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

The Feeney Amendment

We urgently call your attention to the special note at the end of this week’s issue about this bill that the House of Representatives overwhelmingly passed last week without any discussion or debate. The bill is nothing but a sneak attack designed to change radically the power of the courts to grant downward (but not upward) departures at sentencing - including any departures based on family responsibilities, aberrant behavior, and circumstances not specifically mentioned in the Guidelines. We urge you to join the fight against this ill-conceived proposal by registering your opposition with your Congressman and your Senator.

Highlights of this Issue:

U.S.S.G. and Sentencing

• In Dotson, the Fourth Circuit affirmed the imposition of several increasingly standard conditions of supervised release on a defendant convicted of child pornography, including polygraph tests and the use of penile plethysmograph (PPG) tests, despite the fact that evidence from both of such tests are not deemed sufficiently scientifically reliable for use in Federal courts.
  
  
• In Blackwell, the Tenth Circuit the Court vacated a sentence that included a three-level official victim enhancement, pursuant to U.S.S.G. § 3A1.2(a), on the grounds that the enhancement applies “only to the offense of conviction, and not to that offense accompanied by relevant conduct.”
  
  
  
  
• In Saunders, the Eleventh Circuit addressed the Circuit split on the proper method of determining whether to apply the fencing enhancement for being “in the business of receiving and selling stolen property,” as provided in U.S.S.G. § 2B6.1(b)(2), and it determined that the “totality of circumstances test” was the proper standard, rather than the “fence test” used by some Circuits.
  
  
  
  
• The Nelson-Rodriguez case from the First Circuit is noted for its ruling that, under Rule 32(b), during the 14-day period following the release of a presentence report, the parties must communicate with the probation officer only in writing and all such communications must be disclosed to the other party.
  
  

Forfeiture

• In the $242,484 case, the Eleventh Circuit reversed a forfeiture order and held that, despite a lot of suspicious evidence and unanswered questions by the claimant about the source of funds that had been seized, the Government simply failed to establish a link between the seized currency and illegal narcotics, as required by the operative statute, 21 U.S.C. §881(a)(6).

The Futility of Prison Litigation - Ab Initio

• In Wilson, the Ninth Circuit held that a state prisoner’s habeas petition seeking relief from disciplinary punishment had been properly dismissed on the grounds of mootness because, by the time he had exhausted his required administrative review procedures, the punishment imposed as a result of the disciplinary action had been fully served. Under that ruling, many habeas petitions will become void ab initio simply because the prison delays the administrative review process long enough.

   

U.S. v. Dotson, No. 02-4208 (4th Cir. 03/28/2003) (Judge Traxler)

In one sense, this is just another case about the broad range of “special conditions” of supervised release that are rapidly becoming“standard conditions” at sentencing. In another sense, the case also shows how the overarching desire to impose politically popular restraints on the lives of ex-cons often results in the prescription of judicially-created medicines and treatments that sometimes transcend their scientific validity or their penological value.

This case deals with two of those “medicines”: the use of polygraph tests and the use of penile plethysmograph (PPG) tests (the latter being a test designed to measure sexual arousal in response to pornographic pictures).

The defendant in this case, Robert Dotson, was caught in one of the huge number of pornography stings run by the Postal Service every day of the week. He agreed to buy, over the Internet, two “custom” videotapes of child pornography from a postal inspector in Ohio, who was posing as a pornography peddler. He was arrested when a postal inspector in North Carolina made delivery of the controlled package. Dotson pled guilty to possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(B) and (b)(1).

At sentencing, Judge Osteen of the M.D.N.C. imposed, over Dotson’s objections, a series of special conditions that were to apply during his term of supervised release. First, Dotson was ordered to participate in such mental health and sex offender treatment programs as might be directed by his probation officer. The district court specifically stated that such treatment “may include physiological testing such as the polygraph and penile plethysmograph (PPG), [and] the use of prescribed medications” - all at the discretion of his probation officer. In addition, Dotson was ordered “not to form a romantic interest or a sexual relationship with anyone having custody of a child under age eighteen.”

