Vol. 10, Nos. 44 & 45
Covering Cases Published in the Advance Sheets through November 10, 2003

Note: This Visitor's version of Punch and Jurists does not include all the cases covered in the Member's version. In addition, while the Member's version contains links to the full text of all of the decisions noted below, that feature is not available in the Visitor's Edition. Thus, while the names of some of the cases cited below may be highlighted in blue, they are not hypertext-linked to the official decision in this Visitor's Edition of Punch and Jurists.

Supreme Court

Guidelines

Government's Claim of Actual Atorney-Client Conflict of Interest Rejected


U.S. v. Banks, No. 02-473 (U.S. Sup. Ct. 12/02/2003) (Justice Souter)

On July 15th, 1998, Las Vegas police officers executed a warrant to search the apartment of suspected drug dealer Lashawn Banks. The officers knocked on the door and, after waiting 15 to 20 seconds without a rsponse , they broke down the door with a battering ram. When the police entered the apartment, Banks had just emerged from the shower and was naked. After forcing Banks to the floor and handcuffing him, a search of the apartment yielded weapons, rock and crack cocaine, and a scale.

At trial, Banks sought to suppress the narcotics evidence as the fruit of an unlawful search. When that motion was denied, he reserved his right to appeal and then pled guilty. On appeal, the Ninth Circuit reversed. In a decision reported at U.S. v. Banks, 282 F.3d 699 (9th Cir. 2003), a divided court found the police had not waited a reasonable amount of time before forcibly entering the defendant’s apartment. The panel majority set out a nonexhaustive list of "factors that an officer reasonably should consider" in deciding when to enter premises identified in a warrant, after knocking and announcing their presence but receiving no express acknowledgment; and it defined four categories of intrusion that the courts should examine. Based on that analysis, the majority concluded that the short pause before smashing the door down was not reasonable, because in this case the police had nothing to suggest a refusal to admit.

On appeal, a unanimous Supreme Court reversed. Even though it conceded that the police arrived at Bank’s door “without reasonable suspicion of facts justifying a no-knock entry,” it held that the 15 to 20 second interval between knocking and forcibly entering at issue in this case was constitutionally reasonable under both the Fourth Amendment and 18 U.S.C. § 3109, the Federal knock and announce statute - although it also agreed that the question was “a close one.”

The Court stated that it granted certiorari to consider how to go about applying the standard of reasonableness to the length of time police with a warrant must wait before entering without permission after knocking and announcing their intent in a felony case. In response to that question, Justice Souter, writing for the Court, held that the reasonableness of a forced entry depends on the circumstances in each case, rather than a particular formula or a fixed time limit. He then concluded: “We think that after 15 or 20 seconds without a response, police could fairly suspect that cocaine would be gone if they were reticent any longer.”

Banks had argued that he had not refused to open the door, but rather that he was in the shower and did not hear the police, making their rapid entry all the more unreasonable. The Court responded that Banks’ argument “ignores the very risk that justified prompt entry. . . [because] what matters is the opportunity to get rid of cocaine, which a prudent dealer will keep near a commode or kitchen sink.”

The only limit that the Court seemed to put on the time limitations at issue was the nature of the evidence being sought. Thus, the Court said: “Police seeking a stolen piano may be able to spend more time to make sure they really need a battering ram.” But, under the facts of this case, dealing with easily disposable drugs, the Court concluded: “It is imminent disposal, not travel time to the entrance, that governs when the police may reasonably enter.”

For copies of the briefs filed in this case, click here.


U.S. v. Carroll, 346 F.3d 744 (7th Cir. 2003) (Judge Bauer)

This case speaks volumes about the dangers of daring to cross a thin-skinned Federal prosecutor. In 2000, the defendant, Thomas Carroll, a career foreign service officer, who had been serving as a vice-consul in the U.S. Embassy in Georgetown, Guyana, was charged with coordinating the sale of “hundreds of fraudulent visas through local brokers with whom he shared an averages of $10,000 in bribes per visa.” (Id., at 745). He was arrested, along with one such broker, Halim Khan, a Guyanese citizen, and indicted for a number of crimes, including conspiracy, bribery and issuance of false visa documents.

