Vol. 11, No. 37	Covering Cases Published in the Advance Sheets through September 13, 2004

Guidelines Held Unconstitutional - Due to the Feeney Amendment

• In the Detwiler case, Judge Panner of the D.Or. mounted a blistering attack on Congress and the Attorney General for their roles in the hasty and secretive enactment of the Feeney Amendment; and, in a lengthy and compelling decision, he concluded that the Feeney Amendment unconstitutionally usurps judicial authority in a manner that plainly violates the sacred principle of separation of powers, thereby rendering the Guidelines themselves unconstitutional.

Sheriff Arpaio's Titillating Prison Webcams

• In the Demery case, a divided panel from the Ninth Circuit upheld an injunction ordered by the district court that barred Sheriff Joe Arpaio of Maricopa County, AZ from broadcasting to the world live telecasts of prison life from a series of webcams he installed in a County jail under his control. The jail was used exclusively for pretrial detainees; and a number of former detainees at that jail argued that Arpaio’s webcam broadcasts constituted punishment that had no legitimate penological purposes. The majority agreed, observing that “inmates . . . are not like animals in a zoo to be filmed and photographed at will by the public or by media reporters, however ‘educational’ the process may be for others.” The lone dissenter was Judge Bea, a recent appointee of President Bush.
  

Having a Court Appointed Lawyer Trumps the Right of Access to a Prison Law Library

• In the Bourdon case, the Second Circuit adopted a bright-line rule and held that the appointment of counsel fully satisfies the constitutional guarantees of providing access to the courts for prisoners, including pre-trial detainees - thus rejecting the claim that deficiencies in the prison law library gave any rights to a claim for damages.
  

Guidelines - Downward Departure Granted for a Drug Mule

• In the Jurado-Lopez case, Judge Gertner of the D.Mass. openly chastised the Government for refusing to recommend a downward departure for substantial assistance to a drug mule from Guatemala; and she then granted a downward departure based on coercion and duress, giving the woman a sentence of time served - stating that any other sentence made no sense and in fact “seemed absurd” under the circumstances of this case.
  

Child Pornography Conviction Vacated on Commerce Clause Grounds

• The Maxwell case shows how dangerously close our society is coming to the prosecution of crimes charged by the “thought-control police.” Here, the Eleventh Circuit overturned a conviction for child pornography on the ground that the Government had failed to establish that the mere possession of computer disks containing pornographic images had any substantial effect on interstate commerce, as required by the express language of the charging statute, U.S.C. § 2252A(a)(5)(B), to justify Federal jurisdiction.

U.S. v. Detwiler, CR 03-372-PA (D.Or. 10/05/04) (Judge Panner)

This provocative, must-read decision represents another of a series of recent major body-blows to the Federal Sentencing Guidelines. It follows Judge Young’s recent scathing attack on the Federal sentencing system in U.S. v. Green, 2004 U.S. Dist. LEXIS 11292 (D.Mass. June 18, 2004) (P&J, 05/31/04). It also comes on the heels of the Supreme Court’s recent decision in Blakely v. Washington, 124 S.Ct. 2531 (2004) (which casts serious doubt on major portions - if not the entire structure - of the Guidelines).

In his compelling analysis, Judge Panner has presented a strong case for the proposition that the Federal Sentencing Guidelines are no longer constitutional - not for the reasons discussed in Blakely - but rather because the enactment of the Feeney Amendment (Pub.L.No. 108-21, § 401 (2003)) changed the nature and structure of the Guidelines and the United States Sentencing Commission so dramatically that they now unconstitutionally violate the principle of separation of powers established in our Constitution.

The defendant, Richard Detwiler, was charged with using a means of interstate commerce to persuade or entice a minor to have sex. He moved to have the Court declare the Feeney Amendment unconstitutional and to impose sentence under the pre-Feeney version of the Guidelines.

In response to those motions, Judge Panner held that

• “the federal Sentencing Guidelines system, in its present form, is unconstitutional because it violates the separation of powers doctrine”;
  
  
• “the defects are not severable”; and
  
  
• henceforth, “the federal Sentencing Guidelines will be treated as true guidelines, when imposing sentence in this and all future cases, pending further directions from a higher court or the Congress.”

The core of Judge Panner’s ruling was that, through the enactment of the Feeney Amendment, Congress and the Attorney General had stripped away the premises that were key for the Supreme Court when it upheld the structure of the Sentencing Reform Act in its decision in Mistretta v. U.S., 488 U.S. 361 (1989) and had fatally transformed the nature and structure of the Guidelines by usurping the judges of their authority and discretion to impose sentences in Federal criminal cases.

