Vol. 11, No. 4
Covering Cases Published in the Advance Sheets through Jan. 26, 2004

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.

Federal Prosecutor Sues Attorney General

Jury Verdicts and The Rule of Consistency

"Type C" Plea Agreements and Retroactive Modifications of Sentences

The First Amendment Right of Access to the Courts

Seventh Circuit Adopts a New Standard for Granting a New Trial After Perjury


Convertino v. U.S. Dept. of Justice, No. 02-30423 (D.D.C. 02/13/2004)

On September 17, 2001, within a week of the September 11 attacks on the World Trade Center, the Department of Justice announced with great fanfare the arrest of defendants Karim Koubriti, Ahmed Hannan and Farouk Ali-Haimoud in Michigan. They and others were charged, inter alia, with conspiracy to provide material support or resources to terrorists and to engage in document fraud.

After a jury trial (the first and only jury trial to date charging terrorism related offenses since September 11, 2001), several of the defendants were convicted of various terrorism-related crimes. Various aspects of the prior proceedings in this case have been memorialized in decisions reported at U.S. v. Koubriti, 199 F.Supp.2d 656 (E.D.Mich. 2002); 252 F.Supp.2d 424 and 437 (E.D.Mich. 2003); and 2004 U.S. Dist. LEXIS 829 (E.D.Mich. January 12, 2004).

Perhaps due to the inordinate pressure placed on the prosecutors to achieve some notable successes quickly, the Koubriti case has been star crossed from the outset. Attorney General Ashcroft was himself reprimanded by District Judge Gerard Rosen for openly vouching for the credibility of the Government’s star witness at a press conference, despite the existence of a court imposed gag order; and defense counsel has filed a motion to hold Ashcroft in contempt for those comments.

The case has been racked by internal turmoil - much of which became public - and plagued by leaks. The Detroit Free Press has frequently reported on disputes between various individuals and branches within the Government who were at odds over various aspects of this case; and even the names of the Government’s key informants were leaked to the news media.

The most explosive events have evolved from the escalating war between the lead prosecutor in the case, AUSA Richard Convertino, on the one hand, and the Department of Justice and AG Ashcroft, on the other.

First, in September, 2003, Covertino (who has worked for the DOJ for more than 14 years) was subpoenaed to testify before a Senate committee about the Government’s handling of the Koubriti case. During his six minutes of testimony, Convertino expressed some concerns about the DOJ’s handling of the war on terror; and he told the Senators that he had been warned by his superiors about “going off the reservation.”

Within days of being subpoenaed to testify before the Senate, Convertino was removed as the lead prosecutor in the Koubriti case. Then, allegations began to surface about prosecutorial misconduct stemming from the Government’s failure to disclose key exculpatory evidence. (The Government has now admitted that it withheld key exculpatory evidence in this case - and that matter is still pending before the courts.)

At the same time, the press also began to report that the DOJ had begun an internal investigation into Convertino’s conduct, focusing principally on his efforts to reduce the sentences of informants without requisite DOJ approval. (See, e.g., “Inquiries Begun Into Handling of Detroit Terror Cases,” by Danny Hakim, The New York Times, January 29, 2004).

Convertino has, of course, contended that the internal investigations into his conduct is in retaliation for his testifying before the Senate; and Senator Grassley, a Republican from Iowa, has repeatedly sought Ashcroft’s assurances that Convertino would not face retaliation because of his testimony. Those requests were stonewalled; so this past week Convertino took the next logical step: he filed a whistleblower lawsuit against the DOJ and Ashcroft, charging that the DOJ has exaggerated its performance in the war on terrorism, interfered with a major terrorism prosecution and compromised a confidential informant.

A copy of Convertino’s 38-page complaint has been posted on our Web site - and it is mandatory but chilling reading. He accuses the defendants of “leaking” information that they knew was “false and/or misleading” in violation of Federal law in order to discredit him. He charges the DOJ with retaliating against him because he has complained frequently and publicly about “the lack of support and cooperation, lack of effective assistance, lack of resources and intradepartmental infighting” in terrorism cases. He complains that the DOJ “continuously placed perception over reality to the serious detriment of the war on terror.” He is seeking damages under the Privacy Act for harm to his reputation.

While the lawsuit has a long way to go (assuming Convertino does not mysteriously disappear), if even a fraction of the charges can be proved, this case could be another embarrassing setback in the Government’s efforts to convince Americans that it is telling the truth about its war on terrorism; and it will certainly result in more ugly accusations that will test the patience and the thin skin of a Government that thrives on blind loyalty and abhors even the appearance of any dissent to its policies and pronouncements.


U.S. v. Crayton, No. 02-5738 (6th Cir. 02/05/2004) (Judge Rogers)

The defendant in this case, Lawrence Crayton, and his cousin, Andre Alexander, were arrested and charged, in a three count indictment, with a number of drug crimes arising out of the controlled delivery to them of a UPS package containing six kilos of cocaine. The three counts were conspiring to distribute cocaine, attempting to possess cocaine with the intent to distribute, and actually possessing cocaine with intent to distribute. The two men were jointly tried in a jury trial in 2000. Alexander was acquitted of all the charges against him, but the jury was unable to reach a verdict as to Crayton.

The Government then filed a superseding indictment in which Crayton was again charged with the same crimes. The new indictment still contained Alexander’s name, even though Alexander had been acquitted as a co-conspirator at the previous trial. Crayton moved to dismiss the new indictment, arguing that his conspiracy conviction was inconsistent with the acquittal of Alexander and that it thus violated the “rule of consistency.” The district court denied that motion; and Crayton was convicted on all three counts. He was then sentenced to three concurrent life terms of imprisonment.

