Vol. 10, No. 16	Covering Cases Published in the Advance Sheets through April 21, 2003

Highlights of this Issue:

The Illusory Jurisdictional Hook of § 666 Prosecutions

• In Sabri, a divided panel from the Eighth Circuit held that, in Federal bribery prosecutions under 18 U.S.C. § 666(a)(2), the Government does not have to prove any nexus between the offense conduct and the “federal funds,” which give the Government its “jurisdictional hook” over the broad range of cases covered by that statute and which were historically reserved for state and local prosecutions.

The Confrontation Clause and the Right to Cross-Examine - Different Perspectives

• In a lengthy exegesis on the Confrontation Clause, the Second Circuit, in Cotto, ordered the retrial of a defendant convicted of murder, after finding that his Confrontation Clause rights were violated when the trial court permitted the introduction of critical evidence of a lone eyewitness’ out-of-court identification but denied the defendant any right to cross-examine the witness out of concern for the safety of the witness and his family - even though the witness had plain motives “to curry favor” with law enforcement officials through his testimony against the defendant.
  
  
• In Bugh, the Sixth Circuit held that the admission of testimony by four adult witnesses as to out-of-court statements made by a child abuse victim did not violate the Confrontation Clause principally because the defendant was given the full opportunity to cross-examine those witnesses and the Confrontation Clause guarantees only an opportunity for effective cross-examination - not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.”
  

The Use of Collateral Estoppel in Criminal Cases

• In Arnett, the Ninth Circuit affirmed its longstanding precedent that collateral estoppel can be used to prevent a criminal defendant from relitigating an issue that was previously litigated and resolved against him in another court - a position that several other circuits have long disagreed with on the grounds that it interferes with the power of a jury to determine every element of the crime.
  

Safety Valve Sentence Reductions

• Two cases this week addressed the ever-stiffening requirements for a “safety valve” sentence reduction. In Alvarado, the Seventh Circuit joined a number of other Circuits in holding that the safety valve statute requires full disclosure of information about the defendant’s offense before the sentencing hearing begins. In Alarcon-Garcia, the Eighth Circuit held that, “while a defendant seeking safety valve relief is not obliged to submit to an interview with the Government, . . . a defendant who declines to offer himself for a debriefing takes a very dangerous course.”

U.S. v. Sabri, No. 02-1561 (8th Cir. 04/07/2003) (Judge Hansen)

This case is noted for its lively discussion of an important jurisdictional issue regarding 18 U.S.C. § 666(a)(2) - the statute that makes it a Federal crime to bribe state and local government officials, provided only that the person being bribed works for a government or agency that receives at least $10,000 in Federal program benefits.

As Judge Bye noted in his dissent, § 666 punishes “a broad swath of conduct bearing little relationship to any federal interest.” While Judge Bye acknowledged that § 666(a)(2) “does not preempt state or local power to punish corruption,” he also astutely noted that “the sheer size and funding of the federal government's criminal justice machinery suggests the possibility of state and local anticorruption efforts dwindling. It blinks at reality to believe § 666(a)(2) does no more than provide an additional weapon in the anticorruption arsenal. By inserting itself into a domain traditionally reserved for state and local prosecutions, the federal government treats state governments, for example, not with the respect and dignity due them as ‘residuary sovereigns and joint participants in the Nation's governance,’ but as untrustworthy organs incapable of policing their own.”

The defendant in this case, Basim Omar Sabri, a Minneapolis real estate developer, was indicted under 18 U.S.C. § 666(a)(2) for allegedly bribing a city council member to obtain his assistance in receiving regulatory approval from the city for defendant's real estate project. Sabri moved to dismiss the indictment on the ground that § 666(a)(2) was facially unconstitutional because it does not require the government to prove a nexus between the offense conduct-the offering of a bribe-and the federal funds. Without such a "jurisdictional hook," (that is, a clause that purports to ensure that the law applies only to activity that falls within the federal lawmaking power), Sabri argued that the statute was outside Congress's legislative power.

