Vol. 12, No. 28
Covering Cases Published in the Advance Sheets through July 11, 2005

Calling a Defendant a "Terrorist" at Trial

Erroneous Sentencing Estimates Result in Relief

Early Release from Supervised Release - Another Legal Fiction

More on "Justice" Roberts

 


Booker Boxscore
Past Weeks' New Decisions -  159 Total Since Jan. 12, 2005 -  2784

U.S. v. Booker - Update

Although the lower courts continue to churn out a steady flow of new decisions based on U.S. v. Booker, 125 S.Ct. 738 (Jan. 12, 2005), of late most of them seem to be copy-cats of earlier rulings; and a very large percentage of the new decisions are designated as unpublished. We continue to monitor and report the most significant new Booker-related developments on our special Booker Resource Center at www.ussguide.com/members/BulletinBoard/Booker/index.cfm/, where we post those developments on a Circuit-by-Circuit basis.

One of the more interesting Booker cases from the past week was the Second Circuit’s ruling in U.S. v. Brady, No. 04-0729-cr (2nd Cir. 07/22/05), where the Court hinted that one of the practical effects of Booker is that it may have relegated some of the specific departure provisions of the Guidelines to what one commentator referred to as “the dustbin of history.” (See, “Thank Goodness for Booker,” by Yuanchung Lee, Second Circuit Blog, July 23, 2005).

The Brady case involved a Government appeal from a relatively small downward departure granted by Judge Gleeson of the E.D.N.Y. in a case where the defendant was pled guilty to one count of a conspiracy to steal money from her employer, Citibank. The departure was made under U.S.S.G. § 5H1.3, as recommended by the Probation Office, to account for (1) some terrible abuse that Ms. Brady had suffered throughout her childhood, which (2) created a mental condition that (3) in turn contributed to her commission of her crime. On the Government's appeal, the Second Circuit found that sufficient facts supported the district court's findings on (1) and (2), but concluded that the evidence was insufficient to support (3) - the often-elusive causal connection prong - and remanded for further fact-finding on this point.

In remanding the case, the Court took pains to note that Booker had changed the standard of review of departures from a de novo review (as previously mandated by the Feeney Amendment) to a far more deferential “reasonableness” standard. Under that newer standard, which the Court noted would be applicable to the case on remand, the Court emphasized that the district court’s previous error in granting its § 5H1.3 departure "would not necessarily render Brady's sentence unreasonable" under the new Booker scheme. The Court explained: “Our conclusion [here] is based on the fact that we are reviewing a mandatory Guidelines sentence, and intentionally leaves open the possibility that a different analysis may be warranted upon review of a non-Guidelines sentence."

As Mr. Lee commented in his analysis of this case:

“After this case, and in light of Booker, what district judge in his or her right mind would bother with justifying such a sentence by resort to the traditional downward departure mode of analysis, which is both difficult to satisfy and easily overturned on appeal, when the same outcome could be justified as simply a ‘non-Guidelines’ sentence under Section 3553(a)? The latter approach is far simpler, more appeal-proof, and, yes, more reflective of our basic intuitions about fairness and justice.”


U.S. v. Felton, No. 03-1441 (1st Cir. 07/29/05) (Judge Boudin)

The two defendants in this case, Leo Felton and Erica Chase, were charged, in a 12-count Indictment, with a number of crimes of violence that involved “white supremacist and [other] illegal activities,” most of which were hatched while they were in prison. The principal goal of the defendants was to set up a small cell of like-minded conspirators who would then incite a "racial holy war" through violent actions such as murders and bombings of targets associated with racial and religious minorities.

After a nine-day trial, the defendants were found guilty of most of the charged crimes, including conspiracy to make and possess explosives, conspiracy to make and pass counterfeit notes, conspiracy to commit bank robbery (Felton only), and possession of a firearm “in furtherance of a crime of violence,” in violation of 18 U.S.C. § 924(c). The firearm conviction was ultimately thrown out because the district court found that the Government failed to establish any "specific nexus" to the predicate offense. (See U.S. v. Chase, 221 F.Supp.2d 209 (D.Mass. 2002)).

The defendants appealed from their convictions; and the Government cross-appealed from the judgment of acquittal ordered by the district court.

Perhaps the most interesting aspect of the appeal was the claim made by Felton that the Government had deliberately engaged in misconduct by repeatedly using the inflammatory and prejudicial word “terrorist” throughout the trial to describe the defendants and their actions, despite the fact that the defendants were not charged with any of the crimes listed under the provisions of the terrorism statutes at 18 U.S.C. § 2331 et seq.

