Vol. 11, Nos. 20 & 21
Covering Cases Published in the Advance Sheets through May 24, 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.

Supreme Court

Jury Intimidation - Big Brother Style

Guidelines - Substantial Assistance

Crawford v. Washington - An Update

Although we have not yet seen any major interpretative analyses of the Supreme Court’s recent confrontation clause decision, Crawford v. Washington, 124 S.Ct. 1354 (2004), from any of the Federal Circuit Courts, we are beginning to see the first trickle of cases addressing some peripheral Crawford issues. Thus, in Horton v. Allen, No. 03-1423 (1st Cir. 05/26/2004) and in Leavitt v. Arave, No. 01-99008 (9th Cir. 06/14/2004), both the First and Ninth Circuits declined, based on the facts of those cases, to consider whether Crawford was a decision that should be applied retroactively to cases on collateral review. However, in Evans v. Luebbers, No. 03-1900 (8th Cir. 06/10/2004), the Eighth Circuit suggested that Crawford would not be accorded retroactive treatment, because: “[t]he Crawford court does not suggest that this doctrine would apply retroactively and the doctrine does not appear to fall within either of the two narrow exceptions to Teague v. Lane’s [489 U.S. 288 (1989)] non-retroactivity doctrine.”

Also, see "The Struggle to Define 'Testimony' After 'Crawford'," by Tom Perrotta, The New York Law Journal, June 21, 2004.


U.S. v. Rutherford, No. 03-10158 (9th Cir. 06/10/2004) (Judge Reinhardt)

After the husband and wife defendants in this case were convicted by a jury of two counts of tax evasion, they appealed, arguing principally that their right to a fair trial had been prejudiced because the Government had assembled a large team of current and former agents of the IRS and the Department of Justice who came to court each day, sat in the front row immediately behind the prosecution table, and constantly “glared” at the jurors in order to intimidate them.

Armed with affidavits from a number of the jurors who said that they were “afraid of retaliation from the IRS” if they voted against the Government, the Rutherfords moved for a new trial on the grounds of jury intimidation, tampering and misconduct. They contended that the presence of so many Government agents in the courtroom who were “glaring” at the jurors intimidated the jury and prejudiced its deliberations.

In addressing that motion, the district court (Judge Reed of the D.Nev.) struck certain portions of the jurors’ affidavits in which they stated that they believed the IRS might retaliate against them, holding that such statements were inadmissible since they “constitute[d] evidence of the effect of such conduct upon jurors’ mind or emotions as influencing them to assent to or dissent from the verdict and [sic] concern jurors’ mental processes.” In Judge Reed’s view, the only statement that could provide a basis for the motion was a statement from one juror regarding the presence of so many “glaring” IRS agents in the courtroom. Based on that statement, the court ordered an evidentiary hearing, although he expressly limited the hearing to juror testimony as to “the existence of such [agent] conduct at the time it occurred.”

He also advised the defendants that they bore the burden of proving that the government agents intended to intimidate or influence the jurors. Without such a showing, Judge Reed concluded, the conduct must be considered as “a more prosaic form of contact with the jurors,” a form that would place the burden of proof on the defendants and require them to prove actual prejudice in order to obtain a new trial.

At the evidentiary hearing, the Government agents testified that they had attended the trial either as part of their duties or for training purposes, and that they did not attend with the purpose of intimidating the jurors.

At the end of the hearing, Judge Reed found that between seven to ten active and retired Government agents had attended the trial each day; that they sat behind the prosecution table; that they had glared and stared at the jurors; and that the jurors had discussed this fact among themselves on more than one occasion.

According to Judge Reed, however, the issue was whether the government agents intended to intimidate or influence the jurors. He held that the Rutherfords had failed to prove that “[the conduct] of the IRS personnel was intentionally an effort to influence the jury. This means a knowing threat of some sort or other, an intentional act to influence the jury, a knowing and intentional act designed to influence the jury.”

After finding that there was “no credible evidence that the IRS . . . intended to [ ] influence the jury,” Judge Reed shifted the burden of proof to the defendants and required them to establish actual prejudice in order to be granted a new trial. In the end, because the Rutherfords could not prove “actual prejudice,” Judge Reed denied their motion for a new trial.