To date, at least two Circuits have concluded that § 666 requires the government to prove at least some minimal nexus between the bribery and the federal benefits beyond that explicitly required in § 666(b). See U.S. v. Zwick, 199 F.3d 672, 679 (3d Cir. 1999) and U.S. v. Santopietro, 166 F.3d 88, 93 (2d Cir. 1999). The district court agreed with Sabri's arguments and granted his motion to dismiss the indictment

On appeal, a divided panel from the Eighth Circuit reversed and ordered that the indictment be reinstated. The majority held that § 666 contains no requirement that the Government prove some connection between the offense conduct and federal funds beyond the express statutory requirement found in 18 U.S.C. § 666(b).

Further, the majority concluded that § 666 was constitutional under the “Necessary and Proper Clause” of the Constitution.” (U.S. Const. art. I, § 8, cl. 18). That Clause provides that "the Congress shall have Power . . . to make all Laws which shall be necessary and proper for carrying into Execution" all the powers vested in the Government of the United States. The majority stated that, so that the Constitution not be “a splendid bauble,” the Framers inserted the Necessary and Proper Clause to "remove all doubts respecting the right to legislate on that vast mass of incidental powers which must be involved in the constitution." (Internal citations omitted).

In his dissent, Judge Bye stated: “In my view, the principal defect in the majority opinion is its inattention to the conjunctive ‘and’ that separates the words ‘necessary and proper’.” He also observed that “[t]he majority’s sweeping view of the Necessary and Proper Clause calls to mind Congress' unbounded deployment of its Commerce Clause authority before Lopez [U.S. v. Lopez, 514 U.S. 549 (1995)] and Morrison [U.S. v. Morrison, 529 U.S. 598 (2000)]. Both Lopez and Morrison curtailed federal power, forbidding Congress from piling ‘inference upon inference’ to demonstrate a relationship between crimes and federal interests.”

He concluded that § 666 “upsets the delicate balance between federal and state authority that animates our Constitution. ‘Congress has no more power to punish theft from the beneficiaries of its largesse than it has to punish theft from anyone else. . . . The Constitution does not contemplate that federal regulatory power should tag along after federal money like a hungry dog’.” (Internal citations omitted).

Cotto v. Herbert, No. 01-2694 (2nd Cir. 05/01/2003) (Judge Straub)

In 1996, Richard Cotto, the petitioner in this case, was convicted of the 1992 murder of Steven Davilla. Cotto wasn’t arrested and charged in the case until a year after the murder - in part because, in the words of the Court, “the overall strength of the prosecution’s case . . . against Cotto was less than overwhelming.”

Shortly after the shooting occurred, the police interviewed Anthony Echevvaria, a neighborhood resident who knew both Cotto and Davilla. At that time, Echevarria told law enforcement officials, both orally and in writing, that he could not identify the shooter. Then, in 1996, a few months before Cotto’s trial, Echevarria told law enforcement officials that he saw Cotto shoot Davilla. At that time Echevarria was himself in prison at Riker’s Island; and he was about to go before the Parole Board for a hearing on parole release. The prosecution advised defense counsel that it intended to call Echevarria as an eyewitness.

The day before he was scheduled to testify, Echevarria called the prosecutor and said that he feared for the safety of his family and that he would not identify Cotto as the shooter if he was called to testify. The prosecutor called Echevarria to the stand anyway, and Echevarria testified on direct examination that he did not see the shooter “because once the shots started that was it, I ain’t looking at nobody.”

At that point, due to the inconsistency between Echevarria’s trial testimony and his pretrial statements to law enforcement officers, the prosecutor asked Echevarria if he recalled his prior conversations with him. Defense counsel immediately objected; and the jury was excused. Echevarria then told the court that he had to “think of [his] family.”

The trial court then suggested to the prosecutors that they move for a Sirois hearing (a hearing held in New York criminal cases to determine whether the defendant had procured a witness’ absence or unavailability through his own misconduct and thereby had forfeited any hearsay or Confrontation Clause objections to admitting the witness’ out-of-court statements. A Sirois hearing is similar to a Mastrangelo hearing used in Federal cases in the Second Circuit. See, U.S. v. Mastrangelo, 693 F.2d 269, 272 (2nd Cir. 1982)).

