Vol. 13, Nos. 15 & 16	Covering Cases Published in the Advance Sheets through Apr. 17, 2006

New Supreme Court Ruling on Warrantless Searches

• In the Stuart case, a unanimous Supreme Court held that the police may enter a home without a warrant if they have reason to believe an occupant has been seriously injured or is threatened "imminently" with such injury - a ruling that Justice Stevens felt was so obvious that he openly questioned why the Supreme Court had agreed to hear the case in the first place.
  
  

More Judicial Treading of Water to Accommodate the GWOT

• In Doe, the Second Circuit declined to address the merits of two strong lower court decisions that challenged the constitutionality of administrative subpoenas, known as National Security Letters (NSLs), that are being issued with increasing frequency in the name of the Eternal Global War on Terror. Citing recent amendments to the PATRIOT Act which, it said, “substantially shifted the legal footing” on which the two lower court rulings were based, the Court remanded one case and dismissed the other - ducking, at least for now, a definitive ruling on the constitutionality of the NSLs.
  

Sentencing Issues

• The Desselle decision from the Fifth Circuit and the Sealed Case ruling from the D.C. Circuit both addressed the permissible extent of departures based on providing substantial assistance to the Government in the post-Booker world - and, not surprisingly, the Government’s position was upheld in both cases.
  

Prosecution's Failure to Disclose Exculpatory Evidence a "Fiasco" - But No Relief Granted

• In Childs, the Seventh Circuit rejected the defendant’s claim for a new trial or dismissal of his indictment based on the deliberate withholding of exculpatory evidence, even though it agreed that the Government’s conduct was “designed to deliberately mislead the court and defense counsel.” On the claim for a new trial, the Court reasoned that the defendant could not prove any prejudice, since his counsel had skillfully used the withheld exculpatory material to his advantage once he became aware of it. The Court also declined to order dismissal of the indictment because, even though the Government’s misconduct was a “fiasco,” it did not call for such a “bold step.”

Another Revealing Asylum Case

• In Silva, a divided panel from the Eleventh Circuit denied asylum to a Colombian woman who gave admittedly credible evidence of numerous death threats against her by a Marxist paramilitary group, but who could not actually identify her potential shooters. The majority’s decision (written by Judge Pryor, one of President Bush’s most controversial recent appointees) evoked a blistering dissent from Judge Carnes, who caustically wrote “only in the majority’s imagination do would-be killers wear name tags.”

U.S. v. Desselle, No. 05-30401 (5th Cir. May 22, 2006) (Judge Jones)
In Re: Sealed Case, No. 04-3015 (D.C.Cir. May 23, 2006) (Judge Griffith)

Both of these cases dealt with the permissible scope of departures based on substantial assistance pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(a). In Desselle, the government objected to the sizable sentence reduction the defendant received from the district court based on his cooperation; whereas in Sealed Case, the defendant complained that did not receive a sufficient reduction for his cooperation. To no one’s surprise, the Government prevailed in both cases.

In Desselle, the defendant pled guilty to money laundering and the distribution of more than five kilos of cocaine. His Guideline sentencing range was 262-327 months in prison. However, he agreed to provide assistance to the Government in other cases. At sentencing, the Government claimed that his assistance had been “minimal”; and it therefore recommended only a two-level reduction in his base offense level, which would have resulted in a guideline range of 210-262 months.

The district court granted a ten-level reduction for Desselle's substantial assistance, and sentenced him to eighty-seven months, the minimum within the guideline range after the ten-level reduction was made. That departure reduced Desselle's sentence by 67% from the minimum sentence for his calculated offense level and nearly 28% from the statutory minimum of ten years.

On appeal, the Fifth Circuit concluded that the district court had committed two errors. First, it abused its discretion by considering non-assistance-related factors in determining the extent of the § 5K1.1 departure. In so ruling, the Court joined with a majority of circuits in holding that the extent of a § 5K1.1 or § 3553(e) departure must be based solely on assistance-related concerns.

