Vol. 11, No. 11
Covering Cases Published in the Advance Sheets through March 15, 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.

Guidelines

Child Pornography - The Grim Reaper

No Habeas Relief Based on Attorney's Mistaken Advice About Existence of Use-Immunity Agreement

Our Supreme Court Data Base

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U.S. v. Biheiri, 299 F.Supp.2d 590 (E.D.Va. 2004) (Judge Ellis)

More and more it seems as if the Government has decided to use the 12-level terrorism enhancement contained in U.S.S.G. § 3A1.4 in every case involving an Arab or Muslim defendant - even if it can’t prove that a Federal crime of terrorism (FTC) has been committed - because it knows that, in these times, many judges will not want to be accused of being soft on terrorism; and because, win or lose, the statistics will show that the prosecutor vigilantly pursued terrorists - a patriotic and highly desirable laurel on any future resume.

The instant case is a graphic example of that mind-set; and clearly the case shows the need for vigilance in cases where the Government seeks that enhancement. The defendant, Soliman Biheiri, was a naturalized United States citizen of Egyptian origin, who first came to this country in 1985. In 2003, he was convicted at trial of two relatively low-profile immigration offenses - namely, procuring his own naturalization contrary to law in violation of 18 U.S.C. § 1425(a), and swearing to certain false statements in his Application for Naturalization in violation of 18 U.S.C. § 1015(a).

[As a matter of interest, Biheiri’s conviction on the false statement count arose because of his answer to one of those sweeping “forget-the-Fifth-Amendment” questions asked on the standard Form N-400 (Application for Naturalization), namely: “Have you ever knowingly committed any crime for which you have not been arrested?” (Id., at 595). Judge Ellis noted that Biheiri answered that question in the negative, “despite knowing that in the past he had provided, and caused to be provided, false information” to the Government for the purpose of gaining permanent resident status. (Id.)]

As a result of his crimes, Biheiri certificate of citizenship was revoked and canceled; and he will be deported at the completion of his prison sentence. The government also argued that Biheiri’s sentence should be enhanced on the basis of his business dealings with a number of alleged terrorists and terrorist organizations, including HAMAS. Its principal contention was that § 3A1.4 should be used at sentencing to increase Biheiri’s sentence from a base offense level of 10 to a base offense level of 32 (and a corresponding increase in his sentencing range from 6-12 months to 121-151 months).

Ultimately, Judge Ellis rejected the Government’s efforts to increase Biheiri’s sentence based on his alleged terrorist connections, finding that the Government had failed to present sufficient evidence to support its charges that Biheiri had promoted or given financial support to terrorism, as required by § 3A1.4. Among his many, detailed findings, Judge Ellis concluded:

What was most striking about the Government’s case was its mish-mash of expansive and sometimes mutually inconsistent arguments in support of a § 3A1.4 enhancement. However, it quickly “abandoned” three of those arguments in the face of tough questions from Judge Ellis. That left the Government’s final § 3A1.4 argument which was that Application Note 4 of § 3A1.4 applied to this case because Biheiri’s offenses of conviction “were calculated to influence or affect the conduct of government by intimidation or coercion” - but only under a novel interpretation of § 3A1.4.

For purposes of § 3A1.4, “federal crime of terrorism” means one of more of the crimes as defined and enumerated in 18 U.S.C. § 2332b(g)(5). Here, the Government wanted to go beyond § 2332b(g)(5) and also incorporate offenses listed under the International Emergency Economic Powers Act (IEEPA), which is codified at 50 U.S.C. § 1701 et seq., apparently on the theory that crimes under the IEEPA, even if not listed as a FCT, “ha[ve] the same effect as an FTC.” (Id., at 608).

Without making a definitive ruling on the Government’s interpretation of § 3A1.4, Judge Ellis did conclude that even if Biheiri’s IEEPA violations should be considered relevant conduct for purposes of his sentencing, Application Note 4 of § 3A1.4 still did not apply in this case because the Government had failed to prove that those violations “were calculated to influence or affect the conduct of government vy intimidation or coercion, or to retaliate against government conduct.” (Id.)


