Vol. 12, Nos. 29 & 30	Covering Cases Published in the Advance Sheets through July 25, 2005

• On the political front, Attorney General Gonzales continues his push for a sentencing system that includes a mandatory minimum sentence for all Federal crimes, on the grounds that such a system is needed to respond to a “drift towards lesser sentences” since Booker - even though none of the available statistics about post-Booker sentencing support such a claim. On the judicial front, the cases continue to pour in, and we highlight some of the most noteworthy.
  

Sentencing

• In Alexander, Judge Adelman of the E.D.Wisc. has provided an important and scholarly analysis of some of the problems that mandatory minimum sentences pose in the post-Booker world. In his decision, he persuasively argues that mandatory minimum sentences can lead to sharp differentials based on small differences in offense conduct, thereby “distort[ing] the rationality of the guideline system” established by the Sentencing Reform Act.
  
  
• In Hawkins, Judge Weinstein of the E.D.N.Y. has provided an important and far-ranging defense of departures based on “extraordinary rehabilitation.” What particularly sets this case aside as noteworthy were two special factors: first, the defendant committed another crime while awaiting sentencing, which the Court said was inexcusable, but did not automatically negate the defendant’s qualification for such a departure since “when an individual is emerging from troubled or criminal circumstances, back-sliding is not an uncommon occurrence.” Second, the Court rejected the Government’s proposition that people with relatively crime-free backgrounds can never show extraordinary rehabilitation since they can’t show that their conduct was “aberrant.” The Court reasoned that such an approach is too narrow and fails to take account of the “disadvantage, dysfunction, and toxicity” of a defendant’s overall development.
  
  
• In Jordi the Eleventh Circuit held that, in order to utilize the terrorism enhancement embodied in U.S.S.G. § 3A1.4, it is not necessary for the Government to prove that the defendant’s crime transcended national boundaries - even though the provision was originally enacted in response to a Congressional directive to enact an enhancement for crimes that involve “international terrorism.”
  

Are 911 Calls Admissible Under Crawford Without the Declarant Being Present?

• When the Supreme Court issued it’s landmark Confrontation Clause decision in Crawford v. Washington, it was anticipated that it would generate numerous judicial controversies in the lower courts; but so far few of the expected controversies have materialized. One of the few exceptions to that pattern of judicial calm has been the debate over the issue of whether 911 calls are admissible when the person who made the call is not present. In Arnold, the Sixth Circuit held that a tape recording of a complainant’s 911 call was not admissible (at least under the specific facts of that case) under the excited utterance exception to the hearsay rule; while in Brun, the Eighth Circuit took the opposite view and held that a taped 911 call was admissible under the excited utterance exception.

U.S. v. Booker - Update

As noted in our Booker Box Score, the number of new decisions based on U.S. v. Booker, 125 S.Ct. 738 (Jan. 12, 2005) continues to rise rapidly; and while Booker continues to have a profound impact on most sentencing proceedings, it also seems to be gaining strength as a new-found political weapon.

A rising chorus of politicians is arguing that Booker is wrecking havoc on the scheme of uniformity in sentencing mandated by the Guidelines, and that Congress should therefore quickly enact a legislative “fix” to Booker in the form of a mandatory minimum sentence for every Federal crime.

A key proponent of that approach has been Attorney General Gonzales, who has claimed (based on a carefully selected list of five cases) that Booker has led to a “drift toward lesser sentences.” This past week, in a speech before the American Bar Association, he again reiterated his call for a “minimum guideline system,” stating that “with so many different individual judges involved, exercising their own individual discretion, in so many different jurisdictions, even greater disparities among sentences will occur under a system of advisory guidelines.”

Numerous commentators quickly attacked Gonzales’ concerns about a “drift” towards lower sentences as hasty, disingenuous and contrary to the statistics released by the U.S. Sentencing Commission. The NACDL, for example, issued a special report, entitled “Truth in Sentencing? The Gonzales Cases,” denouncing Gonzales’ limited examples as unrepresentative and his conclusions as contrived and misleading. (A copy of the NACDL Report has been posted on our special Booker Resource Center at www.ussguide.com/members/BulletinBoard/Booker/index.cfm).