The Feeney Amendment, which became effective on April 30, 2003, was unquestionably sponsored by the Department of Justice (an agency within the Executive Branch of the Government); was hastily enacted by Congress without any discussion or debate; and it tipped the balance of power from the Judiciary to the Executive Branch of the Government in a manner that violates the Separation of Powers Clause of the Constitution.

In effect, Judge Panner said, “Congress and the Executive Branch carved up the Sentencing Commission as if it were a Thanksgiving turkey” and, in the process, “the Feeney Amendment ‘takes a sledge hammer to the concept of separation of powers’.”

Judge Panner started his analysis by recounting some of the history and purpose of the Separation of Powers Clause, noting that James Madison had referred to separation of powers as “the sacred maxim of free government” and had observed that “the accumulation of all powers. legislative, executive, and judiciary, in the same hands, whether of one, a few, or many . . . may justly be pronounced the very definition of tyranny.”

He then carefully recited the events that led to the enactment of the Feeney Amendment. He noted that although the bill was “nominally sponsored by a freshman Congressman, the Feeney Amendment actually was authored by Attorney General Ashcroft's subordinates at the Department of Justice.” He then continued:

“The Feeney Amendment was abruptly added, on the floor of the House, to the "PROTECT Act," an unrelated but popular bill to fund an "Amber Alert" system. No advance notice was given, no hearings were held, and there was no opportunity for meaningful debate or to refute the arguments (and allegedly, misinformation) that were cited as justification for the Amendment. Although the Feeney Amendment directly impacted the Sentencing Commission, that body was not informed of the Amendment in advance, let alone consulted. The Judicial Branch was not consulted either.”

Calling the Feeney Amendment nothing more than a naked “power grab,” Judge Panner bluntly stated that “this stealth route clearly was intended to prevent close scrutiny of the Feeney Amendment, or a fair opportunity to oppose the measure.”

Among the many flaws of the Feeney Amendment, Judge Panner noted that it significantly altered the composition of the Sentencing Commission - to ensure “that judges will never again comprise a majority of the voting membership of the Commission.” He wrote that the practical consequence of that change alone was that the Sentencing Commission “is now a captive of the Executive Branch. Any involvement by the Judicial Branch in the Commission’s work is solely by the grace of the Executive Branch.” He then continued:

“The Executive Branch’s newfound domination of the Sentencing Commission raises grave constitutional concerns. . . . The Feeney Amendment gives the Executive Branch - the prosecutorial branch of the Government - effective control over the Sentencing Commission and, therefore, over the Sentencing Guidelines. . . . This concentration of sentencing power in the Executive Branch is unprecedented.”

Painstakingly, Judge Panner listed the other flaws of the Feeney Amendment; and he caustically concluded that “No longer content to have an over-size seat at the [sentencing] table, the Executive Branch now insists on owning the table outright.”

In the end, Judge Panner complained that:

“[f]or too long, the Judicial Branch has remained silent in the face of repeated encroachments by the other two Branches. Like frogs in a simmering pot, we adjust to the new temperature, and complain among ourselves that it seems a tad warm, but then accept the new order of things, to repeat that process anew after the next encroachment. Unless a line be drawn somewhere, and soon, the independent federal judiciary that is the bulwark of our liberties . . . will be relegated to just another historical footnote.”

Having determined that the "Executive Branch has usurped control over the tasks that Mistretta viewed as historically within the realm of the Judicial Branch," Judge Panner concluded that the "only appropriate remedy here is to declare the federal Sentencing Guidelines system, in its present form, unconstitutional."

Regardless of what happens to this ruling, its logic is impeccable and its impact on the Guidelines is profound. Clearly this ruling is destined to add immeasurably to the ongoing debate about the future of the Federal Sentencing Guidelines.

Demery v. Arpaio, 378 F.3d 1020 (9th Cir. 2004) (Judge Paez)

Joe Arpaio, the 72-year old, self-proclaimed “toughest Sheriff in America” from Maricopa County, AZ, has always believed that his divine mission in life is to out-duel the judges and the legislators for the role as kingpin in meting out punishments to the many prisoners housed in his ever expanding chain of prisons in Arizona. Arpaio even has his own Web site at www.mcso.org - where he unabashedly extols his own tough-on-crime virtues.

