Vol. 10, Nos. 48 & 49	Covering Cases Published in the Advance Sheets through Dec. 8, 2003

Inconsistent Prosecution Theories - "Stunningly Dishonorable and Outright Deplorable" - But Legal

• It is probably fitting that the year 2003 - which provoked such intense debate about the Government’s claim of right to prosecute anyone it labeled a terrorist - also produced the Shaw case - which raised a similarly arrogant claim of right. In this case, the Ninth Circuit was asked to determine if it was improper for prosecutors to convict two different people for the same crime when they knew that only one could be guilty of that crime. A majority of the panel held that, while the prosecutors’ conduct was somewhere between “stunningly dishonorable and outright deplorable,” what they did was nevertheless perfectly legal and did not give rise to any due process violation that warranted reversal. Wow!!!

Antiterrorism

• As promised in our last issue, we have added some additional thoughts and comments about the Second Circuit’s decision in the Padilla case and the Ninth Circuit’s decision in the Gherebi case - both of which reflected major setbacks in the Government’s practice of jailing alleged terrorists without charges and without access to courts or lawyers.

Guidelines

• The Smack case from the Third Circuit contains an in-depth analysis of Application Note 12 to U.S.S.G. § 2D1.1 (which attempts to establish the rules for determining drug quantity in reverse sting operations). Calling that Rule “opaque” and “a bit warped,” the Court urged the Sentencing Commission to clarify its scope and intent. However, the Court also held that defense counsel was ineffective for allowing his client to stipulate to the highest level of drugs that had even been discussed without ever bringing to the court’s attention various arguments that could have been made under Note 12.
  
  
• The Johnson decision is one of those incredibly complex Guidelines parsing cases that is only for the intrepid; but it does help to clarify the somewhat esoteric distinction between the two different parameters for relevant conduct under U.S.S.G. § 1B1.3, namely the differences between relevant conduct under subsections (a)(1) and (a)(2) of § 1B1.3. Judge Rovner’s discerning analysis also emphasizes that relevant conduct “does not open the door for a court to consider every act or omission of the defendant no matter how unrelated.”
  
  

The Sweat Patch Test - Analyzed

• In Alfonso, Judge Young of the D.Mass. has presented the definitive legal dossier on the sweat patch method of drug testing, which is used by many the U.S. Courts as an alternative to urinalysis to determine whether persons on pretrial or supervised release have taken drugs. While the court ultimately affirmed the revocation of the defendant’s term of pretrial release based on the aggregate of positive results from multiple sweat patch tests, it also raised some significant questions about the accuracy of the results of such testing, principally on the grounds of risk of contamination.

Shaw v. Terhune, No. 02-16829 (9th Cir. 12/22/2003) (Judge Hall)

In 1995, three armed men robbed a restaurant in Santa Clara, CA. It was and is undisputed that one of those men - and only one - held a gun to the head of Cheryl Bishop, the restaurant manager, in an unsuccessful attempt to gain access to the restaurant’s safe. Nevertheless, over the course of the next three years, two of the participants were each prosecuted and convicted in a California state court for holding the gun that only one man could have possessed.

Jonathan “Pee-Wee” Shaw was convicted first of several counts associated with the armed robbery, after the prosecutors argued that Shaw was the armed assailant. Shaw was then sentenced to 136 months in prison, which included a sentence enhancement imposed for “personal use” of a gun during the assault and attempted robbery of the restaurant manager.

More than two years after Shaw was convicted, the prosecutors reversed their theory of the case and charged Shaw’s accomplice in the robbery, Mango Watts, with the same charges. This time around, the prosecutors argued that it had been Watts - not Shaw - who threatened Bishop with the gun.

The jury, unaware of Shaw’s earlier conviction for the same crime, found that Watts had personally used a firearm in connection with the assault and attempted robbery of Bishop and he was convicted of the same crime for which Shaw had previously been convicted. The jury’s finding that Watts held the gun also led to a “personal use” sentence enhancement that increased his sentence by ten years.