Gonzales’ latest speech has led to similar criticism. Professor Douglas Berman, the reigning Booker guru, has broadly questioned the motives, the timing, the underlying premises, and factual support for Gonzales’ broad Booker-fix proposal. He called the DOJ's Booker position nothing but "doublespeak"; and he noted that, just five days before Gonzales’ latest speech, the U.S. Sentencing Commission had released its own definitive analysis of all 26,647 sentences imposed in Federal cases in the five month period from Jan. 12 (the date Booker was decided) to July 12 - and he concluded that “the Booker experiment has not (yet?) produced a radical change in federal sentencing outcomes, and thus there does not seem to be a dire need for the sort of Booker fix urged by AG Gonzales.”

(See also, “Survey Reveals Little Change in Sentencing Habits After ‘Booker’,” by John Council, Texas Lawyer, Aug. 11, 2005; “Gonzales got it wrong: sentencing statistics reflect healthy sentencing system,” by Mary Price, General Counsel to the FAMM Foundation, June 23, 2005; and “No Rush in Sentencing,” a Washington Post Editorial, Aug. 8, 2005).

While we understand that politicians can usually massage most statistics to prove just about any proposition, we still find it disturbing that the Attorney General of the United States would engage in such political tactics without thoroughly checking the facts and carefully considering the long term effects of his proposal. Clearly, nothing in the Sentencing Commission’s latest analysis supports A.G. Gonzales’ assertion that sentences have become less uniform or have departed more frequently from the ranges specified in the Guidelines - and to suggest otherwise is simply disingenuous.

Equally clearly, Gonzales’ proposal seems to have been made primarily for its expected benefits in the political arena, where judge-bashing seems to have become the latest fad. Unfortunately (and inexcusably), the proponents of this minimum guideline system have given woefully little consideration to the very real and dramatic impact that another layer of mandatory minimum sentences would have on the criminal justice system. Despite the common rhetoric, mandatory minimum sentences are simply not the panacea that many claim. As one prominent “law and order” Senator has observed:

“While the [Sentencing] Commission has consistently sought to incorporate mandatory minimums into the guidelines system in an effective and reasonable manner, in certain fundamental respects, the general approaches of the two systems are inconsistent. Whereas the guidelines permit a degree of individualization in determining the appropriate sentence, mandatory minimums employ a relatively narrow approach under which the same sentence may be mandated for widely divergent cases.” The Honorable Orrin G. Hatch, The Role of Congress in Sentencing: The United States Sentencing Commission, Mandatory Minimum Sentences, and the Search for a Certain and Effective Sentencing System, 28 Wake Forest L. Rev. 185, 194-95 (Summer 1993), as quoted in U.S. v. Alexander, No. 04-CR-253 (E.D.Wisc. Aug. 9, 2005, below).

U.S. v. Sosebee, No. 03-1923, (6th Cir. 08/12/05) (Judge Daughtrey)

In this case the Sixth Circuit emphatically held that "restitution is not subject to Booker analysis because the statutes authorizing restitution, unlike ordinary penalty statutes, do not provide a determinate statutory maximum." In its detailed analysis of that restitution issue, the Court stated:

"It is true that under Sixth Circuit case law, restitution constitutes punishment.  Although restitution is considered punishment in this context, we have nevertheless held that restitution orders are not affected by the Supreme Court's ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000), because the restitution statutes do not specify a statutory maximum. Several other circuits, including the Third, Seventh, Eighth, and Tenth, have also held that Apprendi does not apply to restitution orders under the Victim and Witness Protection Act or the Mandatory Victim Restitution Act.

"In addition, five of our sister circuits have recently addressed the issue of whether Booker affects restitution orders.  Although they rely on different reasoning, all five circuits have uniformly declined to reverse an order of restitution based on the concerns raised in Blakely or Booker.  For several reasons, we consider it appropriate to take the same approach as that taken by the rest of the circuit courts that have addressed this issue and to adopt the same rule.

