Vol. 10, No. 7	Covering Cases Published in the Advance Sheets through February 17, 2003

Highlights of this Issue:

Supreme Court

• In Ewing and Andrade, a sharply divided Supreme Court upheld the validity of California’s “three-strikes” law, rejecting claims that sentences of 25 years for a man who stole three golf clubs and 50 years for a man who stole $150 worth of videotapes violated the Eighth Amendment’s ban against cruel and unusual punishments.
  
  
• In Doe and Doe I, the Supreme Court addressed constitutional challenges to different aspects of the sex offender registration laws (Megans’s Laws) in Connecticut and Alaska. In the Connecticut case, the Court unanimously rejected an argument that the offenders had a due process right to an individualized hearing on their current dangerousness before information about that offender is posted in a publically disseminated registry. In the Alaska case, the Court, by a vote of 6-to-3, rejected a claim that the retroactive features of the state Megan’s law violated the Ex Post Facto Clause.
  
  

Fourth Amendment

• In Crawford, a decision that epitomizes the extremes of the philosophical divide among the judges on the Ninth Circuit, a divided panel held that the search of parolee’s home without reasonable suspicion, even if pursuant to a parole condition authorizing such searches, violated the Fourth Amendment - with both sides citing U.S. v. Knights, 534 U.S. 112 (2001) as authority for their divergent views.
  
  
• In Perez and Strauser, Judges Chin of the S.D.N.Y and Perry of the E.D.Mo. held that FBI agents had acted with “reckless disregard for the truth” in preparing warrant affidavits that were used nationwide in a massive Government operation labeled “Operation Candyman,” to prosecute people who allegedly obtained child pornography over the Internet. In rulings that could imperil scores of related prosecutions around the country, both judges granted motions to suppress the challenged evidence.
  
  
  
  
• The Carlson case from the S.D.Tex. is another blatant example of the imperious disregard of the Fourth Amendment exhibited by some law enforcement agents in their zeal to prosecute suspected pedophiles. Here the Court granted a suppression motion because a Customs agent’s affidavit in support of a search warrant lacked probable cause, was grossly misleading, contained material false representations, relied on stale evidence, lacked particularity, and was filled with irrelevant stereotypes and profiles.
  
  
  
  

Child Online Protection Act Again Held Unconstitutional

• On remand from the Supreme Court, the Third Circuit has again held that critical provisions of the Child Online Protection Act (COPA) are unconstitutional because they are not sufficiently narrowly tailored to avoid infringing on the free speech rights of adults. In a lengthy decision, Judge Garth concluded in the A.C.L.U. case that COPA suffers from multiple, incurable flaws that require Internet publishers to guess at what is prohibited under the statute.

Ewing v. California, 123 S.Ct. 1179 (No. 01-6978, 03/05/2003) (Justice O’Conner)
Lockyer v. Andrade, 123 S.Ct. 1166 (No. 01-1127, 03/05/2003) (Justice O’Connor)

Both of these cases address the issue of whether lengthy sentences mandated by California’s harsh “Three Strikes and You’re Out” law, and imposed on defendants who committed relatively minor property offenses, were so grossly disproportionate to the crimes as to violate the Eighth Amendment’s prohibition against cruel and unusual punishment.

The California law is designed to increase the prison terms of repeat offenders; but it has some very unusual provisions - one of which came into play in both of these cases. Under the California law, certain offenses may be classified as either felonies or misdemeanors. These crimes are known as "wobblers." As the Court explained in Ewing: “Some crimes that would otherwise be misdemeanors become ‘wobblers’ because of the defendant's prior record. For example, petty theft, a misdemeanor, becomes a ‘wobbler’ when the defendant has previously served a prison term for committing specified theft-related crimes. . . . Under California law, a ‘wobbler’ is presumptively a felony [for purposes of the three strikes law] and ‘remains a felony except when the discretion is actually exercised’ to make the crime a misdemeanor.”

The Ewing case

Gary Ewing was convicted of stealing three golf clubs from a pro shop where he was working in El Segundo, CA. According to Justice Breyer, had he been prosecuted for that crime under the Federal system, he would have received a sentence of “no more than” 12 to 18 months; and, had he been prosecuted under the laws of 33 states, he would have received a sentence of “no more than” ten years. Unfortunately for the ill-fated Ewing, he was prosecuted for that crime in California - under that state’s tough “Three Strikes and You’re Out” law - because he had a string of prior convictions, most of which were for minor property offenses. Thus, he received a sentence of 25 years in prison, without the possibility of parole, as his punishment for the theft of the golf clubs.

