Vol. 13, Nos. 43 & 44	Covering Cases Published in the Advance Sheets through Oct. 30, 2006

Court Rules Portions of Presidential Executive Order on Terror Finances Unconstitutional

• In the latest of a series of lawsuits brought by the human rights organization, Humanitarian Law Project, Judge Audrey Collins of the C.D.Cal. ruled that a Presidential Executive Order designating 27 groups and individuals as “specially designated global terrorists” was unconstitutionally vague on its face because it was made without any definable criteria and it impermissibly imposed penalties for mere association, thereby impinging on the First Amendment right to freedom of association.
  
  

More on Child Pornography and Computer Images

• In Kuchinski, the Ninth Circuit held that an individual who intentionally visited Web sites to view child pornography, but who did not intentionally save those images to his computer's hard drive, could not be punished for possessing images that were automatically saved to the Web browser's cache.
  

Booker and the Parsimony Provision

• In Ministro-Tapia, the Second Circuit may have breathed some new life into the so-called “parsimony provision of the Guidelines by stating that "if a district court were explicitly to conclude that two sentences equally served the statutory purpose of § 3553, it could not, consistent with the parsimony clause, impose the higher."
  
  

The Ugly Side of Criminal Justice: Getting Punished for Winning an Appeal

• The Jones case from the Sixth Circuit exposes one of the ugly sides of the American criminal justice system: if you beat a judge or a prosecutor by winning an appeal, one or both of them are likely to throw the book at you the second time around. Here, after his initial conviction and sentence of 210 months were vacated on appeal, the defendant was convicted on new charges and this time his sentence was doubled to 420 months. The message: don’t mess with Mother Nature!

Civil Contempt Incarceration - At What Point Does It Become Unconstitutional?

• The Armstrong case from the Second Circuit is noted for its detailed analysis of an important question: at what point does jailing a person for civil contempt become punitive rather than coercive and thus violate the Constitution? Martin Armstrong has now been held in prison since January 2000 for failing to turn over to a court-appointed receiver various corporate records and assets as ordered by the district court. Once again, the Court declined to grant any relief; although it did order that the case be reassigned to a new randomly-selected replacement U.S. district judge so that "a fresh look by a different pair of eyes" could evaluate whether continued confinement is appropriate.
  

U.S. v. Kuchinski, No. 05-30607 (9th Cir. Nov. 27, 2006) (Judge Fernandez)

Anyone who uses the Internet knows (or should know) that simply by browsing the Internet a lot of nasty files can inadvertently become imbedded or stored on a computer’s hard drive without the user’s actual knowledge or intention. As the Court explained:

“[W]hen a person accesses a web page, his web browser will automatically download that page into his Active Temporary Internet Files, so that when the site is revisited the information will come up much more quickly than it would have if it had not been stored on the computer's own hard drive. When the Active Temporary Internet Files get too full, they spill excess saved information into the Deleted Temporary Internet Files. All of this goes on without any action (or even knowledge) of the computer user.”

The principal issue explored in this child pornography case is whether a defendant is responsible, for sentencing purposes, for all the pornography images that are found stored on his or her computer.

Here, based on information it received that John Kuchinski “was involved in child pornography,” the FBI obtained a warrant to search his computer. The search revealed 16 images of child pornography intentionally saved on the computer's hard drive, another 94 images in the "recycle bin" to be deleted, and approximately 15,000 to 19,000 images in the temporary Internet files constituting the Web browser's cache. Kuchinski pled guilty to one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).

Under the provisions of § 2G2.2 of the Guidelines, the number of pornography images that are involved can dramatically affect the severity of the sentence. Under the Guidelines now in effect, as the number of images increases from more than ten to more than 600, the offense levels increase by two, three, four and five levels. U.S.S.G. § 2G2.2(b)(7)(A)-(D).

In this case, Kuchinski did not dispute that he was responsible for 110 images - the 16 images he had intentionally saved on his hard drive and the 94 images in the recycle bin of his computer. But he argued that he was not responsible for thousands of files that were stored in his computer’s “cache,” namely the 1,106 images stored in the “Active Temporary Internet Files” on his computer or the 13,904 to 17,784 images stored in the “Deleted Temporary Internet Files” on his computer.