The First Circuit rejected the defendants’ challenge; and because it is likely that prosecutors will attempt to use the incendiary “terrorist” word with increasing frequency, we thought it would be helpful to set forth in detail the Court’s rationale for exonerating the use of that term during the trial in the instant case. Writing for the Court, Judge Boudin stated:

“It is hard to lay down a general rule as to epithet and rhetoric because the considerations are matters of degree: these include accuracy in description, threat of unfair prejudice, frequency of use, and alternative means of description. Such judgments turn on particular facts, and much latitude has to be given to the trial judge on the spot to strike the proper balance. See United States v. Tierney, 760 F.2d 382, 388 (1st Cir.), cert. denied, 474 U.S. 843, 88 L. Ed. 2d 108 (1985).

“Here, ‘terrorist’ is obviously a provocative term, freighted with images of terrible events. The defendants were not charged with offenses so labeled, see 18 U.S.C. §§ 2331 et seq., but the jury -- ignorant of the contents of such sections and instructed on the elements of the crimes here charged -- could not have thought otherwise. The jurors surely understood the references in their lay sense as summarizing the central conduct with which the defendants were charged: a conspiracy to build a bomb to attack civilian targets to advance an ideological cause.

“To describe such plans and the individuals who pursued them as ‘terrorist’ was certainly an accurate lay use of the term ‘terrorist,’ and it is not easy to think of some softer description to summarize the gist of what the government's evidence suggested. That the term is highly pejorative is true -- but this is a function of the acts that the defendants engaged in, not the government's inaccurate description of those acts. Cf. United States v. Jordan, 223 F.3d 676, 691 (7th Cir. 2000).

“Technical accuracy is perhaps not conclusive. One can imagine situations in which an epithet carries connotations well beyond the crime charged (e.g., ‘murderer’ in a case of negligent homicide), or cases in which the description is gratuitously inflammatory, serving no reasonable purpose in summarizing the government's position. But neither fault is present here, and, realistically, the terrorism label can have added little prejudice compared to the evidence of the bomb building itself. Once again, absent egregious circumstances these are matters for the trial judge's judgment.”

While the crimes for which the defendants were convicted were serious and unquestionably involved the type of violence that can easily be equated with terrorist activities, we nevertheless predict that this decision will quickly become the benchmark for determining when the terrorist epithet is appropriate; and prosecutors will use this decision as the basis for broadly expanding the use of the terrorist word in a lot of jury trials.


U.S. v. Herrera, 412 F.3d 577 (5th Cir. 06/10/05) (Judge Prado)
U.S. v. Davis, 410 F.3d 1122 (9th Cir. 06/09/05) (Judge Breyer)

Both of these cases consider an important and frequently recurring question: can a criminal defendant obtain relief from the courts on the ground that his defense attorney gave him an erroneous estimate of the sentence he was likely to receive for his crimes. That question is particularly significant because it can be extremely difficult, under the regimen of the Sentencing Guidelines, to predict with any accuracy the actual sentence that will ultimately be imposed. As Judge Brinkema once noted:

“Given the complexity of guideline sentencing and the number of variables that may affect a final calculation, the safer practice is to avoid discussing specific ranges [of sentences] at all during a plea colloquy. 'Any estimate of the guideline range that this district court would give in advance of the presentence report might well turn out to be misleading and could be the basis for a contention that the guilty plea should be invalidated'." U.S. v. Good, 25 F.3d 218, 223 (4th Cir. 1994).

Despite the difficulties in estimating a sentence, there is a lot of pressure to uphold the use of sentence estimates even when they turn out to be erroneous - because of two critical roles that sentencing estimates play in the criminal justice system. First of all, sentencing estimates are the seductive siren that produces guilty pleas; and guilty pleas are the engine that keeps the criminal justice system running. (Guilty pleas, of course, account for more than 90% of all convictions in the Federal system; and it is generally accepted that, without them, the entire system to a screeching halt.)

Secondly, sentence estimates also provide the essential consideration needed to support the finding that the resulting guilty pleas have been knowingly and intelligently made. As the Court observed in the Herrera case: “A defendant cannot make an intelligent choice about whether to accept a plea offer unless he fully understands the risks of proceeding to trial.”

