NEWS The BACK BENCHER


LETTER
Vol. No. 13

July/August 1998

Seventh Circuit Federal Defenders

DEFENDER'S MESSAGE



I'm sure that most of you have heard that the Tenth Circuit Court of Appeals in U.S. v. Singleton, 144 F.3d 1343 (10th Cir. 1998), held in a momentous decision, that 18 U.S.C. §201(c)(2) prohibits any party, including the United States Attorney's Office, from offering anything of value to a witness for their testimony. The Court decided that the testimony of a cooperating witness should have been suppressed because promises of leniency made by the government, in exchange for this testimony against the citizen accused, violated the anti-gratuity provisions of 18 U.S.C. §201(c)(2). The Court went on to say that ". . . promising something of value to secure truthful testimony is as much prohibited as buying perjured testimony." You can imagine the panic this ruling struck in the heart of prosecutors.



Now for the bad news. Within a week of its ruling, the Tenth Circuit, acting sua sponte, quickly vacated its panel's ruling and decided to rehear the case en banc. It is scheduled for rehearing in November.



However, even though the Singleton case is presently in limbo, and is not precedent in our circuit, the statute still exists. A sample "Singleton" motion and supporting memorandum of law which we filed in the re-trial of U.S. v. Catton (mistrial declared - jury deadlocked at 11 to 1 in favor of acquittal) is included for your perusal in this edition of The Back Bencher. Pay special attention to an old Seventh Circuit case in regard to this same issue, U.S. v. Barrett, 505 F.2d 1091, 1100-02 (7th Cir. 1974), cert. denied, 421 U.S. 964, 95 S.Ct. 1951, 44 L.Ed.2d 450 (1975), which is referenced on page four of the motion. Our motion was denied but the record is protected.



Alex Bunin, the Federal Defender for the Southern District of Alabama, has informed me that in a recent case from the Southern District of Florida, District Judge William J. Zloch, came to the same conclusions as the original Tenth Circuit Panel.



In a 31-page unpublished opinion (U.S. v. Oslet Franklin Lowery, Jr., No. 97-368-CR-ZLOCH, S.D. FL, 8/4/98), Judge Zloch found that the language of the statute in question is unambiguous and that no precedent allowed an inference that the government is exempt from its breadth. Judge Zloch found that any more expansive interpretation of the law would simply be judicial activism. We agree.



It would seem that until the Seventh Circuit holds otherwise or Congress amends the law (which is likely), our lawyers should feel free to move to suppress the testimony of "bought and paid for" government witnesses who expect to receive anything of value in return for their testimony, including motions for departure under §5K1.1 of the United States Sentencing Guidelines or Rule 35 of the Federal Rules of Criminal Procedure.



We will be watching the Singleton case very closely and will keep you informed of the status.



We are also pleased to include in this issue a summary of United States Supreme Court cases for this past year. Assistant Federal Defender Paul M. Rashkind of the Southern District of Florida, did a remarkable job in preparing this material and we extend our sincere thanks and appreciation to him.



In closing, please remember that the Federal Defender's Office is here to help you - our CJA panel members. If there's ever any question you need an answer to, or if a situation arises in which you need advice, please do not hesitate to contact us. "You Need Not Stand Alone".





Yours very truly,





RICHARD H. PARSONS

Federal Public Defender

Central District of Illinois







Table Of Contents

Dictum Du Jour 2

Churchilliana 3

Immigration, Re-Entry and the Deported Citizen 3

A Useful Review of the Bluebook Rules 4

Internet News 4

CA-7 Case Digest 5

Recent Sentencing Law 14

Reversible Error 16

Updated 7th Circuit Rules 16

CJAAttorney Sued for Expert Services 17

1998 Amendments to Sentencing Guidelines 17

Sample "Singleton" Motion and Supporting Memorandum 19

U.S. Supreme Court Review 25


CHECK IT OUT!


The Back Bencher is now available on the World Wide Web at "www.ca7.uscourts.gov".



Check it out!



Dictum Du Jour


We have repeatedly recognized that defendants challenging the sufficiency of the evidence at trial face a "nearly insurmountable hurdle."



United States v. Cueto, slip. op. (7/31/98 7th Cir.)(citation omitted).



* * * * *


In [United States v. Duarte, 950 F.2d 1255 (7th Cir. 1991),] we noted that the aggregation rule "grants the government a fearsome tool in drug cases. It permits prosecutors to 'indict defendants on relatively minor offenses and then seek enhanced sentences later by asserting that the defendant has committed other more serious crimes for which, for whatever reason, the defendant was not prosecuted and has not been convicted.'" 950 F.2d at 1263 (quoting United States v. Fischer, 905 F.2d 140, 142 (7th Cir. 1990)). Accordingly, before we allow defendants to serve enhanced sentences based on conduct that the government, for one reason or another, did not see fit to include either in its indictment or its plea agreement, we must be satisfied that the allegedly related conduct is, in fact, intertwined with the offense of conviction. Likewise, we again remind prosecutors "not to indict defendants on relatively minor offenses and then seek enhancement sentences later by asserting that the defendant has committed other more serious crimes for which, for whatever reason, the defendant was not prosecuted and has not been convicted." United States v. Fischer, 905 F.2d 140, 142 (7th Cir. 1990).



United States v. Bacallao, slip. op. (7/24/98 7th Cir.).



* * * * *


The mere fact that the defendant has engaged in other drug transactions is not sufficient to justify treating those transactions as "relevant conduct" for sentencing purposes.



United States v. Crockett, 82 F.3d 722, 720 (7th Cir. 1996).



* * * * *


Sometimes a little of my father comes out in me. He said the world was a bazaar. And just to make it more exciting the prices were different for everybody.



J.P. Donleavy, The Onion Eaters p. 292 (Delacorte Press 1971).



* * * * *


You are in your car an hour each day; you are in your clothes from morning to night. Spend accordingly.



Esquire's Things a Man Should Know About Style, Esquire, Sept., pp. 144-45.



* * * * *


Clothing salesmen can change your life in a good way, but not many of them.



Id.



* * * * *


Good shoes and a good haircut matter more than a great suit.



Id.



* * * * *


First suit: navy solid. Second suit: gray solid. Third suit: navy pinstripe. Fourth suit: gray chalk stripe. Fifth suit: black. Sixth suit: You need no sixth suit.



Id.



* * * * *


Here lies W.C. Fields. I would rather be in Philadelphia.



W.C. Fields reply when asked what he would choose as his epitaph reported in Panati's Extraordinary Endings of Practically Everything and Everybody (Harper & Row 1989).





CHURCHILLIANA



At Harrow School, Winston did not win any prizes for his behavior and comportment. After a host of infractions, young Churchill was issued an order to report to the headmaster's office. When the thirteen-year-old Churchill entered the study, Dr. J.E.C. Welldon raised his six-foot frame from his chair and stared down at his subordinate student. With his hands folded behind his back, Welldon intoned, "Young man, I have grave reasons to be displeased with your conduct."



The boy Churchill looked up and replied, with equal solemnity, "And similarly I have grave reasons to be displeased with your conduct."






Immigration, Re-entry and the Deported Citizen: Dangers of Overlooking the Obvious



By: David Mote

Deputy Chief Federal Defender

Central District of Illinois



Our office was appointed to represent a young man named Jose who was charged with illegal reentry by a previously deported alien in violation of 8 U.S.C. § 1326(a). The discovery revealed that Jose was born in Nuevo Laredo, Mexico, had previously been deported, that his exit from the country (or more properly, boarding of the flight from Chicago to Mexico) was witnessed by an immigration officer, and that he had admitted to the prior deportation and reentry when interviewed by INS prior to our appointment. Jose entered a guilty plea and a pre-sentence report was ordered.



On the day set for sentencing, I met with Jose to discuss my intended remarks at sentencing. In particular, we talked about his many family members who live in the United States. During this discussion, he mentioned that his father was born and lives in Laredo, Texas. This conflicted with information in the INS reports that stated that Jose's parents were citizens of Mexico. The discovery was correct, however, that his mother was a citizen and resident of Mexico.



A month earlier, the fact that his father was born in the States might not have seemed important to me. Between the time of Jose's plea and the sentencing date, however, I had the good fortune of meeting a Chicago attorney who practices immigration law while we were both at the Seventh Circuit to argue appeals and we discussed "de facto citizenship." Consequently, I requested and received a continuance of Jose's sentencing hearing to look into what effect, if any, his father's birth in the United States might have on Jose's formerly obvious status as an alien.



I found that we had an argument that Jose couldn't be guilty of reentry by a previously deported alien because, arguably, he was not an alien, but a citizen. 8 U.S.C. § 1401 provides:



"The following shall be nationals and citizens of the United States at birth:

*****

(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years ...."



Because we had an argument that Jose was not an alien, we moved to withdraw his plea under Rule 32(e) which permits a court to allow a motion to withdraw a guilty plea made before sentencing for "any fair and just reason."



While the government did not contest the evidence that Jose's father was a citizen, it nevertheless opposed the motion to withdraw the plea, arguing that defendants parents were not married and that the defendant did not meet the special requirements placed on illegitimate children born outside the United States claiming citizenship through their father, rather than their mother, including that the father, unless deceased, has agreed to provide financial support for the person until the person reaches the age of 18 and that while the person is under 18, the person is legitimized under the law of the person's residence or domicile, the father acknowledges paternity of the person in writing under oath, or the paternity is established by court adjudication. See 8 U.S.C. § 1409(a)(3) and (4). The Supreme Court has recently rejected claims that differing requirements based on whether citizenship is claimed through the father or mother violate the Equal Protection Clause. See Miller v. Albright, 118 S.Ct. 1428 (1998).



In response, we argued that had Jose known that he had a claim to citizenship, he could have gone to court, through a legal guardian, and obtained an order establishing paternity and getting an order of child support. This is an important point since there are immigration decisions holding that failure to meet technical requirements to retain citizenship should not be applied to strip persons of citizenship who did not learn of their claim to citizenship within the time period when it was possible to comply. See Re Yanez-Carillo, 10 I & N Dec. 366 (1963)(holding that a Mexican resident who did not learn of his claim to American citizenship in time to fulfil the residency requirement had not forfeited his right to citizenship based on his failure to comply); Re Farley, 11 I & N Dec. 51 (1965)(same ruling with Canadian resident).



To add an additional twist, it also turns out that Jose's parents lived together in Texas for two years prior to and several years following his birth. Jose was born in Mexico by happenstance. His mother had gone shopping across the border from Laredo, Texas and was in Nuevo Laredo, Mexico when she went into childbirth. Documents provided by the family demonstrate that Jose's mother was using her father's last name as a married name and an affidavit that immigration took from the father indicates that they weren't married but "just lived together as common law." Texas, where Jose's parents lived together both before and after his birth, recognizes common law marriage. See Russell v. Russell, 865 S.W.2d 929 (Tex. S. Ct. 1993). If Texas considered Jose's parents to be married, the government's argument based on 8 U.S.C. § 1409 should meet an unhappy end.



Our attempt to withdraw Jose's plea is still pending, but there are already lessons to be learned from this case. One is that it is sometimes better to overlook the obvious. It appeared obvious that Jose was an alien since he had been born in Mexico and had previously been deported. I now ask clients charged with illegal reentry not just about where they were born but also about where there parents were born. The case is also a reminder that our clients and their families may not know what information is important to the case. Finally, this case is a lesson in some of the niceties of immigration law that most criminal defense lawyers don't know, but might find useful.






A Useful Review of The Bluebook Rules



By: David Mote

Deputy Chief Federal Defender

Central District of Illinois



In law school, we learned to give full cites, including all subsequent case history and parallel citations. Few lawyers continue to be so formalistic after settling in to the actual practice of law. Still, for formal briefs, proper citation form should still be used and, fortunately, it is not as cumbersome as what many of us learned in law school.



The sixteenth edition of The Bluebook A Uniform System of Citation, published in 1996, which seems to provide no example of how to cite itself, by the way, provides the following useful information:



1) "Whenever a decision is cited in full, give the entire subsequent history of the case, but omit denials of certiorari or denials of similar discretionary appeals, unless the decision is less than two years old or the denial is particularly relevant. Omit also the history on remand or any denial of a rehearing, unless relevant to the point for which the case is cited." Rule 10.7;



2) You need not provide parallel cites on Supreme Court cases. "Cite to U.S., if therein; otherwise cite to S. Ct., L.Ed. or U.S.L.W. in that order of preference." Table T.1.