The prosecutor agreed, and a Sirois hearing was held, outside the presence of the jury. At the conclusion of that hearing, the trial judge concluded that Cotto had procured Echevarria's unwillingness to testify, and therefore his statements to the prosecutor and police officers from the week before trial would be admissible as evidence of Cotto's guilt. In addition, the trial court ruled that the defense would be precluded from cross-examining Echevarria, concluding that "no truth-serving function would be served" by allowing him to be cross-examined on any subject.

After the Sirois hearing, the trial resumed and two police officers testified that Echevarria had identified Cotto as the shooter. Cotto was convicted of all charges against him, and he was sentenced to 25 years to life in prison. After exhausting all state appeals, Echevarria sought habeas relief from the Federal courts. Judge Hellerstein of the S.D.N.Y. denied Echevarria’s petition for habeas relief on a number of grounds, but he did grant a Certificate of Appealability on two claims, one of which was whether the trial court’s ruling that precluded cross-examination of Echevarria by defense counsel violated Cotto’s Sixth Amendment rights.

Focusing primarily on that second certified question, the panel concluded that the trial court’s decision to preclude any cross-examination of Echevarria was “objectively unreasonable, and violated Cotto’s constitutional right of confrontation.” The Court stated that “[t]he impingement on the confrontation right here, where defendant was completely precluded from cross-examining the only living person to identify Cotto as the shooter, is particularly stark.”

Following a lengthy and highly detailed analysis of cases involving the Confrontation Clause, the panel found no cases “where the jury was presented with direct, in-person testimony from the witness, and the witness’s prior out-of-court statements, but no cross-examination whatsoever was permitted” out of fear for the safety of the witness and his family. “In sum, . . . (1) the absence of any Supreme Court holdings extending the forfeiture of confrontation rights to complete preclusion of cross-examination of a prosecution witness who actually testifies at trial, juxtaposed against the clearly established right to cross-examine adverse witnesses for bias and motive to lie; (2) the lack of any reasons why a complete ban was necessary and appropriate in this case; and (3) the centrality of cross-examination to the truth-seeking process - lead us to conclude that the state court determination to preclude cross-examination of Echevarria entirely was an ‘objectively unreasonable’ application of clearly established Supreme Court law.”

The Court specifically observed that Echevarria’s potential bias and motive to lie was particularly relevant because he was in Rikers Island awaiting a parole hearing when he testified and he “therefore had a motive to curry favor with law enforcement in return for leniency in his upcoming parole hearing.” The Court also emphasized that Echevarria had given at least two prior statements to the police in which he said that he did not see the shooter, and that he did not identify Cotto until three years after the shooting.

Concluding that depriving the jury “of the powerful tool of cross-examination, when the witness was literally available, harmed the truth-seeking process as much as it did Cotto,” the Court conditionally granted Cotto’s petition for a writ of habeas corpus unless the state provided him with a new trial within 90 days.

Bugh v. Mitchell, No. 01-3417 (6th Cir. 05/13/03) (Judge Cole)

This case is noted for its current and very comprehensive review of some of the critical Confrontation Clause issues involved in the field of child sex crime cases - one of the fastest growing categories of crimes in America. The petitioner in this case, Richard Bugh, was convicted in 1989 of raping and engaging in improper sexual activities with his four year old daughter. He was sentenced to not less than 10 nor more than 25 years in prison. In 1996, he sought habeas relief in the Federal courts, principally on the grounds that the trial court had violated his rights under the Confrontation Clause by allowing four adults to testify as to out-of-court statements made by the victim concerning the abuse by her father. When the district court denied any relief, this appeal followed.

Although the four-year-old victim testified (and was cross-examined) at trial, she gave non-verbal answers to most of the questions posed to her; and, in a number of instances, she said that she did not remember what had happened to her. To bolster the charges against the defendant, the prosecution produced the victim’s mother, a counselor who met with the victim for 22 sessions, a state social services supervisor who interviewed the victim twice, and a doctor who performed a physical examination on the victim after the crime. Each of them testified in detail about some of the many indecencies committed by the father - as reported to them by the victim.

