Vol. 10, No. 51	Covering Cases Published in the Advance Sheets through Dec. 22, 2003

Supreme Court

• In Lidster, by a vote of 6 to 3, the Supreme Court upheld as constitutionally reasonable the use of random roadblocks set up by the police as an investigational tool for the purpose of stopping and questioning the occupants of passing vehicles to ask them for assistance in uncovering information about recent specific crimes that occurred in the same general area as the roadblocks.

Mandatory Minimum Sentences and the Need for Individualized Drug Findings

• In an important ruling in a case of first impression, the First Circuit held, in Colon-Solis, that, when imposing a mandatory minimum sentence on individual defendants in a drug conspiracy case, it is error to apply a per se rule, automatically attributing to each co-conspirator the full amount of the drugs charged in the indictment. To impose a mandatory minimum sentence in such a case, the sentencing court must make a particularized finding, supportable by a preponderance of the evidence, of the drug quantities attributable to, or foreseeable by, each co-conspirator.

Guidelines

• The Lawrence case from the Fourth Circuit is noted for its finding that, even though the sentencing court had already imposed one upward departure under U.S.S.G. § 4A1.3 on the grounds that the defendant’s criminal history category did not adequately reflect the seriousness of his past criminal conduct, and even though the defendant did not meet the formal criteria for designation as a career offender under U.S.S.G. § 4B1.1, the sentencing court could still grant another upward departure under § 4A1.3 in order to sentence the defendant as a “de facto” career offender.
  
  
• In Silveira, after concluding that all perjury convictions are not alike, Judge Gertner of the D.Mass. explained why she first imposed an enhancement for obstruction of justice (as required by U.S.S.G. § 3C1.1), and then offset that enhancement by means of a departure under the provisions of U.S.S.G. § 5K2.0, to reflect the fact that there were a number of unique factors that took the nature of the offense conduct in this case outside the “heartland” for perjury offenses.

Ruling on 911 Calls Reversed

• In Brown, the Second Circuit reversed a ruling by Judge Kaplan (S.D.N.Y.) In which he had held that a 911 call was admissible in a criminal trial as a “present sense impression” exception to the hearsay rule. Judge Kaplan concluded that there was no Confrontation Clause problem because the tape had “particularized guarantees of trustworthiness” and because the “present sense impression exception” was “firmly rooted” (based on longstanding judicial and legislative experience). The Second Circuit disagreed, stating that the 911 call not only lacked “particularized guarantees of trustworthiness,” but also did not qualify for the present sense impression exception.

Illinois v. Lidster, No. 02-1060 (U.S. Sup. Ct. 01/13/2003) (Justice Breyer)

In this case the Court considered whether the police may set up a random highway checkpoint as an investigational tool for the purpose of seeking information from the occupants of the passing vehicles about another recent crime that had taken place in the same general area. Holding that the resulting stops were brief and “interfered only minimally with liberty of the sort the Fourth Amendment seeks to protect,” the Court, by a vote of 6 to 3, held that such information seeking roadblocks were “reasonable and hence constitutional.”

In August, 1997, Robert Lidster, the respondent, was driving a minivan on an Illinois highway when he was pulled over and stopped at a random checkpoint. The checkpoint had been established by the police in the hope of obtaining more information about an accident that had occurred a week earlier, at about the same place, in which an unknown motorist struck and killed a 70-year old bicyclist. The police used the roadblock to pass out flyers and to ask for information from motorists who might have witnessed the fatal hit-and-run accident.

The officer who stopped Lidster smelled alcohol on his breath. Lidster was then waived off the road where another officer administered a sobriety test; and, when he failed that test, Lidster was arrested and charged with driving under the influence of alcohol. After he was tried and convicted on that charge, Lidster challenged the lawfulness of his arrest and conviction on the ground that the government had obtained much of the relevant evidence against him through the use of a checkpoint that violated the Fourth Amendment.

The Illinois appellate courts concluded that the case was governed by the Supreme Court’s decision in Indianapolis v. Edmond, 531 U.S. 32 (2000); and, on that basis, they held that Lidster’s stop was unconstitutional and they vacated his conviction. The state then appealed to the Supreme Court which reversed.

Edmond also involved a highway checkpoint, at which the police stopped vehicles to look for evidence of drug crimes committed by the occupants of those vehicles. In that case, the Supreme Court found that the police had set up the checkpoint primarily for general “crime control” purposes, i.e., “to detect evidence of ordinary criminal wrongdoing.” (Edmond, id., at 41.) The Court noted that the stop in Edmond was made without any individualized suspicion of a crime; and it held that the Fourth Amendment forbids such stops, in the absence of special circumstances.

