obtain credit reports of anyone “upon their certification that they will use the information only in connection with their duties to enforce federal law.”

Section 128: Administrative Subpoenas in Terrorism Investigations. This provision would dramatically expand the authority of the Department of Justice to issue “administrative subpoenas” in cases where it claims to be investigating domestic or international terrorism.

Section 129: Strengthening Access to and Use of Information in National Security Investigations. This broad and invasive provision would significantly expand the ability of the FBI and other Government officials to use “national security letters” (a form of administrative subpoena to obtain records and documents “relevant to national security investigations”) to seize records from communication service providers, consumer reporting agencies, financial institutions, travel agencies, and insurance companies. It would also make it a crime for the subpoena recipient to disclose to anyone (except legal counsel) the fact that it has received such a subpoena. The provision would also permit the sharing of such information among other law enforcement agencies without the current limitation that the information so disseminated must be “clearly relevant to the authorized responsibilities of such agency.”

Next week we will continue our analysis of Patriot II by looking at some of the key provisions of Titles II and III of the proposed legislation. We will then follow that at a later date with an analysis of some of the key provisions of Titles IV and V.

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