Vol. 13, Nos. 51 & 52	Covering Cases Published in the Advance Sheets through Dec. 25, 2006

New Supreme Court Rulings

• In its latest attempt to regulate the fever it created in its Apprendi/Blakely/Booker line of cases, the Supreme Court, in Cunningham, gave another inoculation to its intensive care patient - the federal and state sentencing schemes that sometimes do and sometimes don’t violate the Sixth Amendment. In this 6-to-3 decision, the Court held that California's "determinate sentencing law" is unconstitutional because it allows judges, not juries, to find facts that lead to higher criminal sentences - a ruling that still fails to give clear guidance about when or where this sentencing debate will end.
  
  
  
• In Jones, a unanimous Supreme Court issued a rare ruling easing a number of procedural restrictions on prisoner lawsuits. The Court concluded that the Sixth Circuit had overstepped its bounds by adopting a series of procedural rules that made the filing of prisoner lawsuits even harder than the Prison Litigation Reform Act required, stating that such barriers “cannot fairly be viewed” as a correct interpretation of the law.
  
  
• In Duenas-Alvarez (a ruling that comes close to being both trivial and inconsequential), the Court held that a “theft offense” under the Immigration and Nationality Act includes the crime of “aiding and abetting” a theft offense as defined in the California Vehicle Code, and thus qualifies as an aggravated felony for purposes of removal proceedings.
  
  

Court Rejects Constitutional Challenges to the Adam Walsh Child Protection and Safety Act

• In Madera, the first of what we expect will be a long series of challenges to the constitutionality of the recently-enacted Adam Walsh Child Protection Safety Act of 2006, District Judge G. Kendall Sharp of the M.D.Fla. rejected four specific challenges and concluded the Act was “constitutional as written.”
  
  

Court Grants Motion to Quash a Grand Jury Subpoena to Provide a Saliva Sample

• In the In Re Grand Jury case, Judge Brack of the D.N.M. granted a motion made by the target of a grand jury investigation to quash a subpoena duces tecum to provide a saliva sample for DNA testing. This rare - albeit heavily redacted - ruling concludes that, despite the grand jury’s broad powers, it may not invade legitimate privacy interests protected by the Fourth Amendment. .
  
  

Assertion of Self-Incrimination Privilege Constututes Waiver of Right to Contest Forfeiture

• In the wild and wooly forfeiture case, $185,000 Currency, Judge Vitaliano of the E.D.N.Y. held that a person seeking to establish a claim of innocent possession to cash seized by the Government as suspected drug proceeds could not use the Fifth Amendment self-incrimination privilege as both a sword and a shield by refusing to answer questions regarding ownership of the funds and then maintaining that he had nothing to do with the alleged drug transactions.

Cunningham v. California, No. 05-6551 (U.S. Sup. Ct. Jan. 22, 2007) (Justice Ginsburg)

In its latest attempt to bring some clarity to the confusion it created with its Apprendi/Blakely/Booker line of cases, the Supreme Court held, by a 6-to-3 vote, that California's "determinate sentencing law" is unconstitutional because it allows judges, not juries, to find facts that lead to higher criminal sentences. The majority’s ruling was based in large part on a strong reaffirmation of the principle that:

“under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. While this rule is rooted in longstanding common-law practice, its explicit statement in our decisions is recent.”

The force and unqualified nature of that statement seemed to resuscitate, at least in part and at least for now, the on-again, off-again sentencing revolution that the Supreme Court started with Apprendi v. New Jersey, 530 U.S. 466 (2000), and continued with Blakely v. Washington, 542 U.S. 296 (2004) and U.S. v. Booker, 543 U.S. 220 (2005).

At issue in the instant case was the three-tiered determinate sentencing law (DSL) that has been in place in California since 1977. For most crimes, sentences imposed under the DSL regime are implemented in the following manner: the statute defining the crime prescribes three separate possible terms of imprisonment -- a lower, a middle, and an upper term sentence. The California law provides that the sentencing judge shall order the imposition of the middle term, “unless there are circumstances in aggravation or mitigation of the crime." The law also provides that facts aggravating an offense"shall be established by a preponderance of the evidence," and must be "stated orally on the record."