"First, restitution orders are authorized by statute, 18 U.S.C. §§ 3663, 3663A, and 3664, and in this sense are distinct and separate from the United States Sentencing Guidelines.  Although the guidelines mandate imposition of restitution where allowable under the statutes, the restitution statutes function independently from the guidelines and do not rely on the guidelines for their validity. Thus, the Booker Court's holding that the Sentencing Guidelines are now merely advisory does not affect orders of restitution. Nor does the Booker's analysis of the Sixth Amendment affect restitution, because a restitution order for the amount of loss cannot be said to 'exceed the statutory maximum' provided under the penalty statutes. Finally, the Victim and Witness Restitution Act and the Mandatory Victim Restitution Act specifically state that the amount of restitution should be equal to the 'amount of each victim's losses as determined by the court.' 18 U.S.C. 3664(f)(1)(A) (emphasis added).  Where, as here, a statute mandates that a judge exercise his or her discretion, Booker provides no impediments to a judicial determination of the necessary underlying facts." (Internal citations omitted).

U.S. v. Alexander, No. 04-CR-253 (E.D.Wisc. 08/09/05) (Judge Adelman)

The defendant, Samuel Alexander,was first arrested and charged by state officials for drug and weapon possession; but those charges were later dropped in favor of a Federal prosecution because it carried higher penalties. The Federal charges resulted in a three count indictment: carrying a firearm during a drug trafficking offense in violation of 18 U.S.C. § 924(c) (Count I); possession of drugs with intent to distribute, in violation of 21 U.S.C. § 841(a) (Count II); and possession of a gun by a felon, in violation of 18 U.S.C. § 922(g) (Count III).

Alexander’s presentence report calculated an offense level if 15, based on the drug charge and the felon in possession charge, and a criminal history category of V, which equated to a Guideline sentencing range of 37-46 months in prison on those charges, plus a 60-month mandatory consecutive term on the § 924(c) charge - for a total sentence of 97 to 106 months in prison.

Although neither the Government nor the defendant sought a departure from the Guideline sentencing range, Alexander requested the court to modify the Guideline sentence and impose a sentence of 60 months plus one day, arguing that the three counts of conviction arose from a single incident, and that the five year mandatory minimum penalty adequately took into account the conduct covered by Counts II and III.

Alexander had “a lengthy criminal record stretching back more than twenty years”; and for that reason, Judge Adelman declined to grant Alexander the full sentencing benefits he requested. However, Judge Adelman also agreed that the mandatory minimum sentence that he was required to impose in this case distorted the goals of consistency and proportionality in sentencing that the Sentencing Reform Act (“SRA”) sought to achieve. For that reason, he imposed a total sentence of 75 months: 15 months on counts II and III to run concurrently; and the mandatory, consecutive 60 months required by Count I.

In explaining the reasons for his sentence, Judge Adelman produced another of a long string of profound and must-read sentencing decisions that mark his eight years on the bench. Combining logic, compassion and deep respect for the purposes of the laws at issue, he presented a compelling argument that mandatory minimum sentences distort and subvert the important sentencing goals of the SRA. For example, he explained:

“[S]tatutes establishing mandatory minimum sentences isolate a single aggravating circumstance and require a disproportionate increase in punishment whenever the circumstance is present. This can lead to sharp differentials or ‘cliffs’ based on small differences in offense conduct. Mandatory minimums can therefore distort the rationality of the guideline system set up by the SRA.” (Internal citations omitted).

He also noted that some mandatory minimums, like the ones required by § 924(c), distort those goals more than others. He explained that the Government’s decision to charge Alexander with a violation of § 924(c) “ensured that his guideline range would depend largely on his offense of conviction, rather than his ‘real conduct.’ This distorts the sentencing system envisioned by the SRA and introduces disparity based on charging decisions.”

Among the many sources cited by Judge Adelman, he emphasized one of the significant conclusions reached by Senator Orrin Hatch in the law review article noted above - namely that “the Judicial Conference and the federal Courts Study Committee concluded that mandatory minimum sentences were more rigid than the guidelines and, thus, were inconsistent with the sentencing goals adopted by Congress under the SRA.”

