Vol. 12, Nos. 46 & 47
Covering Cases Published in the Advance Sheets through Nov. 21, 2005

"A President, Not a King"

Suppression of Fingerprint Evidence Upheld - At Least Partially

No Right to a Jury Trial on Criminal Forfeiture

 

Victim's Rights to Enforce Restitution Orders

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and we note that the Next Issue of P&J Will Be Published in Two Weeks

 


Booker Box Score
Past Weeks' New Decisions - 320 Total Since Jan. 12, 2005 -  5406

 

Booker Update

As we approach the one-year anniversary of the Supreme Court’s landmark sentencing decision in U.S. v. Booker, 543 U.S. 220 (2005), it is becoming increasingly clear that the lower courts have so whittled away at the essence of that ruling that it is now almost unrecognizable. With growing boldness, the courts continue to approve the use of facts never charged in the indictment, never submitted to a jury, and never proven beyond a reasonable doubt to increase sentences - the very thing that Booker supposedly outlawed. With growing frequency, Booker-based errors are dismissed as harmless error. And with monotonous consistency, inmates are denied the right to file appeals based on Booker. It often seems like Booker has undergone a complete sex-change since its birth.


The Rising Treacheries Coming From of the War on Terror

It is almost impossible to keep up with the distortions, the deliberate falsehoods, the sophistry and speciousness of the arguments routinely spun out by the current Administration in its attempts to justify its remaking of the Constitution for its war on terror. (See “Pushing the Limits of Wartime Powers,” by Barton Gellman and Dafna Linzer, Washington Post, Dec. 18, 2005.) Consider just a few of the most recent events:

Among the many immediate responses to those disclosures, the Washington Post concluded that “As with its infamous torture memorandum, the administration appears to have taken the position that the president is entitled to ignore a clearly worded criminal law when it proves inconvenient in the war on terrorism” (see, “Spying on Americans,” a Washington Post Editorial, Dec. 18, 2005); and Senator Russ Feingold issued a press release, stating in part: “The President believes that he has the power to override the laws that Congress has passed. This is not how our democratic system of government works. The President does not get to pick and choose which laws he wants to follow. He is a president, not a king."

See also Senator Russ Feingold’s statement, dated Dec. 14, 2005, entitled “On the Reauthorization of the USA PATRIOT Act,” in which he stated, among other things, that the “sneak and peek” provisions of the proposed legislation extending the life of the Patriot Act “are about drugs, not terrorism”; and see the ACLU’s detailed analysis of this legislation, which bluntly concludes that “The current bill pending before Congress isn’t a compromise; it’s a concession to White House pressure and a curtailment of the Constitution.”


U.S. v. Ortiz-Hernandez, 427 F.3d 567 (9th Cir. Oct. 27, 2005) (Per Curiam)

The defendant in this case, Jose Ortiz-Hernandez (“Jose”), was arrested in 2002 by police officers in Portland, OR on suspicion of drug dealing. Those charges were subsequently dropped, however, when fingerprints that were taken showed that Jose had been deported six months earlier after serving 30 months in prison on unrelated drug charges. Jose was then turned over to the INS, and he was charged with illegal reentry, in violation of 18 U.S.C. § 1326, as well as with violations of the conditions of his supervised release.

The two charges were consolidated in the district court and, in two separate opinions, Judge Redden of the D.Or. first suppressed the evidence of the fingerprints taken by the Portland police in both the criminal case and the supervised release case, and then denied the Government’s motion for a fingerprint exemplar in the federal criminal case. (U.S. v. Ortiz-Hernandez, 276 F.Supp.2d 1113 and 1119 (D.Or. 2003)). The Government then appealed both rulings.

In his rulings, Judge Redden found that Jose had been arrested and taken into custody without probable cause; and, because it could not say that finding was clearly erroneous, the full panel agreed with Judge Redden’s legal conclusion on that issue.