3) When citing a case with subsequent history in the same year, "include the year only with the last-cited decision in that year." Rule 10.5(d).






Internet News

By: Tom Day

Federal Public Defender

Southern District of Illinois



The Judiciary has a redesigned Internet website that allows interested people worldwide to access timely and useful information about the federal courts.



This site - www.uscourts.gov - offers users the content they most often need and request, including news releases, statistical data, general court information, judicial vacancy statistics and graphics, frequently asked questions, employment opportunities, and much more. The Administrative Office of the U.S. Courts (AO) maintains the website.



"Our new web site represents a great stride in the federal Judiciary's continuing effort to enhance and expand our communications," said AO Director Leonidas Ralph Mecham. "I believe users will find our website to be informative and useful. We are committed to providing the most current information and enhancing our site with new features."



The redesigned homepage makes navigating the Judiciary's Internet site simpler and more intuitive. Eye-catching graphics and easy-to-read text help to point users in the right direction. For users who are trying to locate a particular item, an improved search engine is available, quick, and easy to use. Questions about the Judiciary or the website can be forwarded to the webmaster via e-mail directly from the homepage. The links page lets users know which of the federal courts have their own Internet sites and makes visiting these sites just a click away.



Accessing information has been made easier, too, with the help of the site's Federal Judiciary Channel. Using push technology, the Federal Judiciary Channel provides visitors to the site with a way of receiving select information as it becomes available or is updated. The push mechanisms allow users, once they have registered free of charge, to receive current news at their desktops. The push software, installed by the user, will perform a periodic check, retrieve the updated information requested by the user, and automatically notify and send the new information to the user. News releases, updated judicial vacancy listings, employment opportunities newly added content, and other information about the Judiciary now are available on the Federal Judiciary Channel.



Exploration of the latest trends in web technology and how this valuable resource can be used to educate people about the federal court system is ongoing. The federal Judiciary Internet homepage can be modified at any time in response to the needs and desires of the users.



In addition, the Seventh Circuit Court of appeals maintains an informative web page on the Internet. Besides providing access to such useful items as Seventh Circuit judicial opinions, federal and local rules, filing tips and docket sheets, the Back Bencher newsletter published by the Federal Defender's Office of the Central District of Illinois is also available for review or download. The web address for the Seventh Circuit is www.ca7.uscourts.gov. There are also links to this page as well as many other court-related sites from www.uscourts.gov.



The U.S. Sentencing Commission also has a site located at www.ussc.gov.




CA-7 Case Digest

Compiled by: George F. Taseff

Senior Litigator

Central District of Illinois





ASSISTANCE OF COUNSEL


Rice v. Cooper, No. 97-2821 (6/19/98)



In habeas proceeding, district court did not err in finding defendant's trial counsel not incompetent for failing to seek mental competency hearing for defendant who suffered from atypical depression and mild retardation. Record showed two psychiatrists reported defendant fit to stand trial 18 months after arrest; no evidence hearing would have contradicted expert evidence.



Thomas v. Gilmore, No. 97-1854 (5/15/98)



District court properly concluded, in habeas proceeding, that petitioner's trial counsel not ineffective during capital sentencing hearing for failure to subpoena prison and school records establishing petitioner had serious psychological problems; counsel presented some mitigation evidence indicating petitioner a "nice guy." Inclusion of certain facts in records, supporting govt.'s argument in aggravation, rendered any failure to investigate harmless.



CONFESSIONS



Rice v. Cooper, No. 97-2821 (6/19/98)



In habeas proceeding, district court did not err in rejecting claim that defendant's mild retardation rendered confession to murder charges involuntary. No evidence of police abuse during post-arrest questioning; while defendant initially did not understand Miranda rights, record showed police had no reason to think defendant did not ultimately understand rights once further explanation given.



CONFRONTATION



U.S. v. Meyer, Nos. 96-4230 & 97-1031 (6/23/98)



District court did not err in limiting cross-examination of govt. witness regarding his knowledge as to information given by defendant to govt. about witness' criminal activities. While inquiry into such matter relevant as to issue of bias, defendant permitted to make initial inquiry. District court's Limitation within its discretion since additional questioning into fact that defendant's information exposed witness to life imprisonment or death sentence merely repetitive to initial inquiry.



U.S. v. Scott, No. 96-3240 (5/13/98)



In prosecution in murder-for-hire scheme, district court did not abuse discretion in refusing to permit defense counsel counsel to ask witness (who had agreed with defendant to carry out scheme) about drug habits. Court permitted latitude in imposing limits on cross-examination; counsel permitted to ask related questions concerning witness' ability to recall events and bias. Any error harmless in view of nature of guilt against Defendant.



ARSON/HATE CRIMES



U.S. v. Hartbarger, Nos. 97-2324, 97-2387 & 97-3851 (6/25/98).



In prosecution on charges of use of fire to commit felony under 18 USC §844(h)(1), district court did not err in applying said statute to cross-burnings; plain language in statute does not confine statute to arson cases



DOUBLE JEOPARDY



Kurzawa v. Jordan, No. 96-3299 (5/29/98)



In habeas proceeding, district court did not err in finding govt.'s prosecution of petitioner on uttering forged instrument charge, following acquittal on theft by fraud charge, did not violate double jeopardy clause as set forth in U.S. v. Dixon, 509 U.S. 688. Although Dixon applied retroactively with respect to "same elements" double jeopardy test to sustain petitioner's conviction, such application did not violate ex post facto clause since test applicable at time offense committed (i.e., under Blockburger, 284 U.S. 299) was same test as set forth in Dixon.



EVIDENCE



U.S. v. Bradley, No. 97-3465 (5/13/98).



District court did not abuse discretion under Fed.R.Evid. 403 in admitting over defendant's relevancy objections tape of 911 call from defendant's wife claiming he used gun on her. Defendant charged with unlawful possession of firearm and ammunition under 18 USC 922(g)(1); evidence relevant to show background for search of defendant's residence which produced both gun and ammunition. R.403 does not exclude relevant evidence merely because evidence prejudicial to defendant.



U.S. v. Hartbarger, Nos. 97-2324, 97-2387 & 97-3851 (6/25/98).



1. In prosecution of intimidation charges stemming from cross-burning incident, district court did not err in granting govt.'s motion to limit evidence of defendants ' childhood backgrounds. While such evidence relevant as to defendant's understanding of significance of cross-burning, court's limitation to incidents past defendants' 14th birthday appropriate since: crime took place 7 and 3 yrs. after defendants left home; defendants' isolated environment still permitted to come into record; and proposed additional evidence would not have overcome defendants' admissions to burning cross because victims black.



2. District court did not err in admitting evidence as to victims' subjective reactions to cross-burning incident. Victim impact evidence relevant in cases involving threats to determine whether reasonable recipient would view message as threat.



3. Defendants not entitled to new trial under Brady v. Maryland, 373 U.S. 83, even though govt. failed to disclose it threatened to prosecute govt. witness with same charges if he refused to testify and that witness paid more than standard witness fees. Defendants failed to show reasonable probability that disclosure would have changed result of trial since: testimony given by witness cumulative to that given by others; witness received only cab fare in add'n to standard fee; and record contained ample evidence of defendants' racial animosity.



U.S. v. Hunter, No. 97-3717 (5/28/98).



District court did not err in admitting evidence of defendant's flight on foot from arresting officers as evidence of defendant's consciousness of guilt under Fed.R.Evid. 403. While court should normally admit such evidence with caution, admission appropriate here where defendant's flight could not be attributable to acts of co-defendant, and where evidence necessary to tell whole story of defendant's capture and attempt to dispose cocaine during chase.



U.S. v. Owens, Nos. 97-3308 & 97-3509 (5/26/98)



District court did not abuse its discretion in barring defendant from impeaching govt. witness with misdemeanor theft conviction. Misdemeanor theft, by itself, not crime of dishonesty under Fed.R.Evid. 609; defendant already impeached witness with prior felony drug conviction.





U.S. v. Vitek Supply Corp., Nos. 97-1254, 97-1255 & 97-1498 (5/14/98)



In prosecution on charge of conspiracy to defraud Customs Service through shipments containing harmful drugs in animal feed, district court . did not err in refusing under Fed.R.Evid. 403 to permit defendants' request to admit govt.'s stipulation in prior civil suit that certain shipments made by defendants at issue in instant criminal charges satisfied certain Customs requirements and were duty free. Admission of stipulations would have confused jury regarding complicated Customs classifications and could have ultimately bolstered charges that defendants deceived Customs.



EXPERT WITNESS


U.S. v. Ricketts, Nos. 97-3434 & 97-3911 (6/11/98)



District court properly granted govt.'s motion in limine to prevent defendant's expert witness from giving testimony regarding proposed diminished capacity defense on charges of conspiracy to riot and mutiny in federal prison. Charges against defendant concerned only general intent crimes; diminished capacity qualifies as defense only to specific intent crimes.



U.S. v. Vitek Supply Corp., Nos. 97-1254, 97-1255 & 97-1498 (5/14/98)



1. District court did not err in refusing to permit defendants' expert to testify since defense counsel failed to give accurate summary of testimony in response to scheduling order. Although power to impose discovery sanctions "less unconstrained" in criminal cases, any error harmless since expert's testimony would not have refuted overwhelming evidence against defendants



2. Testimony from govt.'s expert stating that testing indicated presence of illegal substances in animal feed produced by defendants not inadmissible under Daubert, 509 U.S. 579, even though court failed to determine whether procedures used by experts were generally accepted for purpose of determining content of animal feed; tests shown to be conducted with well-known instruments and under recognized controls.



EXTORTION



U.S. v. Geisler, No. 97-3036 (5/8/98)



Record contained sufficient evidence to convict defendant of 6 counts of extortion under 18 USC §876 where he sent racially-charged, threatening letters to former girlfriend in effort to retrieve money she withdrew from joint checking account. Fact she did not read all 6 letters irrelevant as to conviction on counts pertaining to unread letters since "receipt" of letters not requirement for conviction under statute.



GUILTY PLEA


U.S. v. Martin, No. 97-1032 (6/22/98)



Defendant, who pleaded guilty to bombing private dwelling under 18 USC §844(i), waived issue on appeal that govt. failed to establish interstate commerce element of offense. While guilty plea does not waive "jurisdictional" defenses, failure to satisfy element of offense not jurisdictional defect. Defendant's guilty plea thus relieved govt.'s burden to prove all elements of charge.



HABEAS CORPUS


In re Davenport, Nos. 97-9095 & 97-9097 (6/18/98)



1. District court properly rejected petitioners' claim that restrictions on filing successive 28 USC §2255 habeas petitions under Antiterrorism and Effective Death Penalty Act inapplicable if earlier habeas petitions filed before AEDPA took effect. AEDPA applied to all habeas petitions filed after its effective date unless petitioner had reasonably relied on prior law in holding back basis for relief presented in second habeas petition.



2. District court improperly dismissed habeas petition on grounds that petition constituted second successive petiution under AEDPA since: basis for petition., i.e., use of firearm under 18 USC §924(c) did not cover mere possession under Bailey v. U.S., 516 U.S. 137, unknown at time first petition filed; and court in Bailey made ruling retroactive. Thus, petitioner entitled to second habeas petition where petitioner had no reasonable opportunity in first petition to raise issue.



Moore v. Parke, No. 97-3357 (6/17/98)



1. District court improperly found petitioner's claim procedurally defaulted for failure to give state court opportunity to review claim that state failed to prove proper sequence of prior convictions to support habitual offender determination. State procedural rule used to prevent state court from considering issue contained in habeas petition enacted in 1993, which was nine years after time that omission preventing state court review occurred. Thus, failure to comply with state procedural rule no bar to consideration of habeas petition.



2. Petitioner entitled to habeas relief challenging state court habitual offender determination. Indiana law required state to show proper sequence of commission of offenses for prior convictions; record failed to indicate when prior offenses occurred.

