Vol. 12, No. 50	Covering Cases Published in the Advance Sheets through Dec. 12, 2005

Terror Trials - The New Rules of Discovery and Evidence

• In Paracha, Judge Stein of the S.D.N.Y. explained in detail his rationale for three rulings made during a recent trial in which the defendant was convicted of giving material support to al Qaeda. The rulings related to whether the defendant was entitled to access witnesses presumed to be in the Government’s custody; whether a proposed Government expert would be allowed to testify about terrorist tradecraft; and how to properly instruct the jury on the mens rea requirement of the statute that prohibits the giving of material support to foreign terrorist organizations.
  
  

First Circuit Rejects Reduced Crack vs. Powder Cocaine Sentencing Ratio

• In a decision that was highly criticized by some of the leading sentencing commentators, the First Circuit held, in Pho, that Judge Torres of the D.R.I. had erred “as a matter of law” when he rejected the Guidelines 100:1 crack-to-powder sentencing ratio when sentencing two crack dealers, on the grounds that the resulting sentences were per se excessive and unreasonable, and instead constructed a new sentencing range based on a categorical substitution of a 20:1 ratio.

Reasonableness of Sentences After Booker

• In Mickelson, the Eighth Circuit rejected the Government’s contention that the provisions of 18 U.S.C. § 3742(a) limit the ability of appellate courts to review a sentence that is within the suggested Guideline range; and concluded that an unreasonable sentence would be “in violation of the law” and this subject to review under § 3742(a)(1).
  
  
  
• In Coyle, the Eighth Circuit held that a 73% sentence reduction given to a defendant who provided non-extraordinary assistance to the Government was excessive and unreasonable; and that reductions of such a magnitude must be reserved for cooperating defendants who provide assistance that is much more extensive and significant than what the defendant in this case offered.
  

Victims' Rights of Allocution at Sentencing

• In Degenhardt, Judge Cassell of the D.Utah presented an exceptionally detailed analysis of the Crime Victims Rights Act of 2004; and concluded that the law “commands” that all Federal crime victims must be treated equally with the defendant, defense counsel, and the prosecutor; and that they must, inter alia, be given an opportunity to allocute at sentencing.
  
  
  

Second Circuit Upholds Martha Stewart Conviction

• In Stewart, the Second Circuit affirmed the convictions of media diva Martha Stewart and her stockbroker, Peter Bacanovic, for lying to investigators about a lucrative stock trade. The 74-page decision dismissed as unpersuasive a whole range of creative appellate arguments.

Booker Update

With the passing of the one-year anniversary of the Supreme Court’s decision in U.S. v. Booker, 543 U.S. 220 (2005), we are going to cease maintaining an active score box of all lower court decisions. However, we will continue to maintain and update, on a Circuit by Circuit basis, our separate Booker Resource Center at www.ussguide.com/members/BulletinBoard/Booker/Index.cfm

U.S. v. Paracha, No. 03 Cr. 1197 (SHS) (S.D.N.Y. Jan. 3, 2006) (Judge Stein)

This case involves the conviction of Uzair Paracha, a Pakistani, who was found guilty at trial of providing material support to terrorists, in violation of 18 U.S.C. § 2339B, and related crimes. The Government’s case was premised on claims that Paracha had tried to help an al Qaeda operative get fake travel documents to enter the United States for the purpose of committing terrorist acts in this country.

Judge Stein’s decision is important because it covers a number of discovery and national security issues that are becoming common in many of the so-called terrorist trials being brought by the Government. In his 55-page ruling, Judge Stein took pains to explain the rationale for his trial rulings on three specific issues which he said were “likely to recur in the future.” Because of his detailed analysis of those issues, this decision will probably set the standard for other courts to follow in future terrorist trials. Those three issues were:

• Paracha’s rights of access to, and rights to compel testimony from, certain witnesses claimed to be in the custody of the U.S.

• Whether and to what extent a proposed Government’ expert would be allowed to testify on terrorism in general and on the nature and structure of the al Qaeda organization in particular; and

• How properly to instruct the jury on the mens rea requirement of the statute that makes it a crime to provide material support to foreign terrorist organizations.