U.S. v. Mateo, 299 F.Supp.2d 201 (S.D.N.Y. 2004) (Judge Marrero)

Grip yourself: if you’re going to read this case, you will need a strong stomach; and you’re going to need extraordinary tolerance to forgive the barbarous Government conduct that occurred in this case. Jubelequis Mateo came to the United States from the Dominican Republic in 2001at age 19, in the hopes of earning enough money to support her infant daughter, whom she left in the care of her mother. She finally found work as a waitress in New Jersey. One night, after work, she was attacked and raped, and became pregnant. She then met a drug supplier who promised her financial relief if she would broker two drug sales, involving two kilos of heroin. Of course, one sale was to a confidential government source; and the second to an undercover agent.

Mateo was arrested and sent to the Metropolitan Detention Center in Brooklyn (MDC), where she was housed in an “open unit” with 100 other inmates. She was charged with the usual assortment of drug crimes that led to a base offense level of 25 (and a sentencing range of 57-71 months in prison). After Mateo pled guilty, she moved for a series of departure and adjustments, the two most significant of which were based on unusually harsh pre-sentence confinement conditions, pursuant to U.S.S.G. § 5K2.0, and extraordinary family conditions, pursuant to U.S.S.G. § 5H1.6

Carefully, Judge Marrero recited the tale of an extraordinarily troubled woman, who had to be placed on suicide watch while in prison; and based on the circumstances he described he ultimately granted a nine-level downward departure based on both Mateo’s “extraordinary presentence confinement” at MDC and on her extraordinary family circumstances.

One example of the barbarism to which Mateo was subjected while at MDC is sufficient to explain the passion of Judge Marrero’s ruling. Although Mateo’s due date for the delivery of her child was November 25, 2002, at 3:00 a.m. on the morning of November 5 she awoke with labor pains. Another inmate called for help, but was told that Mateo would have to wait until 6:00 a.m. for what the prisons call a “physician’s assistant” (PA) to arrive. The PA finally arrived around 11 a.m. - some eight hours later. Without even fully examining Mateo, he concluded that she could not have been in labor, since her due date was November 25 - and so he left the prison. (Id., at 204). Judge Marrero then wrote:

“During the balance of day, other inmates alerted the authorities on Mateo's behalf, but she was not moved out of the open unit until sometime between 4:00 p.m. and 5:00 p.m., at which point she was transferred to the medical unit. The PA finally called the emergency service for an ambulance sometime around 6:30 p.m. when it became apparent that Mateo was about to give birth. A team of Emergency Medical Technicians arrived shortly thereafter and noticed that, even though Mateo was ‘crowing’ (the baby's head had begun to emerge), she was still wearing her underwear. Mateo gave birth while laying on an upright stretcher in the MDC at 6:53 p.m., without the benefit of pain relief or other medication.“

The baby was given to Mateo’s sister, Maritza, who lives in Boston; but Maritza’s husband was so incensed that Maritza had assumed custody of the baby that he promptly abandoned her. As if all of that was not enough, Mateo was later subjected to sexual abuse by a guard at MDC when the guard forced Mateo and her cellmate to undress in front of him on several occasions. Mateo was finally diagnosed for symptoms of post traumatic stress disorder, anxiety, depression, low self-esteem, insomnia and substance abuse. (At this point, we see no reason to report on Mateo’s depressing family conditions that Judge Marrero described and which are equally depressing and persuasive!)

In the end, Judge Marrero concluded that Mateo was entitled to a downward departure of nine-levels to level 16 (and a Guideline sentencing range of 21 to 27 months), based on a combination of the conditions she suffered and endured during presentence confinement and her unusual family circumstances.

While recognizing that incarceration always and of necessity brings “a host” of penalties and deprivations to all inmates, including “countless humiliations and indignities commonly associated with living in confinement,” (id., at 210), he also stressed that there are bounds of decency and civility that were crossed in this case. Thus, for example, he wrote:

“Mateo could expect that the quality of medical attention she would receive for her pregnancy and birth of a child during her incarceration would not equate to the quality of health care she would receive in private medical facilities outside the prison walls. She could not anticipate, however, that when the time arrived for her to give birth, an event the imminence of which was known to prison officials, her cries and calls for help would be ignored by the custodial officials placed in charge of her health and safety, that she would be forced to endure full labor in her cell and halls of the prison where she was housed, and that she would thus be subjected to the extreme fear of risk to her life and that of her child. To this extent, the extraordinary trauma Mateo has already suffered during the time she has served in custody, the full effects of which can never be comprehensively gauged, has inflicted forms of pain and suffering that have effectively enhanced, to a disproportionate degree, the level of punishment contemplated to be experienced by inmates in the typical case during the period of incarceration prescribed by the Guidelines for Mateo's offense.” (Id., at 212).

