Vol. 13, Nos. 13 & 14	Covering Cases Published in the Advance Sheets through Apr. 3, 2006

Proffers - A New Lurking Danger

• As recently noted on the White Collar Crime Prof Blog, the Government has proposed a pernicious change in the rules regarding proffers made by corporate employees. In the Alaska Brokerage case that is pending before Judge Robart of the W.D.Wash, the Government argued that proffer statements should be admissible if either the individual defendant or his corporate co-defendant have presented evidence or made statements inconsistent with the proffer statements. If accepted by the courts, that legal theory will probably drastically limit the use of proffers by corporate employees.
  
  

Sentencing Issues

• In Walker, the Seventh Circuit held that defendants are not entitled to advance notice, pursuant to Rule 32(h) of the Fed.R.Crim.P., of upward departures from the sentencing range recommended by the Guidelines - a ruling which conflicts with a number of other Circuits and is at odds with the stated position of the Department of Justice.
  
  
  
• Both the Marcial-Santiago case from the Ninth Circuit and the Miranda-Garcia case from the M.D.Fla. addressed the sentencing disparities that are created by virtue of the “fast-track” procedures used in some districts in cases involving the sentencing of aliens convicted of illegal reentry - and these two courts reached different conclusions about whether those sentencing disparities constitute grounds to grant relief to defendants who are not in districts that offer such fast-track programs.
  
  
  
• The Diaz-Argueta case from the Ninth Circuit is noted for its discussion of the significance of the § 3553(a) factors in the post-Booker sentencing process. Here, emphasizing that a consideration of those statutory factors is “mandatory,” the Court vacated a sentence after finding that the district court “did not explicitly address any of the factors listed in § 3553(a).”
  

Harboring a Fugitive Complaint Dismissed For Lack of Probable Cause

• In Bahna, a Magistrate Judge from the C.D.Cal. dismissed a criminal complaint that charged a wife with conspiring to harbor or conceal her husband, a fugitive, on the grounds that the complaint did not set forth “probable cause” to believe that a crime had been committed. Citing numerous cases, the Court ruled that the harboring statute (18 U.S.C. § 1071) does not include within its ambit all acts of assistance to a fugitive - only affirmative conduct that is intended to frustrate law enforcement.
  

New Felon Disenfranchisement Ruling From the Second Circuit

• In Hayden, the Second Circuit issued a lengthy (103-page) en banc decision exploring the impact of the Federal Voting Rights Act on felon disenfranchisement laws. That issue is so clouded that it that a total of 10 judges (out of the 13 who heard this appeal) issued opinions. In the end, an 8 to 5 majority concluded that the Voting Rights Act does not apply to New York’s felon disenfranchisement law; although the Court did remand the case for further consideration of a potentially far-reaching question about how prisoners (who can’t vote) are counted as residents of certain voting districts.

U.S. v. Walker, No. 05-1812 (7th Cir. May 17, 2006) (Judge Sykes)

The defendant in this case, Thomas Walker, received a sentence that was 30 months higher than the applicable Guidelines range, but without any advance notice of the upward departure under Fed.R.Crim.P 32. Walker appealed his sentence, arguing that, under Rule 32(h), the district court was required to give him advance notice of any factors beyond the presentence report that might be used to justify an upward departure from range recommended by the now-advisory Guidelines. The government initially argued that Rule 32 did not require notice, but later advised the Court that the Department of Justice believes that such a notice is necessary for due process reasons.

Rule 32(h), which is entitled “Notice of Possible Departure from Sentencing Guidelines,” provides as follows:

“Before the court may depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party's prehearing submission, the court must give the parties reasonable notice that it is contemplating such a departure. The notice must specify any ground on which the court is contemplating a departure.”

In an opinion by Judge Sykes (another recent appointee of President Bush), the Seventh Circuit rejected the position of both the Government and the defendant that notice of the departure was required, stating:

“Rule 32(h)'s notice requirement -- which applies to ‘departures’ from the Guidelines, a concept that our post-Booker cases have called ‘obsolete’ -- does not apply here, where the district court selected a sentence at variance from the advisory Guidelines range based on the sentencing factors specified in 18 U.S.C. § 3553(a).”