After Shaw became aware of Watt’s conviction, he filed for relief in the California courts, arguing that his due process rights had been violated by the state prosecutor’s use of factually inconsistent arguments at the two trials, which produced inconsistent jury verdicts. After the California courts denied him any relief, he filed for Federal habeas relief pursuant to 28 U.S.C. § 2254. When the district court denied his petition, Shaw appealed to the Ninth Circuit which, by a vote of 2 to 1, affirmed the dismissal of his habeas petition.

The majority repeatedly acknowledged that the evidence was clear: only one person could have held the gun to Bishop’s head; and it said that it was “dismayed by the prosecutor’s decision to seek the personal use enhancement against Watts after successfully arguing in Shaw’s trial that Shaw, not Watts, was the individual who personally used the firearm against Bishop.” The majority also concluded: “There is little doubt that the actions of the prosecutors in the case before us may be characterized as something between stunningly dishonorable and outright deplorable.”

Despite those reservations, Judge Hall, writing for the majority, firmly concluded that there is no law that prohibits prosecutors from making inconsistent arguments to different juries, so long as they do not falsify the evidence. She also threw in the comment that “even if a constitutional violation were found, it is not entirely clear that it would be Shaw’s constitutional rights that had been violated, rather than Watts’s rights.” She further explained her position as follows:

“Shaw's petition for habeas corpus is governed by the standards set forth in the Antiterrorism and Effective Death Penalty Act (‘AEDPA’), 28 U.S.C. § 2254(d). Under AEDPA, we may only grant Shaw's petition if the state court's rejection of his due process claim was (1) ‘contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court;’ or (2) an unreasonable interpretation of the facts in light of the evidence presented in the state court proceeding.”

Applying that standard, she then wrote “we cannot conclude that the prosecutor’s conduct violated Shaw’s clearly established due process rights.”

Judge Wallace was visibly appalled by the hopeless piety of the majority; and he wrote a scathing dissenting opinion. He stated in part: “I cannot support an outcome that assumes a constitutional violation of either Watts’s or Shaw’s rights, but concludes there is no remedy. Thus, at the very least, due process requires that we grant Shaw an evidentiary hearing to demonstrate prejudice. . . . Here the prosecution abandoned its indispensable truth-telling function when, in separate trials, it knowingly prosecuted two defendants for acts that only one could perform. If extended to other trials, these "divide and conquer" tactics will inevitably produce unjust convictions and undermine public confidence in our criminal justice system.”

He also bluntly accused the prosecutors of “acting in bad faith,” stating: “Prosecutorial foul play clearly is not ‘one of the consequences we accept’ under our adversary system of criminal justice. A prosecutor’s solemn responsibility to ensure that innocent suspects do not suffer unjust convictions extends beyond the maxim that ‘justice must satisfy the appearance of justice’ in an individual case. . . . Even under the AEDPA’s stringent standard, such flagrant prosecutorial bad faith cannot withstand habeas review.”

U.S. v. Alfonso, 284 F.Supp.2d 193 (D.Mass. 2003) (Judge Young)

In this decision, Judge Young has presented an exhaustive and highly informative guide to the state of the law on the sweat patch method of drug testing, which is now used by many of the U.S. Courts as an alternative to urinalysis to determine whether persons on pretrial or supervised release have taken drugs.

The decision traces the history and origins of the program; and it includes an exhaustive list of resources relating to the use of the sweat patch test in the Federal penal system, including (a) a number of scientific studies that are available online, and (b) numerous cases in which the accuracy and admissibility of the results of sweat patch testing in revocation hearings has been challenged, with varying degrees of success.

Judge Young started his overview by explaining: “The United States Courts operate the largest drug testing program in America. Its Administrative Office has entered into a lucrative, nationwide, sole-source contract with PharmChem Laboratories, Inc. to provide sweat patches for drug testing. This [case] raised important questions about the accuracy of this sweat patch method for drug testing - questions that warrant searching scientific review.” (Emphasis added).

[For the record, we note that PharmChem, whose headquarters are in Haltom, TX, is apparently just another one of those Texas companies that have exclusive contracts with the U.S. Government.]

