Vol. 12, No. 42	Covering Cases Published in the Advance Sheets through Oct. 17, 2005

Gutting the Constitution to Save Face

• Once again, with virtually no debate, the U.S. Senate has approved one of its infamous “sleeper” amendments to a pending spending bill. The bill, known as the Graham Amendment, is designed to deny foreigners who are declared to be “enemy combatants” the right to seek habeas review in American courts - a proposition that may violate the Constitution. Based on a series of myths and distortions of fact (see http://www.ccr-ny.org/), the bill is effectively designed to prevent any judicial oversight of the status of America’s growing population of foreign detainees and to shut off all debate on the politically sensitive topic of torture at America’s foreign detention facilities - a debate that was recently exacerbated by President Bush’s highly questionable assertion that the United States “does not engage in torture.” (See, “‘We do not Torture’ and Other Funny Stories,” by Frank Rich, The New York Times, November 13, 2005).
  
  

Antiterrorism Issues

• In Abu Ali, Judge Lee of the E.D.Va. rejected a broad series of challenges to the terrorist charges pending against the defendant, an American citizen who was first held as a prisoner in Saudi Arabia for some 20 months. Among his rulings was a finding that statements procured under duress by the Saudi government were voluntary and thus may be used by U.S. prosecutors in the new criminal case against Abu Ali - even though in an earlier related proceeding in a different court Judge Bates of the D.D.C. had concluded there had been “at least some circumstantial evidence that Abu Ali has been tortured during interrogations with the knowledge of the United States.”
  
  
  

Proof of Constructive Possession Under the Felon-in-Possession Statute

• In the Scott case, the Fourth Circuit made clear that when the Government seeks to establish constructive possession under the felon-in-possession statute (18 U.S.C. § 922(g)(1)), it must prove both that the defendant intentionally exercised dominion and control over the firearm and that the constructive possession was voluntary.

Restitution Order Based on Civil Judgment Held Improper

• In Havens, the Seventh Circuit vacated a restitution order that was based on the damages awarded in a state civil action, holding that a civil judgment is insufficient to support an order of restitution under the Mandatory Victim Restitution Act (18 U.S.C. § 3663A) (MVRA), because some damages and costs recoverable in a civil action, such as treble damages, consequential damages, and attorneys’ fees, do not qualify as “losses” under the MVRA.

Sentence Vacated Due to Government's Bad Faith Refusal to Seek a § 5K1.1 Departure

• In Floyd, the Third Circuit vacated a sentence when it found that the Government had failed to actually consider the value of defendant's cooperation pursuant to a plea agreement and decided not to recommend a downward departure from the U.S. Sentencing Guidelines.
  
  

The Graham Amendment

Despite frequent, highly-publicized and irrefutable evidence of different types of torture that have been used by the military, the CIA and other U.S. operatives at some of America’s detention facilities for enemy combatants, the Bush Administration emphatically insisted last week that “We do not torture.”

Within days of making that highly questionable assertion, Senator Lindsay Graham (R-SC) came to the President’s rescue by introducing a “sleeper” amendment to a pending defense appropriations bill (S. 1042) that would strip those designated by the Administration as enemy combatants of the ability to seek habeas review in federal courts. With virtually no debate, that amendment quickly passed by a vote of 49-42.

Effectively, the bill would end all litigation brought on behalf of the detainees at Guantanamo Bay, as well as any future litigation on behalf of those imprisoned at the CIA’s secret detention camps that have recently come to light. In addition, the bill is intended to have retroactive application.

Not only is this bill an end-run around the Supreme Court's decision in Rasul v. Bush, 542 U.S. 466 (2004) (which held Guantanamo detainees have the right to challenge the legality of their detentions), it is also an effective way to deepen the secrecy surrounding activities at disclosed places like Guantanamo Bay and Abu Ghraib, or at any of the “secret” internment camps throughout the world that are beginning to come to light; and it would certainly make it impossible to enforce Sen. John McCain's ban on "cruel, inhuman or degrading treatment or punishment" of captives that passed the Senate, 90-9, last month.