Access to Witnesses

Prior to trial, Paracha moved, pursuant to Rule 15(a)(1) of the Fed.R.Crim.P., for pretrial depositions of four prospective defense witnesses, namely (1) his father, Saifullah Paracha, who is being held at the U.S. prison in Guantanamo Bay, Cuba; (2) Khalid Sheik Mohammad, a top al Qaeda figure who the Government is holding in custody at some undisclosed secret prison; and (3) two other men, Majid Khan and Ammar al Baluchi, who the Government would neither confirm nor deny were in its custody but who were assumed to be in its custody for the purposes of this lawsuit. Paracha also moved for writs of habeas corpus as testificandum to compel the presence of those four men as witnesses at his trial.

Paracha argued that the right to compel the production of those individuals to testify in his defense at trial arose from the Sixth Amendment's Compulsory Process clause and the Fifth Amendment's Due Process clause. In response, the government argued that the Sixth Amendment afforded Paracha no right of access to those witnesses on the grounds that, even assuming all four of the individuals were in U.S. custody, separation of powers principles place them outside the Court's compulsory process power, and thus any order compelling the production of the witnesses held in connection with the conflict against al Qaeda would impermissibly intrude upon the political branches' exercise of war-making and foreign-relations powers.

Judge Stein recognized that those competing claims required him to balance Paracha’s demand for access to witnesses against the Government’s assertion of a national security privilege. However, he also stressed that the governing rationale of the cases that have previously addressed that same conflict was that “since the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense.”

Applying that principle, Judge Stein’s first significant ruling was that “the government's assertion of a national security privilege does not impair the court's compulsory process power; the Court thus has the authority to issue a writ ad testificandum to the prospective witnesses' custodian.”

However, that ruling was essentially a Pyrrhic victory for Paracha since Judge Stein then went on to deny Paracha the right to call any of his four prospective witnesses at his trial. In implementing that portion of his ruling, Judge Stein emphasized that Paracha had the burden of persuading the court that an order compelling the production of each witness was necessary to effectuate his Sixth Amendment right; and that meant he “must do more than claim that the witness could provide relevant testimony” - he must also demonstrate that “the witness's testimony would be both material and favorable to his defense.”

Turning to the proposed testimony of Paracha’s father, Saifullah, (who the Government was holding as an enemy combatant at Guantanamo Bay), Judge Stein conceded that the materiality of his testimony was not in dispute; but he agreed with the Government that there were significant “logistical burdens and risk to national security” that outweighed his presence at trial. Thus, he stated:

“Because Saifullah Paracha is not a citizen of the United States, his transportation into the United States and his subsequent return to Cuba would also require the involvement of the Bureau of Immigration and Customs Enforcement of the Department of Homeland Security, significantly complicating the necessary logistical arrangements. The Court agrees that transporting and housing the witness would involve considerable expense, involvement of security personnel, and attendant national security risks. Moreover, permitting live, in-court testimony poses a risk if inadvertent disclosure of classified information.”

Similarly, when dealing with the proposed testimony of Khalid Sheik Mohammad, Judge Stein declined to order that he be produced at trial because Paracha “has not demonstrated the materiality” of any testimony he might give.

With respect to the proposed testimony of Majid Khan and Ammar al Baluchi, Judge Stein acknowledged that both men were able to provide “material and favorable testimony for the defense that could raise a doubt as to whether Paracha was aware that his assistance to [the al Qaeda operative] would assist al Qaeda”; and, on that basis he was inclined to order that they be produced at trial. However, the Government argued that, assuming it had both men in custody, transporting them to New York for trial would disrupt military operations and undermine the gathering of intelligence information.

Mindful that the Government’s refusal to produce those two witnesses if ordered to do so would normally result in dismissal of the charges against Paracha, Judge Stein then wrote:

“This Court concludes, however, that the ordinary sanction of dismissal is not warranted in light of the unique circumstances of this case which permit the Court to fashion a remedy that will permit Paracha to present the testimony of Khan and al Baluchi without requiring their production at trial. To begin with, the government has not deprived Paracha of any and all information relevant to Khan and al Baluchi. Both individuals made statements regarding their relationship with defendant that are relevant to the charges in the indictment and, pursuant to its Brady obligations, the government has disclosed those statements that tend to exculpate Paracha. The availability to the defense of the witnesses' statements contrasts to the circumstances in cases where dismissal is the appropriate remedy.”

