Vol. 11, Nos. 34 & 35	Covering Cases Published in the Advance Sheets through August 30, 2004

• The last waves of briefs have now been filed in the two Blakely cases pending before the Supreme Court, namely U.S. v. Booker and U.S. v. Fanfan. In addition to the two separate briefs filed on behalf of the Respondents, Freddie Booker and Duncan Fanfan, and a single reply Brief filed on behalf of the Government, a total of six amicus briefs in support of the Respondents were filed by a range of interested parties, including the NYCDL, the NACDL, the NAFD, and FAMM Foundation. Copies of all of those briefs have been posted on our Blakely resource center at www.ussguide.com/.

The Legality of Exposing the Names of Informants

• The two Carmichael cases from the M.D.Ala. explore an intriguing question: can the Government prevent someone from posting on the Internet the names and other identifying information about snitches and undercover Government agents? In these two cases, Judge Thompson of the M.D.Ala. refused to order the defendant to close down his Web site - now known as www.whosarat.com - which contains detailed information about a growing number of informants and undercover agents who have testified on behalf of the Government - despite vociferous Government protests that the website was threatening and harassing its witnesses and undercover agents. The court held that a protective order was not necessary to prevent “a serious and imminent risk of harm” either to the informants or the agents whose names and profiles are listed on the website. The court also held that the issuance of such a protective order would violate the defendant’s rights under the First, Fifth and Sixth Amendments.
  

The Government's Continued Stonewalling in the Detainee Cases

• With almost frightening arrogance, the Government continues to pretend that it has the unfettered power and right to disregard the rights of any prisoners it holds overseas - despite a series of rulings by the Supreme Court this past June which put severe limits on the concept of executive detention. The ACLU case from the S.D.N.Y. is just the latest manifestation of that arrogance. Declaring that “no one is above the law,” Judge Hellerstein sharply criticized the Government for its “glacial pace” in responding to long-pending FOIA requests; and he ordered the Government to turn over or identify all documents relating to the treatment of prisoners held by the United States at military bases and other detention facilities abroad, including Guantanamo Bay and Abu Ghraib.
  

Sentencing Departures Based on Cultural Assimilation

• For the past few years, a number of courts have held that downward departures may be appropriate in cases involving illegal reentry by aliens where the alien has substantial cultural ties (as opposed to strictly economic incentives) that help explain his motives for returning to the United States after a previous deportation. The Government almost always opposes such “cultural assimilation” departures”; and this week we note two decisions, the Castillo case from the Fifth Circuit, and the Rivas-Gonzalez case from the Ninth Circuit, which address renewed attacks on “cultural assimilation” departures.
  

Blakely Developments

As required by the accelerated schedule set by the Supreme Court, both the Government and the Respondents have now filed their reply briefs in the two Blakely cases scheduled for oral argument on October 4, 2004 - namely, U.S. v. Booker, 73 U.S.L.W. 3033 (U.S. Aug. 2, 2004) (No. 04-104) and U.S. v. Fanfan, 73 U.S.L.W. 3073 (Aug. 2, 2004) (No. 04-105). Equally significant, a total of six amicus briefs in support of the Respondents’ positions were filed by various interested parties, namely: the New York Council of Defense Lawyers (NYCDL); the National Association of Criminal Defense Lawyers (NACDL); the National Association of Federal Defenders (NAFD); the FAMM Foundation (FAMM); the Washington Legal Foundation (WLF); and the Federal Public Defender’s Office for the Northern District of Texas. Copies of all of those briefs have been posted on our Blakely resource center at www.ussguide.com/.

As he has done consistently since the Supreme Court’s ruling in Blakely v. Washington, 124 S.Ct. 2531 (2004), Prof. Douglas Berman has analyzed all of those briefs on his Website, Sentencing Law and Policy at http://sentencing.typepad.com, where he continues to post some of the most perceptive comments and pose some of the most incisive questions about the ultimate direction of Blakely.

One of the most cogent and compelling of the many briefs filed in support of the respondents’ position was the brief filed by the NYCDL. That brief was jointly authored by a group of lawyers led by Alexandra A.E. Shapiro, Esq. and Lewis J. Liman, Esq. of New York City. The NYCDL acknowledged that the fundamental question presented in Booker and Fanfan is whether the “statutory maximum” for federal criminal offenses is defined by the Guidelines or the United States Code for the purposes of Blakely; but it strongly disagreed with the Government’s assessment that because judicial enhancements under the Guidelines are based on agency rules, not statutes as in Blakely, they do not impair a defendant’s jury trial rights.

That argument, the NYCDL contended, is based on “semantics and rigid adherence to inapposite precedent”; and it ignores the fundamental aspect of Blakely’s Sixth Amendment analysis - namely that defendants cannot be subject to increased punishment based on facts neither admitted by the defendant nor found by a jury beyond a reasonable doubt.

The Government’s Reply Brief continues to argue that Blakely does not apply to the Guidelines - although there has been a subtle shift in the rationale for that position. Its original briefs relied heavily on the premise that, unlike the Washington enhancements at issue in Blakely, the Guidelines are neither statutes nor their functional equivalents, since they were promulgated by the Sentencing Commission, rather than by Congress. The logic of the Government’s position now seems to be that applying Blakely to the Guidelines would essentially convert all Guideline enhancements into elements - which, it argues, is constitutionally problematic since only Congress can pass criminal statutes that create elements.

