Vol. 14, No. 42
Covering Cases Published in the Advance Sheets through Oct. 15, 2007

Prosecutorial Misconduct: Misleading the Jury About a Snitch's Sentence In Only Harmless Error

The Growing Use of "Clockwork Orange" Punishments for Sex Offenders

Court Holds that NSA Eavesdropping Case Is Subject to the 'State Secrets' Privilege

Sentencing/Guidelines Issues

U.S. v. Morris, 498 F.3d 634 (7th Cir. Aug. 20, 2007) (Judge Wood)

To use the oft-quoted words of Judge Jerome Frank (see the Quote of the Week below), this is another one of those all-too-common cases in which the Court gave a “purely ceremonial . . . ritualistic verbal spanking” to a prosecutor for engaging in outrageous prosecutorial misconduct to obtain a conviction; and then decided that it would not reverse the conviction despite the disapproved misconduct.

Denard Morris was convicted at trial of various drug crimes; and he was sentenced to 262 months in prison. On appeal, he argued principally that he had been denied a fair trial because of prosecutorial misconduct. At trial, Morris’s cousin, Tramayne Peterson, pled guilty to a single count of the indictment; and, as part of his plea agreement, Peterson testified against Morris. When questioned about his plea deal with the Government, Peterson asserted that the mandatory minimum sentence for his plea was 10 years. Building on that testimony, AUSA Robert Trgovich argued on multiple occasions that Peterson could not get than 10 years in exchange for his testimony.

In fact, following Morris’ conviction, the Government moved under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 for Peterson to be sentenced below the mandatory minimum to a 70-month sentence; and the district court imposed a 70 month sentence - which was 50 months less than AUSA Trgovich had assured the jury would be the minimum sentence Peterson could receive.

The Court agreed that AUSA Trgovich had clearly engaged in prosecutorial misconduct, stating:

“He told the jury flatly that there was no way that Peterson could get less than 10 years in prison, emphasizing that ‘mandatory means . . . has to be imposed, and minimum means this is the lowest he can get, ten years.’ This goes beyond any comment about what Peterson's understanding of his plea agreement was . . . . No competent Assistant U.S. Attorney is unaware of the existence of U.S.S.G. § 5K1.1. Trgovich plainly knew that it was within the government's discretion to ask the judge to impose a sentence below the normal statutory minimum, if Peterson lived up to his end of the plea agreement - that is exactly what wound up happening. It was therefore improper both to give the jury the impression that Peterson's sentence could not go below 10 years during his examination of Peterson, and then later to argue the same thing to the jury, at least when it is obvious that the United States had not firmly rejected the possibility of the § 5K1.1 motion.” (Id., at 639).

Nevertheless, despite those findings, the Court declined to grant Morris a new trial, stating “we cannot conclude on this record that AUSA Trgovich’s improper comments were material and therefore deprived Morris of a fair trial. The picture the jury had before it of Peterson's plea agreement made it aware that he was receiving a substantial benefit for his testimony and, more importantly, that he had strong incentives to please the government. . . . In addition, the court stressed that the jury would have to evaluate Peterson's credibility carefully. Although the jury might have recognized the potential for an additional reduction in Peterson's sentence as a marginally greater incentive for Peterson to tailor his testimony in favor of the government, the information that the jury had before it was not different enough to lead us to believe that there was a ‘reasonable likelihood’ that the result would have changed.” (Id., at 640).

As Judge Frank observed: “If the prosecutors win verdicts as a result of ‘disapproved’ remarks, we will not deprive them of their victories; we will merely go through a form of expressing displeasure. The deprecatory words we use in our opinions on such occasions are purely ceremonial.' Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking.” U.S. v. Antonelli Fireworks Co., 155 F.2d 631, 661 (2nd Cir. 1946).

U.S. v. Cope, No. 06-50441 (9th Cir. Nov. 5, 2007) (Judge Thomas)

Gordon Cope was arrested in September, 2003 by the San Bernardino Sheriff's Department, and charged with various sex offense crimes arising out of their discovery of over 600 images and 20 videos of child pornography on Cope's home computers, including "videos of sadistic and masochistic acts." Ultimately, Cope pled guilty to one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). Cope’s plea agreement stipulated to a total offense level of 28 under the Guidelines; and it provided that Cope had to waive his statutory right to appeal "any sentence imposed by" the district court, provided certain requirements were met. Cope did however retain his right to appeal most of any special conditions of his supervised release.