Pack v. Page, No. 96-3944 (6/17/98)



District court properly denied habeas petition challenging conviction for sexual molestation of minor where trial court excluded evidence that minor reported to social worker similar sexual incident involving another individual. Record showed trial court used discretion in ruling Illinois rape-shield law prevented use of report at trial; such ruling not "unreasonable" interpretation of established federal law so as to warrant habeas relief.



HEARSAY



U.S. v. Bradley, No. 97-3465 (5/13/98)



Disrict court did not abuse discretion in admitting under "catch-all" provisions of Fed.R. Evid. 804(b)(5) hearsay statement of defendant's wife even though wife unavailable to testify due to invocation of spousal privilege. Wife's statement taken under circumstances showing its reliability in that officer read statement back to wife before she signed it; officer warned wife statement could be used in court; statement, which concerned material element of case, i.e., possession of firearm, taken only two hours after incident; and statement corroborated by other evidence.



IDENTIFICATION



U.S. v. Newman, No. 97-3246 (5/20/98)



In prosecution on bank robbery charges, district court properly denied motion to suppress witnesses' identifications even though show-up procedures used by police (requiring witnesses to view defendant handcuffed at scene of arrest and near yellow crime scene tape) inherently suggestive. Record showed witnesses had other ample opportunities to view defendant at scene of bank robbery to support in-court identification made by them.



IMMIGRATION



U.S. v. Ciurinskas, No. 97-3067 (6/19/98)



District court did not err in revoking defendant's citizenship under 8 USC §1427(a)(1) since defendant not lawfully admitted for permanent residence. Record showed defendant lied on immigration forms as to participation in military group assisting Germans in WW II; defendant not believable that he misunderstood questions on forms.



IMMUNITY



U.S. v. Meyer, Nos. 96-4230 & 97-1031 (6/23/98)



1. The fact that govt. indicted defendant based upon own determination of immunity agreement without seeking prior judicial determination did not violate due process clause. Although hearing prior to indictment preferable method, defendant received opportunity for hearing pursuant to motion to dismiss indictment.



2. District court did not err in reopening hearing on motion to dismiss indictment based upon report of magistrate judge that govt. erred in attempting to prove defenant's breach of immunity agreement through hearsay evidence. Court had power to conduct own hearing under 28 USC §636(b)(1) in addition to hearing provided by magistrate.



JURY INSTRUCTION



U.S. v. Maher, No. 97-2915 (5/15/98)



In prosecution on charge of possession of firearm under 18 USC §922(g), district court improperly used modified jury instruction proposed by defendant which told jury that it must acquit if possession of gun occurred in defendant's home. Neither proposed instruction nor instruction modified by court accurate statement of law since partial restoration of civil rights to convicted felon, such as defendant's proposed "dwelling exception" to §922(g), contradicts U.S. v. Lee, 72 F.3d 55. No new trial required since modified instruction given to jury worked in defendant's favor by presenting jury with possibility of dwelling exception as means of acquittal.



U.S. v. Meyer, Nos. 96-4230 & 97-1031 (6/23/98)



District court erred in failing to tender to jury "buyer-seller" instructions on conspiracy to distribute drug charges. Although record contained some evidence that defendant assisted supplier in distribution of drugs, record also contained evidence supplier never discussed prices or sources of drugs and that defendant did not have control over supplier's end of business.



U.S. v. Vitek Supply Corp., Nos. 97-1254, 97-1255 & 97-1498 (5/14/98)



In prosecution on charges of introducing misbranded drugs in interstate commerce under 21 USC §333(a)(2), defendants not entitled to new trial due to district court's failure to give jury instruction explicitly stating defendants had to know they were distributing misbranded products. Jury instructions given by court adequately advised jury of elements of charge; closing arguments of both counsel referred to necessity of proving requisite knowledge.



JURY SELECTION


U.S. v. Ricketts, Nos. 97-3434 & 97-3911 (6/11/98)



District court did not err in failing to strike for cause prospective jurors who indicated they would listen more to testimony of guard rather than inmate. Record failed to show jurors not going to be impartial in trial concerning charges against defendant-inmates or that jurors would automatically believe given guard over given inmate.



MURDER


U.S. v. Scott, No. 96-3240 (5/13/98)



Record contained sufficient evidence to support jury verdict finding defendant guilty on 7 counts stemming from two separate murder-for-hire schemes to kill same victim. Both accomplices testified as to defendant's offer of money to kill victim; defendant made inculpatory concessions in statement to police. Fact versions of accomplices contained inconsistent statements insufficient to void conviction.



PERJURY


U.S. v. Geisler, No. 97-3036 (5/8/98)



In prosecution for extortion stemming from defendant's sending of six threatening letters to victim, fact govt. agent may have misstated number of letters actually read by victim insufficient to grant motion to dism. indictments based upon alleged perjury.

Dismissal requires showing challenged testimony affected grand jury decision to indict; actual reading of letters by victim not element of extortion under 18 USC §876.



POST-CONVICTION



Williams v. U.S., No. 97-3187 (6/3/98)



Appellate court dismissed petitioner's appeal of denial of petition for post-conviction relief under 28 USC §2255 on grounds appeal failed to qualify for requisite certificate of appealability under 28 USC §2253(c). Basis of appeal, i.e., whether district court, in resentencing petitioner for 1995 convictions, should have used 1997 USSG, did not concern denial of constitutional right; no constitutional obligation for court to resentence on all counts after setting aside one count as being lesser included offense.



PROSECUTORIAL MISCONDUCT



U.S. v. Castillo, Nos. 97-2889 & 97-3144 (6/25/98)



Prosecutor's truthful response to district court question as to whether he had missing negative while defendant's counsel responded that he was unsure of whether he had negative did not constitute prosecutorial misconduct warranting new trial on charge of conspiracy to possess marijuana with intent to distribute. While defendant claimed prosecutor's comment suggested defendant was hiding evidence, record showed prosecutor's response to court's question never challenged defendant to produce missing evidence or claimed defendant's counsel hiding evidence.



RESTITUTION



U.S. v. Newman, No. 97-3246 (5/20/98).



1. District court's application of amended Victim and Witness Protection Act, 18 USC §3663(a), to impose mandatory restitution on defendant did not violate ex post facto clause even though court gave retroactive use to amended statute and defendant would not have been ordered to give restitution under prior statute. Restitution does not qualify as "criminal punishment" for purposes of applying ex post facto clause.



2. District court did not err in calculating $11,973 as amount of restitution even though record failed to contain actual bank audit used to calculate amount. Hearsay evidence may be used at sentencing hearing where such evidence reliable and defendant never challenged at hearing method used by audit to calculate amount.



RICO



U.S. v. Palumbo Bros., Inc., No. 97-3807 (5/7/98)



District court improperly dismissed RICO indictment for failure to specifically allege continuity of defendant's predicate acts in pattern of racketeering activity. Allegations in indictment need not include conclusive proof of every aspect of crime to sufficiently allege RICO violation. Although defendant named in only two racketeering acts, indictment includes sufficient facts showing existence of "routine," and thus existence of requisite continuity for RICO violation.



SEARCH AND SEIZURE



U.S. v. Maher, No. 97-2915 (5/15/98)



In prosecution on charge of possession of firearms under 18 USC §922(g), district court did not err in denying defendant's motion to suppress stemming from officer's initial encounter with defendant on street and concluding with defendant's flight and officer's eventual apprehension of defendant in his home where search of defendant revealed presence of firearm. Officer had sufficient reasonable suspicion under Terry v. Ohio to detain defendant for questioning since officer in area due to recent reports of gun shots, and defendant appeared nervous and clutching front pants pockets.



U.S. v. Meyer, Nos. 97-4230 & 97-1031 (6/23/98)



Defendant lacked standing to challenge search of refrigerator done pursuant to warrant to search defendant's property for two vehicles registered to third party. Although defendant asserted refrigerator within his curtilage, he failed to show through affidavit reasonable expectation of privacy of refrigerator located 10' outside of mobile home with partially exposed freezer compartment.



U.S. v. Vitek Supply Corp., Nos. 97-1254, 97-1255 & 97-1498 (5/14/98)



In prosecution on charges of smuggling unapproved drugs contained in animal feed, district court properly denied defendants' motion to suppress evidence seized pursuant to warrant permitting seizure of all tainted animal feed, "misbranded" drugs, and "any and all" records relating to importation of tainted feed. Although broad, language of warrant not violative of particularity requirement of 4th Amendment since warrant could not have better informed agents how to distinguish between legal and illegal substances.



U.S. v. Walden, No. 97-1940 (6/10/98)



In motion to suppress seizure of gun in charges of possession of firearm by felon, district court properly concluded police officer had reasonable suspicion under Terry v. Ohio, 392 U.S. 1 (1968) to stop defendant and investigate his background during traffic stop involving defendant's fiancee. Although defendant did not act suspiciously during initial phase of stop, license check indicated defendant's prior arrests for unlawful use of weapons and armed robbery, as well as "officer safety alert" indicating defendant's involvement in gang crime activity and that defendant armed and dangerous. Thus, because officer could conclude defendant potential threat, instant stop and frisk reasonable.



U.S. v. Ward, No. 97-1810 (5/12/98



Police had sufficient reasonable suspicion to detain defendant's luggage found in luggage compartment of bus for purpose of confirming presence of drugs. Prior to seizure, police determined that: subject luggage, tagged from known source city for drugs, claimed by no one on bus; defendant did not travel with luggage on bus; and officer making seizure had previous experience in finding drugs in unattended luggage from same source city. Moreover, 3½ hour delay to confirm presence of drugs reasonable given fact luggage in transit apart from owner.



SELF-DEFENSE



U.S. v. Haynes, No. 97-2997 (5/13/98)



District court properly refused defendant-prisoner's request to argue that preemptive attack on fellow prisoner who had previously threatened to harm defendant constituted self-defense. Defendant had other lawful options (such as reporting threat to prison guard) to address threat which precluded his use of self-defense to excuse attack.



SENTENCING


Biami v. U.S., No. 96-4111 (5/22/98).



In post-conviction proceeding under 18 USC §2255, district court did not err in reopening record to determine, for purposes of sentencing, whether underlying conviction concerned crack or powder cocaine; court generally must hold evidentiary hearing if petitioner raises meritorious claims involving factual issues. Petitioner failed to show prejudice in conducting of hearing since remedy for petitioner's post-conviction petition would have been new sentencing hearing anyway.



Dahler v. U.S., No. 96-4022 (5/13/98)



In sentencing on conviction for possession of firearms, district court erred in using prior conviction for which defendant received certificate restoring civil rights as one of three predicate convictions required for sentencing as career offender under 18 USC §924(e)(1). §921(a)(20) generally prohibits consideration of prior conviction where defendant received certificate restoring civil rights upon satisfaction of sentence on said conviction. Defendant's certificate did not expressly condition restoration of rights on Defendant's continued abstention from possession or receipt of firearms.



Rice v. Cooper, No. 97-2821 (6/19/98)



In habeas proceeding, district court did not err in finding no 8th Amendment violation in defendant's natural life sentence for causing murders of four individuals. Although state judge indicated he would have given lighter sentence in absence of mandatory life penalty due to defendant's mild retardation, mandatory penalty not unconstitutional merely because such provisions prevent consideration of mitigating factors.



U.S. v. Almaguer, No. 97-3495 (6/4/98).



District court improperly sentenced defendant outside range under USSG §5K2.0 for conviction for being felon in possession of firearm. Circumstance used by court to justify departure, i.e., fact defendant brandished gun in front of 7-yr.-old boy, already contemplated by USSG §2K1.1(c), thereby precluding any authority of court to depart from USSG.



U.S. v. Bonano, Nos. 96-3918 & 96-4016 (6/12/98)



1. District court did not err in calculating amount of loss, for purposes of sentencing on conviction for conspiracy to sell bogus insurance policies, at face amount of policies rather than amount actually collected on policies by defendants. Under USSG §2F1.1 intended loss controls over actual loss; fact defendants may not have collected on entire face amount of policies irrelevant.



2. Court erred in delegating to probation officer authority to determine number of drug tests while defendants on supervised release; under 18 USC §3583(d), such authority rests only with court.