In this case, neither the trial court nor the state prosecutor exercised their statutorily authorized discretion to have the golf club crime treated as a misdemeanor; and so, from the outset of his prosecution, it was clear that Gary Ewing - and the California taxpayers - were going to pay dearly for his crime.

Ewing appealed, arguing that his sentence constituted cruel and unusual punishment under the Eighth Amendment; but the California courts rejected that claim, holding that the enhanced sentences under the three strikes law serve the state’s legitimate goal of deterring and incapacitating repeat offenders.

The Supreme Court granted certiorari, and by a vote of 5-to-4, it affirmed Ewing’s sentence. Citing a long line of cases that discussed the principles of proportionality (including principally Harmelin v. Michigan, 501 U.S. 957 (1991); Solem v. Helm, 463 U.S. 277 (1983); and Rummel v. Estelle, 445 U.S. 263 (1980)), Justice O’Connor, who was joined by Justices Rehnquist and Kennedy, wrote that the “narrow proportionality principle” does not require that a punishment be proportional to the crime committed, but rather only that the punishment not be “grossly disproportionate” to the crime. In her view, the punishment imposed on Ewing was not “grossly disproportionate” to his crime.

Although Justices Scalia and Thomas concurred with the result, they went further. They disagreed with the Supreme Court’s precedents that the Eighth Amendment requires any proportionality in sentencing: in their view, the Eighth Amendment addresses only types of punishment - not the length of sentences.

Justices Stevens, Souter, Ginsburg and Breyer dissented on various grounds. They argued that the precedents cited by the majority were inconsistent and sent mixed signals - and, on that issue, the majority agreed. In both Ewing and in Andrade, the majority acknowledged that the Court “has not established a clear or consistent path for courts to follow.” The dissenting Justices also argued that the facts of the instant case were virtually indistinguishable from the facts in Solem, where the Court found grossly disproportionate a “somewhat longer sentence imposed on a recidivist offender for triggering criminal conduct that was somewhat less severe.” Finally, the dissent argued that the sentence imposed on Ewing was “grossly disproportionate” to his crime because it was “virtually unique in its harshness for his offense of conviction.”

As a matter of interest, we have posted on the Member's portion of our Web site a copy of the amicus brief filed with the Supreme Court in this case by the FAMM Foundation.

The Andrade case

Leandre Andrade was convicted in California of two counts of misdemeanor petty theft for shoplifting, on two separate occasions, videotapes worth a total of about $150. For those two crimes, he was sentenced to two consecutive life sentences, one for each count of petty theft, with a 25-year minimum prison term for each, and no possibility of parole for at least 50 years.

As in the Ewing case, Andrade had prior felony crime and his new misdemeanor crimes became the qualifying felony crimes for purposes of California’s three strikes law by virtue of a provision of that law which allows certain crimes to be treated as “wobblers” - a procedure that grants the prosecutor and the trial judge the discretion to treat them as felonies or as misdemeanors. Here, the prosecutor elected to charge the two counts of theft as felonies rather than misdemeanors; and the trial court denied Andrade's motion to reduce the offenses to misdemeanors.

In Andrade v. Atty. Gen. Of the State of Calif., 270 F.3d 743 (9th Cir. 2001) (P&J, 10/15/01) (Andrade I), a divided panel from the Ninth Circuit held that the imposition of those two mandatory, consecutive sentences of 25 years each violated the Eighth Amendment’s prohibition against cruel and unusual punishment.

In the same line-up of Justices as in the Ewing case, a majority of the Supreme Court upheld the 50 year minimum sentence for the $150 worth of crimes, and reversed the ruling in Andrade I. Once again, the majority did not find the sentence imposed in this case to be exceedingly rare or extreme - to which Justice Breyer retorted: “If Andrade’s sentence is not grossly disproportionate, the principle has no meaning.”