Dotson appealed his sentence, arguing inter alia that the imposition of the special conditions of supervised release was an abuse of discretion. The Fourth Circuit disagreed and affirmed the sentence. It held that a sentencing court is permitted to impose special conditions of supervised release, so long as the conditions are “reasonably related” to the statutory factors set forth in 18 U.S.C. 3583(d)(1). Those factors are:

• "the nature and circumstances of the offenses and the history and characteristics of the defendant," 18 U.S.C. § 3553(a)(1)
• providing adequate deterrence, 18 U.S.C. § 3553(a)(2)(B);
• protecting the public from further crimes, 18 U.S.C. § 3553(a)(2)(C); and
• providing the defendant with training, medical care, or treatment, 18 U.S.C. § 3553(a)(2)(D).

In addition, the Court noted, the conditions imposed in connection with those factors must "involve[ ] no greater deprivation of liberty than is reasonably necessary" for achieving the specified goals (18 U.S.C. § 3583(d)(2)), and they must be consistent with Sentencing Commission policy statements on supervised release 18 U.S.C. § 3583(d)(3)).

Having set forth those guiding principles, the Court then turned to Dotson’s objections to the PPG and the polygraph testing. Citing its decision in U.S. v. Powers, 59 F.3d 1460 (4th Cir. 1995), the Court summarily stated that the PPG test is “useful for treatment of sex offenders” - and for that reason it concluded that Judge Osteen had “clearly acted” within his discretion in requiring PPG testing.

However, a careful reading of Powers shows that the ruling in that case was anything but a ringing endorsement of the usefulness of PPG tests - or of the proposition that PPG tests serve some scientifically valid purpose.

In Powers, it was the defendant who wanted to introduce the testimony of two experts who would have testified that he did not exhibit the characteristics of a fixated pedophile based on the results of PPG tests they had administered to him. The Government opposed the admission of that testimony and evidence on the grounds that PPG tests do not satisfy the “scientific validity” prong of Daubert. The district court agreed with the Government’s position and barred the introduction of the expert testimony and the evidence of the PPG tests. In upholding that ruling, the Fourth Circuit stated:

“First, the Government proffered evidence that the scientific literature addressing penile plethysmography does not regard the test as a valid diagnostic tool because, although useful for treatment of sex offenders, it has no accepted standards in the scientific community. Second, the Government also introduced evidence before the judge that a vast majority of incest offenders who do not admit their guilt . . . show a normal reaction to the test. The Government argues that such false negatives render the test unreliable. Powers failed to introduce any indicia, let alone a sufficient level, of reliability to rebut the Government's evidence. Accordingly, in light of extensive, unanswered evidence weighing against the scientific validity of the penile plethysmograph test, we cannot say that the district court abused its discretion.” (Powers, id., at 1471).

In that same context, we also note that it is generally accepted in the mental health community - by both proponents and opponents of the plethysmograph - that the plethysmograph data does not give any evidence that it is useful in determining whether an individual did or did not commit a specific act. (See, generally, http://skepdic.com/penilep.html).

On the issue of polygraph testing, the Court acknowledged that “it is undisputed such evidence is inadmissible in nearly every circumstance at trial.” In fact, both before and after the Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), its seminal ruling on the admissibility of scientific evidence, the Fourth Circuit has consistently upheld its own per se rule that the results of an accused’s or a witness’ polygraph test are not admissible to bolster or undermine credibility. (See, e.g., U.S. v. Prince-Oyibo, 320 F.3d 494 (4th Cir. 2003); U.S. v. Chambers, 985 F.2d 1263 (4th Cir. 1993); and U.S. v. Porter, 821 F.2d 968, 974 (4th Cir 1987) (holding that it is impermissible even to mention that a witness had taken a polygraph test.) The underlying theory of that line of decisions is that the science of polygraphs is simply not sufficiently accurate or reliable to permit use of the results of such tests in normal legal proceedings.

Faced with that line of cases, the Court acknowledged that “the use of a polygraph test here is not aimed at gathering evidence to inculpate or exculpate Dotson. Rather, the test is contemplated as a potential treatment tool upon Dotson’s release from prison.” (Emphasis added). The Court never explained how it contemplated that the polygraph tests could be utilized as a “treatment tool.”