From the outset, Carroll admitted his guilt; and he engaged in “numerous, intensive proffer sessions over a period of months in which he described his illegal conduct [and those of his associates] in considerable detail.” (Id., at 750). Ultimately, the U.S. Attorney “approved a 57-month prison sentence recommendation” (id., at 746). However, no plea agreement was ever signed because the prosecutor refused to agree to recommend a downward departure that Carroll requested for substantial assistance, pursuant to U.S.S.G. § 5K1.1. Therefore, upon the advice of counsel, Carroll finally entered into a “blind guilty plea” in which he accepted guilt on all the charges that had been asserted and in which he “conceded forfeiture liability in the amount of $2,500,000 (more than double the amount included in the indictment).” (Id.).

As a matter of interest, the district court (Judge Blanche Manning of the N.D.Ill.) even warned Carroll that a blind guilty plea “could result” in a more severe sentence than that which had been offered under the agreement. (Id., at 751).

The Probation Department then prepared a presentence report (PSR), which calculated a total offense level of 27, and which equated to a prison term of 70 to 87 months. Both Carroll and the Government then raised numerous objections to the PSR calculations and both moved for various departures under the Guidelines. The Government, obviously angered that Carroll had rejected a plea agreement that it had offered, asked the court to deny any sentence reduction based on acceptance of responsibility, and to grant a series of upward departures, based on a number grounds, including obstruction of justice, loss of public confidence in the government, and significant disruption of government functions.

The district court not only denied Carroll’s requests for any downward departure, it also adopted in toto the Government’s recommendations, granting all the requested motions for upward departures; and it sentenced Carroll to 262 months in prison - some 17 years greater than what the U.S. Attorney’s office had originally approved - prior to Carroll’s audacity in asking for a § 5K1.1 departure.

On appeal, the Seventh Circuit reversed. It called the 262 month sentence “clearly erroneous,” and it remanded for a resentencing within the range of 70 to 87 months. With admirable restraint, the Court cited a number of reasons why it felt that the 262 month sentence was unreasonable.

It stated, for example, that “this Court is at a loss to discern the reasonableness of such a draconian increase in Carroll’s prison sentence.” (Id., at 751) (Emphasis added). It noted that, while Carroll’s refusal to accept the no-downward departure plea agreement that the Government had offered “may have resulted in a frustrating increase in the prosecution’s workload, it is no justification for an upward departure in Carroll’s offense level.” (Id., at 751, n. 11). The Court also emphasized that nothing new had come to the Government’s attention in the 14-month period between the Carroll’s plea colloquy and his sentencing: “all factual bases for the upward departure had come to light prior to the plea colloquy.” (Id., at 751). Finally, the Court noted that Carroll’s co-conspirator, Khan, had been sentenced several weeks later to a 38-month prison term under a plea agreement - and it stated that “a disparity of this magnitude certainly goes a long way toward questioning the reasonableness of the upward departures.” (Id.)

In an effort to justify the 262 month sentence, the Government argued that Carroll’s overstatement of his forfeiture liability had been an attempt to “knowingly mislead” the Probation department by overestimating the amount of his legitimate assets that had been commingled with illicit assets “in an attempt to affect [the] forfeiture determination” (id., at 747). The district court swallowed that argument, hook, line and sinker; and accordingly it concluded that Carroll’s sentence had to be enhanced two levels for obstruction of justice, pursuant to the provisions of U.S.S.G. § 3C1.1.

Then, citing the language of Application Note 4 to U.S.S.G. § 3E1.1 (which provides that obstruction of justice “ordinarily indicates that the defendant has not accepted responsibility”), the district court also concluded that Carroll was not eligible for any sentence reduction for acceptance of responsibility because he had engaged in obstruction of justice.

The Seventh Circuit rejected the district court’s rationale on both of those issues. It concluded that even if Carroll had somewhat overestimated the amount of clean assets, it said that was “a far cry from concealing the very existence of assets from investigators or the court.” (Id., at 749). Besides, it added, whatever Carroll said did not affect his restitution calculations “because the substitute forfeiture provision of 21 U.S.C. § 853 subjects Carroll’s every last penny to forfeiture.” (Id.).