Because of those two critical roles that sentencing estimates play in the criminal justice system, the courts, historically, have generally been reluctant to find fault with erroneous sentencing estimates - fearful of opening up the floodgates of appeals attacking two of the cornerstones of the criminal justice system. However, in these two cases, the Fifth and Ninth Circuits firmly held that erroneous sentencing estimates given by defense counsel clearly entitled the respective defendants to relief.

In Herrera, the defendant sought to vacate his sentence on the grounds that his attorney incorrectly advised him to reject the Government’s plea offer, which would have subjected him to 48-month maximum sentence under the Guidelines. He asserted that his attorney’s advise was based on the attorney’s misunderstanding that he faced only a 51-month maximum Guideline sentence if he was convicted at trial. In fact, Herrera faced a sentencing range of 78 to 97 months; and he was ultimately sentenced to 78 months. He argued, however, that he would have accepted the plea offer had he known his true sentencing exposure at trial.

The district court (Judge Furgeson of the W.D.Tex.) denied Herrera’s § 2255 motion to vacate his sentence based on the erroneous sentencing estimate, after concluding that Herrera had failed to establish an ineffective assistance of counsel claim under the two-part test enunciated in Strickland v. Washington, 466 U.S. 668 (1984). Strickland held that a petitioner must first show that his attorney’s performance fell below an objective standard of reasonableness; and then he must establish that he was prejudiced by his attorney’s substandard performance.

In this case, the district court did not determine whether Herrera’s attorney had misadvised him about his sentencing exposure. Instead, it accepted as true Herrera’s allegation that his attorney had informed him that he faced a maximum Guideline sentence of 51 months. But them, after noting that Herrera had received a sentence that was “only” 27 months higher than the maximum estimated by his attorney, Judge Furgeson concluded that the attorney had not performed deficiently!!!

The Fifth Circuit reversed the district court’s refusal to grant the § 2255 relief, and, in the process, gave a resounding endorsement of the need to accurate sentencing estimates. The Court held that: “An attorney who underestimates his client’s sentencing exposure by 27 months performs deficiently because he does not provide his client with the information needed to make an informed decision about accepting a plea offer or going to trial.” The Court also concluded:

“One of the most important duties of an attorney representing a criminal defendant is advising the defendant about whether he should plead guilty. An attorney fulfills this obligation by informing the defendant about the relevant circumstances and the likely consequences of a plea. Apprising a defendant about his exposure under the sentencing guidelines is necessarily part of this process. A defendant cannot make an intelligent choice about whether to accept a plea offer unless he fully understands the risks of proceeding to trial. ‘Failing to properly advise the defendant of the maximum sentence that he could receive falls below the objective standard required by Strickland’." (Internal citations omitted).

The issue before the Ninth Circuit in the Davis case was “whether a district court has discretion to permit a defendant to withdraw his guilty plea prior to sentencing when the district court finds that defense counsel ‘grossly mischaracterized’ the defendant's possible sentence, but also finds that the mischaracterization did not actually prejudice the defendant as is required to invalidate a plea post-sentence.”

Davis, a 72 year old physician with a serious heart condition, pled guilty to two counts of issuing false prescriptions for the drug known as Dilaudid, a Schedule II controlled substance. Although Davis stipulated to illegally issuing only 16 prescriptions of Dilaudid, the Probation Office argued that there were many more additional illegal prescriptions involved, and it urged the district court to sentence Davis to a statutory maximum of eight years in prison based on those uncharged additional illegal prescriptions.

Prior to sentencing, Davis hired new counsel and he sought to withdraw his guilty plea, arguing that his first lawyer had pressured him into signing his plea agreement by assuring him that he would receive a sentence of probation if he pled guilty. After holding an evidentiary hearing, the district court denied the motion to withdraw the plea. While the district court rejected Davis’ assertion that his former attorney had “absolutely promised” that Davis would receive probation if he pled guilty, it did find that Davis’ former counsel had rendered constitutionally deficient performance when advising him on the entry of the guilty plea.

At the evidentiary hearing, the former counsel admitted that he had advised his client that his potential sentencing range was probation to eight years. The district court concluded that advice “grossly mischaracterized” the correct sentence, stating:

“Because there was little, if any, likelihood that defendant might receive a probationary sentence in this case, and because mention of such a possibility significantly skewed the sentencing range [counsel] presented, . . . [counsel] grossly mischaracterized the likely outcome of the case and rendered deficient performance in advising defendant regarding the entry of a guilty plea.”

