Vol. 10, No. 9	Covering Cases Published in the Advance Sheets through March 3, 2003

Highlights of this Issue:

Supreme Court

• In what probably qualifies as one of the least consequential Supreme Court decisions of the past few years, a divided Court in Garceau debated the meaning of the word “pending,” in an attempt to clarify the rules for some old death-row appeals, and the majority then held that only death row inmates who had filed a full-blown appeal before the AEDPA went into effect qualify for an exemption from the new restrictions on habeas appeals that were enacted into law in 1996.

Ineffective Assistance of Counsel: "Pretty Scary" - But No Relief

• The Berkey case from the Seventh Circuit is one of those symbolic cases that defines why the law sometimes is “a ass,” as Mr. Bumble exclaimed in Oliver Twist. Here, even though the Government admitted that defense counsel’s performance in this case was “pretty scary,” and the Court agreed it was “a frightening storyline,” the Court concluded that the petitioner had failed to prove that he had been prejudiced by his (now-disbarred) counsel’s many errors.

Attorney-Client Privilege

• In a ruling with potential far-reaching consequences, the Eighth Circuit held, in Hatcher, that the district court had erred when it denied a defense motion to compel the BOP to produce tapes of some recorded conversations between cooperating co-conspirators and their attorneys on the grounds the tapes were privileged. The Court held that the very existence of the tapes were proof that any such privilege had been waived.

  In Danielson, the Ninth Circuit remanded a case for an evidentiary hearing to determine whether the defendant had been prejudiced, after he claimed that the Government had violated his right to counsel by deliberately interfering with his attorney-client relationship in failing to disclose that it had obtained information about his trial strategy through an informant. The Court also held that the Government had a “heavy burden” of proving at the evidentiary hearing its non-use of the trial strategy information.

Prison Case: The Zimmer Amendment

• In Kimberlin, a divided panel from the D.C. Circuit rejected a series of constitutional challenges to the “Zimmer Amendment” (and the BOP’s interpretation of that law) - which effectively bans Federal inmates from possessing or using electric or electronic musical instruments in prison. In a strong dissent, Judge Tatel argued that the BOP’s defense of the law was spurious at best - and at worst justified the imposition of bans on the use and possession of all musical instruments - or all music - or even all books - frightening concepts that have actually made their way into some recent legislative proposals.

Berkey v. U.S., 318 F.3d 768 (7th Cir. 2003) (Judge Bauer)

On the positive side of this case, the petitioner, Theodore Berkey, will at least have a few small consolations to muse about as he spends the next 30 years of his life in prison. For example, he may take some solace in knowing that his defense counsel, George Roylston of Tuscon, was disbarred by the Arizona Supreme Court for his unprofessional conduct in this case. (Roylston was disbarred after the Arizona court found that his representation of Berkey was so woefully deficient that it violated at least seven different rules of the Rules of Professional Conduct for Attorneys, including the rules pertaining to (a) the competent representation of clients, (b) the level of diligence required of attorneys, (c) the required level of communications with clients, (d) the reasonableness of his fees, (e) the safekeeping of property, (f) the protection of the interests of his clients, and (g) engaging in professional misconduct. (Id., at 771, n. 2)).

Berkey may also achieve a degree of satisfaction knowing that both the prosecutor and the Court in this case agreed that Roylston had not rendered the type of effective assistance of counsel mandated by the Sixth Amendment. In fact, Roylston’s ineffectiveness was so apparent that, during oral argument, the Government admitted that what happened to Berkey was “pretty scary”; and the Court, in its decision, acknowledged that Berkey had presented “a frightening storyline.” (Id., at 772).

On the negative side of this case, Berkey will also spend a great deal of time wondering why that “frightening” and “pretty scary” conduct did not entitle him to relief from his 30 year sentence.

While the Court’s decision recounts numerous instances of unprofessional and even outrageous conduct by Roylston, we only set forth a few of the more critical highlights. Berkey was arrested in Tucson, AZ in March of 1996 and then transferred to Illinois to answer to charges that he supplied drugs to a narcotics ring operating in southern Illinois. In September, Berkey met with Roylston in Illinois on two occasions, before and after a pretrial discovery hearing. The Court noted that those two meetings “represented the bulk of the contact between counsel and his client.” (Id., at 770).