The Graham Amendment set off instant wave of opposition, including numerous hostile editorials from some of the nation’s leading newspapers. (See, e.g., “Playing with Fire,” a New York Times Editorial, Nov. 11, 2005; and "Prisoners of the Senate," an Op-Ed article by Anthony Lewis, The New York Times, Nov. 15, 2005.) In addition, numerous commentators concluded that the Graham Amendment would violate Article I, sec. 9, cl. 2 of the Constitution which states that: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

In response to some of that criticism, numerous proposals were made to modify some of the language of the Graham Amendment by giving captured foreign terrorists access to the U.S. courts in some circumstances. Ultimately, the Senate adopted, by a vote of 84-14, a compromise proposed by Senator Levin (D-MI) that grants any detainee sentenced to death or to at least 10 years of prison by a military trial an automatic appeal to the U.S. Court of Appeals for the District of Columbia Circuit. Those sentenced to less than 10 years could petition the appeals court for review.

While the Levin Amendment represents a modest improvement of the original Graham Amendment, the bill, as it presently stands, still eliminate habeas relief for most of the Guantanamo detainees, overturns the Rasul decision, and also likely prevent the Supreme Court from ruling on the merits of the Hamdan case. In addition, the White House is expected to continue its resistence to any bill that grants access to the courts to any of the foreign detainees - on the ground that the president's decisions -- and the practices of the Defense Department -- flow exclusively from his executive power as commander in chief and aren't subject to any form of judicial review. Whatever happens, the debate over the legal status of America’s foreign detainees is expected to continue into the foreseeable future.

United States v. Abu Ali, Crim. No. 05-53 (GBL) (E.D.Va. 10/25/05) (Judge Lee)

The long and grisly saga of Ahmed Abu Ali is yet another example of the Government’s lawless approach to the rights of those it designates as a terrorist - even when they are U.S. citizens. This saga started in June, 2003, when Abu Ali, an American born citizen who was pursuing religious studies at a university is Saudi Arabia, was suddenly arrested by Saudi authorities, allegedly at the insistence of the U.S. Government. Even though he was never charged with a crime, Abu Ali remained in a Saudi prison for 20 months, where he was reportedly tortured.

Ultimately, Abu Ali’s family filed for habeas relief in the U.S. District Court for the District of Columbia, in an action that included a direct legal challenge to the U.S. policy of "rendition to torture" (that is, having foreign governments detain and interrogate suspected terrorists using tactics not permitted in the U.S.). In a decision reported at Abu Ali v. Ashcroft, 350 F.Supp.2d 28 (D.D.C. Dec. 16, 2004) (“Abu Ali I”), Judge Bates described that lawsuit in greater detail as follows:

“Petitioners have provided evidence, of varying degrees of competence and persuasiveness, that: (I) the United States initiated the arrest of Abu Ali in Saudi Arabia; (ii) the United States has interrogated Abu Ali in the Saudi prison; (iii) the United States is controlling his detention in Saudi Arabia; (iv) the United States is keeping Abu Ali in Saudi Arabia to avoid constitutional scrutiny by United States courts; (v) Saudi Arabia would immediately release Abu Ali to United States officials upon a request by the United States government; and (vi) Abu Ali has been subjected to torture while in the Saudi prison. The United States does not offer any facts in rebuttal. Instead, it insists that a federal district court has no jurisdiction to consider the habeas petition of a United States citizen if he is in the hands of a foreign state, and it asks this Court to dismiss the petition forthwith. The position advanced by the United States is sweeping. The authority sought would permit the executive, at his discretion, to deliver a United States citizen to a foreign country to avoid constitutional scrutiny, or, as is alleged and to some degree substantiated here, work through the intermediary of a foreign country to detain a United States citizen abroad.”

After concluding that “a citizen cannot be so easily separated from his constitutional rights,” Judge Bates declined to dismiss the lawsuit; and, significantly, he concluded that “there has been at least some circumstantial evidence that Abu Ali has been tortured during interrogations with the knowledge of the United States.”

The day the lawsuit was filed, the U.S. State Department - which, up to then, had refused to provide any information to Abu Ali’s parents about his whereabouts - suddenly notified them that their son would be charged with crimes of terrorism in Saudi Arabia. That never happened. Instead, two months after Judge Bates ruled against the Government in Abu Ali I, the Government filed its own criminal charges against Abu Ali in the far friendlier confines of the E.D.Va.; and he was quickly brought back to the United States to face those charges.

The new charges included allegations of a plot to kill President Bush and a conspiracy to engage in various acts of terrorism in the United States including aircraft piracy and plotting to bring al Qaeda members into the United States (although all of Abu Ali’s co-conspirators are unnamed - and the only witness to the alleged conversations that Abu Ali had about killing the President was himself killed in September, 2003).

