Vol. 12, No. 21	Covering Cases Published in the Advance Sheets through May 23, 2005

Booker

• This past week produced another of 198 new Booker-related decisions from the lower Federal courts - raising the total since January 12, 2005 to an astonishing 1589; and, now that the Ninth Circuit has broken its logjam by finally issuing its decision in U.S. v. Ameline, we expect that the pace of new decisions will steadily increase at least for the near-term future.
  

Supreme Court

• In Raich, by a 6-to-3 vote, the Supreme Court upheld the power of Congress to prohibit and prosecute the possession and use of marijuana for medical purposes, even in states that have specifically enacted laws permitting the use of doctor-prescribed marijuana. In its ruling, the majority acknowledged that the marijuana at issue was never bought or sold in a commercial transaction, never crossed state lines, and had no demonstrable effect on the national market for marijuana. Still, in upholding the preeminence of the Federal Controlled Substances Act, the majority relied on a 1942 wartime decision of the Court which held that Congress can regulate purely intrastate activity that is not itself “commercial,” if it concludes that the failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.

  The decision immediately set off a spate of speculation among court-watchers who debated whether the ruling represents a retreat from the Court’s recent efforts to curb Congress’ power under the Commerce Clause - or whether it simply represents a zero-tolerance approach to drug use - even when in the guise of medical necessity. That debate was accentuated by the votes of Justices Scalia and Kennedy, who voted with the majority in the instant case, but who, in two recent major Commerce Clause cases, had voted to curb the power of Congress. The debate was also accentuated by Justice O’Connor’s passionate and often bitter dissent in which she argued that the ruling was “irreconcilable” with the Court’s recent jurisprudence and that it “threatens to sweep all productive human activity into federal regulatory reach.”

Another Challenge to Sex Offender Registration/DNA Collection Statutes Rejected

• In Doe, the Eleventh Circuit rejected a broad series of constitutional challenges to Florida’s Sex Offender Registration/Notification statutes and its DNA Collection statutes.

“Blank Check” - Extending and Expanding The Patriot Act

Incomprehensibly (at least to us), Congress is meekly marching to the tune of the Administration and is not only considering legislation to make permanent all of the many “temporary” provisions of the Patriot Act that were hastily enacted in the aftermath of 9/11, it is also considering new provisions that would dramatically expand the power of the FBI to conduct secret searches, without any application to, or oversight by, the U.S. courts. One of many detailed analyses of some of the scary new provisions proposed by the Administration can be accessed at http://action.aclu.org/site/PageServer?pagename=AS_BlankCheckVideo

U.S. v. Booker - Update

The flood of new lower court decisions interpreting the Supreme Court’s landmark sentencing decision in U.S. v. Booker, 125 S.Ct. 738 (Jan. 12, 2005) continues to reach epic proportions. Last week there were 198 new Booker-related decisions (published and unpublished) - bringing the total to 1,589 since Jan. 12, 2005. One barometer of the impact of Booker on the judicial system can be seen in the latest issue of the Federal Reporter Advance Sheets: of the 54 new published cases dealing with criminal law and criminal justice issues in the Circuit Courts of Appeal, 33 - or 61% of the total - dealt with Booker issues. For the most comprehensive coverage of Booker-related developments on the Internet, see our special Booker Resource Center at www.ussguide.com/members/BulletinBoard/Booker/index.cfm/.

One noticeable feature of a growing number of the new decisions is a single common theme: quick justice. While it is perhaps understandable that the lower courts are having a very difficult time dealing with all the Booker appeals and remands, we notice some disturbing features in a growing percentage of the new decisions, including (a) greater reliance on unpublished rulings; (b) a dramatic rise in rulings that say little more than the magic word “affirmed”; and (c) an increasing use of template-type decisions that recite the same factors over and over again. Thus, for example, in the almost identical decisions in Martin v. U.S., 2005 U.S. Dist. LEXIS 11302 (N.D.Ohio June 10, 2005) (involving a 2 count bank robbery conviction) and Valdez v. U.S., 2005 U.S. Dist. LEXIS 11303 (N.D.Ohio June 10, 2005) (involving a 44 count drug conspiracy conviction), Judge Katz used a template that even contained the same misspellings, to wit: “For the reasons herein above stated and those well set forth in the Government's breif in oppositin, the petitioner's is denied.”

