Vol. 14, Nos. 51 & 52	Covering Cases Published in the Advance Sheets through Dec. 24, 2007

New Supreme Court Ruling on Immunity Under the FTCA

• In Ali, a divided Supreme Court adopted an expansive statutory interpretation of the Federal Tort Claims Act (FTCA) by holding that employees of the Bureau of Prisons (BOP) are immune from lawsuits for mishandling personal property of inmates that comes under their control during the course of their official duties. To reach that conclusion, the 5-to-4 majority decision, written by Justice Thomas, engaged in a fantastical parsing of the provisions of 28 U.S.C. § 2680(c) (one of 13 enumerated exceptions to the FTCA’s broad waiver of sovereign immunity), and held that BOP employees fall within a category of law enforcement officers who enforce custom or excise laws - an exercise that four dissenters said was both wrong and contrived.
  
  

Sentencing and Guidelines Issues

• Recently, the Sixth Circuit granted en banc review of a case to resolve whether, in light of the Apprendi/Booker line of cases, the Sixth Amendment allows sentencing courts to rely on acquitted conduct in enhancing a sentence. Now, in Conway, the Sixth Circuit has addressed a related question - namely, whether the same Sixth Amendment principles bar a sentencing court from enhancing a sentence based on conduct underlying counts that are dismissed as part of a plea bargain. In rejecting that argument, the Court concluded that there are substantive legal differences between using conduct for which a defendant has been acquitted and conduct based on counts that are charged and then subsequently dismissed; and for that reason it concluded that "sentencing based on dismissed conduct stands on far firmer ground than sentencing based on acquitted conduct."
  
  
  
• In Newson, the Fifth Circuit approved the prosecutors' decision to refuse to move for an additional point of acceptance-of-responsibility credit under U.S.S.G. § 3E1.1(b) simply because the defendant refused to agree to waive his right to appeal as part of a plea agreement. In a decision that both short of logic and unresponsive to many of the issues raised, the Court established a sweeping rule that a defendant’s refusal to waive his right to appeal "is a proper basis for the Government to refuse to make a motion for the additional point under U.S.S.G. § 3E1.1(b), as it is rationally related to the purpose of the rule and is not based on an unconstitutional motive."
  
  

Prisoner Issues

• In Kemp, Judge Keenan of the S.D.N.Y. denied a defendant’s motion to expunge a felony conviction from his record, after concluding that the defendant had failed to demonstrate ”sufficiently extraordinary circumstances to warrant expungement,” and after reviewing the extremely heavy burden of proof that a defendant must meet to support such a motion.
  
  
  
• The Kotz decision from the D.D.C. is noted for Judge Urbina’s timely and comprehensive review of some of the law and the policies relating a prisoner’s rights to participate in the BOP’s Residential Drug Abuse Program (RDAP). In this case, Judge Urbina denied the defendant’s motion for injunctive relief to allow him to participate in a RDAP program for a second time, after he had previously completed RDAP during an earlier term of incarceration and received a ten month reduction of his sentence.

Ali v. Federal Bureau of Prisons, No. 06-9130 (U.S. Sup. Ct. Jan. 22, 2008) (Justice Thomas)

The Federal Tort Claims Act, 28 U.S.C. §§ 1346 and 2671 et seq. (FTCA) waives the United States Government’s sovereign immunity in lawsuits in which the plaintiff alleges “injury or loss of property” that was “caused by the negligence or wrongful act or omission” of employees of the federal government — except for thirteen specified categories of governmental activity.

One of the enumerated exceptions states that the waiver of immunity shall not apply to “[a]ny claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer.” (28 U.S.C. § 2680(c)) (Emphasis added).

The plaintiff in this case, Abdus-Shahid Ali, is a Federal inmate who lost some of his personal property during a prison transfer. As required by BOP procedures, he handed over his property to BOP personnel for transportation to his new prison; but when his property was finally returned to him at his new prison, several religious and personal items, including two copies of the Qur’an, a prayer rug, and some religious magazines, were missing. After exhausting his administrative remedies, Ali filed suit in federal district court against the United States, the BOP, and three BOP officials for the value of his lost property (which was estimated to be $177).