The defendant argued that such evidence was inadmissible hearsay evidence. He also argued that simply because the victim herself was subject to cross-examination was not sufficient because she was “not in fact available for cross-examination as to her statements” and the prosecution’s case was not subject to “the rigorous adversarial testing that is the norm of Anglo-American criminal proceedings.”

After a careful review of the leading precedents on the Confrontation Clause, the Sixth Circuit concluded that Bugh’s confrontation rights had not been violated “because Bugh had the opportunity to cross-examine the victim and the four witnesses who testified to [the victim’s] out-of-court statements.” Citing numerous cases, the Court noted that the Confrontation Clause “guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.”

The Court also examined, and distinguished, the holding of the two leading Supreme Court cases dealing with Confrontation Clause issues and hearsay evidence issues in cases involving alleged abuse of child declarants, namely Idaho v. Wright, 497 U.S. 805 (1990) and Maryland v. Craig, 497 U.S. 836 (1990). In Wright, for example, the Supreme Court held that the admission of hearsay statements about alleged abuse made by a child declarant to an examining pediatrician violated the defendant’s rights under the Confrontation Clause. In Craig, the Court addressed a challenge to a Maryland statutory procedure that allowed a judge to receive, by one-way closed-circuit television, the testimony of a child witness alleged to be the victim of sexual abuse. In the eyes of the Sixth Circuit, a key fact that distinguished both Wright and Craig from the instant case was that the victim in this case “confronted the accused in court and was subject to unrestricted cross-examination.”

In Brief

Apprendi: Coleman v. U.S., No. 01-2236 (2nd Cir. 05/07/2003) - Here a divided panel from the Second Circuit held that the rule established in Apprendi does not apply retroactively to initial habeas corpus petitions; U.S. v. Bynum, No. 02-10016 (9th Cir. 04/30/03) - The Ninth Court rejected a challenge to the facial constitutionally of 18 U.S.C. § 666 (pertaining to the theft of Federal funds), and ruled that a finding of a Federal nexus for a valid application of the Hobbs Act (18 U.S.C. § 1951) is a question of law for the district court and not a element of the offense that must be decided by the jury under Apprendi.

Role in the Offense: U.S. v. Burgos, 324 F.3d 88 (2nd Cir. 2003) - A three-level enhancement of the defendant’s sentence pursuant to U.S.S.G. § 3B1.3(b) was reversed on the grounds that the district court’s finding that the defendant had acted as “more than a mere middleman” in an illegal check cashing scheme was not sufficient to conclude that he had acted as a manager or supervisor since there was no evidence that he had either “exercised some degree of control over others involved in the commission of the offense . . . or played a significant role in the decision to recruit or supervise lower-level participants”; U.S. v. Edwards, 325 F.3d 1184 (10th Cir. 2003) - Stating that “opportunity and access do not equate to authority,” the Tenth Circuit vacated an abuse of position of trust sentence enhancement pursuant to U.S.S.G. § 3B1.3. The Court noted that the defendant, who worked in the accounting department of an advertising firm and who pled guilty to embezzling funds from her employer, was only an hourly employee whose tasks were “solely ministerial” and who had no authority to exercise any degree of discretion in her job.

Speedy Trial: U.S. v. Escamilla, 244 F.Supp.2d 760 (S.D.Tex. 2003 - A nine year delay between the defendant’s arrest and his indictment did not violate his speedy trial rights because, although the extraordinary length of the delay raised a presumption of prejudice, the defendant precipitated the delay by fleeing to Mexico for a couple of years and then “prolonged the delay by failing to assert his right to a speedy trial after his return to the United States until after his arrest, despite knowing that he was wanted by the authorities.”; U.S. v. Zapata, 245 F.Supp.2d 1165 (D.Colo. 2003) - A six year delay between the defendant’s arrest and his indictment did violate his speedy trial rights because, even though the defendant was alleged to have fled to Mexico to avoid arrest, the Government still had ample opportunity to pursue his arrest, and was grossly negligent in failing to investigate his whereabouts.

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