It will be interesting to see whether General Ashcroft will demand that the departure in this case be appealed; and, in a sense, we hope he does. Cases like this deserve to be well publicized!


“In Brief”

Guidelines: U.S. v. Kim, No. 03-11016 (11th Cir. 03/30/2004) - The husband and wife defendants, who ran a grocery store, pled guilty to defrauding the Special Supplemental Food Program for Women, Infants and Children (WIC) of some $268,000. At their plea allocution, they repaid $50,000 from their “life savings,” and then, at sentencing, they repaid the balance of the defrauded funds, which they borrowed from relatives in South Korea. Finding the payment of such restitution to be extraordinary and demonstrative of “sincere remorse and acceptance of responsibility,” the Eleventh Circuit approved downward departures granted by the district court that led to terms of probation only for both defendants. The Court held that “extraordinary restitution, whether paid before or after adjudication of guilt, may, in the unusual case justify” such departures from the Guidelines.

Lea Fastow v. Judge David Hittner: Lea Fastow is the wife of Andrew Fastow, the former chief financial officer of Enron, who was indicted on various fraud counts as one of the chief architects of the many off-the-books partnerships that were used to disguise Enron’s deteriorating financial condition. To put pressure on Andrew to testify against some of the other Enron officials, Lea herself was indicted on six tax charges; although the Government has conceded that none of those alleged crimes had anything to do with Enron’s downfall. (See, “Lea Fastow Headed For Trial After All,” by Mary Flood and Purva Patel, Houston Chronicle, April 7, 2004.)

After extended negotiations, both Lea and Andrew entered into separate plea agreements. In January, 2004, Andrew pled guilty to a number of fraud charged and agreed to accept a ten-year sentence in exchange for his cooperation with the Government in the prosecution of other Enron officials. However, he also made his plea contingent on an acceptable resolution of the tax charges against his wife.

Simultaneously, Lea entered into a Type C plea agreement (pursuant to the provisions of Fed.R.Crim.P. 11(c)(1)(C)), under which she pled guilty to a single count of filing a false tax report, in exchange for which she and the Government stipulated, subject to the district court’s approval, a sentence of ten months, five of which would be served in prison and five of which would be served in home confinement.

From the outset, Judge David Hittner of the S.D.Tex. (who is not hearing any of the other Enron related cases) has bristled at Lea’s plea deal. Initially, he rejected the agreement before he even accepted’s Lea’s guilty plea. Then he accepted the plea, but announced that he would not be bound by the terms of the plea agreement. Finally, Lea elected to enter her plea and take her chances with Judge Hittner.

On April 7, 2004, Judge Hittner announced that he would not accept Lea’s plea agreement, stating that he declined “to voluntarily limit [his] role in the sentencing process.” Judge Hittner refused to explain his ruling; and he would not let lawyers from either side argue or make statements. The ruling means that, absent some new arrangement that is acceptable to Judge Hittner, Lea must now go to trial on all six counts against her; and, while Andrew can’t withdraw his plea, his enthusiasm for cooperating with the Government in its cases against the other Enron officials will certainly be diminished. There will certainly be more to come on this confrontation of wills; and we will keep our readers apprised of the latest developments.

Right of Allocution at Sentencing: U.S. v. Reyna, 358 F.3d 344 (5th Cir. 2004) (En banc) - While on supervised release for a prior offense, the defendant was caught driving while intoxicated. The district court revoked his term of supervised release, and gave the defendant the option of immediately serving six months in prison, or being sentenced to 12 months in prison, with the execution of the sentence suspended for three years of supervised release. The defendant chose the latter option and the court imposed that sentence but without giving the defendant a right of allocution as required by then Rule 32(c)(3)(C) [now Rule 32(i)(4)(A)(ii)] of the Fed.R.Crim.P. The defendant did not object to the denial of his right to allocution.

Later, the defendant appealed; and, in a decision reported at 331 F.3d 448 (5th Cir. 2003), a prior panel vacated the sentence holding that, under prevailing Fifth Circuit precedent, the failure to give the defendant a right of allocution to speak in mitigation of his sentence required automatic reversal of the sentence. On a petition for a rehearing en banc, the full court unanimously reversed, holding that because the defendant had not objected to the error at sentencing, the error was subject to plain error analysis rather then automatic reversal. Thus, the Court abrogated its prior precedent and held that, on the basis of plain error review, the sentence should be reinstated because the Rule 32 error that had occurred "did not seriously affect the fairness, integrity or public reputation of sentencing proceedings."