Wilson v. Terhune, 319 F.3d 477 (9th Cir. 2003) (Judge Tashima)

In this case, a panel from the Ninth has hammered another nail in the coffin of the once Great Writ of habeas corpus. Here, the Court affirmed the dismissal of a state prisoner’s habeas petition (seeking relief from what he claimed was a defective disciplinary punishment) on the grounds of mootness. The panel reasoned that, by the time the prisoner had exhausted his administrative remedies, the punishment imposed as a result of the disciplinary action (here a 90-day loss of privileges and 10 days confined to quarters) had been fully served - rendering his petition for judicial help moot.

The petitioner argued that, even if the underlying punishment was completed, there is an irrebuttable presumption that he would suffer continuing collateral consequences sufficient to prevent the doctrine of mootness from applying. For example, he asserted that the disciplinary proceeding would affect such things as his prison classification, his institutional and housing assignments, and his privileges; and that the disciplinary action might result in a delay or denial of parole.

The panel disagreed. While it acknowledged that there are always collateral consequences to a conviction, it specifically held that “the presumption of collateral consequences does not apply to prison disciplinary proceedings.” (Iid., at 480).

To put this ruling in context, both the Prison Litigation Reform Act (42 U.S.C. § 1997e(a)) and Supreme Court precedent (see, Porter v. Nussle, 534 U.S. 516 (2002)) require prisoners to exhaust their administrative remedies - even if they would be futile - before seeking judicial relief. Under the instant ruling, if the prison can effectively delay the administrative review process long enough, the inmate’s right to effective habeas review would become void ab initio. Because, without even trying, the full administrative review process can run for months, it would seem that carefully timed, repeated stays in administrative segregation could become immune from attack - even if based on clearly defective disciplinary proceedings.

The Feeney Amendment

On March 27, 2003, the House of Representatives took action on a little-noticed and even less-discussed amendment to a pending bill in a manner that speaks volumes about the apathetic and non-deliberative process used by that august body when passing some laws. By a lopsided vote of 357 to 58, the House passed an amendment to a substitute version of a Senate passed child pornography bill (that is designed to overrule the Supreme Court’s decision in Ashcroft v. Free Speech). The amendment, known as the Feeney Amendment, was never considered or debated by any committee of the House or the Senate; it wasn’t even introduced to the House until the night before the floor vote on the bill to which it was attached; and, by virtue of political gimmickry, any debate on the Amendment itself was strictly limited to 20 minutes. In effect, all the House really knew about the bill was what its sponsor, Congressman Tom Feeney (R-Fla) stated in his press release - namely that the Amendment would set “an appropriate and meaningful appellate standard that will prevent child offenders from receiving a sentence that does not justify crimes committed against our most fragile citizens.”

In fact, that disingenuous statement doesn’t begin to describe the true scope of the Feeney Amendment. The Amendment contemplates a surreptitious, sweeping and dramatic change in Federal sentencing practices by significantly impairing judicial discretion to depart downward under the Sentencing Guidelines. Specifically, among other things, the legislation would:

• prohibit downward departures based on factors that are not specifically enumerated in the Sentencing Guidelines;
• prohibit certain types of departures, such as those based on youth, aberrant behavior, family responsibilities, military service, and a combination of factors;
• strictly regulate "fast track" departures in illegal reentry cases and limit such departures to 4 levels;
• prohibit departures based on diminished capacity in cases involving obscenity and sex offenses;
• require de novo appellate review of departure decisions, effectively repealing Koon v. United States;
• require a government motion before a judge can award the additional one-level reduction for extraordinary acceptance of responsibility; and
• require that the Attorney General report downward departures not based on substantial assistance to the House and Senate Judiciary Committees, including the identity of the judge, the facts of the case, and other information.

Numerous organizations, including the American Bar Association and the National Association of Criminal Defense Lawyers (NACDL), have jumped into the fight against this legislation and have valiantly been trying to alert Congress that the Feeney Amendment is a pending disaster of monumental proportions. To keep track of this bill, we suggest you periodically log on to the NACDL site. Another good source of information about this bill is “Talk Left” - the provocative Internet Blawg (or legal Web log) maintained by noted defense attorney Jeralyn Merritt of Denver, CO.

Copyright © 2003 Punch and Jurists, Ltd.