In 2001, the defendant, Henry Alfonso, was charged with the possession and distribution of a narcotic known as oxycodone; and he was released on bail. One of the conditions of his release was that he wear a sweat patch which “essentially operates like a large bandage that absorbs sweat from its wearer.” (Id., at 196). The sweat patch detects and collects residues of emissions through the skin from which drug use can be determined. Alfonso was instructed to report to Pretrial Services on a weekly basis to have his patch removed and tested and to have a new patch applied. After Alfonso tested positive to drug use on several occasions, the Government moved to revoke his bail pursuant to the provisions of 18 U.S.C. § 3148(a).

At his revocation hearing, Alfonso challenged the accuracy and reliability of the positive drug tests, essentially contending that any drug residues found were from outside contaminants. He identified two potential sources that may have led to the contamination of his patch: “(1) his residence in a house formerly occupied by a drug user; and (2) his contact with his wife, an exotic dancer.” (Id., at 200). He also submitted an expert report from Dr. Frederick Smith (one of several experts on sweat drug patches mentioned in this decision) in support of his claim that his test results had been contaminated by outside sources. (Id., at 198).

Alfonso also cited U.S. v. Snyder, 187 F.Supp.2d 52 (N.D.N.Y. 2002) in support of his claims of contamination. In Snyder, the court ruled that “although the sweat patch is generally reliable, it cannot be relied upon in situations where it is shown that the possibility of exterior contamination exists due to exposure to a basic solution containing drugs.” (Snyder, id., at 60). The Snyder court further ruled that the defendant's testimony that he resided with a crack cocaine user who used drugs in the home rendered his positive sweat patch results unreliable. (Id.).

As a matter of interest, Judge Young noted that, as a result of the Snyder decision, the U.S. Attorney’s Office in the Northern District of New York “has discontinued the use of the sweat patch test as an institutional matter.” (Alfonso, id., at 198).

After detailed hearings on the reliability and accuracy of Alfonso’s drug test results, Judge Young ultimately concluded that Alfonso’s bail should be revoked - principally because of the highly favorable (to the Government) standard of proof that applies to revocation of bail. Judge Young noted that, in bail revocation cases, the applicable standard “is even lower” than the “fair preponderance of evidence standard” that applies in cases involving revocation of supervised release. (See 18 U.S.C. § 3583(e)(3), which states that a court may “revoke a term of supervised release . . . if the court . . . finds by a preponderance of the evidence that the defendant violated a condition of supervised release.”).

Judge Young then commented: “The instant motion with respect to Alfonso, however, arises in the context of the revocation of pretrial release. The applicable standard is even more favorable to the Government when, as here, the allegation is that the defendant committed a crime while on pretrial release. The standard, in relevant part, is simply whether there is ‘probable cause to believe that the person has committed a Federal, State, or local crime while on release’ and whether ‘there is no condition or combination of conditions of release that will assure that the person will not flee or pose a danger to the safety of any other person or the community.’ An affirmative finding on the first prong helps lead to an affirmative finding on the second prong: once there is probable cause to believe that the person ‘committed a Federal, State, or local felony, a rebuttable presumption arises that no condition or combination of conditions will assure that the person will not pose a danger to the safety of any other person or the community.’ 18 U.S.C. § 3148(b).” (Id., at 202).

Based on that standard, Judge Young concluded that there was probable cause to believe that Alfonso had used cocaine while on release. However, throughout his decision, Judge Young expressed serious reservations and concern about “the general lack of clarity regarding the appropriate protocol for application of the sweat patch, particularly in light of the conflicting scientific findings as to the potential for sweat patch contamination.” (Id., at 204).

He then concluded his opus with the following comment: “The costs of inaccuracy in testing are measured not only in the $ 25,000 taxpayer cost per day to hold hearings in the United States district courts, but also in the intangible but far more important costs in human liberty, should a mistake be made.” (Id.).

Copyright © 2003-2004 Punch and Jurists, Ltd.