Vol. 11, Nos. 15 & 16
Covering Cases Published in the Advance Sheets through April 19, 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.

Prosecutorial Judge Shopping - Though Odious - Is Not Per Se Grounds For Habeas Relief

Guidelines - "Good Works" Departures Under U.S.S.G. § 5H1.11

Supreme Court

Summary Comtempt Proceedings Under Rule 42(b)

Testalying to Support a Conviction

AOL E-mail Problems

If you use AOL to receive your e-mails, we may no longer be able to send you the electronic version of P&J. AOL has recently instituted a new indiscriminate anti-spam program (which it admits saves AOL a lot of money) but which blocks e-mails from anyone who sends more than three simultaneous e-mails to AOL customers - which, of course, is what we must do to send out P&J by e-mail. AOL will only accept complaints from its own customers - so, if you are an AOL subscriber, we urge you to complain to AOL - loudly and often - before this stupidity becomes so entrenched that it blocks important e-mails from many of your valid and valuable sources. If you would like a more technical explantion of this latest AOL fiasco, go to http://www.sfidboard.com/showthread.php?t=41644


Francolino v. Kuhlman, No. 02-2617 (2nd Cir. 04/20/2004) (Judge Cabranes)

In 1997, Joseph Francolino was convicted the New York Supreme Court for New York County of a number of crimes arising out of his participation in the cartel that allegedly controls the private waste disposal or “carting” industry in New York City. Since that industry was privatized in 1956, it has been mob-controlled; and the mob effectively controls the commercial garbage removal business in New York City, setting the rates, routes and practices for more than 250,000 businesses, through the use of intimidation, economic retaliation and violence.

After exhausting his state appeals, Francolino sought Federal habeas relief principally on the grounds that he had been denied due process because the judge presiding throughout his trial, New York Supreme Court Justice Leslie Crocker Snyder, a “famously pro-prosecution judge,” was hand-picked by the DA to preside over the case, with the knowledge and agreement of Justice Snyder, thereby giving the prosecution an unfair advantage.

In a lengthy and thorough decision reported at 224 F.Supp.2d 615 (S.D.N.Y. 2002) (Francolino I), Judge Allen Schwartz denied the petition for habeas relief after concluding that: (1) the practice of judicial assignment at the time of Francolino’s case permitted state prosecutors to engage in "judge-shopping" in certain high-profile cases, including Francolino’s; (2) such judge-shopping raises serious concerns about the appearance of partiality, but requires habeas relief only on a showing of actual prejudice; and (3) Francolino failed to demonstrate any actual prejudice resulting from the prosecution's selection of the trial judge, and thus he was not entitled to a new trial.

Francolino’s long-time counsel, Diarmuid White, Esq., of New York City, appealed to the Second Circuit. (Through his courtesy, copies of his Brief and Reply Brief have been posted on the Member's section of our Web site.) White was also one of the plaintiffs in N.Y. Crim. Bar Ass’n v. Newton, 33 F.Supp. 289 (S.D.N.Y. 1999), a case in which a similar claim had been made. In that case, the suit was ultimately dismissed as moot when the state trial judge in question ultimately recused himself.

In the instant case, attorney White argued that every defendant in a criminal case is entitled to a neutral and detached judge; and that the prosecution’s selection of Justice Snyder was a “structural error,” i.e., a per se violation of his client’s due process rights. In the alternative, pointing to a number of Justice Snyder’s rulings and conduct that the district court had found to be improper, White argued that the prosecution’s selection of Justice Snyder had resulted in “actual prejudice” to Francolino, thereby violating his due process rights.

There was no dispute that Justice Snyder was hand-picked by the prosecution. At the outset of its decision, the Second Circuit stated: “We consider here as a matter of first impression whether, or in what circumstances, a writ of habeas corpus must issue where the petitioner was convicted after a jury trial at which the presiding judge had been effectively chosen by the prosecution.”

While the Second Circuit disagreed with some portions of Judge Schwartz’ ruling in Francolino I, it strongly agreed with his basic conclusions and that Francolino was not entitled to a new trial. The Court stated: “We conclude that prosecutorial judge shopping raises serious concerns about the appearance of partiality, but does not require habeas relief absent a showing of actual prejudice.”

In his brief, Attorney White observed: “‘Actual prejudice’ cannot be the sine qua non of a due process violation, because no such showing a required in cases where a judge has a direct and substantial financial interest in the outcome.” (White Brief, p. 53). He also commented: “Prejudice should also be presumed in cases like [Francolino’s] because bias is not easily exposed, and the inability to unearth and identify it does not mean its non-existence. A biased judge would have an interest in concealing that bias.” (White Brief, id., at 57.)

