Vol. 11, No. 13
Covering Cases Published in the Advance Sheets through March 29, 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.

Antiterrorism

Conviction Reversed Due To Improper Limits Placed on Cross-Examination of Arresting Officer

"Bell v. Cone" - On Remand

Tenth Circuit Upholds and Clarifies Waiver of Appeal Rights

Three Strikes Sentence Held to Be Too Harsh


U.S. v. Moussaoui, No. 03-4792 (4th Cir. 04/22/04) (Judge Wilkins)

Zacarias Moussaoui, a French citizen, was arrested in August 2001 after arousing suspicion at a Minnesota flight school. He has been held since then, virtually incommunicado in a Navy brig. He was charged with a broad range of terrorist activities; although some seventy-five percent of the Indictment concerns the activities of the nineteen alleged hijackers who were killed in the terrorist attacks on September 11, 2001.

Initially, the Government dubbed Moussaoui the “20th Hijacker”; but its theory of the case has changed frequently since then. (See, e.g., “Prosecution Says Quaeda Member Was to Pilot 5th Sept. 11 Jet,” by Philip Shenon, The New York Times, April 16, 2003; and “How the Moussaoui Case Crumbled,” by Viveca Novak, Time Magazine, Oct. 19, 2003). Perhaps because Moussaoui openly acknowledges his membership in the Al Qaeda network and his loyalty to Osama bin Laden (although he denies any guilt in the 9/11 attacks), the Government has persisted in its prosecution and is even seeking the death penalty

From the outset, the Government argued that, as an enemy combatant and in the interests of national security, Moussaoui has no rights of access to the courts and no rights to the appointment of counsel. From the outset, that position was challenged by Frank W. Dunham, the Federal Public Defender from Virginia, and a broad group of civil rights organizations.

The case was assigned to Judge Leonie M. Brinkema of the E.D.Va., and she instantly became a thorn in the Government’s backside - principally by agreeing that she had subject matter jurisdiction over the case and by ordering the Government to give Moussaoui access to certain other alleged terrorist detainees being held in U.S. custody to help him to prepare his defense. The Government advised the court that it could not comply with that order on the grounds of national security.

In response, Judge Brinkema ruled that the appropriate sanction for the Government’s refusal to comply with her order was to bar any testimony related to September 11 and to eliminate the death penalty as a possible sentence in this case. (U.S. v. Moussaoui, 282 F.Supp.2d 480 (E.D.Va. 2003)). Among her many conclusions, Judge Brinkema wrote:

“It simply cannot be the case that Moussaoui, a remote or minor participant in ‘al Qaeda’s war against the United States,’ can lawfully be sentenced to death for the actions of other members of al Qaeda.” (Id., at 486).

On appeal, the Fourth Circuit reversed much of Judge Brinkema’s ruling. In so doing, it at least recognized that the appeal presented “questions of grave significance - questions that test the commitment of this nation to an independent judiciary, to the constitutional guarantee of a fair trial even to one accused of the most heinous of crimes, and to the protection of our citizens against additional terrorist attacks.”

While the Court affirmed a few of Judge Brinkema’s rulings, in the main its ruling represented a major victory for the Government - as evidenced by General Ashcroft’s assessment that the Fourth Circuit’s ruling “upheld the Government’s core position.”

The Court accepted the Government’s argument that interrupting the interrogation of the other detainees whom Moussaoui sought to depose and allowing him access to those people would harm national security, stating that is would “have devastating effects on the ability to gather information from them. It is not unreasonable to suppose that interruption . . . could result in the loss of information that might prevent future terrorist attacks.”

However, the Court did give Moussaoui a limited right of access to three of the al Qaeda captives who might be able to give evidence in support of his defense. It directed Judge Brinkema to craft a compromise that would allow Moussaoui to present written statements made by those captives, but does not allow him to interview them.

The Circuit court also overturned Judge Brinkema’s order barring the Government from seeking to execute him for his crimes as a sanction for its refusal to comply with the Government’s order “because the Government has rightfully exercised its prerogative to protect national security interests by refusing to produce the witnesses. That refusal, it said, was done “in the utmost good faith” and reflected the Government’s “grave responsibility of protecting the lives of the citizenry. The choice the government has made is not without consequences, but those consequences are not punitive in nature.”