Second, with virtually no discussion or guidance, the Court concluded: “[T]he extraordinary departure is not supported by the nature of Desselle's assistance. ‘An extraordinary reduction must be supported by extraordinary circumstances.’ . . . Desselle did not follow instructions from the FBI agents with whom he dealt and provided little helpful information. These are clearly not the ‘extraordinary circumstances’ required to support a departure of sixty-seven percent.”

In Sealed Case, the defendant directed a massive heroin distribution ring in the Washington, D.C. metropolitan area that distributed 222 kilograms -- almost 500 pounds -- of heroin. Faced with a possible life sentence if his case went to trial, the defendant entered into a plea agreement in which he promised to plead guilty to all three counts and to "cooperate truthfully, completely and forthrightly with . . . law enforcement authorities . . . in any matter as to which the Government deems the cooperation relevant."

After pleading guilty, the defendant testified against four co-defendants, advised others to cooperate with the Government, and helped conduct sting operations in New York City and the District of Columbia that led to the arrests and convictions of twelve other heroin distributors. Based on that substantial assistance, the Government filed a downward departure motion pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 that recommended a sentence of 360 months (30 years) imprisonment.

Because that sentence meant that the defendant would remain in prison until he is 80 years old, he appealed, arguing that the sentence reduction he received was not commensurate with his cooperation and was based in part on the district court’s consideration of factors other than his cooperation.

At sentencing, the prosecutor argued that the defendant was dangerous and might continue to engage in criminal conduct after leaving prison. On appeal, the defendant argued that once the prosecutor has filed a substantial assistance motion, he cannot address, nor can the district court consider, any topic other than the defendant's substantial assistance to the Government. (In effect, he was arguing the converse of the majority rule discussed in the Desselle case above - to the effect that, when considering the extent of a departure for providing substantial assistance under § 5K1.1, the district court may only consider factors that relate to the defendant’s cooperation.)

In rejecting that argument, the Court stated that the cited rule

“only prevents courts from looking to factors unrelated to the defendant's cooperation when deciding to increase the amount of a substantial assistance departure. It makes no sense to read [that rule] to prevent courts from considering other factors when deciding to limit the amount of a departure. Such a rule would convert a substantial assistance motion into a one-way ratchet, requiring courts to depart to the minimum possible sentence any time the defendant provided the maximum possible assistance, no matter how heinous the defendant's crime.” (Emphasis added).

Based on the foregoing, the Court concluded that the defendant had “failed to show that his sentence violated 18 U.S.C. § 3553(e), Booker, or his due process rights. We find, therefore, that [defendant’s] sentence was not imposed in violation of law.”

U.S. v. Childs, No. 05-2308 (7th Cir. May 15, 2006) (Judge Evans)

After his conviction at trial on multiple drug and gun charges, the defendant, Paul Childs, appealed the denial of his motion to suppress evidence and his motion for a new trial or dismissal of the indictment. As is common in drug cases, the Government’s evidence against Childs was based in large part on the testimony of codefendants who flipped on him and confidential informants who made controlled buys of drugs from him or his cohorts. As the Court explained: “It is the deceit of the informants and the government's failure to reveal that deceit to Childs' attorney in a timely manner that is at the heart of this appeal.”

Specifically, the government’s key witnesses had repeatedly lied to the police, but the government failed to disclose these lies to the defense in advance of trial. When the truth came out during testimony, the AUSA offered only “weak and unconvincing excuses” for the government’s failure to disclose that exculpatory evidence. In fact, so blatant and outrageous was the Government’s misconduct that the Court called it a “fiasco” and concluded “we are convinced that the conduct of government was designed to deliberately mislead the court and defense counsel. The transcript of the proceedings speaks for itself. It shows the stonewalling the prosecution engaged in.”

Despite those unusually strong condemnations, the Court denied any relief. It agreed that, under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, the Government must disclose, prior to trial, impeaching evidence and evidence favorable to a defendant. It then stated that, to prevail on a Brady claim, the defendant must show (1) that the evidence was favorable to him because it was exculpatory or impeaching; (2) that the government willfully or inadvertently suppressed the evidence; and (3) that the defendant suffered prejudice as a result. It concluded, however, that “to establish prejudice, a defendant must establish a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.”