Judge Redden next concluded that Jose’s fingerprints had been taken for investigatory purposes; and that they therefore had to be suppressed under the Supreme Court’s holdings in Hayes v. Florida, 470 U.S. 811 (1985) and Davis v. Mississippi, 394 U.S. 721 (1969). On appeal, the Government argued that the fingerprints had been taken as a means of establishing Jose’s identity; and that they therefore should not have been suppressed under the rule established in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984). In Lopez-Mendoza, the Supreme Court established the general rule that a criminal defendant cannot suppress his identity, even when there has been some prior illegality on the part of the Government.

Once again, the full panel with Judge Redden’s conclusion that, based on the facts of this case, that the fingerprints had been taken for investigatory purposes; and that they were therefore inadmissible under the rule established in Hayes and Davis.

Finally, over a strong dissent by Judge Fletcher, a majority concluded that Judge Redden had erred by denying the Government’s motion to compel new fingerprint exemplars in the criminal case. It cited the Lopez-Mendoza decision for the proposition that identity evidence can “never” be suppressed (a proposition that Judge Fletcher strongly attacked); and it stated: “We know of no rule that prohibits rebooking on the new federal charge and processing the defendant under it, including fingerprinting and photographing during the subsequent booking.” (Id., at 577).

The piece de resistance of this case is Judge Fletcher’s perfectly marvelous dissent. First, in a compelling analysis, she strongly disagreed with the majority’s interpretation of Lopez-Mendoza and its “brushing aside” of other relevant precedents. She then caustically observed that “the majority allows the government to accomplish with the second fingerprint exemplars precisely the same thing it holds the government cannot accomplish with the first.” (Id., at 580). Then she concluded:

“Under the majority's opinion, law enforcement officers may arrest without probable cause any person who they think might possibly have committed a crime. They may suspect a person with a gun of being a convicted felon. Or they may suspect a Hispanic-looking person of being an illegal immigrant. They may take the fingerprints of this person to discover his or her name, and thereby learn his or her status and whether he or she has committed a crime. Under the majority's decision, the formalities would, of course, be observed. The original fingerprints could not be introduced, for that -- heaven forbid -- would violate the exclusionary rule. Instead, a second set of fingerprints, made available through a motion to compel, would be introduced. Same fingers, but different fingerprints. In practical effect, the Fourth Amendment and the exclusionary rule would be rendered meaningless.” (Id., at 585).


U.S. v. Reiner, 393 F.Supp.2d 52 (D.Me. Oct. 12, 2005) (Judge Hornby)

The defendant in this case was convicted at trial of various prostitution crimes; and, before the verdict was delivered, he requested a separate jury trial on the criminal forfeiture sought by the Government, arguing that he had a constitutional right to such a determination and that proof beyond a reasonable doubt was required.

In rejecting the defendant’s motion, Judge Hornby noted that, in Libretti v. U.S., 516 U.S. 29 (1995), the Supreme Court had ruled that there is no constitutional right to a jury trial on criminal forfeiture. The Supreme Court reasoned that criminal forfeiture was an aspect of sentencing following the conviction of a substantive criminal offense and that Congress plainly intended forfeiture to operate as punishment for criminal conduct and not as a separate offense.

Based on Libretti, the drafters of the Federal Rules of Criminal Procedure narrowed the previously broad language of the old Rule 31(e), and replaced it with the broader language of Rule 32.2 which confirmed Libretti’s holding that “the defendant has no constitutional right to have the jury determine any part of the forfeiture,” but also retained the right of the parties “to have the jury determine whether the government has established the requisite statutory nexus between the offense and the property to be forfeited.” (Fed.Crim.P. 32.2, Advisory Committee Notes.)

In rejecting the defendant’s motion for a jury trial on the criminal forfeiture issue, Judge Hornby first concluded that neither Apprendi v. New Jersey, 530 U.S. 466 (2000) nor U.S. v. Booker, 543 U.S. 220 (2005) had “disturbed” Libretti’s conclusion that a defendant has no constitutional right to a jury trial on criminal forfeiture. (Id., at 57).