Some of the courts are still in a state of denial about Booker - as they continue to stretch the spirit of Booker to find creative ways to ignore or avoid its holding. The Tenth Circuit has become one of the most unforgiving pf the courts; and a pair of recent decisions from the Tenth Circuit are illustrative of that approach:

U.S. v. Dalton, 2005 U.S. App. LEXIS 9989 (10th Cir. June 2, 2005) (Judge Anderson)
U.S. v. Lauder, 2005 U.S. App. LEXIS 10608 (10th Cir. June 8, 2005) (Judge Tymkovich)

Both of these drug cases involved sentences imposed pre-Booker which were enhanced based upon judicial findings of drug quantities that were considerably in excess of the amounts charged in the respective indictments. Although both defendants objected to the drug quantity estimations contained in their presentence reports (which were used by the district courts as the basis for the sentences imposed), the panels in each of these cases noted that the defendants had failed to assert any constitutional objections.

Thus, even though both cases involved what is now universally recognized as “constitutional Booker error,” the failure to assert at sentencing any prescient constitutional error (based on a case that was yet to be decided) meant that the Courts would grant relief only if it found that the sentences at issue constituted “plain error” - a finding that imposes on the defendant the burden of establishing four factors: (a) that the district court committed error; (b) that the error was plain; (c) that the error affected substantial rights; and (d) that the error “seriously affects the fairness, integrity, or public reputation of the judicial proceedings.”

Through a line of post-Booker cases, the Tenth Circuit has created an almost impossible-to-scale wall around the fourth prong of its plain error analysis. (See, e.g., U.S. v. Gonzalez-Huerta, 403 F.3d 727 (10th Cir. Apr. 8, 2005); U.S. v. Dazey, 403 F.3d 1147 (10th Cir. Apr. 13, 2005); U.S. v. Dowlin, 2005 U.S. App. LEXIS 8703 (10th Cir. May 17, 2005); and U.S. v. Magallanez, 2005 U.S. App. LEXIS 8704 (10th Cir. May 17, 2005)).

In Dalton, the Court found that the defendant had failed to show that the sentence imposed warranted relief under the fourth prong in part because he had been sentenced at the top of his Guideline range (making it unlikely that the district court would have imposed a lower sentence under an advisory Guideline scheme); and in part because he had presented no “peculiar evidence” that demonstrates a complete breakdown in the sentencing process.

In Lauder, the Court also found that the defendant had failed to show that his sentence warranted relief under the fourth prong in part because he had been sentenced to five months above the bottom of his Guideline range of 235-293 months, stating that “a sentence above the bottom of the range is an indicator that the district court would simply reimpose the same sentence on remand, and therefore core notions of justice would not be offended if we declined to notice the error.” So, essentially, they can get you whether your sentence is at the top or near the bottom of the Guideline range!

Gonzales v. Raich, No. 03-1454 (U.S. Sup. Ct. June 6, 2005) (Justice Stevens)

The core issue before the Supreme Court in this case was whether Congress had the authority under the Commerce Clause to override a state law, specifically authorized by a state ballot initiative, permitting the medical use of marijuana. The decision in this case, however, reverberated with a series of subsidiary questions relating to far more than just the reach of Federal drug enforcement; and, in the eyes of some observers (including Justice O’Connor, who dissented), the ruling in this case also represented a dramatic turning point in the Court’s recent efforts to place meaningful limits on Congress’ power under the Commerce Clause.

One view of some of this issues involved in this case can been seen from the following statement, which was set forth in the joint brief filed by the National Organization for the Reform of Marijuana Laws (NORML) and the National Association of Criminal Defense Lawyers (NACDL), who stated:

“This case is about the confluence of the state and individual rights: A state’s capacity to legislate its public health policy, by choosing its own means and ends to achieve what it believes best serves the good of its people, when there is no superior or even competing federal interest; and, the right of personal medical choices of the chronically and terminally ill, made in consultation with their doctors. This state-federal conflict implicates several individual liberties intertwined under our Constitution: The right of the ‘pursuit of happiness’ and liberty by the chronically and terminally ill; the right of citizens ‘to be let alone’ by government in personal decisions; and substantive due process when there is no comparable federal interest in prohibiting the conduct at issue.”

In 1996, California voters overwhelmingly passed the Compassionate Use Act, which provides seriously ill Californians “the right to obtain and use marijuana for medical purposes” once a physician has deemed the use beneficial to the patient’s health. [As a matter of note, ten other states have also passed legislation permitting the use of marijuana for medical purposes - namely, Alaska, Arizona, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Washington and Vermont.] Those statutes, directly conflict with the federal Controlled Substances Act, 21 U.S.C. § 801 et seq. (CSA), which makes the manufacture and possession of marijuana illegal.