On appeal, Crayton argued that the district court had erred in not dismissing his indictment based on the rule of consistency; and he cited U.S. v. Sachs, 801 F.2d 839, 845 (6th Cir. 1986), where the court stated, in dictum, “if coconspirators are tried together, an acquittal on conspiracy charges as to all but one coconspirator mandates acquittal on conspiracy charges as to the remaining defendant."

In response to that argument, the Sixth Circuit joined with at least eight other Circuits in holding that the rule of consistency is “no longer good law.” In support of that holding, the panel cited the Supreme Court’s decision in U.S. v. Powell, 469 U.S. 57 (1984), where a unanimous Supreme Court held that inconsistent jury verdicts are permissible.

In Powell,, the Court relied specifically on the rationale that inconsistent jury verdicts often are the product of jury lenity; and it rejected as imprudent and unworkable a rule that would allow criminal defendants to challenge inconsistent verdicts on the ground that in their cases the verdict was a product of some factor other than lenity. (Powell, id., at 66).

The Sixth Circuit acknowledged that Powell did not directly address inconsistent jury verdicts among co-conspirators, but it still firmly held that “Powell rendered the rule of consistency no longer good law.” In support of that holding, it cited cases from the First, Fourth, Fifth, Ninth and Eleventh Circuits which have held that, following Powell, “the acquittal of all but one co-conspirator during the same trial does not necessarily indicate that the jury found no agreement to act.”

It also stated that “[o]ther circuits have recognized that the rule of consistency does not survive Powell, without actually so holding,” and it cited decisions from Third, Seventh and D.C. Circuits which have suggested that the rule of consistence “may be a vestige of the past.”

As a matter of interest, the panel also noted that “the only contrary circuit opinion appears to be that of the Tenth Circuit. In U.S. v. Suntar Roofing, Inc., 897 F.2d 469, 475 (10th Cir. 1990), that court, while affirming convictions based on the existence of unindicted co-conspirators, suggested that the rule of consistency may have continuing vitality. The court noted that the trial court's conclusion that the rule of consistency was no longer good law ‘is substantially undercut by the fact that the Powell opinion does not discuss Hartzel v. United States, 322 U.S. 680 (1944) or expressly overturn the traditionally recognized exception."


ABC, Inc. v. Stewart, No. 04-0220 (2nd Cir. 02/18/2004) (Judge Katzmann)

In this case, a coalition of 17 news organizations and publications following the Martha Stewart trial appealed from an order of the district court (Judge Cedarbaum of the S.D.N.Y.) which barred the media from attending the voir dire examinations of prospective jurors held in the district judge's robing room, but which provided for the release of transcripts of the voir dire examinations with the names of the prospective jurors redacted. The Government had moved for closure and the district court granted the motion, basing its ruling on its concern that the presence of reporters might scare prospective jurors, making them less likely to be open and honest in answering questions, thereby depriving Stewart of her right to a fair trial.

The Second Circuit held that the order violated the media’s First Amendment rights of access to the courts; and it emphasized that “openness acts to protect, rather than threaten, the right to a fair trial.” The Court also emphasized that the mere fact of intense media coverage of a celebrity defendant is not sufficient to justify closure and, in any event, the closure order in this case was not narrowly tailored to protect the defendants' fair trial right. It reasoned that the district court could have avoided the broad closure it ordered simply by concealing the identity of the prospective jurors.


“In Brief”

Antiterrorism: Rumsfeld v. Padilla, No. 03-1027 (U.S. Sup. Ct. 02/20/2004) - As expected, the Supreme Court granted certiorari in this case to review the Second Circuit’s decision in Padilla v. Rumsfeld, 352 F.3d 695 (2nd Cir. 2003). The two questions certified were:

(1) Whether the President has authority as Commander in Chief and in light of Congress's Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224, to seize and detain a United States citizen in the United States based on a determination by the President that he is an enemy combatant who is closely associated with al Qaeda and has engaged in hostile and war-like acts, or whether 18 U.S.C. § 4001(a) precludes that exercise of Presidential authority.

(2) Whether the district court has jurisdiction over the proper respondent to the amended habeas petition.

For more information and resources on this case, go the Antiterrorism section of this Web site.

Jury Consultants: U.S. v. Rivera, 292 F.Supp.2d 823 (E.D.Va. 2003) - Here, after listing and reviewing a number of rulings to the same effect, Judge Ellis denied the defendant’s motion for the appointment of a jury consultant under the Criminal Justice Act (CJA) (18 U.S.C. § 3006A(e)(1)), finding that a jury consultant is neither “necessary for adequate representation” of defendants as the CJA requires nor one of the basic tools or “raw materials integral to building an effective defense.” The Court also observed that a “so-called” jury consultant simply adds “another guess by another person to the ‘hunch of the lawyer who ultimately makes the decision whether or not to challenge a particular venireman.”

Return of Property: U.S. v. Albinson, No. 01-1265 (3rd Cir. 01/27/2004) - Here the Court held that, in denying the defendant’s motion, pursuant to Fed.R.Crim.P. 41(g), for the return of property the district court had erred in two ways: first, it erred by relying on the Government’s unsubstantiated assertions that the property had been lost or destroyed; and second, it failed to make a determination as to what happened to the property. In its ruling, the Court emphasized that a Rule 41(g) motion may not be denied on the basis of a prospective assessment of the remedies that might (or might not) be available.


Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court

This Week

Year to Date

Since 1996

Courts of Appeal

39

126

19,053

District Courts

56

155

 10,561


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