In general, Justice O’Connor steered clear of commenting on the length of the 50-year sentence (which the dissent said “amounts to life without parole”). Instead, she focused on the need for the Court to defer to judgments made by the states - stating: “Though three-strike laws may be relatively new, our tradition of deferring to state legislatures in making and implementing such important policy decisions is longstanding.” She then added: “We do not sit as a ‘superlegislature’ to second guess these policy choices.”

Andrade raised two issues that were not present in Ewing. First, because the Ninth Circuit’s decision in Andrade I involved the issuance of a writ of habeas corpus, the Supreme Court had to address whether the Ninth Circuit had jurisdiction to hear the appeal under the exacting new habeas standards of the Antiterrorism and Effective Death Penalty Act. That law permits a Federal court to review a state court conviction only if the state conviction “was contrary to, or involved an unreasonable application of, clearly established federal law.” (28 U.S.C. § 2254(d)(1)).

Here the majority emphasized that the state court decision that affirmed Andrade’s sentence was not objectively unreasonable, primarily because the Supreme Court’s own precedent on the principles of gross proportionality was not “clearly established” and “remains unclear.” Due to that lack of clarity, the state courts’ rejection of Andrade’s attack on his sentence could not be considered “objectively reasonable.”

Thus, the majority seemed to be taking the somewhat anomalous position that, while the established law, based on existing Supreme Court precedent, was clear enough to enable it to determine that Ewing’s sentence was not grossly disproportionate, the Ninth Circuit could not rely on that same precedent to conclude that the state courts were wrong when they concluded that Andrade’s sentence was grossly disproportionate, since, for that purpose, the law wasn’t really that clear and established.

The second unique issue raised in Andrade was a point raised by Justice Souter in his dissent - namely the legitimacy of “double counting” the two misdemeanor offenses both for the purpose of converting them into felonies and also for the purpose of justifying the imposition of a consecutive 25-year minimum for a second minor felony committed soon after the first triggering offense. In other words, he argued that even if one could find the first 25-year sentence constitutionally sound, Andrade “did not somehow become twice as dangerous to society when he stole the second handful of tapes” - and, from that perspective and under those circumstances, the doubling of the penalty was “facially gross disproporation.” In a footnote to its opinion, the majority simply responded that it “could not say” that the state court’s treatment of that issue was an unreasonable application of the law.

U.S. v. Crawford, No. 01-50633 (9th Cir. 03/05/2003) (Judge Reinhardt)

The gloves really came off in this case as judges with dramatically different political and philosophical views battled over whether parolees have any rights under the Fourth Amendment to object to suspicionless searches of their homes, in cases where they have waived all such rights as a condition of their parole.

Here, pursuant to a mandatory condition of Raphyal Crawford's parole, FBI agents entered Crawford's home to conduct a "parole search" on July 27, 2000. The agents conducted the search despite the fact that they expected to find absolutely no evidence of a crime on the premises, because they thought it would help pressure Crawford into talking about his role in an unsolved robbery committed two years before. Less than two hours later, Crawford confessed to participating in the robbery. The entire justification for the search was a standard provision in Crawford’s parole release agreement in which he agreed to allow the police to conduct searches of his home "at any time of the day or night, with or without a search warrant, and with out without cause."

[Such mandatory waivers are common in California, where they are known as “Fourth Waivers”; and, as a matter of note, they differ rather significantly from a different type of waiver that is used in the Federal system. Under the provisions of U.S.S.G. §§ 5B1.3(c)(1) and 5D1.3(c)(10), persons placed on probation or supervised release are governed by a “standard” condition that allows the probation officer to visit the person on release at home “at any time” and to confiscate any “contraband observed in plain view of the probation officer.” Thus, the express use of the word “contraband” makes some level of suspicion necessary before the probation officer can act.]

In the instant case, after Crawford confessed, he was indicted for the bank robbery. He moved to suppress his confession on the grounds that it was the product of an illegal search. When the district court (Judge Gonzalez of the S.D.Calif.) denied the motion, Crawford entered a conditional plea of guilty pursuant to Fed.R.Crim.P. 11(a)(2). He then appealed to the Ninth Circuit.

