Vol. 14, Nos. 40 & 41
Covering Cases Published in the Advance Sheets through Oct. 8, 2007

Civil Lawsuit Over Torture at Abu Ghraib Allowed to Proceed Against Private Contractor

Seventh Circuit Expands the Scope of the Law on Terry Stops

Sentencing/Guidelines Issues

Tenth Circuit Affirms $325,000 Restitution Order in Manslaughter Case to Cover Lost Income

Sixth Circuit Rejects Expansive View of the Hobbs Act

Ibrahim v. Titan Corp., Civ. No. 04-1248 (JR) (D.D.C. Nov. 6, 2007) (Judge Robertson)

In an important ruling that could have a huge impact on restraining some of the lawless conduct of many of the private government contractors in Iraq (even if it was totally ignored by most of the press in the United States), Judge Robertson denied a motion by CACI International (“CACI”), a Virginia based, private military contractor, to dismiss a class action, civil lawsuit against it for damages arising out of its role in perpetrating a broad range of illegal and heinous acts on detainees at the notorious Abu Ghraib prison in 2003.

Judge Robertson’s ruling stems from two lawsuits that were filed in the federal courts in 2004 against CACI, whose employees worked as interrogators at Abu Ghraib, and Titan Corp. (“Titan”), another private military contractor, which supplied interpreters for Abu Ghraib. The plaintiffs are a group of some 200 Iraqis who at one time were detained at Abu Ghraib.

The lawsuits alleged that the employees of both Titan and CACI took part in the abuses that were inflicted on the plaintiffs; and they sought damages against both companies on the grounds that they should be held liable for various violations of both U.S. and international law, including torture, summary executions, war crimes, sexual assault and crimes against humanity.

The lawsuits were brought under the Alien Tort Claims Act (“ATCA”) (28 U.S.C. § 1350) and the Racketeer Influenced and Corrupt Organizations Act (“RICO”) (18 U.S.C. § 1964). The plaintiffs were represented by the Center for Constitutional Rights (“CCR”). A summary of the complex procedural history of both of these cases, together with copies of the complaints and other legal pleadings, are available on CCR’s website at www.ccr-ny.org/ourcases/current-cases/saleh-v.-titan/.

Both CACI and Titan moved to dismiss the lawsuits on the theory that they should be immune from any damages since they worked at the behest of the U.S. military. Judge Robertson granted Titan’s motion for summary judgment on the grounds that its interpreters “performed their duties under the exclusive operational control of the military.” However, with respect to CACI, he concluded that its interrogators “were subject to a dual chain of command, with significant independent authority retained by CACI supervisors.” Thus, he concluded:

“Because a reasonable trier of fact could conclude that CACI retained significant authority to manage its employees, however, I am unable to conclude at this summary judgment stage that the federal interest underlying the combatant activities exception requires the preemption of state tort claims against CACI. This does not mean that CACI may not successfully prove this affirmative defense at trial, but the task of sorting through the disputed facts regarding the military's command and control of CACI's employees will be for the jury.”

If the case does ultimately go to trial, it would be the first case in a U.S. civilian court to weigh accountability for the notorious abuses at Abu Ghraib in 2003 - after a long string a rulings by military courts that have virtually exonerated every senior officials from any responsibility for the torture and abuse that was so vividly captured on cameras, and dismissed most of the charges even against the lower ranking functionaries who carried out the torture and abuse that shocked the world.

Clearly the instant ruling could also affect other private government contractors, such as Blackwater, USA, who are alleged to have harmed or killed innocent Iraqi civilians, even if the Bush Administration is unable or (more likely) unwilling to prosecute employees of those companies in U.S. criminal courts. In fact, CCR has already filed a similar lawsuit against Blackwater, claiming that it violated U.S. law and “created and fostered a culture of lawlessness amongst its employees, encouraging them to act in the company’s financial interests at the expense of innocent human life.” Information about that lawsuit, which is entitled Estate of Himoud Saed Atban, et al. v. Blackwater USA, et al., together with a copy of the complaint, is available at www.ccr-ny.org/ourcases/current-cases/atban-v-blackwater/.