Then, turning to the provisions of Rule 32.2, Judge Hornby examined whether Reiner had the right to have a jury consider any “nexus” determination as referred to in the Advisory Committee Notes. In addressing that issue, he concluded that the “nexus” determination applies only to forfeiture of a particular asset - and not to an in personam money judgment as the Government was seeking in this case. He thus concluded that “Rule 32.2(b)(4) recognizes no jury role in determining what the amount of this in personam money judgment should be.” (Id., at 56-57).


U.S. v. Hawkins, 392 F.Supp.2d 757 (W.D.Va. Oct. 19, 2005) (Judge Jones)

In 1997, Anna Hawkins was convicted of interstate transportation of stolen money; and she was sentenced to five years probation and ordered to pay $328,919.31 to nine separate victims of her crime. The criminal judgment that was entered in the case provided that the restitution amount “shall be due as follows: (x) in full immediately; or (x) in installments of a minimum of $100 to be due by the 15th of each month, the first being due January 15, 1998.” (Id., at 758).

Hawkins served her term of probation without incident; and she paid her restitution obligation in a timely manner each month thereafter. Nevertheless, in early 2005, the Government obtained an order from a magistrate judge directing her to appear before the court to be examined as to her financial ability to pay the restitution. In its moving papers, the Government alleged that the total amount of restitution then due and owing was $436,546.15, including interest - although the case does not state the basis for such interest charges.

Hawkins moved to vacate the order to be examined on the ground that, as long as she made the installment payments as directed by her sentencing court, “the Government had no authority to use other collection methods.” (Id.).

In denying Hawkins’ motion to vacate the examination order, the Court joined with a number of district court rulings from various jurisdictions which had held that “court-imposed payment schedules are merely one means available to enforced a restitution judgement”; and “do not prevent the government from pursuing other lawful enforcement methods.” (Id., at 759). The Court then continued:

“Under the [Mandatory Victims Restitution Act of 1996 (“MVRA”)], a victim named in a restitution order has an independent right to enforce the restitution that is not contingent on showing that the defendant is in default. Id. § 3664(m)(1)(B). After a restitution order is issued, a victim can obtain an abstract of a judgment for the full amount and record it as ‘a lien on the property of the defendant.’ Id. As the Second Circuit noted in U.S. v. Walker, "the significance of [a court-imposed payment schedule] is diminished" by the fact that a victim has this ability to enforce the debt immediately. 353 F.3d 130, 133 (2nd Cir. 2003).

“In addition to providing enforcement power to victims, the MVRA grants the government the power to enforce victim restitution orders in the same manner that it recovers fines and "by all other available and reasonable means." 18 U.S.C.A. § 3664(m)(1)(A)(I)-(ii). . . .

”In fact, the provision of the MVRA providing for civil enforcement by the United States for the collection of fines and restitution does not require a showing that the defendant is in default, but rather requires only the entry of judgment.” Id. § 3613(a), (c). (Id.).


In Brief

Booker - Not Retroactive to Cases on Collateral Review: U.S. v. Morris, 429 F.3d 65 (4th Cir. Nov. 7, 2005) - In this case, the Fourth Circuit joined with decisions from nine other Circuits in holding that Booker does not apply retroactively to cases on collateral review. On that issue, see the excellent commentary by Steven Sady, the Chief Deputy Federal Public Defender, entitled “Retroactivity of ‘Apprendi’ and ‘Blakely’: Supreme Court review needed,” which was posted on the Ninth Circuit Blog on Dec. 16, 2005.

Social Security Benefits and the SSA’s Fugitive Felon Policy: Fowlkes v. Adamec, No. 03-6095 (2nd Cir. Dec. 6, 2005) - In this case, the Second Circuit ruled that the Social Security Administration’s (SSA) policy of suspending or denying Supplemental Security Income (SSI) benefits whenever there is an outstanding felony warrant is contrary to the Social Security Act and the agency’s own regulations. The Court concluded that the benefits may be suspended only as of the date of a warrant or order issued by a court or other authorized tribunal on the basis of a finding that an individual has fled or was fleeing from justice.

 


Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court
This Week
Year to Date
Since 1996
Courts of Appeal
86
2395
23,584
District Courts
62
1379
13,193

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