Applying those principles, the Court concluded that Childs met the first two requirements. The evidence was impeaching and exculpatory in nature; and the Government had willfully suppressed it. However, the Court concluded that Childs could not show that he had been prejudiced, in part because he had “a very skillful defense attorney (Robert Alvarado, an assistant Federal Defender from Peoria) at his side [who] was able to thoroughly impeach the witnesses once the information was belatedly made available.”

The Court also rejected Childs’ alternate claim for relief - namely that his indictment be dismissed on the basis of outrageous government conduct. On that claim the Court reasoned as follows:

“Despite our displeasure at the conduct of the government lawyers, however, we are not convinced this is the sort of case where such a bold step is called for. True, the Supreme Court has left open the possibility of giving Childs the relief he requests. . . . But we have never taken what we see to be an extreme step of dismissing criminal charges against a defendant because of government misconduct. Granting such relief in the absence of prejudice to a defendant would be to confer an unearned windfall.” (Internal citations omitted).

Apparently, in the halls of criminal justice, fiasco’s just don’t call for bold steps!

Silva v. U.S. Attorney General, No. 04-10351 (11th Cir. May 5, 2006) (Judge Pryor)

With decisions like this, it is no wonder that immigration law has become such an administrative and judicial horror, and that deportation appeals have grown more than 450% in the last five years, from a 3.2 percent share of appellate cases in 2000 to an 18 percent share in 2005. (See, “Backlog at Borders, Cracks in the System,” by Spencer S. Hsu, Washington-Post, May 14, 2005; see also Benslimane v. Gonzales, 430 F.3d 828 (7th Cir. Nov. 30, 2005), where Judge Posner wrote:

"In the year ending on the date of the argument, different panels of this court reversed the Board of Immigration Appeals in whole or part in a staggering 40 percent of the 136 petitions to review the Board that were resolved on the merits. The corresponding figure, for the 82 civil cases during this period in which the United States was the appellee, was 18 percent. Our criticisms of the Board and of the immigration judges have frequently been severe. . . .

“This tension between judicial and administrative adjudicators is not due to judicial hostility to the nation's immigration policies or to a misconception of the proper standard of judicial review of administrative decisions. It is due to the fact that the adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice." (Id., at 829-30).

Obviously, concerns about the minimum standards of legal justice in immigration cases have yet to reach the Eleventh Circuit, which to date has never reversed an immigration court’s refusal to grant political asylum. Such concerns have has also clearly not reached the author of the majority opinion, Judge Pryor, the previously filibustered, formerly recess-appointed, highly controversial appointee of President George W. Bush. However, Pryor’s decision in this case did lead to a noteworthy and unusually stinging dissent by Judge Carnes (himself an appointee of the first President Bush).

In this case, a divided panel denied asylum to a Colombian woman, Luz Marina Silva, who, because of her political work, had been on the receiving end of menacing phone calls, a death threat note and gunfire. Silva provided chilling details of her tribulations in her asylum application and at her hearing. While working on a political campaign for the mayor of Bogota, she was handed a note signed by a Marxist paramilitary group saying she should “rest in peace for doing what she shouldn’t be doing in the wrong place.” She soon began receiving daily phone calls threatening to harm her if she didn’t cease her political work.

Despite the calls, Silva continued. Then, after receiving many calls, and three weeks after receiving the note, two unidentified men followed her on motorcycles and shot at her car was as she was driving home. Soon after the shooting, she fled Colombia. During a brief return visit to see a gravely ill relative, Silva received more threatening calls, including: “We are not going to miss a second time, we’re going to kill you.” She did not go back.