Judge Reinhardt, recognized as one of the most liberal judges on the Court, wrote the majority decision. He recognized that a parolee has less of an expectation of privacy than other citizens; but, he wrote, a “reduced expectation of privacy is substantially different from an extinguished expectation of privacy.” (Emphasis in original). He also warned that the Constitution “balances liberty and security, and preserves to all individuals certain guarantees against the existence of a police state” - a comment that clearly ruffled the dissent.

Judge Reinhardt wrote that the Supreme Court’s most recent ruling on parole searches (U.S. v. Knights, 534 U.S. 112 (2001)) “confirms that a parolee has an objectively reasonable expectation of privacy in his home.” In Knights, the Supreme Court unanimously held that the police need only “reasonable suspicion” - not probable cause - to search the home of a person on probation who has “agreed” as part of his probation order to submit to searches of his home at any time.

In Judge Reinhardt’s view, Knights confirmed that the Supreme Court “considers the home sacrosanct, and permits government searches of the home only pursuant to enhanced procedural safeguards. Neither the Supreme Court nor this court has ever approved a suspicionless search of a home for a law enforcement purpose.”

Judge Reinhardt then categorically rejected the argument that a blanket "Fourth Waiver" parole condition totally eliminates a parolee's expectation of privacy so as to render any parole search reasonable; and he specifically held that “a compulsory parole condition may not serve as a consent to engage in otherwise unreasonable searches, and that Crawford therefore did not consent to the parole search of his home.”

Using that rationale, the majority concluded that, notwithstanding the parole condition authorizing searches with or without cause, the search of Crawford’s home, without any reasonable suspicion, violated his rights under the Fourth Amendment. Thus, the majority reversed the district court’s ruling denying the motion to suppress and remanded the case to allow Crawford to withdraw he guilty plea.

Judge Trott, the acknowledged leader of the conservative judges on the Ninth Circuit, issued a caustic dissent. He started with the proposition that, in the instant case, Crawford “had no subjective expectation of privacy.” Then, after noting that California must supervise more than 100,000 parolees in the state, be complained that “what the majority opinion in this case does is far more serious than simply freeing a dangerous bank robber from federal prison. The opinion effectively holds unconstitutional a fundamental aspect of California’s statutory parole system and laws.”

U.S. v. Carlson, 236 F.Supp.2d 686 (S.D.Tex. 2002) (Judge Hughes)

Although Judge Hughes sharply criticized the “slapdash manner” of Special Agent Robert M. Sherman of the Customs Service, we feel it necessary to give credit where credit is due: Sherman certainly tried his damnedest to prosecute Donad Carlson, the defendant in this case. Based on information he allegedly obtained from a confidential informant, Sherman sought a warrant to search Carlson’s home and computer. He swore that, in 1997, Carlson sent two pornographic images of children through the Internet and a month later he received two pornographic images of children through the Internet. In his zeal to score points and prosecute Carlson, here’s a partial list of some of the things that Special Agent Carlson did not do:

• he did not specify from whom Carlson allegedly received the images or to whom he sent them;
• he did not offer any information that his informant was truthful or that his information was reliable;
• he did not disclose to the Court that his informant had a criminal record;
• he did not disclose to the Court that his informant would be paid for his information;
• he did not tell the Court that his information was more than four and one-half months old; and
• he did not present “one scintilla of evidence that Carlson produced child pornography, targeted children for molestation, or was improperly involved with children.”

Here’s a partial list of some of the things that Special Agent Sherman did include in his affidavit:

• he “made several blanket assertions that just promote blanket assumptions”;
• he presented a six-page exegesis on child pornographers and molesters that he excerpted from another agent’s study of pedophiles, which Judge Hughes called “mere fluff designed to inflame the passions of the magistrate”; and
• in eleven separate paragraphs, he presented lists of items that he wanted to seize - but only one of those paragraphs addressed the issue of computer images sent over the Internet.

In the end, stating that Sherman “knew that [his] affidavit lacked specific allegations against Carlson,” “knew that the list of items to be seized bore no relation to the evidence he possessed,” “knew that his informant was unreliable,” and knew that he had “grossly misrepresented” the true nature of his informant, Judge Hughes granted the defendant’s motion to suppress - stating: “No reasonable magistrate in the good-faith discharge of her constitutional responsibilities would have authorized this late, superficial and unconnected warrant.”