Second Amendment: Nordyke v. King, No. 99-17551 (9th Cir. 04/05/2004) - Two years ago, in Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), a panel from the Ninth Circuit held that the Second Amendment applies to militias and guarantees a collective right to bear arms, but doesn’t guarantee individuals’ rights. Then, in Nordyke v. King, 319 F.3d 1185 (9th Cir. 2003) (Nordyke I) (P&J, 02/03/03), a different panel, citing Silveira, "reluctantly" upheld the validity of an ordinance that banned individual possession of guns - but made clear it endorsed the "individual rights" view of the Second Amendment. Now, with five judges protesting, the Ninth Circuit has declined to grant en banc review of Nordyke I, thus rejecting a chance to revisit the issue of whether the Second Amendment gives individuals the right to own guns. For more on this latest ruling in the ongoing debate about the Second Amendment, see “Another Gun Fight at the 9th Circuit Corral,” by Jeff Chorney, The Recorder, April 7, 2004.

Tax Patriot Case: U.S. v. Irwin Schiff, No. Cr.-S-04-1 (D.Nev.) - At age 75, feisty tax patriot Irwin Schiff is still driving the Government batty. Schiff , who twice before has served prison sentences for tax crimes, runs a Web site called www.paynoincometax.com/. He is also the author and publisher of a highly popular underground book entitled “The Federal Mafia: How the Federal Government Illegally Imposes and Unlawfully Collects Federal Income Taxes.”

The central thesis of Federal Mafia is that, while there is clear statutory authority for the payment of Federal wagering, tobacco and alcohol taxes, there is no Federal law that obligates individuals to pay taxes on their income. Schiff and Federal Mafia have attracted a huge following; and that has led to a large (and growing) number of adherents who have refused to pay income taxes on the same theory.

Finally, at the urging of the IRS, Judge George of the D.Nev. recently enjoined Schiff from selling his book; and ordered Schiff to turn over the names of all persons who purchased the book to the IRS so it could audit them. (See, “Judges Skeptical of U.S. Efforts to Ban a Tax Book,” by David Cay Johnston, The New York Times, Feb. 11, 2004).

That ruling was quickly appealed to the Ninth Circuit, on the grounds, inter alia, that Schiff’s arguments were protected by the First Amendment. Schiff’s lawyer, Michael Stein of Las Vegas, also argued that giving the IRS a list of those who bought the book "would have a major chilling effect" on dissent and free speech. Schiff’s appeal drew support from the Nevada chapter of the American Civil Liberties Union, the American Booksellers Association, the American Publishers Association, the American Library Association and the writers group PEN. The Ninth Circuit stayed Judge George’s orders pending the appeal; and Federal Mafia can be bought again online - at least for now.

Shortly after that stay was issued, Schiff was indicted once again, this time on 33 counts of tax evasion, conspiracy and other related charges. On April 1, 2004, Schiff responded to the indictment with four motions, including an offer to plead guilty to all charges if the Government will produce at his arraignment the Federal tax statute that specifically makes Schiff liable for the payment of income taxes.

As more fully set forth on Schiff’s Web site, these motions ask the Court to dismiss the charges based on:

As a matter of interest, at an IRS press conference on September 16, 2003 concerning tax "scams" and tax "evasion", the lead tax reporter for The New York Times, David Cay Johnston, directly, and specifically, questioned IRS Commissioner Mark Everson about what law requires Americans to pay income taxes. In a noteworthy example of Government non-responsive “double-speak,” Commissioner Everson responded:

“I’ve been paying my taxes ever since I’ve had my first job. I think it’s a fundamental construct of our nation that most of us who expect and demand the services from the government that the government provides, be it the protection of our country through the military or be it the education of children or be it the protection of the environment, that we must pay for those services. So, yes, I think there is a fundamental obligation and its an understood and well accepted one.”

A video of that IRS press conference is available online at http://www.givemeliberty.org/wtp-tv/4MinLinks.htm. We will, of course, follow the Ninth Circuit’s forthcoming ruling with interest.


Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court

This Week

Year to Date

Since 1996

Courts of Appeal

25

444

19,371

District Courts

29

353

 10,759


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