Berkey's trial was to begin on December 2, 1996. That morning, Roylston advised Berkey to enter an open-ended guilty plea - telling him that such a plea would eliminate the risk of being held responsible for mass quantities of drugs. Roylston also told Berkey that he would face a four to five year prison term with an open-ended plea instead of a thirty year sentence he could face by going to trial. Based on that advice, Berkey decided to plead guilty. Berkey’s sentencing took place in July, 1997 and, although Roylston was physically present, he did little, if anything, to object to the drug quantity calculations and sentencing enhancements and adjustments recommended by the Probation Department. Based on an uncontested offense level of 40, Berkey’s sentencing range was 324 to 405 months; and the district court imposed a sentence of 360 months in prison.

After his conviction and sentence were affirmed on direct appeal, Berkey filed for habeas relief, pursuant to 28 U.S.C. § 2255, principally on the grounds of ineffective assistance of counsel. The district court dismissed that action; and this appeal followed.

The Seventh Circuit analyzed Berkey’s claim under the principles established in the Supreme Court’s seminal case on ineffectiveness of counsel - Strickland v. Washington, 466 U.S. 668, 686 (1985). In that case, the Supreme Court repeatedly emphasized that the “benchmark” for judging claims of ineffectiveness of counsel was “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the [criminal proceedings] cannot be relied upon as having produced a just result.” (Strickland, id., at 686).

The Strickland court then established the principle that a successful claim of ineffective counsel has two components. First, the defendant must show that his counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance of counsel actually prejudiced the defense.

The Supreme Court acknowledged that the standards for establishing prejudice were “anything but precise” (Strickland, id., at 693); and it emphasized that, under the second prong,”a defendant need not show that counsel’s deficient conduct more likely than not altered the outcome in the case.” (Id.) The Supreme Court has also held that, in the context of cases where a defendant has pled guilty, the prejudice prong requires the defendant to prove that “but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” (Hill v. Lockhart, 474 U.S. 52, 58-59 (1985)).

Applying all those principles to the facts of this case, the Seventh Circuit declined to consider the first prong of the Strickland test, because it concluded that Berkey had failed to establish that he had suffered any prejudice, within the meaning of Strickland and its progeny. It stated that Berkey had failed to “establish through objective evidence that a reasonable probability exists that he would have gone to trial.” (Id., at 773). In support of that conclusion, the Court noted, inter alia, that Berkey had failed “to point to any evidence he would have presented that would create a reasonable probability that the result of the proceedings would have been different” and that, even if his counsel had disputed drug quantities at sentencing, “[t]he government had significant evidence concerning drug quantities that placed him in a damaging light.” (Id., at 774).

Those findings call to mind the prophetic words of Justice Marshall who, in his dissent in Strickland, wrote: “The difficulties of estimating prejudice after the fact are exacerbated by the possibility that evidence of injury to the defendant may be missing from the record precisely because of the incompetence of defense counsel. . . . It seems to me senseless to impose on a defendant whose lawyer has been shown to have been incompetent the burden of demonstrating prejudice.” (Strickland, id., at 710) (Marshall, J., dissenting).

Kimberlin v. U.S. Dept. of Justice, 318 F.3d 228 (D.C. Cir. 2003) (Per Curiam)

On March 20, 2003, United States Senator John Ensign (R-NV) introduced the latest version of prisoner-bashing legislation to the U.S. Senate - namely the “Mandatory Prisoner Work and Drug Testing Act of 2003" (S. 672) (herein “MPW”). The stated purpose of MPW is “to require a 50 hour workweek for Federal prison inmates and to establish a grant program for mandatory drug testing, and for other purposes.” The “other purposes” include such goodies as banning any viewing of cable TV by inmates except for educational programs

According to his press release (a copy of which is posted on his Senate Web site), Senator Ensign called for the prompt enactment of MPW because: “Our prison system today is failing largely because we have become too concerned with the comfort of criminals. I believe prisoners should be put to work to benefit our communities, as opposed to enjoying luxuries provided by the taxpayers. I envision a prison system in which prisoners learn and work hard, instead of taking drugs, reading pornography and watching television.” The press release also notes that any prisoner unable or unwilling to participate in the work program would be confined to his cell for 23 hours a day. Thus it would seem that this well-thought-out legislation will punish disabled inmates simply because they are unable to work.