The Government’s Proposed Expert

The Government proposed calling Evan Kohlmann as an expert to testify on “(1) the origins, structure and leadership of al Qaeda; (2) the roles of alleged co-conspirators in the al Qaeda organization; and (3) al Qaeda's use of counter-interrogation techniques -- part of its ‘tradecraft’ -- that bears on the credibility of fact witnesses expected to offer testimony on behalf of defendant.”

While Paracha raised numerous objections to such testimony, including a challenge to the reliability of the expert’s methodology (characterizing it as “a mere culling from a handful of cases and internet reports information that the user deems reliable”), Judge Stein allowed such testimony on the origins and structure of Al Qaeda , its leaders, and its use of cells and individuals to provide logistical support. However, after a lengthy discussion, he refused to allow any testimony from Mr. Kohlmann as to Mr. Khan and Mr. al Baluchi; and he wrote:

“Finally, no expert testimony was permitted regarding al Qaeda's purported use of counter-interrogation techniques because it would impermissibly intrude upon the jury's role of judging the credibility of witnesses.”

Jury Instructions on the Mens Rea Requirement for 18 U.S.C. § 2339B

Lastly, Judge Stein explained his jury instructions on the mens rea requirement in the statute that prohibits giving material support to foreign terrorist organizations. Paracha had argued that a conviction under § 2339B required proof of additional levels of intent. But Judge Stein found that there was no requirement that the Government show intent to further the illegal activities of a foreign terrorist organization.

“This Court agrees that the statute's focus on conduct rather than association or membership solves First Amendment concerns and the same distinction is sufficient to satisfy the due process requirement of personal guilt. . . . Section 2339B -- enacted two years after section 2339A -- plainly excludes the explicit mens rea requirement to further illegal activities, and the legislative history indicates that this exclusion was purposeful and was designed to ‘close a loophole left by § 2339A’."

He then added that “by criminalizing the conduct of providing material support to any organization that is properly designated a foreign terrorist organization, and not the mere association with those organizations, the statute properly focuses on the personal action of the individual. Because the statute requires that the person providing material support do so with knowledge that the organization has been designated a foreign terrorist organization, or knowledge of those unlawful terrorist acts which justify such designation, the due process requirement of personal guilt is satisfied.”

U.S. v. Pho, No. 05-2455 (1st Cir. Jan. 5, 2006) (Judge Selya)

In this case the First Circuit addressed what it called “a vexing question of first impression” - namely: “May a federal district court, consistent with the teachings of U.S. v. Booker, 543 U.S. 220 (2005), impose a sentence outside the advisory guideline sentencing range based solely on its categorical rejection of the guidelines' disparate treatment of offenses involving crack cocaine, on the one hand, and powdered cocaine, on the other hand?”

That question arose because, in two cases last fall, Judge Torres (D.R.I.) declined to impose the severe penalties recommended by the Guidelines when sentencing two crack dealers, Shawn Lewis and Sambeth Pho. In both cases, Judge Torres concluded that the imposition of the Guidelines’ recommended sentence would be excessive and unreasonable; and thus, rather than using the Guidelines so-called 100 to 1 ratio, he imposed significantly shorter sentences based a 20 to 1 ratio. The Government appealed both decisions.

Based on a long and troubled history, the Guidelines have long called for disproportionately harsher sentences for defendants found guilty of distributing crack cocaine compared to the chemically identical powder cocaine. That disparity of treatment is commonly referred to as the “100 to 1 ratio”, a formula that actually refers to the relative quantities of each drug required to trigger various mandatory sentencing ranges. It is based on a Congressional determination that treats one unit of crack cocaine on a par with 100 units of powder cocaine.

From the outset, the 100 to 1 ratio has been controversial. (See, e.g., U.S. v. Clary, 846 F.Supp. 768 (E.D.Mo. 1994), where Judge Cahill concluded that the crack/cocaine sentencing disparity unconstitutionally discriminates against blacks who are subjected to a policy of unconscious racism.)