Based on those factors, Judge Adelman concluded: “Because of the distorting effects of the § 924(c) mandatory minimum on the system of incremental punishment established by the sentencing guidelines, defendant’s argument in favor of a sentence of five years and one day was appealing.” While he felt that a sentence of 97-106 months gave too much weight to Government’s charging decision, he also recognized that a sixty month sentence was too short in light of Alexander’s lengthy criminal history.

In short, Judge Adelman’s decision is a timely, thoughtful and important riposte to the rising clamor for still more mandatory minimum sentences in America - a nation that already has the highest incarceration rate in the entire world. Not only is this drive for more mandatory minimums ill-conceived and contrary to the purposes of the SRA, it makes no sense when one stops to think that its real purpose to punish the judges whose views are at variance with the prevailing “lock-em-up-and-throw-the-key-away” mentality in Congress - regardless of the impact of that punishment on criminal defendants.

U.S. v. Hawkins, No. 02-CR-563 (JBW) (E.D.N.Y 08/08/05) (Judge Weinstein)

It always amuses us how badly the Second Circuit underestimates the tenacity and the depth of conviction of Judge Jack Weinstein, perhaps the most legendary figure in the American judicial system today. In the instant case, the Second Circuit seemed to be a bit queasy about approving a downward departure that Judge Weinstein had granted based on the defendant’s “extraordinary rehabilitation” - perhaps concerned that if it approved his departure too easily it might establish a target for other judges in the Circuit. Thus, it remanded the case back to Judge Weinstein stating that “the district court failed to detail the reasons or factual basis for finding the defendant’s rehabilitation to be extraordinary.”

What a mistake! For its temerity in questioning his judgment, Judge Weinstein rubbed the Circuit’s nose in the mud by issuing this 64-page rebuttal, listing 99 specific findings of fact, in which he strongly, and at times caustically, reaffirmed his original sentence. In the process, he did precisely what the Circuit probably feared most: he not only created a bullet-proof blueprint for departures based on extraordinary rehabilitation, his lengthy decision amounts to an excellent, up-to-date Hornbook of the law on, and philosophy of, rehabilitation. It is also a classic dissertation on the purposes and goals of punishment.

The defendant in this case, Chastity Hawkins, was one of four children of the marriage of Quentin and Nancy Hawkins. Quentin, who was in prison at the time of Chastity’s sentencing, was the ringleader of a conspiracy that staged phony accidents for the purpose of filing false legal and medical claims based on fabricated injuries. He was also an alcoholic. Judge Weinstein also recounted a long series of other poignant facts about Chastity’s life, such as the fact that she had a six-year old daughter out of wedlock, the father of whom has been “almost steadily imprisoned since the child’s birth.”

Chastity was directed by her father to help staging the phony accidents, principally by recruiting participants; but she also filed a mendacious personal injury lawsuit and gave false testimony that the accident in question was authentic. Ultimately, Chastity pled guilty (without the benefit of a written plea agreement) to a single count of conspiracy in violation of 18 U.S.C. § 371. Her Guideline offense level (based on a loss calculation of $141,000) was 13, which called for a prison sentence of 12 to 18 months.

Defense counsel moved for a downward departure based on two grounds: extraordinary family circumstances and extraordinary rehabilitation. Judge Weinstein postponed Chastity’s sentencing for a year to give her “a chance to show full rehabilitation” - a move that enraged the prosecutors. At the end of that period, Judge Weinstein granted a five level downward departure and imposed a sentence principally of three years probation and restitution of $148,000.

The Government appealed that sentence, and the Second Circuit vacated the sentence and remanded for further factfinding. On remand, Judge Weinstein reimposed the same sentence, stating emphatically:

“Consigning this defendant to prison now would not only violate the essence of section 3553 and the Sentencing Guidelines, but would constitute a destructive act of cruelty on a mother and child with an evil unjustifiable impact on society, increased costs to the taxpayers of incarceration, and probable welfare payments for the child and the mother after her release from prison."