Writing for the majority in the instant case, Justice Breyer carefully distinguished the facts from those in Edmond. He wrote:

“The checkpoint stop here differs significantly from that in Edmond. The stop’s primary law enforcement purpose was not to determine whether a vehicle’s occupants were committing a crime, but to ask the vehicle’s occupants, as members of the general public, for their help in providing information about a crime in all likelihood committed by others. The police expected the information elicited to help them apprehend, not the vehicle’s occupants, but other individuals.”

In judging the reasonableness, and hence the constitutionality, of the roadblock in this case, the Court looked to “the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” On the question of how much intrusiveness is permissible, the majority concluded that roadblocks like the one at issue in this case were neither lengthy, intrusive or intimidating. The majority stated: “Viewed objectively, each stop required only a brief wait in line - a very few minutes at most. Contact with the police lasted only a few seconds. . . . Viewed subjectively, the contact provided little reason for anxiety or alarm . . . and there is no allegation that the police acted in a discriminatory or otherwise unlawful manner while questioning motorists during stops.”

Three of the Justices dissented - but only on some of the issues and, even then, rather mildly for a Fourth Amendment ruling that represents another restriction on personal freedom. In a brief opinion written by Justice Stevens, the dissenters merely expressed doubts that a random sample of drivers would yield any useful information; and they suggested that some of the issues at stake would have been better resolved by the Illinois courts who were “more familiar” with the local conditions and practices at issue.

U.S. v. Colon-Solis, No. 01-1773 (1st Cir. 01/08/2004) (Judge Selya)

Last week we noted a recent Third Circuit decision, U.S. v. Phillips, 349 F.3d 138 (3rd Cir. 2003), in which that court held that the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000) did not require the jury to determine the drug type and quantity attributable to each co-conspirator, so long as the jury finds, beyond a reasonable doubt, the drug type and quantity involved in the drug conspiracy as a whole.

That decision, which was consistent with similar decisions from the First, Fifth and Seventh Circuits, appeared to leave a gaping hole in the law regarding the sentencing of co-conspirators charged in a drug conspiracy - and, by implication, it raised questions about what type of findings the sentencing court must make before imposing sentences on each of the individual participants in a drug conspiracy.

The instant decision helps to fill in that gap, and stresses an important distinction between the jury’s role under Apprendi and the judge’s role in sentencing co-conspirators convicted of drug crimes.

In the instant case, the defendant was one of a number of defendants charged with conspiring to distribute drugs as a member of the La Cabra drug gang in Puerto Rico. The prosecutor stated only that the defendant had served as a runner “on occasion” for the leader of the gang and, as such, he had assisted in the packaging and delivery of drugs. However, the prosecutor did not allude in any way to specific drug weights.

On the eve of trial, the defendant (together with several co-defendants) decided to pled guilty. In so doing, the defendant admitted that the conspiracy had handled more than five kilograms of cocaine (the triggering amount for a ten year mandatory minimum sentence); but the change-of-plea proceedings “left open the question whether the appellant himself was responsible for a lesser drug quantity.”

At sentencing, the defendant argued that he should not be held responsible for five kilos of cocaine and that he should not be sentenced to the mandatory minimum sentence. The district court (Judge Fuste of the D.Puerto Rico) rejected that argument. Observing that “the indictment charged distribution of five kilograms or more of cocaine,” the court found that the defendant “had admitted to this ‘basic drug amount’ at the change of plea hearing.” On that foundation - “and that foundation alone” - the court found the defendant responsible for five or more kilos of cocaine and imposed a ten-year mandatory minimum sentence.

On appeal, the First Circuit reversed, holding that it was error for the sentencing court to have applied a per se rule that automatically attributed to the defendant the full amount of the drugs charged in the indictment. The Court phrased the issue of first impression before it as: “When a defendant admits that the conspiracy to which he belonged handled drug quantities sufficient to trigger a statutory mandatory minimum sentence, does he automatically become subject to that mandatory minimum without a further finding that the triggering amounts were attributable to, or foreseeable by, him?”

The Court then concluded: “We join several of our sister circuits in answering this question in the negative. Accordingly, we vacate the [defendant’s] sentence and remand for resentencing.” The Court explained:

“To be sure, we derive the applicable statutory maximum in a drug conspiracy case from a conspiracy-wide perspective. Nevertheless, we consistently have required a defendant-specific determination of drug quantity as a benchmark for individualized sentencing under the guidelines. . . . A mandatory minimum operates in much the same way. It is made potentially available by a finding that the conspiracy as a whole handled (or at least contemplated) the necessary triggering amount. But to apply the mandatory minimum to a particular coconspirator, the sentencing court must make a specific finding, supportable by a preponderance of the evidence, ascribing the triggering amount to that coconspirator.”

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