The two respondents in this case, Angel Raich and Diane Monson, are California residents who use doctor recommended marijuana for serious medical conditions. Raich has been diagnosed with more than ten serious medical conditions, including an inoperable brain tumor, a seizure disorder, and several chronic pain disorders. According to her duly-licensed, board-certified physician, Raich has tried “essentially all other legal alternatives” to marijuana with no success. Due to Raich’s condition, she is unable to cultivate her own marijuana. She relies on her caretakers, John Doe Number One and John Doe Number Two, to grow it for her. Her caretakers allege they use only products originating within California to produce the marijuana.

Respondent Monson has also used doctor-prescribed marijuana for several years, but she cultivates her own marijuana. On August 15, 2002, county deputy sheriffs and agents from the Federal DEA came to Monson’s home. After a thorough investigation, the county officials concluded that her use of marijuana was entirely lawful as a matter of California law. Nevertheless, after a 3-hour standoff, the federal agents seized and destroyed all six of her cannabis plants.

Fearing further raids and prosecution by the Federal Government, the respondents brought the instant action against the Attorney General of the United States and the head of the DEA seeking injunctive and declaratory relief prohibiting the enforcement of the CSA against them to the extent it prevents them from possessing, obtaining, or manufacturing cannabis for their personal medical use. The respondents claimed that enforcing the CSA against them would violate the Commerce Clause, as well as numerous of their rights under the Due Process Clause of the Fifth Amendment, the Ninth and Tenth Amendments of the Constitution, and the doctrine of medical necessity.

In a decision reported at Raich v. Ashcroft, 248 F. Supp. 2d 918 (N.D.Cal. 2003) (“Raich I”), the district court denied their motion for a preliminary injunction. Although the court found that the Federal enforcement interests “wane[d]” when compared to the harm that California residents would suffer if denied access to medically necessary marijuana, it concluded that respondents could not demonstrate a likelihood of success on the merits of their legal claims. (Raich I, id., at 931).

In Raich v. Ashcroft, 352 F.3d 1222 (2003) (“Raich II”), a divided panel from the Ninth Circuit reversed and ordered the District Court to enter a preliminary injunction. The majority found that respondents had “demonstrated a strong likelihood of success on their claim that, as applied to them, the CSA is an unconstitutional exercise of Congress’ Commerce Clause authority.” (Raich II, id. at 1227).

The panel reached that holding by relying on the Supreme Court decisions in U.S. v. Lopez, 514 U.S. 549 (1995) and U.S. v. Morrison, 529 U.S. 598 (2000). In those two cases, the Court struck down federal laws - the Gun-Free School Zones Act and the Violence Against Women Act - on the ground that they exceeded Congressional authority.

Applying the rationale of Lopez, the Ninth Circuit concluded in Raich II that Congress could regulate Raich’s activities under the Commerce Clause only if her activities “substantially affected interstate commerce.” Applying the four-factor test established in Morrison, the court held that “the intrastate, noncommercial cultivation and possession of [marijuana] for personal medical purposes” probably did not substantially affect interstate commerce and therefore the CSA, as applied to Raich, was likely unconstitutional.”

Focusing on “the intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes as recommended by a patient’s physician pursuant to valid California state law,” the Court concluded that the activities of the two respondents were “different in kind from drug trafficking” because interposing a physician’s recommendation raises different health and safety concerns, and because “this limited use is clearly distinct from the broader illicit drug market – as well as any broader commercial market for medicinal marijuana – insofar as the medicinal marijuana at issue in this case is not intended for, nor does it enter, the stream of commerce.” (Raich II, id., at 1228).

The Government appealed to the Supreme Court, by a vote of 6-to-3, reversed the Ninth Circuit’s decision in Raich II and upheld the right of Congress to prohibit the possession and use of marijuana for medical purposes. In so ruling, the majority relied heavily on a Wickard v. Filburn, 317 U.S. 111 (1942), a World War II decision that many had speculated had been rendered evanescent by more recent decisions such as Lopez and Morrison.