He also emphasized that Chastity had no prior brushes with the law and “clear and convincing evidence establishes that defendant exhibited extraordinary rehabilitation,” many instances of which are detailed in Judge Weinstein’s 99 specific findings of fact. Combined, he reasoned, all of those factors justified the downward departure he granted.

Significantly, Judge Weinstein granted that departure despite the fact that Chastity had committed a post-conviction crime - collecting $6,000 in unemployment benefits while she was employed. As to that crime, Judge Weinstein reasoned: "Although they are inexcusable, the defendant's transgressions do not negate the progress that she had made by the time of her original sentence and which she has continued up to the present. When an individual is emerging from troubled or criminal circumstances, back-sliding is not an uncommon occurrence."

It would be a disservice to the brilliance of this decision to attempt to summarize all of the memorable topics explored by Judge Weinstein: the decision should be read in its entirety. Nevertheless, one topic does stand out, namely whether rehabilitation ever be deemed to be extraordinary “when a defendant has led a relatively crime-free life, falls into criminal conduct, and returns to a law-abiding life when confronted by the law's terrors.”

The Second Circuit raised that precise issue during oral argument when it asked the Government whether its position was that a defendant who has had few run-ins with the law is automatically rendered ineligible for a departure based on extraordinary rehabilitation; and the Government responded: “That’s correct.”

Judge Weinstein, however, said a more nuanced view was necessary. "Despite the tendency in the caselaw to treat 'rehabilitation' as a simple renewal or rebirth, the concept is more complex." In fact, he wrote:

“A rehabilitative design takes into account the fact that a person's actions may reflect genetics, social advantage, and deprivation as well as free will, merit and culpability. In evaluating how best to approach reformation of a defendant, some appreciation of the causes of criminal behavior is desirable. The disadvantage, dysfunction, and toxicity of a defendant's development is substantially causative.”

Applying those factors, Judge Weinstein cited a list of the variations in socioeconomic deprivations that exist in New York City and he observed that “A child forced into crime by a criminal father surely emerges from a different starting point than the child of a legitimately employed parent.”

In Brief

Bifurcated Trials in Felon in Possession Cases: U.S. v. Amante, No. 05-3067-op (2nd Cir. Aug. 9, 2005) - The issue before the Court in this case was whether a district court may bifurcate a single-count felon in possession trial pursuant to 18 U.S.C. § 922(g)(1) absent the government's consent. Reasoning that the potential prejudice to a defendant caused by the introduction of his prior felony conviction during the government's case-in-chief is not enough to justify splitting the trial in half, the Court held that the "bifurcation of the elements of a single-count felon-in-possession trial, absent the government's consent, is generally error." The Court explained:

“The district court's bifurcation order here presents the problem of forcing the jury to deliberate about the issue of ammunition without knowing that the crime charged requires a prior felony. This can confuse the jurors and unfairly prejudice the government because the jurors are being asked to deliberate about facts that they most likely would not consider to be a crime: simply possessing a firearm or ammunition.”

The Court did, however, state that it was not ruling out bifurcation "where the facts underlying the prior felony would be presented to the jury and are so heinous as to overwhelm the trial of firearm of ammunition possession."

Self-Incrimination Clause: U.S. v. Saechao, No. 04-30156 (9th Cir. 08/12/05) - In a decision written by Judge Reinhardt, the Ninth Circuit held that a probationer who provides incriminating information to his probation officer, pursuant to a probation condition that requires him to answer all inquiries truthfully, is compelled to give incriminating evidence within the meaning of the Fifth Amendment and that information may not thereafter be used against the probationer in a criminal proceeding.

The Court reasoned: "Because we conclude that the state took the 'impermissible step' of requiring the probationer 'to choose between making incriminating statements and jeopardizing his conditional liberty by remaining silent,' Minnesota v. Murphy, 465 U.S. 420, 436, 79 L. Ed. 2d 409 (1984), we hold that his admission of criminal conduct was compelled by a 'classic penalty situation' and the evidence obtained by the probation officer may not be used against him in a criminal proceeding."

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