In response to the new criminal charges against him, Abu Ali filed both a Motion to Suppress and a Motion to Dismiss. In his 113-page ruling in the instant case, Judge Lee explained the substance of those two Motions as follows:

“In his Motion to Suppress, Mr. Abu Ali asserts two principal arguments. First, he alleges that he was tortured while in Saudi custody and that the statements he allegedly made in detention are, therefore, involuntary and must be suppressed. Second, Mr. Abu Ali contends that the United States and the Saudi Government acted as partners or ‘joint venturers’ in his arrest and lengthy detention in Saudi Arabia. He also argues that the Saudi government's search of his dormitory room in [Saudi Arabia] and the search of his residence in Falls Church, Virginia, violated his Fourth Amendment rights against unreasonable searches and seizures. In his Motion to Dismiss, Mr. Abu Ali contends that because his arrest and lengthy detention were at the direction of the United States Government using the Saudi Arabia Government as a partner, joint venturer, or surrogate, the Indictment must be dismissed because the delay in his prosecution violates the Speedy Trial Act and his Sixth Amendment right to speedy trial.”

Judge Lee denied Abu Ali’s motions in their entirety. Despite Judge Bates’ earlier finding in Abu Ali I that there had been “at least some circumstantial evidence that Abu Ali has been tortured during interrogations with the knowledge of the United States,” despite the Saudis’ admission that they had been “ordered” by the United States to ask Abu Ali various questions, and despite Saudi Arabia’s admission that Abu Ali had repeatedly been interrogated during the hours of 8 p.m. to 6 a.m., while shackled and chained, Judge Lee concluded:

• that the Government has demonstrated by a "preponderance of the evidence" that any incriminating statements allegedly made by the defendant were "voluntary" and not the result of "gross abuse" or "inherently coercive conditions" and therefore that the statements are admissible evidence for trial;

• that neither the conduct of U.S. nor Saudi law enforcement officials in the arrest, detention, or interrogation of the defendant "shocks the conscience" of the Court;

• that (a) U.S. law enforcement officials did not act in a "joint venture" with Saudi officials in the arrest, detention, or interrogation of the defendant and (b) Saudi law enforcement officials did not act as agents of U.S. law enforcement officials, and therefore Miranda warnings were not required;

• that Saudi law enforcement officials did not act in a "joint venture" with U.S. law enforcement officials when conducting their search of the defendant's dorm room in Saudi Arabia, and therefore that the Fourth Amendment is inapplicable to that search; and

• that there is no evidence that the warrant underlying the search of the defendant's home in Virginia was unlawful or lacked probable cause.

With regard to the Abu Ali’s Motion to Dismiss, Judge Lee concluded, in part, that neither the conduct of U.S. nor Saudi law enforcement officials in the arrest, detention, or interrogation of the defendant "shocks the conscience" of the Court; and that the government complied with both the mandates of the Speedy Trial Act and the Sixth Amendment right to a speedy trial.

The case will now go to trial; and, even though a conviction is now probably inevitable in light of Judge Lee’s rulings, this is a case that will be closely watched because it will have a direct impact on the manner in which the Bush Administration will prosecute other alleged terrorists in the future.

For those interested in more details about this case, both Amnesty International and Human Rights USA have extensive coverage about Abu Ali’s travails (including copies of most of the pleadings to date) on their respective Websites. In addition, Elaine Cassel, a civil rights lawyer from the District of Columbia who represented Abu Ali’s family in some of the proceedings to date, has written two shocking articles regarding this case, entitled “The Strange Case of Ahmed Omar Abu Ali,” and “The Shocking Trial of American Citizen Ahmed Abu Ali: Statements Procured Under Duress in a Saudi Prison Are Now Being Used by U.S. Prosecutors in a U.S. Court,” which were published in FindLaw’s Writ, on March 7, 2005 and Nov. 7, 2005, respectively.

U.S. v. Scott, 424 F.3d 431 (4th Cir. Sept. 20, 2005) (Judge Michael)

The defendant in this case. Benjamin Scott, was convicted of being a felon-in-possession of a gun in violation of 18 U.S.C. § 922(g)(1), based on a theory of constructive possession of the gun in question. Scott’s defense at trial was that a felon’s actual or constructive possession of a firearm must be both voluntary and intentional; and that, in this case, while he knew that a passenger in his car had physical possession of a gun, he (Scott) never had the requisite dominion and control over the gun.