The BOP moved to dismiss the lawsuit on the grounds that it was barred by § 2680(c), since the employees who handled Ali’s property - even if negligent - fit within the definition of “any other law enforcement officer” as used in § 2680(c) and were therefore immune from suit under the FTCA. The district court agreed with the BOP’s position and dismissed the lawsuit; and, on appeal, the Eleventh Circuit affirmed in a decision reported at Ali v. Fed. Bureau of Prisons, 204 Fed. Appx. 778 (11th Cir. Oct. 19, 2006).

Prior to the Supreme Court’s ruling in the instant case, the Circuits had been split on the issue of whether § 2680(c) covered the BOP. Six Circuits had concluded that § 2680(c) encompassed all law enforcement officers; while five other Circuits construed that clause as limited to law enforcement officers performing customs or excise functions.

In a cumbersome decision written by Justice Thomas on behalf of a 5-to-4 majority, the Supreme Court resolved the Circuit split by concluding that § 2680's broad phrase "any other law enforcement officer" covers all law enforcement officers, and not just law enforcement officers enforcing customs or excise laws. Surprisingly, the swing vote in this case was Justice Ginsburg, who joined with Justices Thomas, Roberts, Scalia and Alito. Justice Kennedy wrote a dissenting opinion, in which Justices Stevens, Souter and Breyer joined; and Justice Breyer also wrote a separate dissenting opinion.

The majority reached its conclusion after citing a number of dictionary definitions of the word “any,” and after enunciating a number of elliptical, if not incomprehensible, statements such as:

“The phrase [‘any officer of customs or excise or any other law enforcement officer’] is disjunctive, with one specific and one general category, not . . . a list of specific items separated by commas and followed by a general or collective term. The absence of a list of specific items undercuts the inference embodied in ejusdem generis that Congress remained focused on the common attribute when it used the catchall phrase.”

Justice Kennedy wrote the main dissent, in which he argued that the majority’s decision was both wrong and contrived. It was wrong, he reasoned, because it addressed the language of § 2680 out of context and ignored accepted rules of statutory construction such as ejusdem generis and noscitur a sociis, “which together instruct that words in a series should be interpreted in relation to one another.”

It was contrived, he suggested, because the majority seemed to be concerned about opening up a class of suits just “like the one now before us. Petitioner sues for lost property valued at about $177. Law enforcement officers in the federal prison system must take inventory of the property they store, and with just under 200,000 persons in the federal prison population, the burden on the Government to account for missing items of little value could be a substantial one.”

Justice Breyer wrote a separate dissent which was even more pointed - and certainly more memorable. He wrote, in part:

"As with many questions of statutory interpretation, the issue here is not the meaning of the words. The dictionary meaning of each word is well known. Rather, the issue is the statute’s scope. What boundaries did Congress intend to set? . . . . The majority answers this question by referring to an amendment that creates an exception for certain forfeitures and by emphasizing the statutory word ‘any.’ . . . . The word ‘any’ is of no help because all speakers (including writers and legislators) who use general words such as ‘all,’ ‘any,’ ‘never,’ and ‘none’ normally rely upon context to indicate the limits of time and place within which they intend those words to do their linguistic work. And with the possible exception of the assertion of a universal truth, say by a mathematician, scientist, philosopher, or theologian, such limits almost always exist. When I call out to my wife, ‘There isn’t any butter,’ I do not mean, ‘There isn’t any butter in town.’ The context makes clear to her that I am talking about the contents of our refrigerator. That is to say, it is context, not a dictionary, that sets the boundaries of time, place, and circum-stance within which words such as ‘any’ will apply.