Fortunately, many people (including many from the law enforcement community) disagree with his publicity-seeking tactics. (See, e.g., www.arpaio.com - where Arpaio is accused of living in “a fantasy world of self-importance” and where it is argued that real law enforcement in Maricopa County “takes a back seat to publicity.”)

The instant case is a prime example of Arpaio’s tough-guy mentality and his practice of prisoner mistreatment. Starting in July, 2000, Arpaio decided to show the world a little bit about life in his jails. He installed four webcams in the Madison Street Jail in places that are not open to the general public. The images picked up on the webcams were then streamed to Arpaio’s website - and from there broadcast live to internet users around the world through links to additional sites, including Crime.com, where one could click on such juicy items as:

• “Meet Sheriff Joe: It’s his jail and he’s proud of it. Spend a day in the life of Sheriff Joe Arpaio on his own turf, where inmates wear pink underwear, eat green bologna and work on chain gangs”; and
  
  
• “Watch as SWAT teams raid male and female holding cells in search of smuggled drugs and crude weapons.” (Id., at 1025).

Within the first few days of operation, the Crime.com website recorded six million hits - perhaps titillated by the claim that one of the webcams “captured images of the toilet and surrounding area in the women’s holding cell.” (Id., at 1024). [As a matter of interest, the Crime.com site was eventually shut down on the orders of the Arizona State Attorney General; see http://azplace.net/index.php?itemid=46).

In praising the alleged penological values of his latest feat, Arpaio proudly claimed that one of the purposes of his live broadcasts was to make sure that “when johns are arrested, they can wave to their wives on camera.” (Id., at 1024).

A lot of people were outraged by this morbid and sick practice; and ultimately 24 former Madison Street Jail detainees challenged Arpaio’s webcam policy, seeking a preliminary injunction to bar Arpaio from continuing to use his webcams to broadcast live images of inmates over the Internet. One of their principal arguments was that the Madison Street Jail is used exclusively to house pretrial detainees (i.e., persons who have only been accused of crimes and who have not yet been convicted of anything - a fact that seemed to elude Sheriff Joe); and that, under the law, pretrial detainees may not be subjected to “punishment.”

District Judge Earl Carroll granted the injunction on the grounds that Arpaio’s broadcasts unconstitutionally punished the pretrial detainees at the Madison Street Jail, in violation of the Fourteenth Amendment. The ever irascible and cantankerous Sheriff Arpaio immediately appealed to the Ninth Circuit - where a divided panel affirmed the issuance of the injunction - over the dissent of Judge Bea (a recent appointee of President George W. Bush).

Arpaio argued that the use of the webcams did not constitute unlawful “punishment” on the pretrial detainees under the standards established by the Supreme Court in cases such as Bell v. Wolfish, 441 U.S. 520 (1979) and Turner v. Safley, 482 U.S. 78 (1987).

In Bell, the Supreme Court held that "under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law." (Id., at 535). However, the Court also explained that for a particular government action to constitute punishment, (1) that action must cause the detainee to suffer some harm or “disability,” and (2) the purpose of the governmental action must be to punish the detainee. (Bell, id., at 538).

Rejecting Arpaio’s contentions that he intended no harm, the majority emphatically concluded that both of those requirements were met in this case.

“Plaintiffs were certainly harmed by Sheriff Arpaio’s actions. Having every moment of one’s daily activities exposed to general and world-wide scrutiny would make anyone uncomfortable. . . . The webcams increase exponentially the number of people observing detainees, and also alter drastically the classes of people who can watch the detainees. The discomfort to a detainee of having her children, for example, watch her while she is being detained is incalculably greater than having jail guards watch the same procedure.” (Id., at 1029-30).

Having determined that Arpaio’s practice of streaming live images of detainees on the Web constitutes a real “harm,” the majority then considered whether the harm was imposed “for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose.” (Id., at 1030, citing Bell, 441 U.S. at 538).

On that issue, the majority also emphatically rejected Arpaio’s palaver that there was any legitimate penological purpose to broadcasting the webcams to the world. It noted that the Supreme Court had stated in Bell that “[r]etribution and deterrence are not legitimate nonpunitive governmental objectives” that can justify adverse conditions of detention for pretrial detainees; and that the same Court had classified deterrence as one of the “the traditional aims of punishment.” (Id., at 1030-31) (Emphasis added.)

Based on those holdings, the majority stated: “[w]e fail to see how turning pretrial detainees into the unwilling objects of the latest reality serves any . . . legitimate goals” (id., at 1031); that “inmates . . . are not like animals in a zoo to be filmed and photographed at will by the public or by media reporters, however ‘educational’ the process may be for others” (id., at 1031); and that “displaying images of the County’s pretrial detainees to internet users around the world is not rationally connected to goals associated with educating the citizenry of Maricopa County.” (Id.)