3. Court did not err in denying defendant's request for two-level reduction in sentence under USSG §3E1.1(a) for acceptance of responsibility. Defendant's testing at trial of factual claims of indictment and testimony of FBI agent demonstrated evasion rather than acceptance of responsibility.



U.S. v. Boyd, No. 97-3228 (6/11/98)



District court properly included defendant's prior conviction for operation of uninsured motor vehicle as part of defendant's criminal history under USSG §4A1.2(c). Although operation of uninsured motor vehicle not on list of offenses in §4A1.2(c), offense sufficiently akin to driving without license which is on list; thus must be included in criminal history since defendant's sentence for subject conviction equivalent to at least 1 yr. probation.



U.S. v. Castillo, Nos. 97-2889 & 97-3144 (6/25/98)



Disrict court did not err in denying defendant's motion for reduction of sentence levels under USSG §3B1.2 due to limited roles in drug conspiracy convictions. While record showed others in conspiracy had more active roles, neither defendant could claim "minor participant" status since both provided services in transporting drugs which formed essential component in conspiracy.



U.S. v. Deal, No. 97-3764 (6/9/98)



District court did not err in enhancing defendant's sentence for fraud under "position of public trust" provision of USSG §3B1.3 even though fraudulent financial transactions performed by defendant, as "comptroller," approved by supervisor. Defendant entrusted with financial responsibilities of employer; although defendant supervised, defendant sufficiently autonomous for purposes of applying enhancement as evidenced by his ability to hide transactions for significant amount to time.



U.S. v. Delacruz, No. 97-2014 (5/15/98)



Although District court neglected, under Fed. R.Crim.P. 11(e)(2), to inform defendant that plea could not be withdrawn if court did not accept govt.'s sentence recommendation, defendant not entitled to withdraw plea after imposition of sentence beyond govt.'s recommendation; record failed to show defendant would not have pleaded guilty even if properly informed under R. 11(e)(2). Moreover, defendant's subsequent failure to show up for sentence hearing breached any sentencing agreement he had with govt.



U.S. v. Giang, No. 97-2508 (5/8/98)



District court properly attributed as "loss" under USSG §2F1.1(b)(1) amounts of money received by others in scheme to defraud victims of money through depositing fraudulent cashiers' checks into victims' bank accounts. Although defendant played no role in defrauding two victims, USSG §2F1.1(b)(1) does not require showing that defendant personally gained from scheme; court could reasonably determine defendant aware of conduct in furtherance of joint undertaking.



U.S. v. Hunter, No. 97-3717 (5/28/98)



District court did not err in accepting testimony of officer in using 52% loss ratio to deduct from gross weight of powder cocaine in determining amount of crack for sentencing purposes. While officer not chemist, he had extensive experience in drug investigations; 52% loss ratio conservative in favor of defendant.



U.S. v. Lauer, Nos. 97-3593 & 97-3693 (6/24/98)



1. District court properly sentenced defendant from mail fraud under USSG §2F1.1(b) based on "loss" to pension fund comprising both of "actual" loss of $19.9 million and additional $5 million that could have been lost to fund had money scheme not been detected. While USSG do not permit adding actual loss to intended loss, record showed court properly combined both losses here, where scheme placed entire $24.9 million of pension funds at risk.



2. Court improperly rejected govt.'s motion to enhance base offense level by four levels due to defendant's crime affecting "financial institution." While pension fund not typically viewed as financial institution under 18 USC §20, remand for new sentence required since govt. entitled to enhancement under FIRREA guidelines (USSG §2F1.1(b)(6)(A)).



U.S. v. Marin, No. 97-2545 (5/22/98)



District court improperly found defendant qualified for "safety valve" provision of 18 USC §3553(f), where defendant initially gave false statements about involvement in offense and only "cured" them during sentencing hearing. Truthful disclosure of facts under §3553(f) must occur by time of commencement of sentencing hearing.



U.S. v. Martin, No. 97-1032 (6/22/98)



In sentencing hearing on conviction for bombing private dwelling, district court did not err in calculating base offense level at 24 under USSG §2K1.4(a)(1)(A) for offenses showing defendant knowingly created risk of death or serious bodily injury rather than at 20 under §2K1.4(a)(2)(A) for offenses concerning only endangering dwelling. While defendant testified that he only intended to scare victim by placing bomb at back door of residence, record showed defendant solicited others to inflict physical harm on victim and threatened to kill victim.

U.S. v. Nelson, No. 97-3141 (5/6/98)



Disrict court properly enhanced defendant's sentence for theft of firearms from licensed firearms dealer under USSG §4B1.2(1)(ii) due to defendant's prior conviction for burglary of commercial building. While no per se rule that burglary of commercial building qualifies as "crime of violence" for enhancement under §4B1.2(1)(ii), prior conviction concerned theft of 13 firearms which posed potential threat to police.



U.S. v. Owens, Nos. 97-3308 & 97-3509 (5/26/98)



District court did not abuse discretion in granting defendant's motion for downward departure due to defendant's extraordinary family circumstances. While record showed defendant had past criminal history and drug use, defendant was active in raising children and assisting brother afflicted with Downs Syndrome.



U.S. v. Porter, No. 97-1751 (5/14/98)



1. In sentencing on conviction for mail and wire fraud stemming from defendant's activities as investment advisor, district court did not err in including as "loss" under USSG §2F1.1 amounts of interest represented by defendant as being part of victim's total investment lost by defendant. While mere time value of money may not be included as "loss" under §2F1.1, amounts of interest guaranteed by defendant properly included as loss.



2. Court did not err in enhancing defendant's sentence for obstruction of justice under USSG §3C1.1 stemming from defendant's leaving state during discussion with govt. about imminent indictment. While mere flight from arrest insufficient to support enhancement, record showed defendant's flight from state calculated; fact it did not hinder govt.'s case irrelevant.





3. Court did not err in enhancing defendant's sentence due to defendant's use of minor in effectuating mail fraud; use of minor constituted aggravating circumstance not contemplated under 1994 version of USSG.



U.S. v. Ricketts, Nos. 97-3434 & 97-3911 (6/11/98)



District court did not err in denying defendant's request for reduction of sentence level for acceptance of responsibility under USSG §3E1.1(a) even though defendant went to trial only to litigate diminished capacity defense on charges of conspiracy to riot in prison. While defendant admitted to certain aspects of charges, court properly noted defendant not entirely honest about conduct during riot.



U.S. v. Santoyo, No. 97-2096 (6/16/98).



1. District court properly determined it was without authority to consider defendant's motion for downward departure of sentencing level under USSG §5K1.1 based upon defendant's assistance to prosecution; §5K1.1 does not permit court to act on request absent motion by govt. Record showed govt.'s failure to file motion not arbitrary where defendant offered only information equally obtained from other sources.



2. Court properly denied defendant's request for downward departure under USSG §5K2.0 due to alleged circumstances which took defendant's case out of "heartland" of cases contemplated by USSG. Power of district court to depart under this section limited; although defendant, despite guilty plea, contended govt. agents "cajoled" him into arranging drug sale at issue in conviction, record failed to support claim of such alleged misconduct.



U.S. v. Schulte, No. 97-4008 (5/28/98)



District court did not err in denying defendant's motion for downward departure of USSG due to disparity between state and federal sentences for conviction for possession of child pornography. Defendant failed to show disparity of sentences resulted from application of USSG which seek uniformity only among federal sentences for similar conduct.



U.S. v. Scott, No. 96-3240 (5/13/98)



1. District court did not err in denying defendant's request for downward departure based upon alleged acceptance of responsibility under USSG §3E1.1(a). During trial on murder-for-hire charge defendant put govt. to its burden of proof by denying essential elements of case; defendant expressed remorse only after conviction.



2. District court did not err in imposing two level enhancement of defendant's base offense level since defendant's conviction on 7 counts relating to murder-for-hire scheme fell outside "heartland" of cases under USSG §3D1.2(b). Record showed defendant made second separate attempt to have victim killed while first attempt still ongoing; two overlapping plans for one victim fell outside circumstances contemplated under USSG.



U.S. v. Szabo, Nos. 97-3603, 97-3604 & 97-3605 (6/9/98)



1. District court improperly departed upward by 4 levels under USSG §3D1.4 in concurrent sentences imposed in two of three guilty pleas. Although defendant convicted on nine bank robbery offenses, court erroneously believed USSG §3D1.4 accounted for only five convictions instead of six. Remand required since term imposed by court outside range of 3 level upward departure permitted under §3D1.4; and although defendant's concurrent sentence as to third guilty plea remained at 4 level upward departure range due to dismissal of appeal, possibility sentence could be reduced on remand in future.



2. Appellate court dismissed defendant's appeal of third concurrent sentence stemming from defendant's plea agreement in which defendant waived right to appeal sentence since record showed waiver knowing and voluntary. Thus, possibility remained that defendant would still serve sentence at 4 level upward departure sentencing range even though district court entered shorter sentence on remanded guilty pleas.





U.S. v. Vitek Supply Corp., Nos. 97-1254, 97-1255 & 97-1498 (5/14/98)



District court did not err in failing to attribute as "loss" under USSG §2F1.1 losses of downstream consumers who purchased tainted goods at issue in defendants' conviction for distribution of adulterated drugs contained in animal feed. Record showed most of defendants' direct consumers aware of true nature of animal feed; measurement of loss would be too speculative.



U.S. v. Walden, No. 97-1940 (6/10/98)



District court properly sentenced defendant under 18 USC §924(e) based upon three prior 1975 convictions for burglary and one 1975 conviction for armed robbery. Defendant had three qualifying prior violent felony convictions and his civil rights had not been restored for any of 1975 convictions. Moreover, 1984 Illinois law prohibited defendant's possession of weapons by felon unless given permission by Director of Illinois State Police .

U.S. v. Ward, No. 97-1810 (5/12/98)



District court did not err in denying defendant's request for reduction in offense level for being minor participant under USSG §3B1.2(b) in conviction for attempt to possess cocaine with intent to distribute. Defendant sentenced as career offender under USSG §4B1.1(A) which precludes consideration of reduction for factor raised by defendant.



U.S. v. Wyss, No. 97-4221 (6/25/98)



Remand for new sentencing hearing required where district court. included as relevant conduct in sentencing on conviction of possession of marijuana with intent to distribute amounts of cocaine defendant claimed he possessed for personal consumption. Possession of illegal drugs for personal use cannot be grouped with other types of drug offenses under USSG §3D1.2(d).



VERDICTS



U.S. v. Castillo, Nos. 97-2889 & 97-3144 (6/25/98)



In prosecution on charges of conspiracy to possess marijuana with intent to distribute and possession of marijuana with intent to distribute, fact defendants acquitted on possession count did not mandate that conviction on conspiracy count be invalidated even though evidence supporting both charges identical. Jury may return inconsistent verdicts for reasons other than determination of innocence; court will not speculate as to basis of verdict.



U.S. v. Sims, No. 96-1068 (5/22/98)



Fact jury acquitted defendant on drug conspiracy, drug dealing and RICO counts did not require district court to vacate guilty verdicts on money laundering counts based upon some predicate acts at issue in counts for which defendant acquitted. Under Powell, 469 U.S. 57, fact jury rendered inconsistent verdicts does not give defendant right to new trial or acquittal on related counts for which guilty verdict received.


Recent Developments In Sentencing Law



The following case synopsis are excerpts from The Guideline Grapevine which should be of interest to CJA attorneys in this District. This type of information will be sent to you on a regular basis. Your comments and/or suggestions would be appreciated.



ADJUSTMENTS

> MULTIPLE COUNTS (§3D) <


4 LEVEL DEPARTURE FOR 9 BANK ROBBERIES EIGHTH CIRCUIT WAS ERROR. See United States v. Szabo, No. 97-3603, 1998 WL 300427 (7th Cir. June 9, 1998), DEPARTURES, OTHER, infra.