On appeal, the Rutherfords argued that the district court had erred in determining that where there are allegations of jury intimidation or tampering, prejudice should be presumed only if the defendants can prove that those whose actions are being challenged intended to influence the jury. Specifically, they asserted that the district court had erred in determining that, “regardless of the effect” the IRS agents’ conduct may have had on the jurors, without proof of intent on the agents’ part prejudice could not be presumed. They also contended that the district court erred in striking significant portions of the jurors’ affidavits on this basis and then limiting the scope of the matters to be pursued at the evidentiary hearing. They argued that the district court’s error in this regard prevented them from developing a sufficient record showing that the agents’ conduct created a risk that the verdict would be influenced.

The Ninth Circuit agreed with the Rutherfords’ position and reversed the district court’s ruling. Citing Remmer v. U.S., 347 U.S. 227 (1954), and its progeny, the Court first observed that “any private communication, contact, or tampering, directly or indirectly, with a juror during trial about the matter pending before the jury” is deemed “presumptively prejudicial” and places a heavy burden on the Government to rebut the presumption by proving that the error was harmless beyond a reasonable doubt. It then wrote: “We . . . have consistently stated that the appropriate inquiry is whether the unauthorized conduct or contact is potentially prejudicial, not whether the parties alleged to have tampered with the jury did so intentionally.”

The Court also stressed:

“The courts have emphasized that judges should exercise additional caution when government employees are involved, because of a heightened concern that the jurors will not “feel free to exercise [their] functions” with the Government “looking over [their] shoulder[s].” (Citing Remmer, id., at 229). . . . Because of the perceived, as well as actual, power that government actors have at their disposal and the positions of authority that they occupy, we have held that even seemingly innocuous juror conversations and contact between such individuals and a juror can trigger a presumption of prejudice.”

Based on those principles, the Court held that the district court had erred in concluding that the defendants had to prove that the IRS agents intended to influence or prejudice the jurors in order for the presumption of prejudice to apply. The appropriate inquiry, it said, is “whether the unauthorized conduct ‘raises a risk of influencing the verdict’.”

Ultimately, the Court was unable to state whether the presumption should apply in this case and whether the jurors were adversely influenced by the agents’ conduct, in part because the district court had also erred in limiting juror testimony at the evidentiary hearing to “the existence of such conduct at the time it occurred.” While the Court agreed that a court may not, under Rule 606(b), consider testimony “regarding the affected juror’s mental processes in reaching the verdict,” it stated that a court can and should consider the “effect of extraneous information or improper contacts on a juror’s state of mind,” a juror’s “general fear and anxiety following” such an incident, and any other thoughts a juror might have about the contacts or conduct at issue. Thus, in the context of the instant case, the Court concluded that “a juror’s testimony concerning his fear that individuals would retaliate against him if he voted to acquit (or convict) would be admissible, although his statement that he actually cast his vote one way or the other because of that fear would not.”

For that reason, the case was remanded back to the district court for a further evidentiary hearing to “allow the parties to introduce evidence regarding the jurors’ perceptions of the agents’ conduct and any discussions among the jurors concerning the possibility of IRS retaliation if they voted to acquit. . . . If upon completion of those proceedings, the district court concludes that the verdict was tainted, the judgment of conviction shall be set aside and a new trial may be conducted.”

This will be an interesting remand to follow, particularly since the Government’s practice of packing a courtroom with friendly agents is so common!


U.S. v. Awad, No. 01-50408 (9th Cir. 06/09/2004) (Judge Hall)

The defendant in this case, Issam Awad, pled guilty to one count of illegally possessing pseudoephedrine in violation of 21 U.S.C. § 841(d)(2). While the plea agreement did not obligate the Government to seek any sentence reduction based on the defendant’s assistance with any other prosecutions, the AUSA did file a motion for a one-level downward departure, pursuant to U.S.S.G. § 5K1.1, to reward Awad for his “helpful” cooperation in connection with an ongoing DEA investigation in Florida.

In its motion, the Government acknowledged that Awad had also provided information about drug trafficking in other states, but it concluded that his assistance in those matters “could not be measured at the present time.” Instead of attempting to evaluate that aspect of Awad's cooperation, the Government indicated that it would "file an additional downward departure motion pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure should the occasion warrant in the future."

At sentencing, Awad asked the district court to delay ruling on the Government’s motion until the full extent of his cooperation on other ongoing investigations could be evaluated. The government conceded that Awad had provided helpful information with regard to an ongoing investigation in Chicago, but recommended that the court "re-address that issue at a later date once [the government] got a full opportunity to evaluate fully defendant's cooperation." Heeding the government's request, the district court granted the one-level sentence reduction the Government had recommended and imposed a sentence of 63 months imprisonment.