The petitioner, John Cunningham, was convicted of sexually abusing his young son. He faced a lower sentence of 6 years, a middle sentence of 12 years, and an upper term sentence of 16 years. The sentencing judge found that six aggravating factors, including the victim’s vulnerability and Cunningham’s violent conduct, merited the highest sentence - and thus imposed a 16-year sentence.

Cunningham appealed, arguing that the 16-year sentence violated his Sixth Amendment right to a trial by jury, as enunciated in Apprendi. In Apprendi, the Supreme Court struck down as unconstitutional a New Jersey hate-crime statute which gave judges the power to make specific factual findings that converted an ordinary crime into a hate crime with an enhanced sentence. The Court held that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

Four years later, in Blakely, the Supreme Court extended its ruling in Apprendi by invalidating the sentencing guideline system used by the State of Washington, on the grounds that it gave judges the power to impose sentences beyond the normal range based on specific findings of fact by the judge about the defendant’s conduct, in violation of the Sixth Amendment right to a trial by jury.

Two years later, in Booker, the Supreme Court applied that same reasoning to the Federal Sentencing Guidelines. In a two part decision, with different majorities, the Court first held, in the so-called “constitutional decision” written by Justice Stevens, that the rule announced in Blakely also applies to the Federal Sentencing Guidelines; and that those Guidelines violate the Sixth Amendment to the extent that they allow judicial - rather than jury - factfinding to form the basis for sentencing.

Then, in a separate decision so-called “remedial decision” written by Justice Breyer, a different majority of five Justices reasoned that the Federal Guidelines incompatible with the Sixth Amendment because they were “mandatory and imposed binding requirements on all sentencing judges.” (Booker, id., at 233). To remedy that constitutional infirmity, the Breyer majority devised a quasi-legislative “fix” that entailed excising from the Guidelines those provisions that rendered the system mandatory, leaving the Guidelines in place as advisory only.

[As a matter of interest, Justice Ginsburg, the author of the majority decision in the instant case, was the only Justice to agree with both decisions in Booker - although she never explained how she reconciled their seemingly inconsistent and even contradictory approaches.]

In the instant case, a majority of the Supreme Court agreed that Cunningham’s 16-year sentence violated his rights under the Sixth Amendment. Writing for the majority, Justice Ginsburg stated that California’s DSL sentencing system resembles “in all material respects” the sentencing systems invalidated in Blakely and Booker; and that “[b]ecause the DSL allocates to judges sole authority to find facts on which the imposition of an upper term sentence turns, the system violates the Sixth Amendment.”

She also wrote that “[f]act-finding to elevate a sentence from 12 to 16 years falls within the province of the jury employing a beyond-a-reasonable doubt standard, not the bailiwick of a judge determining where the preponderance of the evidence lies.”

Judge Ginsburg’s opinion was joined by Chief Justice Roberts and Justices Scalia, Souter, Stevens and Thomas. Since Justice Roberts’ predecessor, the late Justice Rehnquist, had dissented in each of Apprendi, Blakely and Booker, the addition of Justice Roberts to the Court seems to strengthen the Court’s voting alignment that favors the Apprendi analysis that the Sixth Amendment alters the traditional roles of judges and juries at sentencing.

There were two dissenting opinions in the instant case. In one, Justice Kennedy continued to argue that the principle enunciated in the Apprendi line of cases “remains incorrect.” In the other, Justice Alito argued that, contrary to the majority’s findings, the California system “is not meaningfully different” from a federal sentencing procedure upheld by the high court in Booker. He explained:

“The California sentencing law that the Court strikes down today is indistinguishable in any constitutionally significant respect from the advisory Guidelines scheme that the Court approved in United States v. Booker, 543 U.S. 220 (2005). Both sentencing schemes grant trial judges considerable discretion in sentencing; both subject the exercise of that discretion to appellate review for ‘reasonableness’; and both -- the California law explicitly, and the federal scheme implicitly -- require a sentencing judge to find some factor to justify a sentence above the minimum that could be imposed based solely on the jury's verdict.”