At sentencing, over the defendant’s objection, the district court counted all of the pornography images on Kuchinski’s computer, which increased his offense level by five levels; and it imposed a sentence of 70 months in prison. On appeal, the Ninth Circuit reversed and remanded for resentencing, stating:

“There is no question that the child pornography images were found on the computer’s hard drive and that Kuchinski possessed the computer itself. Also, there is no doubt that he had accessed the web page that had those images somewhere upon it, whether he actually saw the images or not. What is in question is whether it makes a difference that, as far as this record shows, Kuchinski had no knowledge of the images that were simply in the cache files. It does. . . .

“Where a defendant lacks knowledge about the cache files, and concomitantly lacks access to and control over those files, it is not proper to charge him with possession and control of the child pornography images located in those files, without some other indication of dominion and control over the images. To do so turns abysmal ignorance into knowledge and a less than valetudinarian grasp into dominion and control.”

[For those unfamiliar with Judge Fernandez’ pedantic propensities, we note that “valetudinarian” is defined as “a weak or sickly person, especially one morbidly concerned with his or her health.” Also, for an interesting commentary on this ruling, see "Your Computer, Your Porn: Courts Misapply Meaning of Possession," by Howard J. Bashman, Legal Times, Dec. 18. 2006.]

U.S. v. Ministro-Tapia, No. 05-5101 (2nd Cir. Nov. 28, 2006) (Judge Walker)

Since the Supreme Court’s decision in U.S. v. Booker, and the emphasis it placed on the “reasonableness” of a sentence, numerous commentators have noted that the appellate courts seem to have ignored the so-called “parsimony provision” of the Federal sentencing statutes - namely the mandate contained in 18 U.S.C. § 3553(a) that Federal judges are required to impose a sentence “sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of [18 U.S.C. § 3553(a)]."

In effect, those commentators have noted that, in their effort to treat sentences within the Guideline range as presumptively reasonable, the appellate courts have all but forgotten the formal mandate that sentences should not be greater than necessary to achieve the other statutory sentencing purposes.

[See, for example, “Policy judgments at federal sentencing: aren't they inevitable and mandated by Congress?,” as posted by Professor Douglas Berman on Sentencing Law and Policy, on May 7, 2006; and “The power of parsimony (and Justice Breyer's notable omission),” as posted by Prof. Berman on the same Blog on Jan. 12, 2005.]

In the instant case, the Second Circuit seems to have breathed some new life into the parsimony provision. In this case, even though the Court ultimately rejected the defendant's argument that the district court had violated the parsimony command when imposing a within-guideline sentence, the Court also emphasized that "if a district court were explicitly to conclude that two sentences equally served the statutory purpose of § 3553, it could not, consistent with the parsimony clause, impose the higher."

The Court affirmed the within-Guideline sentence because (1) counsel below did not explicitly invoke the parsimony clause at sentencing, seeking instead a "reasonable" sentence below the Guidelines range; and because in any event (2) "[t]he sentencing record, viewed as a whole, does not convincingly demonstrate that the district court in fact viewed the Guidelines sentence that it selected as in equipoise with the below-the-range sentence that the defendant sought."

This is an important ruling and it sends an important message: counsel should invoke the statutory language of the parsimony provision and cite the Ministro-Tapia decision in every sentencing memorandum and hearing.

U.S. v. Jones, No. 05-5467 (6th Cir. Nov. 29, 2006) (Judge Merritt)

Richard Jones, Jr. found out the hard way that sometimes it just doesn’t pay to fight the system.

In August, 2000, Jones was arrested in Columbus, OH and charged with six counts of drug and weapons offenses. He moved to suppress the evidence against him on the grounds that it was the product of an unlawful search of his residence. When the district court (Judge Varlan of the E.D.Tenn.) denied his suppression motion, Jones decided to plead guilty conditionally to two of the six counts against him. Under the terms of his plea agreement, Jones agreed to cooperate with the FBI in an ongoing drug investigation by providing a statement detailing his narcotics dealing; and the Government agreed to dismiss the remaining four counts.

Based on Jones’ cooperation, the Government ultimately moved for a 30-month sentence reduction; and Jones was sentenced to 210 months in prison. Jones appealed the district court’s suppression decision and, in a decision reported at 335 F.3d 527 (6th Cir. July 10, 2003), the Sixth Circuit agreed that the search was conducted without a valid consent. It therefore vacated Jones’ convictions and remanded the case back to the district court for further proceedings.

Back in the district court, the two charges that had formed the basis of Jones’ original guilty plea were dismissed; and Jones then elected to withdraw his plea. However, the Government then moved to reinstate two of the six charges from the original indictment that had been dismissed; and the district court granted that motion over Jones’ objection.