Whether or not Judge Brinkema can craft the kind of solutions that the Fourth Circuit ordered, it now appears that Moussaoui’s case is headed for trial in a civil court; and because of the magnitude of the issues involved, the case is almost certain to end up in the Supreme Court, which is presently in the process of dealing with three other groups of terrorist cases. (See, “Detention Cases Before Supreme Court Will Test Limits of Presidential Power,” by Linda Greenhouse, The New York Times, April 18, 2004).


U.S. v. Whitmore, 359 F.3d 609 (D.C.Cir. 2004) (Judge Henderson)

The defendant in this case, Gerald Whitmore, was convicted at trial of unlawful possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1), and simple possession of a controlled substance, in violation of 21 U.S.C. § 844(a). He appealed the firearm conviction on the ground that the district court committed reversible error in preventing him at trial from attacking the credibility of the arresting officer. The D.C. Circuit agreed and reversed the gun conviction.

Two police officers in a patrol car directed a crowd gathered at a bus stop in Washington, D.C. to disperse. Whitmore, who was in the crowd, refused to do so; and when the officers got out of the patrol car to approach him, he fled. Officer Efrain Soto, who was in another nearby patrol car, gave chase. He claimed that he saw Whitmore take a gun from his jacket pocket and throw it towards an apartment building. Once Whitmore was caught, Soto allegedly retrieved a gun from a window well in the apartment building.

At trial, Whitmore defended himself on the ground that Soto had fabricated the story about the gun and had himself planted the gun in the window well were it was found. The Court acknowledged that it was Soto’s testimony - “almost exclusively” - that connected Whitmore to the gun. (Id., at 613). Whitmore therefore sought to attack Soto’s credibility in several ways.

First, he attempted to call three witnesses to testify regarding Soto’s “character for truthfulness” under Fed.R.Evid. 608(a). One of the witnesses was a reporter with the City Paper, who - two years earlier - had written a story on Soto, reporting that he was the target of multiple complaints from residents of the area where Whitmore was arrested, and that Soto had a reputation as a liar.

The district court (Judge Leon of the D.D.C.) precluded that testimony in its entirety, on various grounds - such as that the two-year old newspaper article was “too remote in time” to be relevant to the case - or that the evidence had minimal probative value and was outweighed by unfair prejudice, under Fed.R.Evid. 403.

After a detailed and informative review of Rule 608(a)’s requirements for offering reputation evidence, the D.C. Circuit Court concluded that Judge Leon had not abused his discretion in excluding the testimony of the three witnesses in question - principally because the defense had failed to meet some of the “foundational requirements” for introducing the reputation evidence in question; and that some of those foundational defects were serious. (Id., at 616-618).

Whitmore also sought to impeach Soto by cross-examining him on three specific instances of misconduct, namely: (a) a D.C. Superior Court judge’s finding that Soto had lied when Soto testified before him in a 1999 criminal trial; (b) the suspension of Soto’s driver’s license and Soto’s failure to report the suspension to his supervisors; and (c) Soto’s failure to pay child support.

Before trial, the Government moved in limine to exclude any cross examination on the Superior Court’s finding that Soto had lied, pursuant to Rule 608(b), contending that the judge’s finding “was only an allegation of misconduct” and therefore not probative of Soto’s truthfulness. A compliant Judge Leon agreed. Citing the provisions of Rule 403, he barred any cross-examination regarding the Superior Court proceedings, noting that the judge’s finding “was not a perjury conviction, that the present jury might rely too heavily on the finding in making its own credibility determination regarding Soto and, finally, that any cross-examination would delay the trial and could confuse the jury because the government would have to be given the opportunity to explore the finding before the jury.” (Id., at 615).

The defense also argued that the Soto’s failure to report the suspension of his driver’s license and his failure to make child support payments revealed “his inclination to dissemble and evade the law.” Judge Leon rejected those arguments as well; and he barred any cross-examination about either of those events on various grounds.

This time the D.C. Circuit concluded that Judge Leon had gone too far. It reasoned that, in prohibiting the cross-examination of Soto on all three matters at issue, Judge Leon had violated Rule 608(b) and had deprived Whitmore of any realistic opportunity to challenge the credibility of the only witness who testified that he had possessed the gun in question. The Court also ruled that the error was not harmless and required vacating Whitmore’s gun conviction.