In the end, he stated: “Unless the Court is prepared to overrule the remedial decision in Booker, the California sentencing scheme at issue in this case should be held to be consistent with the Sixth Amendment. I would therefore affirm the decision of the California Court of Appeal.”

Since the instant decision dealt primarily with the California’s determinate sentencing system, the Court did not have the opportunity to address some of the many questions about the Federal sentencing system that have developed in the aftermath of Booker.

For example, many commentators have argued that the extensive use by the Circuit courts of a presumption of reasonableness accorded to any sentence within the range recommended by the now-advisory Guidelines has essentially revived the mandatory nature of the Guidelines. That approach, it is argued, also gives undue weight to the Guidelines as one of the sentencing factors listed in 18 U.S.C. § 3553(a), at the expense of the other factors, including the so-called “parsimony provision,” which states that “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.”

Later this Spring, the Court is scheduled to address some of those issues, when it hears arguments in two additional Booker cases, namely Claiborne v. U.S., No. 06-6618, and Rita v. U.S., No. 06-5754 (see P&J, 10/02/06). Hopefully, in deciding those cases, the Court will finally resolve some of the many unanswered Booker questions and bring come clarity, guidance and direction to the mess that has been created in the Federal system in the aftermath of Booker.

Jones v. Bock, No. 05-7058 (U.S. Sup. Ct. Jan. 22, 2007) (Justice Roberts)

The prison Litigation Reform Act (“PLRA”) (42 U.S.C. §§ 1997e, et seq.) was enacted in 1995 as part of a concerted Congressional effort to cut down on the large number of prisoner lawsuits filed in the Federal Courts. Among other things, the PLRA requires prisoners to go through a lengthy administrative grievance process before they may sue in court.

In response to the PLRA, the Sixth Circuit, and some other lower courts, adopted a number of special procedural rules to implement the PLRA. Some of those rules require a prisoner to allege and demonstrate exhaustion in his complaint; others permit suit only against defendants who were identified by the prisoner in his grievance; and some courts have adopted a “total exhaustion rule” under which no part of a prisoner lawsuit may proceed if any single claim in the action is not properly exhausted. .

Because not all of the Circuits adopted similar rules, conflicts developed among the Circuits about the scope of the PLRA. The Supreme Court granted certiorari in these two consolidated cases (Jones v. Bock, No. 05-7058 and Williams v. Overton, No. 05-7142) to resolve whether those judicially imposed procedural rules are proper under the PLRA.

In the cases at issue, the Sixth Circuit had thrown out suits filed by three Michigan inmates, on the grounds that the inmates had not fully complied with the Sixth Circuit’s restrictive procedural rules relating to prisoner lawsuits. In Jones, the inmate had failed to allege in his complaint how and when he exhausted his remedies, or attach proof that he did so; and, in Williams, the inmate had brought suit against a defendant who was not named in his prison grievance. Based on those defects, the Sixth Circuit dismissed the whole complaints in both cases, even though those complaints contained some claims that were not defective.

In a rare win for prisoners, a unanimous Supreme Court reversed both lower court rulings, holding that the Sixth Circuit had overstepped its bounds by making prisoner lawsuits even harder to file than Congress intended. The Court concluded that the barriers the Circuit had put in place “cannot fairly be viewed” as a correct interpretation of the PLRA.

Writing for the Court, Chief Justice Roberts said that the Court was “not insensitive to the challenges faced by the lower federal courts in managing their dockets and attempting to separate, when it comes to prison suits . . ., needles from haystacks"; and he noted that prisoner lawsuits account for nearly ten percent of all civil cases filed in Federal court.