CONSTITUTIONAL ISSUES

> DUE PROCESS <


CROSS REFERENCE TO MURDER IN DRUG GUIDELINE DOES NOT VIOLATE DUE PROCESS. United States v. Meyer, No. 96-4230, 1998 WL 334456 (7th Cir. June 23, 1998) (the defendants were convicted of drug conspiracies; they appealed their sentences, arguing that the cross-reference in §2D1.1 to the murder guideline if death results violates due process; affirmed; while murder is the most odious of crimes, sentencing judges may look to conduct surrounding the offense of conviction whether or not a defendant is ever charged or convicted of that conduct; taking into account the conduct is not the same as holding the defendant criminally culpable for the conduct; the sentences imposed were within the statutory maximum for the drug offenses).



CRIMINAL HISTORY

>ARMED CAREER CRIMINAL ACT<



WISCONSIN ATTEMPTED BURGLARY IS ACCA PREDICATE. United States v. Collins, No. 97-3186, 1998 WL 386134 (7th Cir. July 13, 1998) (the defendant argued that his previous conviction for attempted burglary under Wisconsin law does not constitute a predicate "violent felony" for §924(e); the court of appeals rejected the argument; while the question of Wisconsin law was a question of first impression, the court noted that it and six other circuits had held that attempted burglary could serve as a predicate offense; under Wisconsin law, it is clear that a defendant would not be convicted of attempted burglary without creating a "serious potential risk of injury"; affirmed).



> CALCULATIONS <


OPERATING UNINSURED MOTOR VEHICLE COUNTED. United States v. Boyd, No. 97-3228, 1998 WL 305196 (7th Cir. June 11, 1998) (the district court assessed 1 criminal history point for the defendant's prior uninsured motor vehicle conviction, an offense for which the defendant had been placed on one year court supervision and fined $250; affirmed; the uninsured motorist offense is more similar to driving without a license or with a revoked or suspended license-both involve an element of indifference to society; one year of court supervision is equivalent to a one year period of probation under §4A1.2(c)).



COURT SUPERVISION RESULTING IN DISMISSAL WAS A CRIMINAL JUSTICE SENTENCE. United States v. Burke, No. 97-3620, 1998 WL 351196 (7th Cir. July 2, 1998) (the defendant pled to possession and distribution of LSD; he argued that the district court improperly counted in the criminal history a sentence of court supervision that resulted in eventual dismissal of the charges; affirmed; although successful completion of the court supervision results in dismissal rather than a conviction, supervision is the functional equivalent of conditional discharge, which is the functional equivalent of probation; various states have statutes permitting such results; regardless of the name attached by the state to its process for removing some of the stigma of conviction).





> DEPARTURES <


COMMITTING 5 BANK ROBBERIES WHILE ON SUPERVISED RELEASE FOR PRIOR BANK ROBBERY WARRANTED DEPARTURE. United States v. King, No. 97-2249, 1998 WL 334800 (7th Cir. June 25, 1998) (the defendant committed five bank robberies while on supervised release for another robbery; he appealed the district court's departure based on that fact; affirmed; although the prior conviction was counted in criminal history and offenses levels were added in the grouping, the 2 points added to the criminal history because the defendant was on supervised release did not adequately take into account that the defendant committed not a single offense, but 5 separate offenses while on supervised release; the five separate robberies took the case out of the heartland and indicated the criminal history did not adequately reflect the seriousness of the defendant's past).



DEPARTURES

> OTHER <


BRANDISHING A FIREARM WAS A FACTOR ALREADY TAKEN INTO CONSIDERATION. United States v. Almaguer, No 97-3495, 1998 WL 297160 (7th Cir. June 4, 1998) (the defendant pled guilty for being a felon in possession of a firearm; the district court departed upward from the guideline range because the firearm had been brandished in front of the defendant's 7-year-old stepson and the defendant had threatened to shoot the child; reversed; brandishing the firearm had already been taken into account by the Commission; cross references in U.S.S.G. §2K2.1 require application of the guideline for any offense in which a firearm is used if it results in a higher level; the defendant's conduct toward the child was an assault; the assault guideline provides for an increase if a firearm is brandished, but the offense level would still have been lower than under §2K2.1; the cross references indicate that the Commission had already considered conduct relating to the use of firearm).



COMMITTING 5 BANK ROBBERIES WHILE ON SUPERVISED RELEASE FOR PRIOR BANK ROBBERY WARRANTED DEPARTURE. See United States v. King, No. 97-2249, 1998 WL 334800 (7th Cir. June 25, 1998), CRIMINAL HISTORY, DEPARTURES, supra.





4 LEVEL DEPARTURE FOR 9 BANK ROBBERIES WAS ERROR. United States v. Szabo, No. 97-3603, 1998 WL 300427 (7th Cir. June 9, 1998) (the district court departed upward 4 levels finding that the grouping rules, §3D1.4, understated the seriousness of the offenses (9 bank robberies); reversed; the district court's conclusion that §3D1.4 credited only 5 of the 9 robberies was erroneous).





OFFENSES

>OFFENSES INVOLVING DRUGS<


CROSS REFERENCE TO MURDER IN DRUG GUIDELINE DOES NOT VIOLATE DUE PROCESS. See United States v. Meyer, No. 96-4230, 1998 WL 334456 (7th Cir. June 23, 1998), CONSTITUTIONAL ISSUES, DUE PROCESS, supra.





DISTRICT COURT IMPROPERLY CALCULATED COCAINE FOR PERSONAL USE TO ENHANCE MARIJUANA SENTENCE. United States v. Wyss, No. 97-4221, 1998 WL 334804 (7th Cir. June 25, 1998), (the defendant was convicted of possession of marijuana with intent to distribute; he appealed the district court's calculation of his offense level, arguing that the court improperly added cocaine for personal use to the calculations; reversed; possession of drugs for personal use cannot be grouped with other offenses; although the defendant sold marijuana to support his cocaine habit, that did not make the marijuana sales a more dangerous crime than if he had used the proceeds to but something other than cocaine for his personal use).



> FRAUD <


ACTUAL LOSS OF ONE VICTIM AND INTENDED LOSS OF OTHERS MAY BE ADDED TOGETHER. United States v. Lauer, No. 97-3593, 1998 WL 334386 (7th Cir. June 24, 1998) (the defendant pled guilty to mail fraud and related cases; he argued on appeal that his offense level was calculated by improperly adding actual losses and intended losses together; affirmed; in some cases such addition would be inappropriate, as when a defendant intends to steal $5 million and succeeds in stealing $1 million. But where, as here, there are multiple victims, adding the actual loss of one victim and the intended loss of another is no more objectionable than punishing a defendant separately for the murder of one victim and the attempt to murder another; adding the actual losses of one victim and the intended losses of another gives an accurate picture of the total amount put at risk; the court also held that a union or employee pension fund is a financial institution warranting an increase under that subsection).



SENTENCING OPTIONS

>DRUG TESTING<


COURT CANNOT DELEGATE AUTHORITY TO DETERMINE NUMBER OF DRUG TESTS TO P.O. United States v. Bonanno, No.96-3918, 1998 WL 309085 (7th Cir. June 12, 1998) (the defendants argued the district court erred in failing to specify the number of drug tests to which the defendants must submit, improperly leaving the determination to the probation officer; reversed; §3853(d) requires that the court determine the number of drug tests to which the defendant must submit).






Reversible Errors



United States v. Delagarza-Villarreal, 141 F.3d 133 (5th Cir. 1997) (Insufficient evidence of possession of marijuana).

United States v. Ely, 142 F.3d 1113 (9th Cir. 1997) (Government failed to prove defendant was a bank director as charged in the indictment).

United States v. Kaye, 140 F.3d 86 (2d Cir. 1998) (Court can depart downward based on assistance to state law enforcement without motion by government).

United States v. Jiang, 140 F.3d 124 (2d Cir. 1998) (Attorney's potential conflict required remand for hearing).

United States v. Rodriguez, 140 F.3d 163 (2d Cir. 1998) (Insufficient evidence of bank fraud).

United States v. Campo, 140 F.3d 415 (2d Cir. 1998) (Judge could not refuse to depart solely because he did not like USA's policy about not recommending a specific sentence).

United States v. Millard, 139 F.3d 1200 (8th Cir. 1998) (1. Prior drug convictions erroneously admitted; 2. Statements during plea discussions erroneously admitted).

United States v. Gobert, 139 F.3d 436 (5th Cir. 1998) (Insufficient factual basis for defendant's guilty plea).

United States v. Peterson, 140 F.3d 819 (9th Cir. 1998) (Bruton violation).

United States v. Marmolejos, 140 F.3d 488 (3d Cir. 1998) (Clarifying amendment to guideline section justified post-sentence relief).

United States v. Sampson, 140 F.3d 585 ( 4th Cir. 1998) (Insufficient evidence that drug offense occurred within 1000 feet of a playground or public housing).

United States v. Qualls, 140 F.3d 824 (9th Cir. 1998) (Partial restoration of civil rights reversed felon in possession conviction).

United States v. Jensen, 141 F.3d 830 (8th Cir. 1998) (Insufficient evidence of drug conspiracy).

United States v. Gottlieb, 140 F.3d 865 (10th Cir. 1998) (Defendant established that no firearm or dangerous weapon was used in prior conviction defeating Three Strikes enhancement).

United States v. Taylor, 139 F.3d 924 (D.C. Cir. 1998) (Counsel was ineffective for failing to inform client of advice of counsel defense).

United States v. Snoddy, 139 F.3d 1224 (8th Cir. 1998) (Sole charged defendant may receive minor role when justified by relevant conduct).

United States v. Beck, 140 F.3d 1129 (8th Cir. 1998) (Continued detention of vehicle was not justified by articuable facts).

United States v. Kyllo, 140 F.3d 1249 (9th Cir. 1998) (Warrantless use of thermal imager to scan a home violated fourth amendment).

United States v. Rossomando, 144 F.3d 197 (2d Cir. 1998) (Ambiguous jury instruction misled jurors).

United States v. Isaac, 141 F.3d 477 (3d Cir. 1998) (Plea agreements referring to substantial assistance departures are subject to contract law).

United States v. Walker, 142 F.3d 103 (2d Cir. 1998) (Prior convictions for offenses that were calculated into offense level should not have gotten criminal history points).

United States v. Carpenter, 142 F.3d 333 (6th Cir. 1998) (Refusal to testify did not bar safety valve).

United States v. Cottman, 142 F.3d 160 (3d Cir. 1998) (The government is not a victim under Victim Witness Protection Act).

United States v. Terry, 142 F.3d 702 (4th Cir. 1998) (Extent of upward departure was not supported by findings).

United States v. Kang, 143 F.3d 379 (8th Cir. 1998) (Defendant could not be denied safety valve because government claimed he was untruthful absent supporting evidence).

United States v. Abdi, 142 F.3d 566 (2d Cir. 1998) (Defendant's uncounseled statement was erroneously admitted).





Our thanks to Alexander Bunin

of the Federal Defenders Organization for the Southern District of Alabama who allows us to reproduce and distribute these cases in our newsletter.






Updated 7th Circuit Rules, Type Requirements and Brief Filing Checklist



We have obtained the most recent editions of the Seventh Circuit Rules, type requirements for documents filed in the Seventh Circuit, and a brief filing checklist. If you have an old version of the Seventh Circuit rules and requirements, I suggest you discard them and contact us for this new information.



As a reminder, these are not intended to be all encompassing - only the rules that have been amended or added in the last year are included here.



One of the more important changes involves the size of the briefs - Circuit Rule 32(d)(2)(a) requires the brief in chief to be no longer than 14,000 words or 1,300 lines.



If you would like a copy of these new rules, please contact Mary Kedzior, Panel Administrator of the Federal Defender's Office for the Central District of Illinois at 309/671-7891.






CJA Attorney Sued for Expert Services



In United States v. Tony Silva, 140 F.3d 1098 (7th Cir. 1998), the Seventh Circuit affirmed a district court's denial of a petition for an order to show cause filed by a CJA attorney being sued in state court for expert services rendered pursuant to a district court order authorizing payment for only part of the final billed amount. Although the Seventh Circuit held that there was no showing of contempt by the expert company suing the CJA lawyer, the Seventh Circuit held that the CJA provides that experts retained under its auspices may not seek payment from anyone other than the district court. The Court indicated that the CJA attorney could seek some remedy from the district court under the All Writs Act to curtail the state court action against him.