Once again, the Court presented a detailed and informative analysis of the requirements of Rule 608(b). (Id., at 618-623) Among its many findings, it concluded that “[n]othing could be more probative of a witness’s character for untruthfulness than evidence that the witness has previously lied under oath.” (Id., at 619). It also commented: “Furthermore, the government's suggestion that inquiry under Fed.R.Evid. 608(b) should be limited to a prior perjury conviction would make Fed.R.Evid. 609 superfluous. Fed.R.Evid. 608(b) allows a witness's credibility to be attacked based on misconduct that, while not constituting a criminal conviction, nevertheless tends to show that the witness is untruthful.” (Id., at 620).


Ramirez v. Castro, 02-56066 (9th Cir. 04/19/04) (Judge Wardlaw)

Last year, a sharply divided Supreme Court upheld the validity of California’s tough but peculiar “three strikes” law, in two separate rulings which rejected claims that the lengthy punishments imposed for relatively minor offenses violated the Constitution’s prohibitions against cruel and unusual punishment. (See, Lockyer v. Andrade, 539 U.S. 63 (2003) and Ewing v. California, 539 U.S. 11 (2003))

In the instant case, the Ninth Circuit carved out a tiny chink in that “no sentence is too harsh” concept. Here, a divided three-judge panel held that Isaac Ramirez’s sentence of 25 years to life for stealing a $199 videocassette recorder was one of those “exceedingly rare” cases where the sentence did not fit the crime.

Tracing the history of Ramirez’s prior crimes, the majority noted that his two 1991 second degree robbery convictions amounted to little more than shoplifting; and that even the instant theft of a VCR from a Sears department store was one of those crimes that California calls a “wobbler” that can be charged as a misdemeanor or a felony. It also observed that the sentence imposed upon Ramirez for his three shoplifting offenses was more severe than the sentence he would have faced “had any one of his three crimes been murder, manslaughter, or rape.” Based on those facts, the majority wrote:

“Ramirez’s sentence of 25 years to life in prison is grossly disproportionate to the offenses he committed. The California court of appeals decision to the contrary is an objectively unreasonable application of clearly established federal law because it erroneously characterizes and otherwise fails to consider the unique, objective factual circumstances of Ramirez’s case.”

The majority also sharply criticized the State Attorney General for abusing its prosecutorial discretion in this case; and it expressed doubts that California’s Three Strikes Law “ was ever intended to apply to a nonviolent, three time shoplifter such as Ramirez.”

Judge Kleinfeld dissented. Although he agreed that Ramirez’s sentence was “inappropriately harsh,” he felt that the panel should have deferred to the California state court rulings. He also commented that even the Supreme Court had conceded, in Andrade, that the “precise contours” of the Court’s own proportionality principles “are unclear.” (Andrade, id., at 76). Thus, he wrote: “The majority concludes, understandably, that Ramirez’s sentence is a violation of the Eighth Amendment. The problem with such an analysis is just the type of subtle parsing that necessarily conflicts with the deference we owe to state judgements about what punishment is appropriate.”


“In Brief”

Felon Disenfranchisement: Muntaqim v. Coombe, No. 01-7260 (2nd Cir. 04/23/2004) - The Voting Rights Act (42 U.S.C. § 1973), which prohibits voting qualifications that result in the abridgment of the right to vote on account of race, cannot be applied to draw into question the validity of New York State's felon disenfranchisement statute, which disenfranchises currently incarcerated felons and parolees.

Prison Issues: Clement v. Calif. Dept. of Corrections, No. 03-15006 (9th Cir. 04/22/04) - Citing the First Amendment, the Ninth Circuit struck down a California state prison rule that barred inmates from receiving mail that contained downloads from the Internet. The Court concluded that the restriction was too broad to constitutionally serve the stated purpose of maintaining security; and thus granted an injunction against its further use.


Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court

This Week

Year to Date

Since 1996

Courts of Appeal

46

545

19,472

District Courts

26

415

 10,821


Copyright © 2004 Punch and Jurists, Ltd.