The immigration judge found Silva credible, which meant that all of the evidence she submitted was considered true. But the judge concluded that Silva’s harrowing experience did not constitute political persecution for asylum purposes because Silva could not identify the shooters or the source of the anonymous calls, and “everybody in Columbia suffers under these general conditions of violence and criminal activity.” On appeal to the Eleventh Circuit, the Pryor-led majority rubber-stamped the immigration court’s disregard for the circumstantial evidence pointing to the clearly political motivation of Silva’s tormenters.

Judge Carnes, a staunch conservative himself, would have none of that whitewash. He not only excoriated the outcome, he skewered Judge Pryor’s parsing of the evidence. And because Judge Carnes’ dissent provides a graphically explicit caricature of the judiciary as President Bush would have it, we have included a lengthy selection of his opinion, which states in part:

“True enough, the would-be assassins did not stop to introduce themselves. They rarely do. It is not unrealistic to expect the targets of political assassinations to know the identity of the gunmen who shoot at them. Only in the majority’s imagination do would-be killers wear name tags or drive around on motorcycles with vanity plates displaying the name of their terrorist organization. . . .

“In determining whether the facts and circumstances in any case compel a conclusion, we ought to face up to the full force of them in their entirety. The majority’s approach, instead, is a virtuoso exercise in deconstructionism. It proceeds by disassembling the whole of the evidence and then explaining why each part by itself is insufficiently compelling. This is like a man who attempts to demonstrate that a bucket of water is not really that by emptying it cup by cup, asserting as he goes along that each cupful is not a full bucket’s worth until, having emptied the whole, he proclaims that there just wasn’t a bucket of water there. . . .

“The fact that there is also indiscriminate violence is no reason for refusing to recognize violence and persecution on grounds that are specifically listed in our immigration laws. Otherwise, no one from Colombia would ever be eligible for asylum.

“And indeed under the majority's decision, no one from Colombia will be entitled to asylum. Since ‘the majority of the violence in Colombia is not related to protected activity,’ since the ‘awful is ordinary,’ and since only ‘four out of every ten murders are on account of a protected ground,’ Maj. Op. at 24, it will always be reasonable to find that violence was not on account of a protected ground--even where, as here, a terrorist group threatens a political activist with death because of her politics, she receives a barrage of threatening phone calls connected in time to that threat and to her political activities, and soon thereafter someone attempts to kill her. This is not a good decision but there is, I suppose, a bright side. What the Court holds today will make it easier to handle our caseload. In the future we can simply stamp any petition for review of a Colombian's asylum denial: ‘Affirmed. See the Silva decision.’

“Today's decision also has implications beyond cases involving Colombian applicants. The majority opinion refers to the often-mentioned, but never sighted, ‘rare case’ in which the facts are so compelling that we will reverse an immigration judge's finding that a petitioner has failed to prove persecution on a protected ground. No published opinion of this Court has ever found that rare case, and today's decision indicates that such a case, like the fabled unicorn, exists only in our imagination.”

Quote of the Week:
Some Observations by Judge Young
On the Denigration of Fact-Finding in Judicial Proceedings

“Abandonment of a fact-finding process signals a breakdown in America's adversary system. . . . The most striking abandonment of jury fact finding is found in the area where one would last expect it -- our criminal laws.

‘[Federal] criminal trials [are] rare events. Trials are the system's Potemkin village, a piece of pretty scenery for display on Court TV while real cases, and lives, are disposed of more casually off-camera.

‘That effect leads to another: a sharp decline in transparency. In a healthy system, the law is what it appears to be. The rules applied in court are the same as the rules on the street, and courts apply those rules often enough that citizens can tell what they are. In our system, substantive law is a tool for evading inconvenient procedures, and courtrooms are used for guilty pleas. Federal criminal punishment is allocated behind closed doors, where the lawyers dicker over charges and sentences. Criminal codes do not describe the behavior that will actually land one in a prison cell, and sentencing rules do not accurately predict how long one will stay there. Instead, the law of crimes and sentences serves as a menu of threats for police and bargaining options for prosecutors. The real law -- the law that governs individual cases -- arises from discretionary decisions to order off the menu: police officers' arrests and lawyers' plea bargains. That law is invisible to outsiders.’ William J. Stuntz, The Political Constitution of Criminal Justice, 119 Harv. L. Rev. 780, 817-18 (2006) (footnotes omitted).