1998 Amendments to the Sentencing Guidelines



The 1998 Amendments to the Sentencing Guidelines,which will take effect on November 1, 1998, include the following:



1. Desecration of Veterans' Cemeteries (Sections 2B1.1; 2B1.3; 2K1.4)

In response to the Veterans' Cemeteries Protection Act, this amendment increases by two offense levels the penalties in the theft, property destruction, and arson guidelines for offenses involving desecration of property in national cemeteries.



2. Mass-Marketed Frauds; Sophisticated Concealment (Sections 2F1.1; 2T1.1; 2T1.4; 2T3.1)

This amendment (A) increases by two offense levels the penalties for fraud offenses that use mass-marketing to carry out the fraud; (B) provides a new enhancement and a floor offense level of level 12 in the fraud guidelines if: (1) the defendant relocated or participated in relocating a fraudulent scheme to another jurisdiction to evade law enforcement or regulatory officials, (2) a substantial part of a fraudulent scheme was committed from outside the United States, or (3) the offense otherwise involved sophisticated concealment; and (C) conforms the language of the current enhancement for "sophisticated means" in various tax guidelines to the new sophisticated concealment amendment in the fraud guideline.



3. Prohibited Person Firearms Offenses (Section 2K2.1)

This amendment (A) modifies the definition of "prohibited person" in the firearms guideline to include a person convicted of a misdemeanor crime of domestic violence; (B) increases by two offense levels the base offense level for a defendant who is convicted under 18 U.S.C. §922(d) which prohibits the transfer of a firearm to a prohibited person; and (C) makes technical and conforming changes in Application Note 12 of Section 2K2.1.



4. Failure to Appear, Grouping (Sections 2J1.6; 2P1.2; 3C1.1; 3D1.1; 3D1.2; 5G1.2)

This amendment (A) resolves circuit conflict by: (1) more clearly distinguishing between statutes that require imposition of a consecutive term of imprisonment only if imprisonment is imposed (e.g. 18 U.S.C. §3146 (Penalty for failure to appear); 18 U.S.C. §1791(b), (c) (Penalty for providing or possessing contraband in prison)), and statutes that require both a minimum term of imprisonment and a consecutive sentence (e.g. 18 U.S.C. §924(c) (Use of a firearm in relation to crime of violence or drug trafficking offense); and (2) stating that the method outlined for determining the sentence for failure to appear and similar statutes ensures an incremental, consecutive punishment; (B) adds an upward departure provision in Section 2J1.6 if the offense conduct involves multiple obstructive behavior; (C) makes conforming changes in Section 2P1.2 because the relevant statute, 18 U.S.C. §1791, is similar to 18 U.S.C. §3146; and (D) makes conforming changes in Sections 3C1.1, 3D1.1, 3D1.2, and 5G1.2.



5. Abuse of Position of Trust, Imposters (Section 3B1.3)

This amendment resolves a circuit conflict by establishing that the two-level increase for abuse of a position of trust applies to a defendant who is an imposter as well as to a person who legitimately holds and abuses a position of trust.



6. Applicability of Obstruction Adjustment to Closely-Related Cases (Section 3C1.1)

This amendment (A) resolves a circuit conflict by stating that the obstruction must relate either to the defendant's offense of conviction (including relevant conduct) or to a closely-related case; and (B) clarifies that the obstructive conduct must occur during the investigation, prosecution, or sentencing of the defendant's offense conviction.



7. Lying About Drug Use While on Pretrial Release (Section 3C1.1)

This amendment resolves a circuit conflict by excluding from application of Section 3C1.1 a defendant's denial of drug use while on pretrial release, although the amendment provides that such conduct may be relevant in determining the application of other guidelines, such as Section 3E1.1.



8. Diminished Capacity (Section 5K2.13)

This amendment (A) addresses a circuit conflict by allowing a diminished capacity departure if there is sufficient evidence that the defendant committed the offense while suffering from significantly reduced mental capacity, except under three circumstances; and (B) adds an application note that defines "significantly reduced mental capacity" to include both cognitive impairments (i.e., an inability to understand the wrongfulness of the conduct or to exercise the power of reason) and volitional impairments (i.e., an inability to control behavior that the person knows is wrongful), based on the decision in United States v. McBroom, 124 F.3d 533 (3rd Cir. 1997).



9. Corrections to Conditions of Probation and Supervised Release (Sections 5B1.3; 5D1.3)

This amendment (A) adds to Section 5B1.3 a condition of probation regarding deportation, in response to Section 374 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996; (B) deletes the reference in the supervised release guideline to "just punishment" as a reason for the imposition of curfew as a condition of supervised release because it is not included in 18 U.S.C. §3583(c) as a factor to be considered in imposing a term of supervised release; and (C) amends the guidelines pertaining to conditions of probation and supervised release to indicate that discretionary, as opposed to mandatory, conditions are policy statements of the commission, not binding guidelines.



10. Koon Departure Review Standards (Section 5K2.0)

This amendment (A) incorporates into the general departure policy statement the principal holding and key analytic points of the United States Supreme Court's decision in Koon v. United States, 518 U.S. 81 (1996); (B) removes language that is inconsistent with the Koon holding; and (C) generally enhances the precision of the language of the policy statement.



11. Technical Corrections (Sections 2B3.1; 2K2.1; 6A1.3)

This amendment corrects technical errors in Sections 2B3.1, 2K2.1 and 6A1.3.







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Published by: The 7th Circuit

Federal Defenders



Editor: Richard H. Parsons,

Federal Public Defender

Central District of Illinois



Managing Editor: Mary Kedzior

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Federal Defender's Office

Central District of Illinois





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Federal Defender's Office

Central District of Illinois

401 Main Street, Suite 1500

Peoria, Illinois 61602

Phone: 309/671-7891

Fax: 309/671-7898




UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

PEORIA DIVISION





UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

vs. ) Crim. No. 93-10059

)

JAMES CATTON, )

)

Defendant. )



MOTION TO BAR WITNESS DOUGLAS WOLFE BASED ON THE

CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT



NOW COMES the defendant, JAMES CATTON, by his attorneys Chief Federal Public Defender Richard H. Parsons, Assistant Federal Public Defender Thomas W. Patton and Daniel G. O'Day and for his motion to bar Douglas Wolfe as a witness states as follows:

1. That the Sixth Amendment provides, in pertinent part, that in all criminal prosecutions, "the accused shall enjoy the right ... to be confronted with the witnesses against him."

2. That Mr. Catton will be deprived of his right to confront witness Douglas Wolfe if, as appears likely, defendant Wolfe asserts the Fifth Amendment in response to cross-examination.

3. That the defense has a good faith belief that Douglas Wolfe would assert the Fifth Amendment during cross-examination if allowed to testify.

4. That the defense's belief is based on its review of facsimile documents regarding interviews of Douglas Wolfe on June 30, 1995 and July 2, 1998. The facsimile regarding the June 30, 1995 interview of Douglas Wolfe reveals that Mr. Picl, Wolfe's counsel, advised Wolfe to hold off before going into details of what took place in Rockford and how they worked with Wolfe in Rockford.(1) The Investigative Notes of the July 2, 1998 interview of Douglas Wolfe make reference to Wolfe wanting to learn how to hide assets because he owed the IRS money and "other stuff he doesn't want to talk about."



5. That defendant's right to confront the witnesses against him would be violated if Douglas Wolfe were able to testify on direct for the prosecution and then assert the Fifth Amendment during cross-examination.

WHEREFORE, the defendant, JAMES CATTON, respectfully requests that this Honorable Court enter an Order barring the government from calling Douglas Wolfe as a witness at Mr. Catton's trial.

Respectfully submitted,

JAMES CATTON, Defendant



RICHARD H. PARSONS

Federal Public Defender





By: ___________________________

RICHARD H. PARSONS

Chief Federal Public Defender

401 Main St., Suite 1500

Peoria. Illinois 61602

(309) 6 71-7891





CERTIFICATE OF SERVICE



The undersigned attorney hereby certifies that a copy of the foregoing instrument was personally delivered to Assistant United States Attorney Bradley W. Murphy, 100 N.E. Monroe, Peoria, Illinois 61602 on July 9, 1998.



_______________________________

























UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

PEORIA DIVISION





UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

vs. ) Crim. No. 93-10059

)

JAMES CATTON, )

)

Defendant. )



MOTION TO BAR WITNESS DOUGLAS WOLFE

PURSUANT TO 18 U.S.C. § 201(C)



NOW COMES the defendant, JAMES CATTON, by his attorneys Chief Federal Public Defender Richard H. Parsons, Assistant Federal Public Defender Thomas W. Patton and Daniel G. O'Day and for his motion to bar Douglas Wolfe as a witness states as follows:

1. AUSA Murphy has represented to the defense that, at a minimum, the United States would make a recommendation to the Illinois Department of Corrections on Douglas Wolfe's behalf based on his testimony.

2. 18 U.S.C. §201(c) provides that:

Whoever ... directly or indirectly, gives, offers or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon a trial, hearing, or other proceeding, before any court ... authorized by the laws of the United States to hear evidence or take testimony shall be fined under this title or imprisoned for not more than two years, or both.

3. Under United States v. Singleton, 1998 LEXIS U.S. App. LEXIS 14896 (10th Cir., July 1, 1998), such a promise violates 18 U.S.C. § 201(c) and calls for the suppression of the testimony of the promisee.

4. In Singleton, government witness Napoleon Douglas had entered into a plea agreement with the government. The plea agreement provided that "the government would file a motion under U.S.S.G. § 5K1.1 or 18 U.S.C. § 3553(e) if, in its sole discretion, Mr. Douglas's cooperation amounted to substantial assistance." Id. at *4. It was clear that Douglas understood that the actual grant of any downward departure was up to the sentencing court. Id.

The government had also made three specific promises. First, it promised that, in return for his testimony, it would not prosecute him for any other violations of the Drug Abuse Prevention Act related to the activities currently being investigated, except for perjury or related offenses. Id. at *4-5. Second, it promised to advise the sentencing court, prior to sentencing, of the nature and extent of the cooperation he provided. Id. at *5. Third, it promised to advise the Mississippi parole board of the nature and extent of his cooperation. Id. Douglas agreed "in consideration" of the promises made by the government, to testify truthfully in federal and/or state court. Id.

5. AUSA Murphy's statement that the United States would at a minimum make a recommendation to the Illinois D.O.C. on behalf of Douglas Wolfe mirrors the third specific promise discussed in Singleton.

6. The Tenth Circuit carefully examined the language of 18 U.S.C. § 201(c) and several principles of statutory construction and concluded that "§ 201(c)(2) applies to federal prosecutors who make promises for or because of testimony on behalf of the government."Id. at *19. The Court then considered whether the promises to Douglas fell within the "anything of value" language of the statute.

7. Because there was not a clear promise to move for a downward departure, the Tenth Circuit relied only on the three promises specifically made in the agreement. Id. at *19-20. The court observed that "courts have recognized that 'anything of value' under § 201 must be broadly construed to carry out its congressional purpose." Id. at *21. After detailed consideration, the Tenth Circuit concluded that the promises were of value. The court stated: "Our basis for determining these promises were of value is that the record indicated Mr. Douglas subjectively valued them. They were all he bargained for in return for his testimony and guilty plea. *** In addition, he testified that he wanted the government's assistance to help 'everything work out for him.'" Id. at *29.

8. In this case, it must be concluded that the promise that the government will make a recommendation to the Illinois D.O.C. on his behalf, which could improve the conditions of his confinement or even lead to an earlier release, is something of value to Douglas Wolfe as it is all he bargained for in exchange for his testimony.

9. The Tenth Circuit also observed that § 201(c)(2) is a gratuity prohibition and contains no requirement of an attempt to corrupt or influence the witnesses testimony. Id. at *31. Later in the opinion, the court reiterated that "under § 201(c)(2) the promise need not be intended to affect, and need not actually affect, the testimony in any way. Promising something of value to secure truthful testimony is as much prohibited as buying perjured testimony." Id. at *58.

10. The court concluded that "§ 201(c)(2) prohibited the government's promises to Mr. Douglas of leniency and intervention on his behalf in return for his testimony." Id. at *33. Likewise, the promise to intervene on Wolfe's behalf in return for his testimony in this case violates the statute.