“And although the law’s history contains much that indicates the provision’s scope is limited to customs and excise, it contains nothing at all suggesting an intent to apply the provision more broadly, indeed, to multiply the number of officers to whom it applies by what is likely one or more orders of magnitude. It is thus not the Latin canons, ejusdem generis and noscitur a sociis, that shed light on the application of the statutory phrase but Justice Scalia’s more pertinent and easily remembered English-language observation that Congress ‘does not . . . hide elephants in mouseholes.’ Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001).”

U.S. v. Conway, No. 06-4083 (6th Cir. Jan. 23, 2008) (Judge Sutton)

From the outset, one of the most contentious concepts contained in the Federal Sentencing Guidelines was the principle that sentencing courts were authorized to impose sentences based not only on the crimes for which the defendant has been convicted, but also for conduct for which the defendant has been acquitted, conduct arising out of counts that have been dismissed, and even criminal activity that has never been charged. (See, e.g., U.S.S.G. §§ 1B1.3, 5K2.21and 6B1.2(a)).

In the early stages of Guideline litigation, many judges criticized what they described as the inherent unfairness of sentencing a defendant for a crime “that not only was not proven beyond a reasonable doubt, but also that the twelve person jury never considered." U.S. v. Cole, 817 F.Supp. 1401, 1404 (W.D.Mich. 1993).

That debate was pretty much put to rest with the Supreme Court’s decision in U.S. v. Watts, 519 U.S. 148, 157 (1997), where the Court held that "a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence."

However, the advent of the Apprendi line of cases resurrected a whole series of new questions about the continuing validity of the use of acquitted conduct to enhance a defendant’s sentence. In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court enunciated the principle that “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory minimum must be submitted to a jury and proved beyond a reasonable doubt."

To date, the Supreme Court has given no indication that it intends to reconsider its decision in Watts; but several Justices have questioned whether Watts remains good law in the aftermath of Apprendi and its progeny. For example, in Blakely v. Washington, 542 U.S. 296, 346 (2004), Justice Breyer asked: “Are the numerous cases of this Court holding that a sentencing judge may consider virtually any reliable information still good law when juries, not judges, are required to determine the matter? See, e.g., U.S. v. Watts, 519 U.S. 148 (1997) (per curiam) (evidence of conduct of which the defendant has been acquitted may be considered at sentencing). Cf. Witte v. U.S., 515 U.S. 389 (1995) (evidence of uncharged criminal conduct used in determining sentence)."

Recently, the Sixth Circuit agreed to resolve whether the Sixth Amendment allows sentencing courts to rely on acquitted conduct in enhancing a sentence. It took that action when it granted en banc review of U.S. v. White, 503 F.3d 487 (6th Cir. 2007). In White, a three-judge panel affirmed a sentence enhancement based on acquitted conduct on the grounds that it was bound by precedent in the Sixth Circuit to so rule.

However, two of the judges in White “strongly recommended” that counsel for the defendant file a petition for en banc rehearing on the question of "whether the continuing use of acquitted conduct as a sentencing enhancement violates U.S. v. Booker, 543 U.S. 220 (2005), particularly in light of the language in Justice Stevens' opinions at pages 240 and 278 and Justice Breyer's opinion in Booker at page 251." (See, "Sixth Circuit going en banc on acquitted conduct enhancements!," by Prof. Doug Berman as posted on Sentencing Law and Policy on Nov. 30, 2007.).

While briefs have been filed in that case, the White case has not yet been argued before the en banc court nor decided. Nevertheless, Jeffrey Conway, the defendant in the instant case, sought to take advantage of the same Sixth Amendment argument in his case which involved a sentencing enhancement based on conduct that was covered by counts that were dismissed as part of a plea bargain.

Conway was indicted on four separate counts, namely: (1) unlawful possession of an unregistered shotgun having a barrel of less than 18 inches in length, in violation of 26 U.S.C. § 5845(a); (2) felon in possession of a sawed-off shotgun, in violation of 18 U.S.C. § 922(g); (3) felon in possession of nine-millimeter and assault-rifle ammunition; and (4) forfeiture of the sawed-off shotgun, in violation of 18 U.S.C. § 924(d)(1). In connection with a plea agreement, the government dropped counts one, two and four, and Conway pleaded guilty to count three - the felon-in-possession-of-ammunition charge.