U.S. v. Wachowiak, 496 F.3d 744 (7th Cir. Aug. 1, 2007) (Judge Sykes)

In this case, the Seventh Circuit actually approved a 70 month prison sentence for a defendant in a pornography case, despite acknowledging that the sentence was “considerably less” than the defendant’s advisory Guidelines range of 121-151 months. Below Guidelines sentences are extremely rare - and they are virtually non-existent in politically sensitive pornography cases. The difference in this case was a strong and well-reasoned sentencing decision by a tenacious district court judge - Judge Adelman of the E.D.Wisc. - (who must drive the Circuit Court crazy with decisions such as this one which are hard to reverse because they are so logical, discerning and incisive).

Robert Wachowiak was a twenty-four year old music student at the University of Wisconsin-Milwaukee when, on December 20, 2004, FBI agents executed a search warrant at his home and seized his computer, which contained hundreds of images of child pornography. An agent in Florida had discovered Wachowiak's pornography collection through a peer to peer file sharing network using "Limewire," a software program.

With his typical care and concern, Judge Adelman reviewed all of the facts and circumstances relevant to Wachowiak and his crime in a comprehensive sentencing memorandum reported at U.S. v. Wachowiak, 412 F.Supp.2d 958 (E.D.Wisc. 2006). While he acknowledged that possessing child pornography is a very serious crime, and that Wachowiak’s offense involved a large number of images, Judge Adelman also concluded that the 121-151 month sentence called for by the Guidelines was “greater than necessary to satisfy the purposes of sentencing under § 3553(a)(2)” and “far longer than that typically imposed” on defendants who engaged in the same type of conduct, in both federal and state court. Finally, Judge Adelman presented a textbook analysis of the purposes of sentencing as stated in 18 U.S.C. § 3553(a) - an analysis that far too many judges fail to undertake.

In the end, the force of Judge Adelman’s reasoning was so persuasive that the Seventh Circuit had little choice but to affirm the 70-month sentence, despite the strenuous objections of the Government that the sentence was unreasonable and “beyond the outer limit of the district court’s post-Booker sentencing discretion.” While Judge Adelman’s decision and the instant decision contain numerous, important nuggets regarding the sentence imposed in this case, the second paragraph of the Circuit’s decision accurately summarizes its reasons for affirming the 70-month sentence imposed in this case:

“Although lenient, this below-guidelines sentence survives review for reasonableness, a deferential standard that has both procedural and substantive aspects. The government concedes that Judge Adelman explicitly considered the litany of factors specified in § 3553(a), including the nature and severity of the crime, Wachowiak’s history and characteristics, the advisory guidelines range, and the purposes of sentencing enumerated in § 3553(a)(2). The challenge mounted here is substantive, not procedural. We conclude that Judge Adelman’s reasons for selecting a 70-month sentence — Wachowiak’s ‘excellent’ character, genuine remorse, susceptibility to treatment, low risk of recidivism, strong family support, and certain mitigating aspects of his offense — are rooted in § 3553(a), sufficiently individualized to the circumstances of this case, and generally associated with sentencing leniency. Given the seriousness of this crime, we might not have weighed these factors so heavily, but we cannot say Wachowiak’s sentence is unreasonable.” (Internal citations omitted).

U.S. v. Serawop, No. 06-4022 (10th Cir. Oct. 25, 2007) (Judge Henry)

In the 09/24/07 issue of P&J, we noted, in our discussion of U.S. v. Ogburn, 499 F.Supp.2d 29 (D.D.C. 2007), a growing tendency of the Federal courts to impose ridiculous restitution orders which they know will never be collected, but which are mandated by a provision of the Mandatory Victims Restitution Act of 1996, 18 U.S.C. § 3663A (“MVRA”), which requires the sentencing judges to order restitution “without consideration of the economic circumstances of the defendant.”

The instant case is another example of the fantasy-land type of restitution orders that have become common-place in the Federal courts. Redd Rock Serawop, a native American, was convicted of one count of voluntary manslaughter in the death of his three-month-old daughter, Beyoncé Serawop. The court sentenced Mr. Serawop to 120 months’ imprisonment and ordered him, under the MVRA, to pay $325,751 in restitution to the Estate of Beyoncé Serawop - largely on the basis of an estimate that Beyoncé would earn $ 308,633 if she were employed "with less than a high school education, beginning at age 17, for the balance of her worklife."

Mr. Serawop appealed his restitution order, arguing that the MVRA (1) is written in the disjunctive so as not to encompass an award of future income; (2) is meant to “reimburse” for past income lost, rather than project potential future income lost; (3) is ambiguous and is thus subject to the rule of lenity, which would resolve any ambiguity in his favor; (4) does not apply to speculative losses; and finally (5) requires that gender-and race-based statistics and consumption be included in the calculation.