In Wickard, the Supreme Court upheld the application of regulations promulgated under the Agricultural Adjustment Act of 1938, which were designed to control the volume of wheat moving in interstate and foreign commerce in order to avoid surpluses and consequent abnormally low prices. The regulations established an allotment of 11 acres for Filburn’s 1941 wheat crop, but he sowed 23 acres, intending to use the excess by consuming it on his own farm. Filburn argued that Congress’ power to regulate the production of goods for commerce did not authorize “federal regulation [of] production not intended in any part for commerce but wholly for consumption on the farm.” (Wickard, id., at 118). In rejecting that argument, Justice Jackson wrote for a unanimous Court:

“The effect of the statute before us is to restrict the amount which may be produced for market and the extent as well to which one may forestall resort to the market by producing to meet his own needs. That appellee’s own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial.” (Wickard, id., at 127-128).

In the words of Justice Stevens in the instant case: “Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself ‘commercial,’ in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.” Based on that interpretation of Wickard, Justice Stevens concluded that the CSA fits “squarely within Congress’s commerce power.”

Unquestionably, the Court faced a conundrum: had it ruled that noncommercial, homegrown marijuana for medicinal users was beyond the reach of the Commerce Clause, it would have been extremely difficult to establish any logical basis to prohibit the use of home-grown marijuana by recreational users.

Nevertheless, the sweep of the decision represents a firm reassertion of Federal authority; and a broad retreat from the Rehnquist-led trend of the past decade that reined in Congressional efforts to restrict or pre-empt the states. That much is evident just from Justice O’Connor’s passionate dissent. She bluntly stated that the Court’s decision was “irreconcilable” with the holdings in Lopez and Morrison; and she chided the majority for turning its back on some basic Constitutional principles:

“We enforce the ‘outer limits’ of Congress’ Commerce Clause authority not for their own sake, but to protect historic spheres of state sovereignty from excessive federal encroachment and thereby to maintain the distribution of power fundamental to our federalist system of government. . . . The States’ core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens.”

Then, after decrying that the majority had provided a roadmap to “removing meaningful limits on the Commerce Clause” and that its decision “threatens to sweep all productive human activity into federal regulatory reach,” she concluded with this passage:

“We would do well to recall how James Madison, the father of the Constitution, described our system of joint sovereignty to the people of New York: ‘The powers delegated by the proposed constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. . . . The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.’ The Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961).

“Relying on Congress’ abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one’s own home for one’s own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently. If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California’s experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case. For these reasons I dissent.”

In another dissent, Justice Thomas sharply criticized the majority for rewriting the Commerce Clause and for carving out “a vast swath of activities that are subject to federal regulation. . . . If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the ‘powers delegated’ to the Federal Government are ‘few and defined,’ while those of the States are ‘numerous and indefinite.’ The Federalist No. 45, at 313 (J. Madison).”

The two swing votes in this decision were Justices Scalia and Kennedy - both of whom had voted to restrict Congressional power in Lopez and Morrison. Justice Kennedy failed to provide any explanation for his seemingly inconsistent positions; and, while Justice Scalia wrote a lengthy concurring opinion to explain why his vote was not inconsistent with Lopez and Morrison, most pundits were not convinced.

Scalia’s principal justification for his vote was that neither of the two earlier decisions had “involved the power of Congress to exert control over intrastate activities in connection with a more comprehensive scheme of regulation” aimed at economic activity, such as the scheme of the Federal drug laws. In questioning that rationale, many commentators attributed Scalia’s strange reversal of positions either to an effort to strengthen chances to become Chief Justice or to an unforgiving and didactic zero-tolerance approach to drugs.

It is also worth noting that this case is not totally dead. First of all, the respondents raised numerous constitutional arguments in their appeal before the Ninth Circuit, but that court ruled only on the Commerce Clause argument. Accordingly, the case will now return to that Circuit for consideration of the other challenges to the CSA made by the respondents.

Second, it is unclear whether the Federal Government will actually prosecute the two respondents in this case should they continue to defy the ruling and use marijuana. Such a prosecution might lead to more states seeking to approve the medical use of marijuana - and that is something that the Administration desperately seems to want to avoid.

Finally, another avenue left open is one openly suggested by Justice Stevens - namely to persuade the Food and Drug Administration to change the classification of marijuana (a drug he referred to as an “extraordinarily popular substance”) as a completely banned Schedule I substance. Stevens gave particular credence to that approach by acknowledging, in a footnote, that the evidence “proffered by respondents in this case regarding the effective medical uses for marijuana, if found credible after trial, would cast serious doubt on the accuracy of the findings that require marijuana to be listed in Schedule I.”

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