In response to the ongoing and increasingly emotional debate about the Guidelines’ crack-cocaine sentencing policy, the U.S. Sentencing Commission has attempted, several times, to reduce the 100 to 1 ratio. Thus, in its April, 1997 Special Report to Congress, entitled “Cocaine and Federal Sentencing Policy,” the Commission recommended that the disparity between crack versus powder cocaine be eliminated.

The same message was repeated in later Reports to Congress dated May, 2002 and February, 2005; and in each case the Sentencing Commission firmly concluded that the current federal cocaine sentencing policy is “unjustified” and “fails to meet the sentencing objectives set forth by Congress in both the Sentencing Reform Act “ Congress, however, has refused to act on the Sentencing Commission’s proposals.

Following Booker, which ruled, inter alia, that the Guidelines were no longer mandatory, a number of courts reopened the debate over the crack-cocaine sentencing disparity, and concluded that Booker gave them the authority to impose lesser sentences when dealing with crack dealers. (See, e.g., "Sentencing with Discretion: Crack Cocaine Sentencing After 'Booker'," by Ryan S. King and Marc Mauer, The Sentencing Project, January 2006.)

In the instant case, the First Circuit joined that growing debate over the fairness and the reasonableness of the crack-cocaine sentencing disparity in the post-Booker world. Essentially, it held that “the district court erred as a matter of law when it constructed a new sentencing range based on the categorical substitution of a 20:1 crack-to-powder ratio for the 100:1 ratio embedded in the sentencing guidelines. This holding recognizes that sentencing decisions must be done case by case and must be grounded in case-specific considerations, not in general disagreement with broad-based policies enunciated by Congress or the Commission, as its agent.”

The First Circuit’s decision instantly raised some negative criticism from a number of commentators. Thus, Prof. Douglas Berman, the reigning Booker guru, wrote on his Website, Sentencing Law and Policy:

“The First Circuit's decision in Pho asserts that a district court's decision to apply a 20:1 crack/powder ratio rather than the 100:1 ratio in the guidelines ‘was incorrect as a matter of law.’ But as I read the opinion, I kept wondering what ‘law’ was violated when the district judge decided, relying on the guidance of the sentencing commission, that this revised ratio would best effectuate Congress's commands in section 3553(a) of the Sentencing Reform Act.

“Judge Seyla references 3553(a) throughout his opinion in Pho. But, like Judge Breyer in the Booker remedy, all the references in Pho fail to mention the one plain textual command of 3553(a): ‘The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.’ Notably, in footnote 3, Judge Selya quotes 3553(a) at length, but leaves out any reference to this explicit instruction from Congress to sentencing judges. Also conspicuously absent in Pho's footnote 3 is the full text of 3553(a)(6), which commands judges to consider ‘the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct’.

“In light of the expert Commission work in this area — which finds that the guidelines' 100:1 ratio overstates the seriousness of crack offenses relative to powder cocaine offenses and creates unwarranted sentence disparities between crack and powder sentencing — the application of a 20:1 ratio seems to be a more faithful application of Congressional directives in 3553(a) than is the opinion in Pho. . . . Put simply, the Pho opinion elevates the perceived intent of Congress over the plain text of 18 U.S.C. § 3553(a), which the Booker Court identified as the guide for district court sentencing decisions and for circuit court review of whether a sentence is reasonable.”

In sum, notwithstanding the First Circuit’s ruling, we believe that debate over the 100 to 1 ration is far from over; and we are certain that many judges will continue to use Booker as an opportunity to depart from the onerous sentences recommended by the Guidelines when sentencing crack dealers.

U.S. v. Degenhardt, No. 2:03-CR-00297 PGC (D.Ut. Dec. 21, 2005) (Judge Cassell)

In response to a request by several victims of a fraud crime to make a statement at sentencing, Judge Cassell has presented an exceptionally detailed analysis of the Crime Victims Rights Act of 2004 (18 U.S.C. § 3771) (CVRA) - an act that is destined to have a profound impact on sentencing in the Federal courts. In the introduction to this lengthy decision, Judge Cassell explained:

“This criminal fraud case is before the court for sentencing. The government has advised the court that several of the victims wish to make a statement — or ‘allocute’ — at the sentencing hearing. Their request presents a question under the current rules of Criminal Procedure, which gives only victims of crimes of violence or sexual abuse a right of allocution. This narrow provision, however, has been superceded by an Act of Congress — the Crime Victims Rights Act. The Act broadly guarantees victims of all crimes the right to allocute. Accordingly, the court will follow the congressional command and give the victims an opportunity to allocute at the sentencing.