Two months later, the Government filed a superseding indictment containing seven charges: the two charges that had been reinstated earlier and five new charges (which the Court candidly admitted were based entirely on information Jones provided to the FBI during the course of his earlier cooperation.)

After Jones rejected an offer for a second plea agreement that would have resulted in another 210 month sentence, the case went to trial; and Jones was convicted of six of the seven counts. Judge Varlan then sentenced Jones to 420 months in prison - exactly double his original sentence - and a pretty stiff penalty for exercising a constitutional right.

Jones filed a new appeal from his conviction and sentence. Although he raised five issues on appeal, the Circuit court narrowed them down to, and only discussed, two of his “more general claims,” namely:

(a) whether the Government was allowed to reinstate previously dismissed charges and add new charges to the indictment. On that issue, the Court ruled that once Jones withdrew his earlier plea agreement, there was no bar to reinstating any of the original charges that had been dismissed. It also ruled that there was no “evidentiary support” to justify a claim of prosecutorial vindictiveness based on the new charges that were filed; and

(b) whether the statements that Jones made to the FBI while he was cooperating with the Government violated the terms of his plea agreement and Rule 410 of the Fed.R.Evid. The Court rejected that argument, stating that “[t]he case law is clear that statements made to authorities pursuant to cooperation plea agreements are not protected because they are not ‘made in the course of plea discussions’”; although it also added, cryptically, “we do not address the Kastigar issue.”

No matter what issues were or weren’t raised, this decision certainly sends a loud and clear message that winning an appeal and cooperating with the Government can produce some pretty nasty results. In fact, the sad truth is that sometimes it just doesn’t pay to mess with Mother Nature and her proxies (the thin-skinned prosecutors and the judges who get reversed) by insisting on exercising constitutional rights such as trial by jury.

U.S. Prison Population - Already the Highest in the World - Breaks New Records

On November 30, 2006, the U.S. Department of Justice, Bureau of Justice Statistics, released its latest depressing accountings of the prison population in America. The two reports that were released, “Prisoners in 2005" and “Probation and Parole in the United States - 2005" show, inter alia, that:

• as of the end of 2005, a total of 7,056,000 individuals (about three percent of the U.S. adult population, or one in every 32 adults) were in the nation’s prisons and jails or on probation or supervised release;

• black inmates represented 40% of all inmates with a sentence of more than one year. Breaking that figure down, 8.1% of all black males between the ages of 25 to 29 were in jail, compared with 2.2% of Hispanic males and 1.1% of white males in the same age group; and

• last year, there were a total of 2,228,300 new entries into the probation system. Put another way, a city with a population greater than Houston, TX, our fourth largest city, entered correctional supervision in 2005 at an ongoing cost that is incalculable.

In Brief

FBI Found Liable For Role in Mob Murders: McIntyre v. U.S., 447 F.Supp.2d 54 (D.Mass. 2006) - Following an 18-day bench trial, District Judge Reginald Lindsay issued this stinging, 110-page rebuke of the FBI's mishandling of longtime informants James “Whitey” Bulger and Stephen “The Rifleman" Flemmi for their role in the 1984 murder of Quincy fisherman John McIntyre; and he ordered the Government to pay more than $3 million in wrongful death damages to McIntyre's mother and brother. Among his many findings, Judge Lindsay found that former FBI agent John J. Connolly Jr. had warned Bulger and Flemmi that McIntyre was cooperating against them, knowing the tip would likely lead to McIntyre's murder; that the FBI had failed to properly supervise Connolly; and that it failed to investigate numerous allegations that Bulger and Flemmi were involved in drug trafficking, murder, and other crimes over decades. In one revealing passage of his ruling, Judge Lindsay wrote:

“The United States argued in its closing that Bulger and Flemmi were not indicted prior to 1995 because they were ‘very, very smart, and very, very cognizant of everything that was going on around them,’ and the FBI could not arrest them unless it had evidence that could ‘stick.’ United States Closing June 29, 2006 Tr. at 121. The truth is, however, that the FBI was not pounding the pavement looking for evidence that could ‘stick.’ Instead, the FBI stuck its head in the sand when it came to the criminal activities of Bulger and Flemmi. The agents of the Boston Office knew they had an obligation to report informants' criminal activity, so they carefully avoided knowledge of criminal acts by their informants.” (Id., at 93).

In emphasizing that the FBI’s conduct was not an isolated aberration, Judge Lindsay also wrote: “For decades preceding the McIntyre murder, agents of the FBI protected Bulger and Flemmi as informants by shielding them from prosecution for crimes they had committed.” (Id., at 109).

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