Finally, the majority flatly rejected Sheriff Arpaio’s preposterous contention that the injunction at issue violated his First Amendment rights, stating:

“The webcam transmissions were not Sheriff Arpaio’s personal communications. The webcams were governmental property, installed on government-owned premises operated for a governmental purpose. . . The district court correctly held that ‘the Bill of Rights protect the individual from the government, not the other way around’.” (Id., at 1032) (Emphasis in original).

In Brief

The ‘Hiibel’ Case and the Right to Remain Silent: Martiszus v. Washington County, 325 F.Supp.2d 1160 (D.Or. 2004) - This is the first case we have seen interpreting (and somewhat limiting the broad sweep of) the Supreme Court's decision in Hiibel v. Sixth Judicial Dist. Court of Nev., 124 S.Ct. 2457 (2004), which upheld a Nevada law that makes it a criminal offense for anyone suspected of wrongdoing to refuse to identify himself to the police, holding the law violated neither the Fourth nor the Fifth Amendments.

In this case, Judge Mosman held that when there is "an absence of reasonable suspicion an officer may not use a citizen's 'refusal to cooperate [to] furnish the minimal level of objective justification needed for a detention'. . . . Thus an officer may not use a citizen's refusal to provide identification as the basis for a detention." (Id., at 1169) (Internal citation omitted).

The First Amendment Rights of a Tax Protestor: U.S. v. Schiff, 379 F.3d 621 (9th Cir. 2004) - The First Amendment often seems to be reviewed under slightly different standards if the statements at issue have a tendency to attack things that are near and dear to the power base of the establishment. This case involves the right of Irwin Schiff, the 76-year author and long-time opponent of the Federal income tax system, to promote and sell his book, “The Federal Mafia: How the Government Illegally Imposes and Unlawfully Collects Income Taxes.” Schiff has already served two prison sentences for tax related crimes and he has recently been indicted again; but he just won’t give up.

A little more than a year ago, Judge Lloyd George of the D.Nev. obliged the IRS with a sweeping injunction that barred Schiff from continuing to sell The Federal Mafia; that ordered Schiff to disclose to the IRS the names of all persons who purchased his book so it could audit the tax returns of those potential tax protestors; and that directed Schiff to post a copy of the court’s order on his website. Judge George cited two bases to support his injunction: inciting imminent lawless behavior and aiding and abetting criminal activity. (See, U.S. v. Schiff, 269 F.Supp.2d 1262 (D.Nev. 2003)).

Schiff quickly appealed to the Ninth Circuit, arguing that the injunction violated the First Amendment because (1) it was overbroad as it related to The Federal Mafia; (2) the forced disclosure of the customer list would have “a major chilling effect” on dissent and free speech; and (3) the placement of the order on the website constitutes unconstitutional controlled speech. (See, P&J, 03/15/04.) .

Rejecting the First Amendment concerns raised by Schiff, the Ninth Circuit has now affirmed Judge George’s injunction - albeit somewhat cautiously and on different grounds. Essentially, the panel declined to address much of the legal theory of Judge George’s ruling. Instead, it concluded that many of the statements contained in The Federal Mafia constituted fraudulent commercial speech; and it held that the Government has “the right to regulate false, misleading or deceptive commercial speech (id., at 626). On that narrow ground it concluded that the preliminary injunction was “an appropriate restriction.”

The panel also declined to rule on the issue of forcing Schiff to disclosure the names of his customers, on the grounds that the issue was not raised or addressed by the district court. It suggested that the district court would have an opportunity to consider that issue in the forthcoming proceedings for a permanent injunction.

The Use of False Pretrial Claims fo Impeach at Trial: U.S. v. Griffith, No. 03-1510 (2nd Cir. 10/04/04) - The provisions of 18 U.S.C. §§ 3153(c)(1) and (c)(3) provide, respectively, that information obtained during the performance of pretrial services functions shall be used only for the purposes of a bail determination and is otherwise confidential; and that such information “is not admissible on the issue of guilt in a criminal judicial proceeding.” Notwithstanding those provisions, the Second Circuit joined with the Eighth Circuit in holding that false statements made in a pretrial interview to determine eligibility for bail can be used to impeach a defendant who testifies at trial; and that the defendant had no right to invoke his Fifth Amendment privilege against self-incrimination.

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