To date, at least two other circuits have taken a contrary position regarding Rule 32(h) in the post-Booker world. (See, U.S. v. Hawk Wing, 433 F.3d 622, 631 (8th Cir. 2006) and U.S. v. Menyweather, 431 F.3d 692 (9th Cir. 2005)). In addition, the Seventh Circuit’s position on Rule 32(h) is clearly contrary to the position taken by the Department of Justice in a number of cases. (See, for example, the Letter, dated March 28, 2006, from the U.S. Department of Justice to the United States Court of Appeals for the First Circuit stating the Government's position that, post-Booker, a sentencing court has an obligation to advise the defendant if it is considering going above the guidelines range based on a Booker adjustment not otherwise identified in the presentence report or the parties' papers.)

U.S. v. Marcial-Santiago, No. 05-30248 (9th Cir. May 8, 2006) (Judge Gould)
U.S. v. Miranda-Garcia, No. 05-CR-202 (M.D.Fla. May 4, 2006) (Judge Presnell)

Both of these cases explored the propriety of the sentencing disparity that results from the fact that 26% of all illegal reentry defendants receive a lower sentence because they happen to be convicted in districts that provide for a “fast-track” disposition of their cases. While they vary somewhat in their particulars, fast-track programs - also referred to as "early disposition programs" - generally provide reduced sentences for defendants who agree to a quick guilty plea and uncontested removal. Congress gave its sanction to such programs in the PROTECT Act of 2003, and the Sentencing Commission followed suit with U.S.S.G. § 5K3.1, which permits up to a four-level downward departure in those districts where the United States has established such a program.

In both of these cases, the defendants were convicted of illegally reentering the United States after a previous deportation, in violation of 8 U.S.C. § 1326; and, in both cases, the districts in which they were convicted did not offer a fast-track program. Accordingly, they argued that the disparity between their sentences, and the sentences imposed on similarly-situated defendants who are prosecuted in districts with fast-track programs, is unwarranted and renders their sentences unreasonable.

In Marcial-Santiago, the Ninth Circuit rejected that contention and held that, even if the disparity in sentences “were assumed to be unwarranted”, “that factor alone would not render Appellants' sentences unreasonable; the need to avoid unwarranted sentencing disparities is only one factor a district court is to consider in imposing a sentence.” In other words, the panel concluded that a within-guideline sentence is not necessarily unreasonable for failure to consider fast-track disparity.

Judge Presnell came to a different conclusion in Miranda-Garcia. There, the defendant faced a Guideline sentence of 41-51 months in an American prison before being deported (again) to Nicaragua. In another of his growing list of must-read decisions, Judge Presnell granted the defendant a significant departure, and imposed a sentence of 18 months, reasoning as follows:

“[T]he existence of fast-track programs in some but not all areas of the country creates a situation where defendants guilty of identical offenses and with identical histories and characteristics receive significantly different sentences depending upon whether they are sentenced in a fast-track jurisdiction or not. 18 U.S.C. § 3553(a)(6) specifically instructs the Court to ‘avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.’ Many judges dealing with this issue post-Booker (including other judges in this district) have concluded that the fast-track disparity is unwarranted. As one such judge put it, ‘it is difficult to imagine a sentencing disparity less warranted than one which depends upon the accident of the judicial district in which the defendant happens to be arrested.’ United States v. Bonnet-Grullon, 53 F.Supp.2d 430, 435 (S.D.N.Y. 1999). This Court agrees.

“The consequences of this disparity are not simply academic or de minimis. According to a recent report from the USSC, the 13 districts with fast-track programs for illegal reentry cases include several with far fewer immigration cases than the Middle District of Florida (e.g., Idaho, Nebraska and North Dakota). As of March 16, 2006, 28 percent of all post-Booker illegal reentry defendants nationwide received government-sponsored fast-track credit (and a corresponding below-guideline sentence). Obviously, there were no fast-track departures in this District. This is a huge disparity based solely on the happenstance of a defendant's location at the time of his or her arrest.” (Internal citations omitted).

U.S. v. Bahna, 413 F.Supp.2d 1095 (C.D.Cal. Dec. 20, 2005) (Magistrate Judge Kenton)

This is an interesting decision that contains a detailed summary of the law governing convictions for harboring a fugitive, under 18 U.S.C. § 1071. That statute provides, in relevant part that:

“Whoever harbors or conceals any person for whose arrest a warrant or process has been issued under the provisions of any law of the United States, so as to prevent his discovery and arrest, after notice or knowledge of the fact that a warrant or process has been issued for the apprehension of such person, shall be [punished].”