In Brief

Aliens: Ponnapula v. Ashcroft, 235 F.Supp.2d 397 (M.D.Pa. 2002) - Here the Court held that the petitioner, a permanent resident alien who had been ordered removed following entry of a drug conviction, was eligible for discretionary relief under 8 U.S.C. § 1182(c) since his conviction occurred some two and one-half years before Congress barred such discretionary relief.

Drug Conspiracy: U.S. v. Martinez-Sandoval, No. 01 Cr. 307 (RPP) (S.D.N.Y. (3/05/2003) - In the wake of a jury deadlock, Judge Patterson granted a motion for acquittal in a drug conspiracy case, after finding that the evidence against the defendant was entirely circumstantial and equivocal and failed to demonstrate any specific intent to participate in the conspiracy. Citing U.S. v. Glenn, 312 F.3d 59 (2nd Cir. 2002), he stated that, when the evidence against a defendant is entirely circumstantial and equally supports a theory of guilt and a theory of innocence, then a reasonable jury must necessarily entertain a reasonable doubt and a judgment of acquittal must be entered.

Guidelines: U.S. v. Rebmann, No. 01-5610 (6th Cir. 03/06/2003) - Where stipulated facts establish only that defendant distributed a particular drug amount, and the government failed to prove that a death resulted from the distribution, by the express "offense of conviction" language of the Guidelines, defendant was ineligible for an enhancement under U.S.S.G. § 2D1.1(a)(2); U.S. v. McClatchey, 316 F.3d 1122 (10th Cir. 2003) - Here the Tenth Circuit reversed the district court and held that the fact that defendant’s 22-year old son suffered severe psychological disabilities, including attention deficit hyperactivity disorder and obsessive compulsive disorder, did not in itself warrant a downward departure based on extraordinary family circumstances because “the son’s need for management, structure and support in his daily routine does not justify a downward departure.”

Halfway House Designation: Byrd v. Moore, No. 3:03-CV-26 (W.D.N.C. 03/07/03 - This is another of a growing number of recent district court decisions that have rejected Attorney General Ashcroft’s new retroactive “re-interpretation” of its long-standing policy of designating halfway houses as the place for service of certain offenders’ sentences of imprisonment. In a decision that bristles with criticism of the new policy (in part because of the Government’s “failure to brief a number of significant issues”), Chief Judge Mullen bluntly stated that the DOJ’s new policy “is likely based on an invalid interpretation of the relevant statute” (18 U.S.C. § 3621); and he granted an injunction against putting three inmates back in prison after they had already been placed in halfway houses.

Prison Conditions: Laube v. Haley, 234 F.Supp.2d 1227 (M.D.Ala. 2002) - In this lawsuit by female prisoners who charged that overcrowding of inmate dorms and significant understaffing of security guards in the Alabama state prison system violated their Eighth Amendment rights, Judge Thompson granted the plaintiffs a preliminary injunction based on the likelihood of success on the claims and a finding that the prison conditions led to a dangerous and impermissibly unsafe environment.

Prison Drug Treatment Programs: Kuna v. Daniels, 234 F.Supp.2d 1168 (D.Or. 2002) - Once again, Stephen Sady, the indefatigable Federal Public Defender from Oregon, has convinced a Federal judge that the BOP “acted arbitrarily in imposing eligibility requirements that go beyond its program statements.” Finding that the BOP’s refusal to grant an inmate a one-year sentence reduction following his successful completion of a qualified drug treatment program, based on its determination that the inmate’s alcohol problem “did not constitute abuse or dependence,” was based on an “overly narrow” interpretation of its statutory mandate to provide substance abuse treatment to prisoners, the court ordered the BOP to grant the sentence reduction; Mitchell v. Andrews, 235 F.Supp.2d 1085 (E.D.Cal. 2001) - The inmate/petitioner in this case was advised by the BOP that if he completed a 140-hour non-residential drug program, he was “guaranteed” placement in the BOP’s 500-hour Residential Drug Abuse Program (RDAP), which could help reduce his sentence. After he completed the 140-hour program, the BOP reneged - stating the inmate was unable to produce sufficient documentation to substantiate his substance abuse problem. Finding that the BOP’s action was arbitrary and contrary to the governing statutes and the BOP’s own Program Statements, Judge Wanger granted a writ of habeas corpus and ordered the BOP to reconsider its ruling.

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