At sentencing, Conway objected to the presentence report’s recommended 12-level enhancement for possession of a stolen shotgun with a barrel of less than 18 inches long on two grounds: first, Conway claimed that he had not possessed the shotgun; and, second, he argued that the enhancement improperly relied on conduct dismissed under Conway’s plea agreement. After the district court rejected both arguments and imposed a 37-month sentence that included the 12-level enhancement, Conway appealed to the Sixth Circuit.

The Court quickly rejected Conway’s claim that a judge’s reliance on dismissed conduct presents a constitutional issue of a magnitude equal to that involved when a court relies on acquitted conduct as the basis for an enhancement. The Court stated:

“In contrast to the defendant in White, Conway has not been acquitted of anything. He thus has no jury verdict to point to as evidence that the conduct underlying the dismissed counts could not be — or should not be — relied upon by a judge at sentencing. For that reason alone, sentencing based on dismissed conduct stands on far firmer ground than sentencing based on acquitted conduct.

“But there is a broader problem with this argument. The central premise of most plea agreements is that they waive the defendant’s Sixth Amendment right to a jury trial, not that they vindicate it. . . . In contrast to the defendant who vindicates his Sixth Amendment right to a jury trial by contesting the indictment, by putting the government to its proof and by obtaining an acquittal, a defendant who enters a plea agreement like this one waives any constitutional right to a jury determination of guilt or sentencing facts - so long as the ultimate sentence falls within the statutory range.”

For the record, we note Judge Noonan’s comments in U.S. v. Castro-Cervantes, 927 F.2d 1079, 1082 (9th Cir. 1990), where he wrote: "For the court to let the defendant plead [guilty] to certain charges and then be penalized on charges that have, by agreement, been dismissed is not only unfair; it violates the spirit if not the letter of the bargain."

U.S. v. Newson, No. 06-41115 (5th Cir. Jan. 22, 2008) (Judge Davis)

In a decision that is woefully short of logic, the Fifth Circuit not only significantly expanded the right of the Government to insist on waivers of appeals from defendants who plead guilty, but it did so at the expense of the acceptance of responsibility sentence reductions permitted by U.S.S.G. § 3E1.1.

Nishan Newson pled guilty, without the benefit of a plea agreement, to a single count of possession with intent to distribute more than 50 kilograms of marijuana. Newson’s presentence report (PSR) assigned him a base offense level of 24; and it recommended a two-level decrease for acceptance of responsibility as permitted by U.S.S.G. § 3E1.1(a) - but not the additional decrease of one level allowed by § 3E1.1(b).

Section 3E1.1(b) provides that if a defendant qualifies for the two-level decrease under subsection (a) and has an offense level of 16 or greater, he is eligible for an additional one-level decrease, provided he timely notifies the Government of his intention to plead guilty, “thereby permitting the government to avoid preparing for trial.” The additional one-level decrease si, however, contingent upon a motion to the court by the Government.

Newson objected to the omission in his PSR of his eligibility for the additional one-level decrease under subsection(b), contending, inter alia, that he had timely notified the Government that he would plead guilty and that he had done nothing to cause any unnecessary expenditure of prosecutorial or judicial resources.

The Government, in turn, opposed giving Newson the additional one-level sentence reduction because he refused to sign a plea agreement containing a waiver of appeal. In fact, the Government openly admitted that “the only reason it had not moved for the credit provided in § 3E1.1(b) was Newson's opposition to a plea bargain that would have waived substantial rights to attack his conviction and sentence on appeal.” In the Government's eyes, Newson's refusal to give up his right to appeal would have "armed [him] with years of appellate and collateral attacks on the finality of his conviction."