The “crush-the-inmate” attitude that gives rise to such proposals helps explain a lot about the instant case - which, at least on its surface, addressed another pet peeve of some lawmakers - the use of musical instruments in Federal prisons. Back in 1995, then Congressman Zimmer of New Jersey introduced one of those infamous budget riders that became law and which barred the use of appropriated funds to provide for several enumerated “amenities or personal comforts in the federal prison system,” including “the use or possession of any electric or electronic musical instrument.” That rider became known as the “Zimmer Amendment,” and, as the Court noted in the instant case, “the Zimmer Amendment has since been regularly incorporated into appropriations acts in identical form” for the fiscal years 1998 through 2002. (Id., at 231).

Shortly after the Zimmer Amendment was first enacted, the BOP issued its own interpretative memorandum in order to provide “guidance to wardens on how provisions of the Zimmer Amendment will be implemented in all [BOP] institutions.” (Id., at 230). That interpretative memorandum (called an “Institutional Supplement” and referred to herein as the “BOP Memo”) banned the use of any and all electric and electronic instruments by inmates - whether or not they had been purchased with appropriated funds.

And how did the BOP get from the Zimmer Amendment’s ban on using appropriated funds to acquire musical instruments to an absolute ban on musical instruments generally - even if purchased by the inmates? By the spurious and almost comic ploy of interpreting the Zimmer Amendment to include a ban on paying the costs “incidental to” the possession and use of musical instruments - “notably, those incurred for storage, supervision and electricity.” (Id., at 232).

Acting under the authority of the BOP Memo, the warden of FCI-Cumberland decreed that the only musical instrument that an inmate could possess at his prison was a harmonica. Inmates Brett Kimberlin and Darrell Rice, who were housed at Cumberland, challenged the warden’s edict by bringing suit against the BOP, claiming that the ban on the possession of musical instruments in prison violated their constitutional rights to free expression and equal protection, and violated the provisions of the Administrative Procedure Act (“APA”).

In a previous decision, reported at Kimberlin v. Dep’t of Justice, 150 F.Supp.2d 36 (D.D.C. 2001), Judge Sullivan dismissed the First Amendment and APA claims, and entered summary judgment in favor of the inmates on the equal protection claim. The inmates appealed; and, in this decision, a majority of the panel affirmed Judge Sullivan’s ruling, principally on the grounds that the BOP’s interpretation of the Zimmer Amendment as set forth in the BOP Memo was “reasonably related to legitimate penological interests” - the governing test for the validity of most prison regulations, in accordance with the Supreme Court’s decision in Turner v. Safley, 482 U.S. 78 (1987).

Because the issue of musical instruments in prisons is not high on the priority list of most people, few would have probably paid much attention to this case - but for Judge Tatel’s noteworthy and thought-provoking dissent. Even he started by acknowledging that the issue of whether Congress and the BOP can ban the use of electric guitars in prison “might seem an unimportant - even trivial - question”; but, he continued “courts are obligated to adjudicate even seemingly unimportant issues in accordance with the Constitution and prevailing case law.” (Id., at 241) (Emphasis added) . He also acknowledged that, in his mind, there was no doubt that the Government could “constitutionally restrict the use and possession of electric guitars in federal prisons” on a number of grounds - but not on the grounds raised by the BOP. (Id., at 235).

What irked him most was that the BOP had used pure, unadulterated hokum, constructed in “Rube Goldberg” layers, to justify its all-encompassing interpretation of the Zimmer Amendment; although he was also highly critical of fellow judges for swallowing the BOP’s arguments - hook, line and sinker.

He wrote: “In sustaining the Zimmer Amendment's constitutionality, this court adopts a theory that effectively eviscerates Safley's premise that prisoners generally retain their constitutional rights, as well as the decision's carefully constructed four-part test for evaluating the constitutionality of prison regulations that restrict those rights. According to the court, because ‘the BOP has simply chosen not to subsidize inmates' use or possession of a class of instruments requiring the expenditure of funds for electricity and care,’ the BOP's regulation ‘does not implicate the appellants' First Amendment rights,’ . . . I would have no problem with this conclusion if the Zimmer Amendment were limited to denying funds for purchasing electric guitars. But the amendment also prohibits prisoners from using and possessing their own guitars, and there is an important difference between a regulation that denies funds to buy guitars and one that denies funds for electricity or other infrastructural resources necessary for the exercise of constitutional rights. All prison activities depend on an infrastructure of basic resources, such as electricity, guard supervision, and space, which the government both necessarily pays for and controls. If the government can ‘choose not to subsidize inmates' use or possession of a class of instruments requiring the expenditure of funds for electricity and care,’ . . . then the government could just as easily choose not to ‘subsidize’ inmates' use or possession of books, by withdrawing funds for electricity for light to read by, or it could decide not to ‘subsidize’ inmate correspondence, by withdrawing funds for the distribution of prison mail.” (Id., at 237) (Emphasis in original).