The Government also continues to argue its fall-back position that, if the Supreme Court does rule that Blakely applies to the Guidelines, it would only impact those cases in which Blakely factors exist. (In that connection, the Solicitor General has, for the first time, represented that 65% of Federal cases have Blakely factors.) In short, the Government advocates a dual sentencing system in which the Guidelines would apply with full binding force in all cases without Blakely factors; but they would be advisory only in cases that have Blakely factors.

Numerous cases have forcefully argued against the severability of the Guidelines - reasoning that if the Guideline provisions authorizing judicially imposed sentencing enhancements are deemed to be unconstitutional, then the entire Sentencing Guidelines must be set aside, since the offending sections cannot meaningfully be severed from the whole. See, e.g., U.S. v. Montgomery, 2004 U.S. App. LEXIS 14384 (6th Cir. July 14, 2004)(subsequently withdrawn); U.S. v. Mueffleman, 327 F.Supp.2d 79 (D.Mass. 2004); U.S. v. Einstman, 325 F.Supp.2d 373 (S.D.N.Y. 2004); and U.S. v. Marrero, 325 F.Supp.2d 453 (S.D.N.Y. 2004).

In the meantime, the lower courts are generally sitting back, waiting for the Supreme Court to rule. In that vein, the Eighth Circuit issued an administrative order directing parties to identify, but not brief, any Blakely issues until the Supreme Court rules in Booker and Fanfan; and directing the courts in that Circuit to hold all mandates involving Blakely issues until those rulings come down.

U.S. v. Carmichael, 326 F.Supp.2d 1267 (M.D.Ala. 2004) (Judge Thompson) (Carmichael I)
U.S. v. Carmichael, 326 F.Supp.2d 1303 (M.D.Ala. 2004) (Judge Thompson) (Carmichael II)

For a long time, informants (a/k/a snitches, stool-pigeons, rats, etc.) have occupied an extremely prominent - albeit highly controversial - place in the American criminal justice system. A number of years ago, Circuit Judge Steven Trott of the Ninth Circuit attempted to describe some of the perils of the Government’s extensive use of informants by observing:

“The use of informants to investigate and prosecute persons engaged in clandestine criminal activity is fraught with peril. . . . By definition, criminal informants are cut from untrustworthy cloth and must be managed and carefully watched by the government and the courts to prevent them from falsely accusing the innocent, from manufacturing evidence against those under suspicion of crime, and from lying under oath in the courtroom. As Justice Jackson said forty years ago, 'The use of informers, accessories, accomplices, false friends, or any of the other betrayals which are "dirty business" may raise serious questions of credibility'." U.S. v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993).

This past week, Rob Warden, the Director of Northwestern University’s Center on Wrongful Convictions, wrote an op-ed article for the Chicago Sun-Times, in which he observed:

“The government keeps no statistics on snitches, but I recently reviewed the cases of 98 defendants exonerated after having been sentenced to death during the last quarter of the 20th century. Thirty-nine of those convictions rested to some degree on snitch testimony, showing pretty much what we would expect: the witnesses with incentives to lie are inclined to do just that.” “Snitches Testimony Undermines Justice,” by Rob Warden, Chicago Sun-Times, September 26, 2004.

The defendant in the instant case, Leon Carmichael, Jr., was arrested in Alabama after a number of persons (who were also under arrest for marijuana distribution) informed the DEA that Carmichael had employed them to assist in his marijuana-distribution activities. In December 2003, Carmichael set up a Web site to expose his informants to the world. The website was originally called www.carmichaelcase.com; but today, after several incarnations, it is called www.whosarat.com.

As set forth on that website, the stated purpose of whosarat.com is as follows:

“Who’s A Rat is a database driven website designed to assist attorneys and criminal defendants with few resources. The purpose of this website is for individuals and attorneys to post and share all information that has been made public to at least one person in the public prior to posting it on this site related to local, state and federal informants and law enforcement officers.”

The Government was clearly incensed when it learned about the existence of whosarat.com. It immediately argued that the disclosure of information about its informants and its agents would impede its ability to get informants to testify in future cases and would make it more difficult for its agents to work undercover in the future. (Carmichael I, id., at 1295). Thus, it moved for a protective order directing Carmichael to remove his website from the Internet on the ground that it was threatening witnesses and government agents. Then, in Carmichael II, the Government also moved to prevent Carmichael from placing any “photographs or personal information of any prospective witness or informant on a poster, advertisement, or website” - a motion that was designed to cover newspaper advertising as well as the Internet. (Carmichael II, id., at 1304).

In responding to those motions, Judge Thompson framed the “interesting issue” before him as “whether the court, at the request of the government, may order the defendant to take down an internet website that the government contends is threatening and harassing its witnesses and agents but that the defendant contends is not only a permissible exercise of his First Amendment right to talk about his case but is needed to prepare his defense.” (Carmichael I, id., at 1270).