Based on that belief, the Government argued that § 3E1.1(b) "can reasonably be interpreted" to encompass “not only the expenditure of the Government's time and effort at the prejudgment stage but also in appellate or collateral-review proceedings.” It also argued that Newson's desire to preserve his post-judgment rights showed that he has not "accepted responsibility in a way that ensures the certainty of his just punishment in a timely manner.” [For the record, we note that there is nothing to prevent the Government from using the identical argument in an attempt to defeat the two level sentence decrease under § 3E1.1(a).]

At sentencing, the district court remarked that it knew of no circuit precedent regarding its authority to award the additional credit when the Government chose not to move for it without getting the defendant’s appeal-rights waiver in return. Nevertheless, the district court bought the Government’s palaver. It overruled all of Newson’s objections and sentenced him without giving him the benefit of the additional one-level decrease provided for in § 3E1.1(b).

On appeal, Newson essentially raised two arguments. First, he argued that § 3E1.1(b)’s purpose is to prevent a waste of prosecutorial and judicial resources early in the proceedings and at the trial-court level; and that the Guideline contains no nexus between post-judgment proceedings and a defendant’s timely pretrial action. In fact, there is nothing in § 3E1.1(b) that requires a defendant to waive his rights of appeal in order to qualify for the additional one-level decrease. The relevant language of § 3E1.1(b) ties the one-level decrease to the defendant’s “timely notifying the authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently.” (Emphasis added).

In addition, Application Note 6 to § 3E1.1(b) further elucidates the intention of the Sentencing Commission when it enacted that provision in 1992, by stating: “In general, the conduct qualifying for a decrease in the offense level under subsection (b) will occur particularly early in the case. For example, to qualify under subsection (b), the defendant must have notified authorities of his intention to enter a plea at a sufficiently early point in the process so that the government may avoid preparing for trial and the court may schedule its calendar efficiently.” (Emphasis added).

The Court never really responded to those arguments. Other than parroting back the Government’s naked assertion that “conserving its resources in post-judgment proceedings serves a legitimate governmental interest,” the Court totally ignored the plain language of § 3E1.1(b) and the Application Notes cited above that speak unequivocally and exclusively of the pre-trial stage of the proceedings.

Second, Newson argued that the Government’s refusal to grant the additional one-level decrease in his sentence was irrational and punitive and not based on a legitimate governmental purpose. In response to that issue, the Court first acknowledged that there “is no reported decision of this circuit addressing the issue whether the Government can decline to move for the third-level decrease if the defendant insists on retaining all of his rights to seek post-judgment relief.” And then, the Court agreed with the principle that, when the Government has discretion to act [as in the case for a § 3E1.1(b) motion], “it may not act arbitrarily or irrationally or base its actions on an unconstitutional motive.” (Emphasis added).

At that point, however, the Court’s analysis virtually stopped. It never addressed Newson’s claims that the Government’s refusal to file the § 3E1.1(b) motion was punitive, or irrational, or arbitrary. And it only made a passing reference to whether the Government had exhibited an unconstitutional motive. The sum and substance of the Court’s entire response to Newson’s claims that the Government’s motives were irrational and punitive was the following non-responsive and totally unsupported statement:

"The defendant's refusal to waive his right to appeal is a proper basis for the Government to decline to make such a motion, as it is rationally related to the purpose of the rule and is not based on an unconstitutional motive. In this case Newson makes no argument, other than the separation of powers argument rejected above, that the Government's refusal to file the motion is based on any other unconstitutional motive. Accordingly, we reject this challenge to his sentence.”

In short, by meekly accepting the Government’s assertions that § 3E1.1 somehow relates to defendants who refuse to waive all their rights to seek post-judgment relief, the Court has not only given the Government a powerful new tool to use to bludgeon defendants into waiving their rights of appeal, it has also given the Government a powerful new tool to attack even the two-level sentence reduction referred to in § 3E1.1(a).

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