Among some of the Court’s more notable findings and conclusions were the following:

• “No federal court has held that prosecutorial judge shopping is a per se basis for habeas relief.”

• “We agree with the District Court that a criminal justice system in which the prosecutor alone is able to select the judge of his choice to preside at trial, even in limited types of cases, raises serious concerns about the appearance of partiality, irrespective of the motives of the prosecutor in selecting a given judge” but “we cannot presume that a federal judge selected by a prosecutor will be his agent or henchman.” (Citing and quoting from U.S. v. Pearson, 203 F.3d 1243, 1262 (10th Cir. 2000)).

• “The standard for establishing a federal judge’s partiality, based on comments made at trial, is quite difficult for a criminal defendant to meet.” (Citing Liteky v. U.S., 510 U.S. 540, 555 (1994)).

• “We do not . . . hold that judge shopping is unremediable. Rather, we hold that, in the absence of a showing of actual prejudice, habeas proceedings are not the vehicle for rectifying these constitutional concerns. We express no opinion on whether we would apply a different standard of prejudice if we were reviewing an appeal from a conviction in federal court, or a claim asserted in federal court prior to trial.”


U.S. v. Dessesaure, Crim. No. 03-10191-NG (D.Mass. 04/13/04) (Judge Gertner)

Having been buffeted by a series of high-profile and painfully embarrassing revelations about corruption and misconduct in the FBI’s Boston office, it is probably understandable why the U.S. Attorney’s Office in Boston would turn to the Boston police to lead the way in some of its new criminal investigations and prosecutions. Sadly, that tactic also backfired - at least in the instant case; and once again a case handled by the U.S. Attorney’s Office in Boston was bungled - badly.

Initially, the case against Earl Dessesaure on Federal drug and gun charges must have seemed like a welcomed slam dunk. By the time the Boston Police turned the case over to Federal prosecutors, Dessesaure was in jail; and drugs and drug paraphernalia had been discovered in his apartment by a large team of police officers. How could the prosecutors have known that the case was built on theories that Judge Gertner found were “legally preposterous” and that made a “mockery of the Fourth Amendment”; and on evidence that was, at best, “sloppy, inconsistent, and worse, not credible”?

The case against Dessesaure was masterminded by police officer Broderick. After allegedly leaning from two of his confidential sources that Dessesaure was selling packaged heroin, Broderick set up an elaborate surveillance team; and he ultimately effected a warrantless stop and arrest of Dessesaure. Then, without waiting for a warrant, Broderick (assisted by a team of at least 6, and possibly as many as 15 other agents) initiated a search of Dessesaure’s apartment.

Dessesaure moved to suppress the evidence against him. While Judge Gertner denied his motion with respect to a small amount of drugs found on his person during a post-arrest search at the police station, she even found that to be a “close call.” But she emphatically ruled against the Government regarding the drugs and drug paraphernalia found in Dessesaure’s apartment during the warrantless search that took place.

After hearing three days of testimony, Judge Gertner recounted an astonishing tale of prosecutorial misconduct, crass indifference to anything but the conviction and gross incompetence. She repeatedly blasted Broderick for destroying evidence and giving false testimony. But she also upbraided the Government for “adopting” Broderick’s legal theories and justifications which she called “legally preposterous.”

It is impossible to do justice to Judge Gertner’s decision in summary fashion: it is one of those decisions that must be read in full to appreciate its significance. But the bottom line is that Judge Gertner has painted a disturbingly graphic tale of the all-too-common “forget the evidence - just get the conviction” syndrome.


In Brief

Forfeiture: U.S. v. Wright, 361 F.3d 288 (5th Cir. 2004) - Here, joining with the Fourth and Tenth Circuits, the Fifth Circuit held that the six year statute of limitations for filing a motion to return seized property under Fed.R.Crim.P. 41(e) [now Rule 41(g)] does not begin to run until the date on which the claimant was on reasonable inquiry notice that the forfeiture took place.

Guidelines: U.S. v. DeWitt, No. 03-2779 (8th Cir. 04/28/04) - Where the government stipulates to a drug quantity and a base offense level, it may not then initiate an effort at sentencing to obtain a greater sentence, even if it has come to believe that the stipulation was made in error; its attempt to do so here was a breach of the plea agreement and required a remand for resentencing before a different judge.

Restitution: U.S. v. Tarbox, 361 F.3d 664 (1st Cir. 2004) - District court did not err in ordering that defendant’s Federal civil service pension benefits be offset to satisfy the monthly payment schedule for his ordered restitution payments.


Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court

This Week

Year to Date

Since 1996

Courts of Appeal

54

646

19,573

District Courts

33

479

 10,885


Copyright © 2004 Punch and Jurists, Ltd.