As authority for its motions, the Government cited 18 U.S.C. § 1514 (which specifically authorizes a protective order if “the court, after a hearing, finds by a preponderance of the evidence that harassment of an identified victim or witness in a Federal criminal case exists . . .”), as well as the court’s “inherent authority to control actions of parties, attorneys, and witnesses that impact proceedings before the Court.” (Carmichael I, at 1273).

After a detailed review of the law, Judge Thompson denied the Government’s motions for a protective order. He acknowledged that the witnesses may have been “uncomfortable” in having their names and photographs shown on the website; but he concluded that was not reason enough to hold that the website posed any actual risk to those witnesses. He also acknowledged that the website could compromise the ability of Government agents to act undercover - but he stressed “this is not evidence that the site is a threat.” (Carmichael I, id., at 1289). Finally, he emphasized that there were a series of constitutional rights of the defendant at issue - and those rights could not be summarily dismissed.

As a preliminary matter, Judge Thompson first concluded that the Government had not even met the statutory requirements for a protective order and he ruled that the website itself did not constitute “harassment” as defined in § 1514.

Turning to the defendant’s constitutional rights, Judge Thompson held that the website constituted protected speech under the First Amendment. He acknowledged that, under Watts v. U.S., 394 U.S. 705 (1969), “true threats” are not protected by the First Amendment; but, after a detailed review of the law and the factors relevant to determining whether the website did in fact contain such threats, he firmly concluded that the website was not a “true threat” and that it was outside the reach of the statutes authorizing the issuance of a protective order.

Judge Thompson also concluded that the protective orders sought by the Government would infringe on Carmichael’s right to a fair trial and his right to present a defense - rights that are protected by the Fifth and Sixth Amendments. He wrote:

“The fact that the protective order in this case would burden only the defense calls for a higher threshold standard of proof. Even the wealthiest of criminal defendants is at a substantial disadvantage compared to the government. As the Sixth Circuit wrote in [U.S. v. Ford, 830 F.2d 596, 599 (6th Cir. 1987)], ‘[a] criminal defendant awaiting trial in a controversial case has the full power of the government arrayed against him and the full spotlight of the media attention focused on him.’ In light of this imbalance of power, the criminal defendant should have some leeway in addressing the public, and, at the very least, should not be more limited than the government.” (Carmichael I, id., at 1294).

As a matter of note, when we first looked at whosarat.com, the database listed a total of 38 profiles (37 informants and 1 government agent). One month later, on September 27, 2004, the database had grown enormously: it now contains a total of 430 profiles, of which 216 were profiles of informants and 214 were profiles of government agents. The growth and popularity of that website are certain to lead to new, tougher and more concerted efforts by the Government to shut that site down - permanently.

In Brief

Prison Cases - Use of Anti-Psychotic Drugs: U.S. v. Weston, 326 F.Supp.2d 64 (D.D.C. 2004) - The Government will just not give up on its efforts to try Russell Eugene Weston for the 1998 murders of two U.S. Capitol Police Officers. For the umpteenth time, it sought court approval to have Weston drugged with anti-psychotic drugs to make him competent enough to stand trial. (See, e.g., some of the prior decisions in this case including those reported at 206 F.3d 9 (D.C. Cir. 2000); 134 F.Supp.2d 115 (D.D.C. 2001); 255 F.3d 873 (D.C. Cir. 2001); 211 F.Supp.2d 182 (D.D.C. 2002); and 260 F.Supp.2d 147 (D.D.C. 2003)). This time, even though acknowledging that his prior treatments had caused Weston to become “morbidly obese,” Judge Sullivan told the Government to go ahead with another 180-day forced use of anti-psychotic drugs pursuant to 18 U.S.C. § 4241(d), largely because of a Government doctor’s testimony that there was a substantial probability that Weston will attain the capacity to permit his trial to proceed “in the foreseeable future.”

Prison Cases - Hog-Tying a Criminal Suspect Held Not Actionable: Garrett v. Athens-Clarke County, 378 F.3d 1274 (11th Cir. 2004) - Here the Eleventh Circuit held that police officers did not violate the constitutional rights of a suspect who died of asphyxiation after his hands were cuffed behind his back and tied to his ankles in a “hog tie restraint.” In so ruling the Court reversed a lower court decision by Judge Duross Fitzpatrick that the county government and four police officers should stand trial for civil rights violations because the officers had “a fair and clear warning” that their treatment of the suspect was unconstitutional.

Unlawful Drug User: U.S. v. Augustin, 376 F.3d 135 (3rd Cir. 2004) - Here the Court vacated a gun conviction under 18 U.S.C. § 922(g)(3), finding that the Government had failed to proved that the defendant was “an unlawful user of or addicted to any controlled substance” at the time he possessed the gun in question. The Court held that the evidence merely showed that the day before the defendant possessed the gun he had smoked marijuana. There was no evidence that he had ever used drugs prior ro that single use; or that he ever used drugs again. That evidence was insufficient to support a conviction under § 922(g)(3), since that statute requires proof that the defendant “engaged in regular use [of drugs] over a period of time proximate to or contemporaneous with the possession of the firearm.” (Id., at 139).

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