Despite acknowledging that the MVRA is not a model of clarity and is not well-drafted, the Tenth Circuit disagreed with every one of Mr. Serawop’s arguments and affirmed the $325,751 restitution order. It held that “an award of lost future income for a deceased infant is not precluded by the MVRA. Although the district court may perceive the process as laborious and complex, and therefore decline to grant such an award, the district court may also choose, as it did here, to exercise its abundant discretion and undertake such proceedings.”

In many instances, the Court’s ruling is a stretch, patently designed to reach a result, rather than an analysis of the law. Witness, for example, the following passage from the Court’s opinion:

“Mr. Serawop's argument is logical regarding the definition of ‘reimburse’ standing alone. However, when viewed in context with the balance of the statute, it loses steam. For example, ‘the MVRA does not define “income” or distinguish between past or future income. However, the statute plainly states that a victim can recover income that is lost due to a crime causing bodily injury, and if that victim dies, then the estate can recover in the victim's place.’ Congress clearly intended offenders to pay ‘full restitution to the identifiable victims of their crimes.’ S. Rep. No. 104-179, at 12 (emphasis added). Therefore we must reject Mr. Serawop's argument that the use of the word ‘reimburse,’ when considered in the context of the entire statute and its purpose, precludes recovery of future income lost as a result of Beyoncé's death.” (Internal citations omitted).

The absurdity of this ruling is that, not only will the $325,751 (plus interest) never be paid, but that the supervision of the restitution order will result in numerous, costly disagreements over Mr. Serawop’s life and will become little more than an instrument of harassment in the hands of the Probation Office. But, worst of all, this decision will open up a whole new range of claims by the Government in restitution cases all across the country - no matter how uncollectible the resulting restitution orders may be.

In Brief

Prison Cases: Use of Antipsychotic Drugs: U.S. v. Hernandez-Vasquez, No. 06-50198 (9th Cir. Oct. 31, 2007) - This is an important decision on the forced use of antipsychotic drugs on prisoners in order to render them competent to stand trial; and it establishes come concrete guidelines for district courts to follow when addressing Government requests for the administration of such drugs. The case is also noted for Judge Fogel’s thoughtful and comprehensive analysis of the Supreme Court’s most recent pronouncement on that topic - Sell v. U.S., 539 U.S. 166 (2003).

Jose Hernandez-Vasquez faced illegal reentry charges. After he was found incompetent to stand trial, the Government sought the use of forced medication. The district court (Judge Sabraw of the S.D.Cal.) granted the motion over the defendant’s objections, nonchalantly stating that “the method of treatment and type of medication to be used” was at the “discretion” of the BOP doctors.

In an opinion that was highly critical of Judge Sabraw’s nonchalance, his apparent eagerness to defer to the BOP in its medication of the defendant, and his failure to comply with the guiding principles of Sell, the Court stated:

“We note that [Judge Sabraw’s] order . . . provides only that ‘[t]he method of treatment and type of medication to be used shall be at the discretion of the treating medical professionals within the Bureau of Prisons.’ While the record reflects that during the Sell hearing the district court stated its expectation that the Government would pursue an agreed-upon course of treatment, the court's written order does not limit meaningfully the discretion delegated to the Government's physicians. The fact that the order requires the physicians to report back to the Court, while appropriate, is insufficient. While Sell does not require that a court micromanage all aspects of a defendant's treatment, nor does it allow such non-specific delegation of authority as to a treatment plan. Accordingly, we vacate and remand.”

In its lengthy ruling on the obligations of a district court in the aftermath of Sell, the Court held that the district court’s order must identify (1) the specific medication or range of medications; (2) the maximum dosages to be administered; and (3) the duration of the forced medication. In other words, the Court stressed that the district court must monitor and oversee the administration of the drugs, stating: “Sell's discussion of specificity would have little meaning if a district court were required to consider specific drugs at a Sell hearing but then could grant the Bureau of Prisons unfettered discretion in its medication of a defendant. While Sell appropriately does not direct district courts to micromanage the decisions of medical professionals, reading it as imposing no limits upon the discretion of the treating physicians would render judicial inquiry about specific drugs academic.”

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