The Fed.R.Crim.P. appear to limit the allocution rights of victims to crimes involving violence or sexual abuse. Thus, Rule 32(i)4(B) states: “Before imposing sentence, the court must address any victim of a crime of violence or sexual abuse who is present at sentencing and must permit the victim to speak or submit any information about the sentence.”

In addition to the Rule 32 limitations, some courts have expressed concerns about allowing victims of crimes to participate in the sentencing process. Thus, in U.S. v. Fortier, 242 F.3d 1224, 1230-31 (10th Cir. 2001) (which involved the sentencing of one of the defendants who pled guilty in the bombing of Murrah Federal Building in Oklahoma City in 1995), the Tenth Circuit voiced strong reservations about the district court's decision to allow counsel for two victims of that bombing to file amicus briefs and argue for an upward departure during the sentencing hearing, stating:

“In the absence of any authority permitting the participation of victims' counsel, we harbor concerns about the propriety of the district court's rulings. Allowing third parties to argue for harsher sentences when the government is not permitted to do so by the terms of a plea agreement presents an opportunity for the government to achieve indirectly what it is prohibited from doing directly. Cf. U.S. v. Brye, 146 F.3d 1207, 1209 (10th Cir. 1998) ("Where the government obtains a guilty plea predicated in any significant degree on a promise or agreement of the prosecuting attorney, such promise must be fulfilled to maintain the integrity of the plea." (citing Santobello v. New York, 404 U.S. 257, 262, (1971)). The government is entrusted with representing the interests of society in prosecuting criminals appropriately; given the nature of Fortier's involvement with Nichols and McVeigh and his assistance with the Oklahoma City bombing case, the government concluded that the appropriate resolution was to enter into a plea agreement with the defendant. Because Fortier could reasonably read that agreement to foreclose arguments for an upward departure, allowing victims' counsel to participate upset his expectations and undermined the benefit of his bargain.”

In the instant decision, Judge Cassell addressed both the limitations of Rule 32 and the concerns of the Tenth Circuit in Fortier. After delving into the legislative history of the CVRA, he concluded that Congress intended to give victims broad rights to be heard at sentencing proceedings and to make them “independent participant[s] in the proceedings"; and that “the CVRA commands that victims should be treated equally with the defendant, defense counsel, and the prosecutor, rather than turned into a ‘faceless stranger’." Thus, he concluded:

“The CVRA plainly extends victims' rights beyond those found in the current criminal rules by giving a right to be heard to all victims. Rule 32(I) confers a right to be heard to ‘any victim of a crime of violence or sexual abuse.’ In contrast, the CVRA extends its rights more broadly to all crime victims, that is, to any ‘person directly and proximately harmed as a result of the commission of a Federal offense.’ The CVRA definition is not limited to certain kinds of crimes. To the contrary, the sponsors of the CVRA described this as ‘an intentionally broad definition because all victims of crime deserve to have their rights protected’."

In Brief

Sentencing - “Fast Track” Departures: U.S. v. Santos, No. 05 Cr. 522 (S.D.N.Y. Dec. 15, 2005) - In this case, the Court imposed a substantially shorter non-guideline sentence (24 months rather than the 57 month Guideline recommended sentence), after fining that the Guideline sentence would be “unreasonably harsh” primarily because of (1) the sentencing disparity with districts that utilized a “fast track” program for illegal aliens and (2) the "double-counting" involved in increasing the defendant's offense level and the criminal history category with the same drug conviction. After a detailed review of the development of such “fast track” sentencing practices in certain border Districts, Judge Sweet concluded: “While fast-track programs may create an efficient solution to an explosion of illegal reentry cases in border districts, they nevertheless result in the type of sentencing disparity cautioned against in section [18 U.S.C. §] 3553(a)(6).”

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