Essentially, Judge Tatel viewed the BOP’s defense of the Zimmer Amendment as presenting an important question that goes to the heart of the grandstanding attempts of lawmakers to make prison life more onerous. He pointedly asked: “Does the goal of enhancing the punitive and deterrent value of prison by making prison conditions more onerous justify limiting prisoners’ constitutional rights?” (Id., at 239).

He then answered that question by observing that “[t]he BOP’s rationale for banning electric guitars could also justify banning all musical instruments, or all music, or even all books, including the Bible and the Koran, on the ground that denying these ‘perks’ will make prison more onerous and ‘more a place of deterrence and punishment’.” (Id.).

Oh, by the way, we forgot to mention that Senator Ensign’s proposed new law would also prohibit inmates from possessing or listening to music “which contains lyrics that are violent, sexually explicit, vulgar, glamorize gang membership or activities, demean women, or disrespect law enforcement.”

In Brief

Apprendi: U.S. v. Campbell, 317 F.3d 597 (6th Cir. 2003) - In a case where the defendants were convicted of conspiracy to possess with intent to distribute marijuana, the district court’s use of the five year statutory maximum sentence specified in 21 U.S.C. § 841(b)(1)(D), rather than the one-year period maximum specified in 21 U.S.C. §841(b)(4), was affirmed as the proper penalty for an indeterminate amount of marijuana.

Child Pornography: U.S. v. McCoy, No. 01-50495 (9th Cir. 3/20/03) - In a decision which is as much a reprise of the hostilities between Judges Reinhardt and Trott, the liberal majority in this decision held that 18 U.S.C. § 2252(a)(4)(B), prohibiting possession of certain child pornography, is unconstitutional as applied to simple intrastate possession of a visual depiction that has not been mailed, shipped, or transported in interstate commerce and is not intended for interstate distribution, or for economic or commercial use.

Discovery - Evidence in a Foreign Country: U.S. v. Torres, 318 F.3d 1058 (11th Cir. 2003) - Here, after a foreign bank failed to provide a clear, dispositive, and unambiguous response to each item in the government's original discovery request, the district court suspended the statute of limitations for some nine months to give the Government more time to get its evidence. After the defendant’s motion to dismiss the indictment on limitations grounds was denied, the Eleventh Circuit affirmed, holding that, under 18 U.S.C. § 3292 (Suspension of limitations to permit United States to obtain foreign evidence), an initial, incomplete response from a foreign authority did not constitute a “final action” within the meaning of § 3292 which terminated the tolling period under that statute.

Guidelines: U.S. v. Hunter, No. 01-11821 (11th Cir. 03/17/03) - The principal issue in this case was whether the district court had improperly held each of the defendants responsible for the entire loss of a counterfeit check cashing conspiracy. In vacating the sentences imposed, the Court held that the district court had misapplied U.S.S.G. § 1B1.3(a)(1)(B) by failing to make particularized findings as to the scope of criminal activity undertaken by each defendant; U.S. v. Boddie, 318 F.3d 491 (3rd Cir. 2003) - Joining with decisions from at least seven other Circuits, the Court held that a defendant with three criminal history points is not eligible for a safety valve sentence reduction under U.S.S.G. § 5C1.2, even though the sentencing court found that his criminal history category significantly overstated the seriousness of his past criminal conduct.

Halfway House Designation: Iacoboni v. U.S., C.A.No. 03-30005-MAP (D.Mass. 03/20/2003) - Adding his voice to the rising chorus of judicial opposition to the DOJ’s recent retroactive application of new policies governing the redesignation of inmates previously placed in halfway houses, Judge Ponsor held that the BOP’s “forced renunciation of its own lawful discretion flies in the face of the controlling statute,” violates the Administrative Procedure Act and violates constitutional due process. (See also, Culter v. U.S., Civ. No, 02-0106 (ESH) (D.D.C. 01/24/2003), where the BOP’s retroactive redesignation of the petitioner was set aside on grounds of equitable estoppel and due process.)

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