“Reflecting the triumph of plea bargaining over trial, George Fisher, Plea Bargaining's Triumph, 109 Yale L.J. 857 (2000), federal courts today routinely make the most crucial decisions about a citizen's liberty on a ‘mishmash of data including blatantly self-serving hearsay largely served up by the [government].’ United States v. Green, 346 F. Supp. 2d 259, 280 (D. Mass. 2004) . . .

“The eclipse of fact finding foreshadows the twilight of judicial independence. . . . We denigrate fact finding in our criminal justice system in favor of plea bargaining and add ‘additional sentencing penalties for trial’, Alexandra Natapoff, Speechless: The Silencing of Criminal Defendants, 80 N.Y.U. L. Rev. 1449, 1459 (2005), with the result that ‘the federal system . . . punish[es] trials so severely that the results do not deserve public confidence’, Ronald F. Wright, Trial Distortion and the End of Innocence in Federal Criminal Justice, 154 U. Penn. L. Rev. 79, 155 (2005).” (Quoted from Judge Young’s amazing (non-criminal) decision in Delaventura v. Columbia Acorn Trust, 417 F.Supp.2d 147, 153-54, n. 7 (D.Mass. Feb. 1, 2006)).

In Brief
[partial listing of cases]

Calling Federal Agents as Witnesses and the Touhy Regulations: U.S. v. Bahamonde, No. 04-50618 (9th Cir. Apr. 25, 2006) - Here, a divided panel from the Ninth Circuit vacated the marijuana conviction of the defendant who was prevented from calling a federal agent as a witness at trial because he failed to comply with the applicable agency regulations. Virtually all federal agencies have regulations governing the conditions under which their employees may testify at trial - which are commonly referred to as Touhy regulations, after U.S. ex rel. Touhy v. Ragen, 340 U.S. 462, 95 L. Ed. 417 (1951). In this case, the regulations required the defendant to submit a written request to the Department of Homeland Security describing the testimony sought. (See, 6 C.F.R. § 5.45(a)). Because the defendant did not make any such request in this case, the district court excluded the agent’s testimony. In reversing, the majority concluded that the regulations at issue are unconstitutional because the defendant does not have reciprocal discovery rights. Judge Rawlinson dissented, arguing that Touhy regulations are not discovery rules but rather reasonable regulations that control the disclosure of agency information. She also argued that the Supreme Court has already upheld the validity os such regulations.

The Realities of Plea Bargaining: U.S. v. Torres-Rosario, No. 05-1202 (1st Cir. May 8, 2006) - The defendant in this drug case raised an interesting argument in support of his contention that the district court had erred in not allowing him to withdraw his guilty plea: he argued that the AUSA handling his case threatened to add two years to the sentence for each day that he refused to sign the plea bargain, and that his attorney pressured him into signing it quickly. The defendant further claimed that his attorney failed to mention the AUSA’s threat in a subsequent motion to withdraw the plea. In rejecting the defendant’s appeal, the Court noted that:

“the pressure applied by the prosecutor - if we assume Torres' version of the threat is conceded by the government's silence - although perhaps distasteful would not show wrongdoing. Nor is it clear what counsel could have done to ‘protect’ Torres. The hard reality is that plea bargaining in criminal cases is not for the delicate minded. Most prosecutors, we think, would avoid, for multiple reasons (including the prospect of appeals like this one), so striking a calibration of the consequences of delay and so severe a threat (if this is what happened). Yet the government's costs rise as trial approaches and the best deal from the prosecutor is ordinarily available before the investment in final trial preparations.” (Internal citations omitted).

The Court also noted that Sixth Amendment attacks on counsel are rarely allowed on direct appeal and that the defendant might find more success through a habeas petition under 28 U.S.C. § 2255, which would give him the present evidence and testimony to develop his claim.

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