Awad appealed, arguing that, based on the Court’s decision in U.S. v. Quach, 302 F.3d 1096 (9th Cir. 2002), the district court had abused its discretion by ruling on the Government’s motion without requiring it to furnish a more comprehensive analysis of the cooperation he was providing.

The Court agreed; and it vacated Awad’s sentence and remanded for a new sentencing. It first emphasized that:

“[a]n erroneous understanding by both the government and the court of Rule 35(b)’s applicability to Awad’s presentence cooperation permeated the sentencing proceedings and caused the court to impose sentence based on an incomplete record. The court’s decision to sentence in the face of an incomplete § 5K1.1 motion undermined the clear temporal framework established by the interplay of § 5K1.1 and Rule 35(b).”

The Court stressed the temporal distinctions between § 5K1.1 and Rule 35(b) by noting that a § 5K1.1 motion “rewards a defendant for his assistance prior to sentencing,” while a “Rule 35(b) rewards a defendant for post-sentencing assistance.” Thus, citing its ruling in Quach, the Court held that “the possibility of Rule 35(b) relief in the future cannot influence the government’s or the district court’s decision at sentencing about § 5K1.1 relief” and that it is “impermissible” for the Government to “postpone” the § 5k1.1 evaluation beyond sentencing.” (Quach, id., at 1102).

The Court also noted that its decision in Quach relied heavily on the First Circuit’s decision in U.S. v. Drown, 942 F.2d 55 (1st Cir. 1991), where the prosecutor simply refused to evaluate the defendant’s cooperation. In that case, the First Circuit ruled that “the government may not defer a determination as to the substantiality of a defendant’s assistance on the ground that it would be premature to make such a judgment.” (Drown, id., at 59, n.7.)

Applying those rulings to the facts of the instant case, the Court concluded that the error that had occurred was an abuse of discretion that required that Awad be resentenced.

While the Court acknowledged that it has limited rights to review the Government’s decision whether to file a § 5K1.1 motion, it also clarified what a district court must do once the Government elects to file a § 5K1.1 motion. It explained:

“If at sentencing, [the] information had not been sufficiently developed to constitute ‘substantial assistance,’ or if the government had simply declined to offer a § 5K1.1 motion, the court would not be compelled to postpone sentencing indefinitely in order to allow the investigation to run its course. . . . [However], if the government elects to make a § 5K1.1 motion, the court must simply insist that the motion be based upon an evaluation of the assistance that has been rendered by the defendant up to the time of sentencing.”


In Brief

Guidelines - Obstruction of Justice: U.S. v. Khimchiachvili, No. 03-1166 (2nd Cir. 06/09/2004) - Rejecting authority from the Ninth and Eleventh Circuits, the Second Circuit held that the district court had erred in imposing a two-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1, because the defendant swore to false financial statements in order to obtain court-appointed counsel. The panel emphasized that the type of conduct that triggers an enhancement under § 3C1.1 is conduct that

“willfully interferes with or attempts to interfere with the disposition of the criminal charges against a defendant. An enhancement for obstruction of justice is therefore only warranted ‘if the court finds that the defendant willfully and materially impeded the search for justice in the instant offense. . . . For a defendant’s conduct to qualify as obstruction of justice, it must have the ‘potential to impede’ the investigation, prosecution, or sentencing of the defendant. It cannot simply be a misrepresentation.” (Internal citations omitted) (Emphasis in original).

The Court concluded that the defendant “was not seeking to prevent justice or even delay it.” Admittedly, the Court said, what happened was “fraud” and “reprehensible,” but it was “not alone enough for an obstruction of justice enhancement.”

Guidelines - Special Skills: U.S. v. Montero-Montero, No. 02-1734 (1st Cir. 06/02/2004) - As part of his plea agreement, the defendant in this case stipulated that he had conspired with several others to smuggle hundreds of kilos of marijuana into Puerto Rico. At sentencing, the district court (Judge Perez-Gimenez of the D.Puerto Rico) sua sponte added a two-level sentence enhancement pursuant to the provisions of U.S.S.G. § 3B1.3 based on the defendant’s use of “special skills” to commit his crime. The district court reasoned that because the defendant had worked all his life as a fisherman, he possessed special skills that facilitated his offense. The First Circuit reversed, holding that there was not sufficient evidence that the defendant’s knowledge of navigation and boating significantly facilitated the commission or concealment of his offense as required by § 3B1.3.

 

Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court

This Week

Year to Date

Since 1996

Courts of Appeal

103

887

19,814

District Courts

29

582

 10,984


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