Nevertheless, he continued, the procedural rules adopted by the Sixth Circuit and other lowers courts, which are designed to implement the PLRA’s exhaustion requirement and to facilitate early judicial screening, are not required by the PLRA; and crafting and imposing them exceeded the proper limits on the judicial role. Therefore, unless Congress explicitly provided otherwise, courts should apply to prisoners’ lawsuits the same procedural rules they apply to any other lawsuit and “should generally not depart from the usual practice under the federal rules on the basis of perceived policy concerns.”

Applying those principles to the facts of the cases at issue, the Supreme Court struck down the requirement that an inmate must show, in a lawsuit challenging prison conditions, that all alternative remedies to a lawsuit have been exhausted. The Court also rejected the Sixth Circuit’s “judicially created rule” that a prisoner must “name all defendants” in his pursuing his grievance procedures. And finally, the Court ruled that the PLRA does not require dismissal of the entire complaint where the lawsuit contains a mixture of exhausted and unexhausted claims.

In Re Grand Jury Proceeding, 455 F.Supp.2d 1281 (D.N.M. July 12, 2007) (Judge Brack)

This ruling is noted for its informative analysis of some of the tensions between the Executive Branch’s right to conduct grand jury investigations and the Judiciary’s limited rights of oversight over those proceedings. Here, Judge Brack issued a heavily redacted memorandum opinion and order (which does not even refer to a docket number “to safeguard the confidentiality of the gand jury proceedings”), in which he granted a petitioner’s Motion to Quash a grand jury proceeding ordering him to provide a saliva sample for DNA testing.

The grand jury was investigating an alleged crime involving a violation of 18 U.S.C. § 1513 (Retaliating against a witness, victim or an informant); and the unnamed petitioner was one of three persons who received a target letter regarding the investigation. The petitioner, who was incarcerated at the time, was also served with a subpoena ordering him to provide a saliva sample. Apparently, the saliva sample was sought “for ordinary law enforcement purposes.” (Id., at 1286).

At the outset of his ruling, Judge Brack acknowledged that “the Judiciary has limited oversight of grand jury subpoenas” and, citing Rule 17(c) of the Fed.R.Crim.P., that a “grand jury subpoena[ ] issued through normal channels is presumed to be reasonable.” (Id., at 1282). He also noted that the Supreme Court has declined to extend all constitutional protections applicable to criminal prosecutions to grand jury proceedings. (Id., at 1283).

Nevertheless, citing U.S. v. Calandra, 414 U.S. 338 (1974), he also emphasized that “the grand jury's authority is not unlimited” and that it “may not invade a legitimate privacy interest protected by the Fourth Amendment.” (Id.) He also concluded that the courts have “consistently” found that these protections extend to government-compelled saliva samples - “even in the prison context.” (Id.) As such, “a grand jury subpoena seeking saliva samples must be ‘reasonable’.” (Id.)

While Judge Brack acknowledged that taking a saliva sample is “a less significant intrusion than a compelled blood sample,” he also firmly stated that “[s]aliva samples, clearly, may not be compelled ‘on the mere chance that desired evidence might be obtained,” citing Schmerber v. California, 384 U.S. 757, 768 (1966) (emphasis in original).

Judge Brack also acknowledged that a number of district courts have concluded that no probable cause showing is required for a subpoena ordering a saliva sample; but he concluded that those decisions were “unpersuasive” principally because “they did not consider grand jury subpoenas that ordered Fourth Amendment ’searches’ involving bodily intrusions.” (Id., at 1284).

For all those reasons, Judge Brack granted the Motion to Quash. He concluded that a subpoena duces tecum was not the proper procedural vehicle to obtain a saliva sample from the incarcerated petitioner; that, if the Government wished to proceed, it should seek a warrant to obtain the saliva sample which would require it to demonstrate probable cause; and that, because the petitioner was incarcerated, he was “hard pressed” to see how requiring such a warrant would impede the grand jury’s investigation “in any regard.” (Id., at 1286).

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