11. The Tenth Circuit considered three prior decisions addressing the issue of whether 18 U.S.C. § 201(c)(2) prohibited the government from offering inducements to witnesses for their testimony and found all three unpersuasive. One of these, United States v. Barrett, 505 F.2d 1091 (7th Cir. 1974) is from the Seventh Circuit.

12. Addressing Barrett, the Tenth Circuit stated:

Section 201(h) was also raised by the defendant in United States v. Barrett, 505 F.2d 1091, 1100-02 (7th Cir.1974), cert. denied, 421 U.S. 964, 95 S.Ct. 1951, 44 L.Ed.2d 450 (1975), in which the government entered into a plea agreement similar to its agreement with Mr. Douglas. In Barrett, the primary witness against the defendant pled guilty and agreed to testify in return for the government's recommendation of an extraordinarily lenient sentence, transactional immunity, and civil tax immunity. The witness's testimony was that he paid large bribes to various public officials; in return for this testimony, he was exempted from paying tax and penalties on the money constituting the bribes. The defendant moved to suppress on the ground that this arrangement violated § 201(h). The district court denied the motion but allowed the government's bargain to be used to impeach the witness's credibility. See id.

The Seventh Circuit approved this disposition and in a footnote repeated Isaacs's inference from Giglio. See id. n. 9. It went on to state that the premise of the defendant's § 201(h) argument was that the government had no authority to grant civil tax immunity in return for testimony. The defendant conceded the government did not violate § 201(h) by granting criminal immunity, because the United States Code authorizes the government to grant such immunity. See 18 U.S.C. § 6002. Following this reasoning, the court found a provision of the tax code authorizing the government to settle any tax case, 26 U.S.C. § 7122, and held that because Congress authorized the government to settle tax liability, it could settle tax liability in return for testimony. See Barrett, 505 F.2d at 1101-02.

We believe this conclusion is incorrect because both the court and the parties reasoned from a faulty premise. Section 201(h) did not prohibit the government from giving unauthorized things of value for testimony; it proscribed giving anything of value for testimony. To read the section as prohibiting only the giving of unauthorized things (besides ignoring its plain language) is to read it right out of the code. It is a truism that the government may not do unauthorized things. And it is § 201(h) that makes gifts, offers, and promises unauthorized in certain circumstances. If the section is to have any meaning it must be read to prohibit giving otherwise authorized things "for" or "because of" testimony. Otherwise, under Barrett's reasoning, the government's authorization to expend money means the government may pay money to a witness for his testimony. We will not eviscerate the statute in this way. Section 201(c)(2) discriminates not on the basis of what things of value are authorized, but on whether the thing of value is given "for" or "because of" testimony.

Id. at *51-54.

12. Having concluded that the government had violated 18 U.S.C. § 201(c)(2), the Tenth Circuit concluded that the appropriate remedy was to suppress the testimony obtained in violation of the statute, stating that "[t]he principal reason behind the adoption of the exclusionary rule was the Government's 'failure to observe it's own laws.'"Id. at *60 (citations omitted). Exclusion will effectively deter the unlawful practice before the court, remove the incentive to violate § 201(c)(2) and protect the imperative of judicial integrity. Id. at *62-64.



WHEREFORE, the defendant, JAMES CATTON, respectfully requests that this Honorable Court enter an Order barring the government from calling Douglas Wolfe as a witness at Mr. Catton's trial.

Respectfully submitted,

JAMES CATTON, Defendant



RICHARD H. PARSONS

Federal Public Defender





By: ___________________________

RICHARD H. PARSONS

Chief Federal Public Defender

401 Main St., Suite 1500

Peoria. Illinois 61602

(309) 6 71-7891



CERTIFICATE OF SERVICE



The undersigned attorney hereby certifies that a copy of the foregoing instrument was personally delivered to Assistant United States Attorney Bradley W. Murphy, 100 N.E. Monroe, Peoria, Illinois 61602 on July 9, 1998.



_______________________________



U.S. SUPREME COURT

REVIEW - PREVIEW - OVERVIEW

Criminal Cases

October 1997 Term thru July 1, 1998



Paul M. Rashkind, Chief of Appeals

Office of the Federal Public Defender, S.D. Fla.





I. PRELIMINARY PROCEEDINGS



A. Prosecutorial Libel. Kalina v. Fletcher, 118 S. Ct. 502 (1997). Civil rights action under º1983 may create a damages remedy against a prosecutor who makes false statements of fact in an arrest warrant affidavit, since such conduct is not protected by the doctrine of absolute prosecutorial immunity.



B. Grand Jury Composition - Standing to Challenge. Campbell v. Louisiana, 118 S. Ct. 1419 (1998). A white defendant has standing to raise (1) an equal protection challenge to race-based exclusion of grand jury foreman, even if the defendant is of a different race than those being excluded; (2) a due process claim that the grand jury that indicted him had a foreman selected in a pattern demonstrating racial discrimination against blacks, in violation of the Fifth and Fourteenth Amendments.



C. Privileges



1. Invocation of Fifth Amendment Right to Silence. United States v. Balsys, 118 S. Ct. ___ ( June 25, 1998). The Fifth Amendment privilege against self-incrimination does not apply to fear of a foreign prosecution. The Court observed, however, that "[t]his is not to say that cooperative conduct between the U.S. and foreign nations could not develop to a point at which a claim could be made for recognizing fear of foreign prosecution under the Self-Incrimination Clause as traditionally understood." But in the ordinary case, "the mere support of one nation for the prosecutorial efforts of another," does not transform a foreign prosecution into a domestic one. In limiting the clause to domestic prosecutions, the Court overruled that portion of Murphy v. Waterfront Commission of N.Y. Harbor, 378 U.S. 52 (1964), which suggested that the clause protects the inviolability of the human personality. While that value might be furthered to some extent, the clause itself only applies to the U.S. government, and through application of the 14th amendment, the states.



2. Fifth Amendment Rights After Guilty Plea. Mitchell v. United States, 118 S. Ct. ____ (June 15, 1998) (cert. granted); reported below at 122 F.3d 185 (3rd Cir. 1997). Does a defendant who pleads guilty waive her Fifth Amendment right to not testify at sentencing? Defendant pled guilty to distributing cocaine, but reserved the right to contest the amount of cocaine for which she would be held responsible at sentencing. Her sentencing hearing involved contested testimony of co-defendants about the number of drug sales in which Mitchell was involved. Mitchell did not testify. Since she did not testify about quantity at her own sentencing hearing, the district court judge found against her on the quantity issue: "I held it against you that you did not come forward today and tell me that you really did this only a couple of times ... I'm taking the position that you should come forward and explain your side of this issue." The court of appeals affirmed the district court's ruling that, upon conviction, the defendant lost her Fifth Amendment privilege against self-incrimination and her failure to testify could be held against her.



3. Attorney-Client Privilege. Swidler v. Berlin, 118 S. Ct. ____ (June 25, 1998). In a grand jury investigation, does the attorney-client privilege die with the client? Vince Foster's last lawyer asserted that the death of his client did not cause the attorney-client privilege to expire, and even if it did, his notes of the initial client interview are work product, because they do not merely transcribe statements made by the client, but implicitly reflect opinions of the lawyer. The D.C. Circuit rejected these arguments, but the U.S. Supreme Court reversed the D.C. Circuit decision. Reiterating the common law rule that the attorney-client privilege survives the client's death, the Supreme Court reversed the D.C. Circuit's creation of an exception to the attorney-client privilege, after the client's death, in a criminal investigation in which the government makes a showing that the relative importance of the privilege is substantial. The Court rejected the balancing test offered by the D.C. Circuit and the Independent Counsel, holding that it was mere speculation on the part of the Independent Counsel that free attorney-client communications would not be chilled by the creation of this exception. The Court expressly did not reach the question whether there would be an exception for the disclosure of evidence necessary in exceptional circumstances to protect a defendant's constitutional rights.



D. Extradition. New Mexico ex rel. Ortiz v. Reed, 118 S. Ct. ____ (June 8, 1998) (per curiam). Ohio sought extradition of a fugitive parolee, who fled to New Mexico. New Mexico's courts heard his complaints that Ohio intended to revoke his parole without due process and that he would suffer physical harm if he was returned to Ohio. Remarkably, the New Mexico courts, including its Supreme Court, ruled in favor of the fugitive, finding that he was not a fugitive from justice, but rather he was a "refugee from injustice." The U.S. Supreme Court summarily granted certiorari, overturning New Mexico's grant of habeas corpus, holding that Article IV of the U.S. Constitution requires that New Mexico turn over the fugitive. In support of its holding, the Court quoted California v. Superior Court, 482 U.S. 400, 405-06 (1987): "The Federal Constitution places certain limits on the sovereign powers of the States, limits that are essential to the Framers' conception of national identity and Union. One such limit is found in Article IV, §2, cl. 2, the Extradition Clause ... The obvious objective of the Extradition Clause is that no State should become a safe haven for the fugitive from a sister State's criminal justice system."



II. SEARCH & SEIZURE



A. Residences.



1. Destructive No-Knock. United States v. Ramirez, 118 S. Ct. 992 (1998). The Fourth Amendment does not hold police to a higher standard when a no-knock entry results in destruction of property. Reasonable suspicion that knocking and announcing their presence is dangerous is all police need to break a window pane to gain entry. Moreover, 18 U.S.C. §3109 (permitting a police officer to break doors or windows to enter for purpose of executing search warrant, if "he is refused admittance"), does not bar a destructive no-knock, since the statute is merely a codification of the common-law, which implicitly includes an exigent circumstances exception, to be measured by Richards v. Wisconsin.



2. Peeking. Minnesota v. Carter, 118 S. Ct. 1183 (Mar. 9, 1998), (cert. granted), reported below 569 N.W.2d 169 (Minn. 1997). Do police need a search warrant before peering through a gap in window blinds to detect possible illegal behavior? Does an apartment leaseholder's guest have standing to challenge an unconstitutional search at the apartment?



B. Vehicles - Validity of Search Following Traffic Citation. Knowles v. Iowa, 118 S. Ct. 1298 (Mar. 23, 1998) (cert. granted); reported below at 569 N.W.2d 601 (Iowa 1997). Can a state, consistent with the Fourth Amendment, enact a statue conferring to police a blanket authorization to conduct a full-blown search of a motor vehicle upon issuance of a traffic or equipment citation?



C. Parolees. Pennsylvania Board of Probation and Parole v. Scott, 118 S. Ct. ____ (June 22, 1998). The exclusionary rule does not apply to parole revocation proceedings.



D. Pedestrians - Loitering Law. Chicago, Ill. v. Morales, 118 S. Ct. 1510 (Apr. 20, 1998) (cert. granted); reported below at 687 N.E. 2d 53 (Ill. 1997). Is a loitering ordinance unconstitutionally vague, in violation of due process guarantees, where the law authorizes the arrest of persons who have disobeyed a police order to "move on" when the police officer has reasonable grounds to believe that a group of loiterers contains members of a criminal street gang? Does the ordinance, which requires a group of criminal street gang members to obey police order to "move on," violate substantive due process guarantees.