The Court rejected the district court’s denial of an acceptance of responsibility sentence reduction with similar force. First, it said that because it found that Carroll had not obstructed justice, Application Note 4 to § 3E1.1 was inapplicable to his sentence. (Id.) Then, it bluntly said that the district court simply “ignored the fact that Carroll engaged in numerous, intensive proffer sessions over a period of months” and that those proffer sessions “far exceeded the minimum admission of responsibility for criminal conduct.” (Id., at 750). Finally, the Court reminded the district court that Application Note 1(a) to § 3E1.1 states that “a defendant is not required to volunteer, or affirmatively admit, relevant conduct beyond the offense of conviction in order to obtain a reduction under [§ 3E1.1].” (Id.)


In Brief

Aberrant Behavior: U.S. v. Castellanos, No. 03-1036 (2nd Cir. 12/01/2003) - Here, clarifying and somewhat amplifying its earlier decision in U.S. v. Gonzalez, 281 F.3d 38 (2nd Cir. 2002), the Second Circuit held that under U.S.S.G. § 5K2.20, the “absence or presence of spontaneity alone never determines whether criminal conduct is aberrant behavior. A non-spontaneous criminal act might be aberrant behavior. Even though not committed entirely without planning, it might nevertheless have been committed without ‘significant’ planning, be of limited duration, and constitute a marked deviation from an otherwise law-abiding life. . . . Spontaneity is not determinative, but it is a relevant and permissible consideration when treated as one factor in evaluating whether the three-pronged test of section 5K2.20 has been met.”

Antiterrorism Issues: Humanitarian Law Project v. U.S. Dept. of Justice, No. 02-55082 (9th Cir. 12/03/2003) - In a decision that attacks a critical and frequently used element of many of the Government’s cases against alleged terrorists, a divided panel from the Ninth Circuit has held unconstitutional a portion of the Federal Antiterrorism Laws (18 U.S.C. § 2339B), which makes it a crime to provide “material support” to an organization designated as a “foreign terrorist organization.”

The specific issue before the Court was “whether a criminal prosecution under 18 U.S.C. § 2339B requires the government to prove as an element of the offense that the defendant knew the organization had been designated by the Secretary as a foreign terrorist organization, or at least knew of the organization’s unlawful activities leading to its designation.” The Court construed § 2339B “to require proof that a person charged with violating the statute had knowledge of the organization’s designation or knowledge of the unlawful activities that caused it to be so designated.” In addition the Court reaffirmed an earlier ruling in the same case that the prohibition on providing “training” and “personnel” in § 2339B is impermissibly overbroad, and thus void for vagueness under the First and Fifth Amendments. The majority stated: “The language of 18 U.S.C. § 2339B does not in any way suggest that Congress intended to impose strict liability on individuals who donate “material support” to designated organizations.”

Attenuation Doctrine: U.S. v. Akridge, 346 F.3d 618 (6th Cir. 2003) - This decision is noted for its detailed discussion and analysis of the “attenuation doctrine” - a judicially created exception to the Fourth Amendment’s exclusionary rule, under which the courts justify the use of tainted evidence if they find that the connection between the illegal police conduct and the discovery and seizure of the evidence in question is so “attenuated” as to dissipate the taint. Here, using the attenuation doctrine, the Sixth Circuit affirmed the use of live testimony of two witnesses (the defendant’s alleged co-conspirators) whose identity had not previously been known to the police prior to their illegal search, and whose very existence “would not have been discovered in the absence of the illegal search. (Id., at 624).

Tracing the origin and development of the attenuation doctrine back to U.S. v. Ceccolini, 435 U.S. 268 (1977), the Sixth Circuit emphasized that the exclusionary rule does not invariably bar the testimony of a witness whose identity is revealed to the authorities as the result of an illegal search. Instead, the exclusion is dependent upon ”the degree of attenuation between the illegal search and the testimony.” The Court noted that there are a number of factors that distinguish live testimony from other types of evidence; and it concluded that “since the cost of excluding live-witness testimony often will be greater, a closer, more direct link between the illegality and that kind of testimony is required.”

 


Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court

This Week

Year to Date

Since 1996

Courts of Appeal

65

2,152

18,660

District Courts

95

1,305

 10,243


Copyright © 2003 Punch and Jurists, Ltd.