At the time of his sentencing, Cope was fifty-eight years old; and he had a prior conviction for attempted sexual assault on a child some 20 years earlier. The district court (Judge Schiavelli of the C.D.Cal.) imposed a sentence of 120 months in prison, the statutory minimum, and a lifetime term of supervised release. In addition, Judge Schiavelli also imposed a number of special conditions of supervised release, including a condition requiring Cope to participate in sex offender treatment. As part of that treatment, the district court imposed conditions requiring Cope to submit to polygraph testing, penile plethysmograph testing, and to take “all prescribed medication” - without specifying what those medications were or who had the authority to prescribe them. Prior to the imposition of those special conditions, Judge Schiavelli had made no mention of the special conditions relating to testing or medication

On appeal, Cope challenged, inter alia, the requirement that he submit to penile plethysmograph testing and the vague and indiscriminate requirement that he submit to “all prescribed medication.”

In an important and well-reasoned ruling, the Ninth Circuit vacated Cope’s sentence and remanded the case back to the district court to permit that court:

“(1) to provide notice to the parties of any special condition of supervised release not contemplated by the Sentencing Guidelines; (2) to articulate specific, medically informed findings on the record regarding the need for Cope to undergo plethysmograph testing and take medications that implicate particularly significant liberty interests; and (3) to clarify that any condition requiring Cope to take all prescribed medications is limited to those medications reasonably related to sex offender treatment.”

On the issue of forcing Cope to submit to penile plethysmograph testing, the Court essentially relied on its seminal decision is U.S. v. Weber, 451 F.3d 552 (9th Cir. June 20, 2006), which established the standards and criteria for the use of penile plethysmograph testing; and which required the district courts to articulate, based on evidence in the record, why such a condition "is necessary to accomplish one or more of the factors listed in § 3583(d)(1) and involves no greater deprivation of liberty than is reasonably necessary."

The more interesting part of the Court’s opinion related to Judge Schiavelli’s almost nonchalant order that Cope submit to “all prescribed medication.” Cope argued, for example, that Judge Schiavelli’s order was so vague that could be ordered to undergo so-called "chemical castration," or the taking of hormonal drugs to reduce his sex drive and cause temporary impotence. In response to that claim, the Court wrote:

“We have no doubt that chemical castration would, if prescribed against the will of a defendant on supervised release, implicate a particularly significant liberty interest. Like antipsychotic medication, chemical castration interferes with mental processes and alters behavior. . . . It may also cause serious side effects, such as cancer and depression. As a result, chemical castration is certainly as intrusive as antipsychotic medication or penile plethysmograph testing. In fact, chemical castration may be found at the extreme end of the spectrum of intrusive medications and procedures, and there may well be other conditions of supervised release that qualify for . . . Weber findings without reaching that level of intrusion. We do not doubt that there will be other types of medication or procedures designed to rehabilitate or deter, either extant or not yet in existence, which, if forced upon a defendant as a condition of supervised release, would implicate particularly significant liberty interests. Cf., e.g., Anthony Burgess, A Clockwork Orange (W. W. Norton & Co. 1962). . . .

“Given these considerations, we remand this case . . . to permit the district court to make the necessary . . . Weber findings with regard to the condition requiring Cope to "take all prescribed medication," insofar as that condition may require Cope to take medication that implicates a particularly significant liberty interest.”

The Court also agreed with Cope that the requirement that he "shall take all prescribed medication" is “overbroad insofar as it is not clearly limited to medications that are reasonably related to sex offender treatment” and it tied any such medication into the factors set forth in 18 U.S.C. §§ 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D). It then continued that each of those factors “points primarily to the underlying sex offense committed by Cope and the resulting need for treatment and deterrence. In accordance with the congressional intent, any medication Cope is required to take as a condition of his supervised release must be reasonably related to his treatment as a sex offender. Indeed, were the rule otherwise, a person on supervised release could arguably violate the terms of his release by neglecting to take prescribed cold medications. Therefore, we hold that any medication condition that the district court imposes on remand must be limited to medications reasonably related to Cope's treatment as a sex offender.”

Doe v. Bredesen, No. 06-6393 (6th Cir. Nov. 16, 2007) (Judge Griffin)

Appellant John Doe pled guilty in a Tennessee state court to various crimes including two counts of sexual battery. At the time of his conviction, Doe’s sexual battery offenses were termed by Tennessee law as “sexual offenses” and he was classified as a “sexual offender.” Under the then Tennessee, Doe had the right, ten years after the termination of his probation, to petition the circuit court to relieve him of the continued filing of registration and monitoring forms and to expunge all data stored in the central record system about him.