Nevertheless, the district court also concluded that Davis had not demonstrated that he had suffered any actual prejudice - “that is, he had not proved that but for his counsel's deficient performance he would not have pled guilty.” The district court based that conclusion on the language of the plea agreement (which stated that the potential maximum sentence was eight years) and the plea colloquy (during which Davis said that he understood he could be sentenced to up to eight years in prison). Thus, the district court concluded that Davis had not established the type of “fair and just reason” required by the provisions of Rule 11(d)(2)(B) of the Fed.R.Crim.P. to justify a withdrawal of his plea agreement.

In reversing the district court’s ruling, the Ninth Circuit held as follows:

“Although the district court may have correctly determined that defendant had not established actual prejudice sufficient to invalidate his plea, a defendant does not have to prove that his plea is invalid in order to establish a fair and just reason for withdrawal. The invalidity standard applies only after a defendant has been sentenced. . . . Prior to sentencing, the proper inquiry is whether the defendant has shown a fair and just reason for withdrawing his plea even if the plea is otherwise valid. . . . [A] defense counsel's erroneous advice may constitute a fair and just reason for withdrawing a plea even if the defendant does not prove that he would not have pled guilty but for the erroneous advice. . . . Thus, a defendant may demonstrate a fair and just reason for plea withdrawal by showing that his counsel's gross mischaracterization plausibly could have motivated his decision to plead guilty. Nothing in Rule 11(d)(2)(B) requires a defendant to show more in order to satisfy the ‘fair and just reason’ standard.” (Internal citations omitted).


U.S. v. Weintraub, 371 F.Supp.2d 164 (D.Conn. 2005) (Judge Arterton)

The defendant in this case was convicted after a jury trial of five counts of illegal removal and disposal of asbestos at a construction site; and he was sentenced to a year and a day in prison, followed by a three-year term of supervised release and ordered to pay a fine of $250,000 and $12,000 in restitution. After his release from prison in 2003, he paid the fine and restitution obligations of his sentence in full; and he probation officer reported that he had complied fully with all the other terms and obligations of his supervised release.

After serving 29 months of his 36 months of supervised release, he filed a motion pursuant to 18 U.S.C. § 3583(e)(1) requesting that he be excused from the final seven months of his term of supervised release. He argued that such early release was appropriate because, inter alia, he was 77 years of age and in poor health, having undergone heart surgery in February, 2005; and because his wife was in poor health due to back surgery that she went through in December 2003. (Id., at 165).

Without blinking, Judge Arterton callously denied the motion. She noted that § 3583(e)(1) permits the early termination of supervised release if the court “is satisfied that such action is warranted by the conduct of the defendant released and the interest of justice.” She also cited the standards adopted by the Judicial Conference Committee on Criminal Law in March 2003 in Monograph 109, Supervision of Federal Offenders, which elaborates on the factors to be considered when deciding whether to release a person from supervised release. Those factors are:

• stable community reintegration (e.g., residence, family, employment);

• progressive strides toward supervision objectives and in compliance [sic] with all conditions of supervision;

• no aggravated role in the offense of conviction, particularly large drug or fraud offenses;

• no history of violence . . .;

• no recent arrests or convictions . . .;

• no recent evidence of alcohol or drug abuse;

• no recent psychiatric episodes;

• no identifiable risk to the safety of any identifiable victim; and

• no identifiable risk to public safety . . . .

Although Judge Arterton glossed over most of those factors, she did conclude that the defendant had not shown that his poor health (which she said was taken into consideration at sentencing) had worsened so as to constitute a changed circumstance warranting early termination - a statement that seemed to ignore totally his recent heart surgery. She then continued:

“although the Court commends Weintraub for his compliant behavior while on supervised release, it cannot find that either exceptionally good behavior or exceptional illness warrant early termination of further supervision.” (Id., at 167).

We have difficulty comprehending what useful rehabilitative purpose Judge Arterton felt would be achieved by insisting that this 77 year old defendant, with a heart condition and a sick wife, continue to attend his weekly meetings with his probation officer for the few remaining months of his sentence; but we sincerely doubt that any of the sponsors of § 3583(3)(1) would agree with her ruling that neither exceptionally good behavior nor exceptional illness warrants early termination of further supervision.

 

Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court
This Week
Year to Date
Since 1996
Courts of Appeal
35
1260
22,449
District Courts
37
796
12,610

 


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