He therefore requested a jury instruction stating that constructive possession is established “by proof that the defendant either (1) intentionally exercised dominion and control over the firearm or (2) had both the power and intention to exercise dominion and control over the firearm. The district court declined to give the instruction that Scott requested, although it did give other standard instructions on constrictive possession. After Scott was convicted, he appealed, arguing that the instructions given by the district court were misleading and did not adequately inform the jury that a constructive possession of a gun under § 922(g)(1) must be both voluntary and intentional.

The Fourth Circuit disagreed and concluded that “while it would have been better for the district court to have repeated the intent requirement close to its definition of constructive possession, . . . the lack of repetition did not render the instructions misleading.” (Id., at 436). In the end, the Court affirmed the conviction, concluding that, “taken as a whole,” the jury instructions that were given were adequate to inform the jury that a felon’s constructive possession of a firearm must be intentional to be illegal under § 922(g)(1).

While one may question the logic of the outcome of this case, the Court was emphatic is holding that, when the Government seeks to establish constructive possession under § 922(g)(1), “it must prove that the defendant intentionally exercised dominion and control over the firearm, or had the power and the intention to exercise dominion and control over the firearm. Constructive possession of the firearm must also be voluntary.” (Id.)

U.S. v. Floyd, No. 05-1641 (3rd Cir. Nov. 9, 2005) (Judge Sloviter)

This is a rare decision in which a Circuit Court vacated a sentence on the grounds that the Government had acted in bad faith by refusing to recommend a downward departure based on substantial assistance. The defendant, Bennae Floyd, was originally charged with a number of drug crimes, including a conspiracy to distribute 50 or more grams of crack cocaine and five or more kilograms of cocaine. However, she ultimately pled guilty to a single count of traveling in interstate commerce to facilitate drug trafficking in violation of 18 U.S.C. § 1952(a)(3) - a crime for which the statutory maximum of 60 months.

The plea agreement provided that if the defendant provided substantial assistance to the Government, it would recommend a downward departure pursuant to the provisions of U.S.S.G. § 5K1.1. After that plea agreement was signed, Floyd did travel from South Carolina to Pennsylvania to speak with her co-defendant; and the Government acknowledged that Floyd’s conversations with her co-defendant “probably did at least have some influence on his decision to plead guilty.”

Nevertheless, at sentencing, the Government decided not to recommend a downward departure, primarily on the grounds that she had already received the benefit of a “significant charge bargain”; that the Government never anticipated the presentence report’s (PSR) determination of the size of the sentence that Floyd would have received had she been convicted at trial of all the counts in the indictment; and that she was not entitled to any further sentence reduction. The Government explained that “Ms. Floyd’s sentencing guidelines range would have been 292 to 365 months but for the fact that she had a charge bargain. . . The charge bargain was obviously a very significant charge bargain here and [the Government] declined to authorize the motion for a downward departure.”

The district court then calculated Floyd’s sentencing range at 41-51 months, and imposed a sentence of 48 months. Floyd then appealed, arguing that the Government the Government acted in bad faith by entering a plea bargain which contemplated a downward departure in exchange for assistance when the Government never intended to consider a downward departure. She contended that because the Government knew or should have known that the sixty-month sentence was substantially less than the sentence she could have received at trial if she were found guilty of all the crimes for which she was indicted, the Government never had a good faith intention to evaluate the assistance she provided to determine if she merited a downward departure.

In agreeing that the Government had acted in bad faith and had breached the plea agreement, the Court stated:

“The Government's argument, that it did not anticipate the PSR's determination of the sentence Floyd would have received if she had been convicted at trial of all of the counts in the indictment, is essentially an attempt to avoid performance of a contract based on a unilateral mistake. Although it lacked the PSR, the Government entered the plea bargain aware that it possessed limited knowledge of what the potential Guideline range would be. Given the Government's knowledge of the risk it was taking, the Government cannot now refuse to perform the contract. Instead, it is obliged to consider whether Floyd's assistance merited a downward departure.”

The Court therefore vacated Floyd’s sentence and directed that she be granted an evidentiary hearing on whether her assistance, “without reference to her charge bargain,” was substantial enough to warrant a motion for a downward departure by the Government.

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