After Doe was convicted and sentenced, the Tennessee Legislature enacted a Sexual Offender and Violent Sexual Offender Registration, Verification, and Tracking Act (the “Registration Act”). The Registration Act reclassified Doe as a violent sexual offender and required him to comply with the requirements of the Tennessee Sexual Offender Registry for the rest of his life. The Tennessee Legislature also enacted a Sex Offender Monitoring Pilot Project Act (the “Monitoring Act”). The Monitoring Act authorized the Tennessee Board of Probation and Parole to subject convicted sexual offenders to a satellite-based monitoring program for the duration of their probation. In August 2005, Doe’s probation officer notified him that he would be required to wear a global positioning (“GPS”) device at all times beginning in September 2005.

Doe brought suit in the Federal District Court for the E.D.Tenn. arguing, inter alia, that because he was convicted before the effective date of the Registration and Monitoring Acts, the application of the Acts’ requirements to him violated the Ex Post Facto Clauses of the U.S. Constitution and the Tennessee Constitution, as well as various other constitutional rights including his right to due process and his privacy rights. The district court held that Doe’s claims were meritless; and it dismissed his complaint.

On appeal, the Sixth Circuit concluded that Doe’s ex post facto arguments with respect to the Registration Act were foreclosed by prevailing precedent, principally because of the generally accepted principle that the Ex Post Facto Clause is implicated only when a new law punishes retrospectively. All of the Judges agreed that, because the purpose of the Registration Act was civil and non-punitive, Doe’s ex post facto claims with respect to that statute were without merit.

The Judges on the panel, however, strongly disagreed in their legal analysis of the Monitoring Act. Doe argued that the GPS tracking device was a real burden on him and that it had a marked effect on his lifestyle and freedom of movement and action. He explained that he was required to carry at all times a relatively large box that contained the electronics necessary for the monitoring to take place. The had to be worn on the outside of any coat or other outer garment and therefore was obvious to any onlooker. The device is not waterproof, as a result of which Doe was not allowed to swim or participate in any other water activity; and baths at home were impossible.

The majority responded to those arguments by stating that the box was “relatively unobtrusive,” and it predicted that, over time, it would “only become smaller and less cumbersome as technology progresses.” For those, and similar reasons, the majority concluded that the mandated use of the GPS tracking device was not “punishment” because” there was no evidence to suggest that the observer knew the device to be one that monitored sex offenders, as opposed to criminals generally.” Based on those conclusions, the majority held that the retroactive application of the Monitoring Act to Doe did not violate the Ex Post Facto Clause.

Judge Damon Keith disagreed, and he wrote a strong dissent. He characterized the wearing of the GPS monitoring system as “a catalyst for public ridicule” akin to traditional forms of community shaming or humiliation; and he concluded that it bore “a striking resemblance to historical forms of punishment.” He wrote:

“I cannot, in good conscience, join my colleagues’ opinion which finds no constitutional violation in requiring Doe to wear a relatively large box as a symbol of his crime for all to see. The [Monitoring] Act, particularly the satellite-based monitoring program, as applied to Doe, is punishment, excessive, and indeed, the modern day ‘scarlet letter.’ I vigorously dissent.”

Quote of the Week

"This court has several times used vigorous language in denouncing government counsel for such conduct as that of the [prosecutor] here. But, each time, it has said that, nevertheless, it would not reverse. Such an attitude of helpless piety is, I think, undesirable. It means actual condonation of counsel's alleged offense, coupled with verbal disapprobation. If we continue to do nothing practical to prevent such conduct, we should cease to disapprove it. For otherwise it will be as if we had declared in effect 'Government attorneys, without fear of reversal, may say just about what they please in addressing juries, for our rules on the subject are pretend-rules. If the prosecutors win verdicts as a result of "disapproved" remarks, we will not deprive them of their victories; we will merely go through a form of expressing displeasure. The deprecatory words we use in our opinions on such occasions are purely ceremonial.' Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking. The practice of this court -- recalling the bitter tear shed by the Walrus as he ate the oysters -- breeds a deplorably cynical attitude towards the judiciary." Judge Jerome Frank, dissenting in U.S. v. Antonelli Fireworks Co., 155 F.2d 631, 661 (2nd Cir. 1946).

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