Hanny Bahna was accused of providing help and assistance to her husband, Mandouh Bahna, who was a fugitive, by obtaining prescription medications for him and repackaging them to send to him, obtaining a credit card in the name of her husband for the purpose of sending it to him, and having knowledge of a wire transfer of $25,000 to him in Egypt. The Government filed a criminal complaint against Hanny, charging her with conspiracy to harbor or conceal a fugitive, in violation of 18 U.S.C. § 371. After her arrest and initial appearance, she moved to dismiss the complaint on the grounds that the complaint did not establish probable cause of a conspiracy to violate § 1071.

Magistrate Judge Kenton agreed, and he dismissed the Complaint, concluding that it did not set forth “probable cause to believe that an offense had been committed and that the defendant had committed it,” as required by Fed.R.Crim.P. 4(a). After a detailed review and analysis of the law under § 1071, Judge Kenton observed that the “cases interpreting 18 U.S.C. § 1071 do not encompass within the ambit of the statute the provision of any assistance, but, rather, they require that the assistance be intended to aid the fugitive in avoiding detection and apprehension.” (Id., at 1099). (Emphasis in original). Thus, he continued, § 1071 reaches “only conduct that is intended to frustrate law enforcement” and paying money to a fugitive “so that he may shelter, feed or hide himself is not within the accepted meaning of to ‘harbor or conceal’ him.”

Citing a number of cases, Judge Kenton noted that some “affirmative, physical action” is required to constitute a violation of § 1071, and that the courts “draw a distinction . . . between paying money to a fugitive so that he may shelter, feed or hide himself, which is not harboring, and providing that shelter, food, or aid directly, which is harboring.” He also stated that “case law clearly holds that making a false statement and failing to disclose a fugitive’s hiding place is not the type of assistance contemplated by § 1071.” (Id.)

In Brief
[partial listing of cases]

Capital Punishment: Morris v. Ylst, No. 05-99002 (9th Cir. May 9, 2006) - This is a capital case in which the Court ordered a new penalty phase trial based on prosecutorial misconduct in withholding Brady materials from the defense. The ruling is particularly noteworthy due to the special concurrence filed by Judge Ferguson, who stated in part:

“I write separately to underscore the prosecutor's abuse of his discretion in singling out the Petitioner for the death penalty, when it is the state's position that the three defendants are equally guilty of the felony murder of Van Zandt. As long as a prosecutor's discretion in seeking the ultimate penalty — death — remains thus unbridled, the administration of the death penalty in the United States will violate the guarantees of due process and freedom from cruel and unusual punishment enshrined in the Constitution. . . .

”Here, the prosecutor's unbridled discretion to single out Morris for prosecution under the death penalty, when the guilt is equally spread among his co-defendants, is a rank example of ‘arbitrariness at an earlier point in the selection process.’ This sort of gross disparity in the treatment of equally guilty defendants ‘highlights the utter failure of the elaborate sentencing schemes approved by the [Supreme] Court in Gregg [v. Georgia, 428 U.S. 153, 188 (1976)] and its companion cases to meaningfully limit the arbitrary infliction of death by the States’."

Guidelines - Reasonableness of Sentence: U.S. v. Zapete-Garcia, No. 05-1352 (1st Cir. May 8, 2006) - Last week (P&J, 03/20/06) we noted that, since Booker, we have only seen two cases in which courts have reversed an upward sentencing departure on the grounds that it was excessive and thus constituted an unreasonable sentence. (U.S. v. Davenport, No. 05-4304 (4th Cir. Apr. 21, 2006) and U.S. v. Castro-Juarez, 425 F.3d 430 (7th Cir. Oct. 3, 2005)). The First Circuit has now joined that tiny group with its decision in the instant case. Here the First Circuit overturned a sentence that was eight times the maximum specified by the now-advisory Guidelines. The district court imposed a 48-month sentence on the defendant for using a false document to gain admission to the U.S., where the recommended Guideline sentencing range was zero to six months. The district court based its upward departure on Zapete-Garcia’s two prior deportations, along with a prior arrest. The First Circuit concluded that those factors were not enough to justify the eight-fold increase and it therefore remanded the case for resentencing.

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