III. CRIMES - ELEMENTS AND BURDENS OF PROOF



A. Firearms - Clarifying Bailey



1. Retroactivity - "Use." Bousley v. United States, 118 S. Ct. 1604 (1998). Bailey v. United States, 516 U.S. 137 (1995), holds that "use" of a firearm under 18 U.S.C. §924(c) requires active employment of a firearm. What happens to defendants who pled guilty to such a crime, before Bailey, based on the mistaken belief that the government could prove a 924(c) violation without proving active employment of a firearm? In Bousley the Supreme Court held that a defendant who pled guilty to an offense based on a false understanding of the elements of the offense can attack his conviction collaterally under 28 U.S.C. §2255 on the grounds of involuntariness, even where the courts do not decide until years after the plea that the elements are different than those the defendant believed applicable and even though the defendant fails to pursue a direct appeal of the voluntariness of his plea. In this case, the defendant challenged his guilty plea to using a firearm in a drug offense, 18 U.S.C. §924(c), where, five years after the plea, the Supreme Court decided Bailey. Bailey is applicable retroactively and is not Teague-barred, because Teague applies only to procedural rules, not limitations on the reach of criminal statutes and because the underlying principle here, that involuntary pleas violate due process, is not a new rule. However, where the defendant has failed to pursue a direct appeal of his entry of the plea (even though he was relying on circuit precedent that would have foreclosed a challenge to the elements of the offense), his failure to appeal constitutes a procedural default barring review of his habeas involuntariness claim, absent a showing of cause for the default. Futility is not a bar if the futility is merely the unwillingness of a particular court to at a particular time to agree with a particular argument. Neither would a Bailey claim be deemed so "novel" as to constitute cause for the failure to anticipate it. Absent cause for the default, only a showing of actual innocence of the offense will warrant overcoming the procedural default. To show actual innocence in this context, the defendant must show that he is factually innocent not only of the offense to which he pled guilty, but also of any offense which the government agreed to forego in exchange for the defendant's guilty plea.



2. Relief after AEDPA. Hohn v. United States, 118 S. Ct. ____ (June 15, 1998). Hohn filed a §2255 petition, seeking to obtain the benefit of the Supreme Court's holding in Bailey. While his §2255 petition was pending, Congress passed the AEDPA, which limited the right to appeal such proceedings by requiring a certificate of appealability. Certificates may only issue if the defendant makes a substantial showing of the denial of a "constitutional right." The district court denied the §2255 petition based on waiver, because the defendant had not raised the issue on direct appeal. The court of appeals denied a certificate of appealability because the Bailey issue was one of statutory construction, not involving a constitutional right. The defendant sought certiorari in the Supreme Court and the Acting Solicitor General conceded that the Bailey issue involved a constitutional right, suggesting that the Supreme Court grant certiorari, vacate and remand the case. The Supreme Court was faced with the question of whether it had jurisdiction since there had never been a certificate of appealability in the underlying appeal. Receding from House v. Mayo, 324 U.S. 4, 48 (1945) (per curiam), a divided Court held that it has certiorari jurisdiction to review the lower court's refusal to grant a certificate of appealability. It then vacated the denial of the certificate of appealability and remanded the appeal for further proceedings.



3. Location of Firearm - "Carry." Muscarella v. United States, 118 S. Ct. ____ (June 8, 1998) and Cleveland v. United States, 118 S. Ct. ___ (June 8, 1998). The "carry" prong of §924(c) is satisfied by gun in locked glove compartment of truck or the trunk of auto. The phrase "carries a firearm" applies to a person who knowingly possesses and conveys firearms in a vehicle.



B. Felons in Possession. Caron v. United States, 118 S. Ct. ____ (June 22, 1998). Federal law punishes felons in possession of firearms, 18 U.S.C. §922(g)(1) and provides an enhanced penalty for three-time felons found in possession of a firearm. §924(e). A previous conviction is not a qualifying predicate offense for either the substantive offense or the sentencing enhancement if the offender has had his civil rights restored, "unless such ... restoration of civil rights expressly provides that the person may not ... possess ... firearms." What happens if the state's restoration of civil rights permits the offender to possess some weapons, such as pistols, but not others, such as rifles? Depending on how one reads the "unless" clause, the offender may not possess any firearms, because the state does ban some firearm possession; or the offender can possess firearms, since the state ban is not absolute. The Supreme Court resolved this ambiguity and split among the circuits by deciding that if the state bans felons from possessing some firearms, it activates the federal law that prohibits all firearm possession by the offender.



C. Sales of Firearms. Bryan v. United States, 118 S. Ct. ____ (June 15, 1998). A prosecution under 18 U.S.C. §922(a)(1)(A) does not require proof that the defendant who sold firearms without a license knew of requirement that he needed federal firearm dealers license. The term "willfully" in this statute requires proof only that the defendant knew his conduct was unlawful, not that he also knew of the federal licensing requirement.



D. Carjacking.



1. Elements. Holloway v. United States, 118 S. Ct. 1558 (Apr. 27, 1998) (cert. granted); reported below at 126 F.3d 82 (2nd Cir. 1997). Does the crime of carjacking, 18 U.S.C. §2119, include instances in which the intent to cause death or serious bodily harm is conditional?



2. Sentencing. Jones v. United States, 118 S. Ct. 1359 (Mar. 30, 1998) (cert. granted); reported below at 60 F.3d 547 and 116 F.3d 1487 (9th Cir. 1997). Does 18 U.S.C. §2119 (1)-(3), the punishment sections of the federal carjacking statute, describe sentencing factors or elements of the offense? If it sets forth sentencing factors, is the statute constitutional? In this case, the government neither alleged, nor proved at trial, that serious bodily injuries occurred. The defendant was not put on notice of serious bodily injuries to victim until he received the presentence report. He received an enhanced sentence, 300 months, instead of the regular statutory maximum of 180 months.



E. Bank Robbery - Lesser Included Offense. Mosley v. United States, 118 S. Ct. 1298 (Mar. 23, 1998) (cert. granted); reported below at 126 F.3d 200 (3rd Cir. 1997). Is bank larceny, in violation of 18 U.S.C. §2113(b), a lesser included offense of bank robbery, in violation of 18 U.S.C. §2113(a)?



F. Fraudulent Intent - Misapplying Federally Insured Funds. Bates v. United States, 118 S. Ct. 285 (1997). Fraudulent intent on the part of a defendant is not an essential element of the crime proscribed by 20 U.S.C. §1097(a), knowingly and willfully misapplying federally insured funds.



G. RICO and Bribery. Salinas v. United States, 118 S. Ct. 469 (1997). (1) Prosecution under 18 U.S.C. §666 (acceptance of bribes by local officials of federally funded agencies) does not require proof that the bribe had a demonstrated effect upon federal funds; (2) To convict a defendant of RICO conspiracy §1962(d), government need not prove that defendant himself committed, or agreed to commit, two or more predicate acts.



H. Assimilative Crimes Act. Lewis v. United States, 118 S. Ct. 1135 (1998). Petitioner was not properly charged and convicted under the Louisiana second-degree murder law, under the federal Assimilative Crimes Act, since there exists a federal statute covering murder; and, she could not be sentenced to mandatory life under Louisiana law, since she must be sentenced under the federal law and Sentencing Guidelines, which has a guideline range of 168-210 months.





IV. TRIAL



A. Venue.



1. Money Laundering. United States v. Cabrales, 118 S. Ct. 1772 (1998). Venue in a prosecution for money laundering (18 U.S.C. §§1956-57) is not properly laid in the district where illicit funds were generated, when defendant's alleged unlawful financial transactions occurred entirely in another district.



2. Firearms, 18 U.S.C. §924(c)(1). United States v. Rodriguez-Moreno, 118 S. Ct. ____ (June 8, 1998) (cert. granted); decision below at 121 F.3d 841. Third Circuit held that venue over a charge of using or carrying a firearm in relation to a crime of violence or drug trafficking was not proper a state in which the defendant neither used nor carried a firearm.. Supreme Court granted certiorari to consider this issue.



B. Evidence.



1. Codefendant's Confessions - Bruton - Redaction. Gray v. Maryland, 118 S. Ct. 1151 (1998). Maryland courts admitted a nontestifying codefendant's confession in a joint trial, which implicated that codefendant and four others, but not by name. Although the confession was redacted to exclude the names of the other defendants, the confession was not singularized to delete implicit and explicit references to other perpetrators. The jury could reasonably infer that Gray was one of the four others to whom the confession referred. In a reaffirmation of Bruton -- and a limitation on the reach of Richardson -- the Supreme Court held that the limited redaction was inadequate since it allowed the jury to infer guilt of the non-confessing defendants.



2. Defense Evidence - Polygraphs and More? United States v. Scheffer, 118 S. Ct. 1261 (1998). Mil. R. Evid. 707, a military rule excluding result of polygraph examinations from courts martial proceedings, is not an unconstitutional abridgment of the right of an accused to present a defense. "A defendant's right to present a defense is subject to reasonable restrictions. ... A defendant's interest in presenting such evidence may thus 'bow to accommodate other legitimate interests in the criminal trial process.' ... As a result, state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials. Such rules do not abridge an accused's right to present a defense so long as they are not 'arbitrary' or 'disproportionate to the purposes they were designed to serve.'"



3. Appellate Standard of Review of Admissibility of Expert Evidence. General Electric Co. v. Joiner, 118 S. Ct. 512 (1997). Trial court decision to admit or exclude expert testimony under Daubert v. Merrill Dow Pharmaceuticals, Inc. is reviewed on appeal for abuse of discretion, regardless of the overall impact of the ruling on the pending litigation.



C. Jury Instructions. Rogers v. United States, 118 S. Ct. 673 (1998) (cert. dismissed). "Whether a district court's failure to instruct the jury on an essential element of the offense is harmless error, where, at trial, the defendant admitted that element?" Certiorari dismissed as improvidently granted since the issue was not fairly presented by the record.



V. SENTENCING



A. Fifth Amendment Rights After Guilty Plea. Mitchell v. United States, 118 S. Ct. ____ (June 15, 1998) (cert. granted); reported below at 122 F.3d 185 (3rd Cir. 1997). Does a defendant who pleads guilty waive her Fifth Amendment right to not testify at sentencing? Defendant pled guilty to distributing cocaine, but reserved the right to contest the amount of cocaine for which she would be held responsible at sentencing. Her sentencing hearing involved contested testimony of co-defendants about the number of drug sales in which Mitchell was involved. Mitchell did not testify. Since she did not testify about quantity at her own sentencing hearing, the district court judge found against her on the quantity issue: "I held it against you that you did not come forward today and tell me that you really did this only a couple of times ... I'm taking the position that you should come forward and explain your side of this issue." The court of appeals affirmed the district court's ruling that, upon conviction, the defendant lost her Fifth Amendment privilege against self-incrimination and her failure to testify could be held against her.



B. Dual Object Drug Conspiracy. Edwards v. United States, 118 S. Ct. 1475 (1998). The defendant was convicted of a dual object drug conspiracy under a general verdict that does not disclose the object of the conspiracy. The indictment charged possession with intent to distribute "cocaine and cocaine base" and conspiracy to commit that offense, under 21 U.S.C. §§841 and 846. The district court instructed the jury that it could convict if the government proved "cocaine or cocaine base," The case raised the question: "Must the defendant be sentenced on the basis of the criminal objective carrying the lesser penalty or be given a new trial?" The Supreme Court answered that the district court was not required to sentence the defendant as if only the lesser drug -- cocaine -- was involved. Instead, the sentencing court was required and authorized under the guidelines to determine the identity and quantity of all the drugs for which the defendant should be held responsible that were part of the same course of conduct. Thus, for guideline purposes, the district court did not err in setting the defendants' base offense level by including the cocaine base. The Court distinguished the situation in which the defendant disputes whether the drugs were part of the same course of conduct as the count of conviction. Since the sentencing judge based the sentence on the appropriate guideline and relevant conduct and not on any misapprehension that the jury required application of the guideline for cocaine base, there was no error. [NOTE: The Court also distinguished the situation in which a sentencing court's determination of the identity of the controlled substance might result in a sentence that exceeds the statutory maximum for the offense of conviction, but the Court did not decide what rule would apply in such a situation or in circumstances where the sentencing court's determination of the quantity of the drugs changes the mandatory minimum for the count of conviction. In the 11th Circuit, it has been the rule since 1992 that an allegation of a mandatory-minimum triggering quantity need not be pled in the indictment.]



C. Judicial Deportation as a Condition of Supervised Release. Daniel Mejia v. United States, 118 S. Ct. 1384 (April 16, 1998); reported below at 121 F.3d 722 (11th Cir. 1997). Granting summarily the defendant's petition for writ of certiorari and vacating the decision of the court of appeals. The lower court decision upheld judicial deportation as a condition of supervised release, but the Supreme Court vacated that ruling based on the passage of the Immigration Reform and Immigrant Responsibility Act of 1996, a jurisdiction ousting law that divests district courts of the power to deport aliens as a condition of supervised release.



D. Reentry After Deportation. Almendarez- Torres v. United States, 118 S. Ct. 1219 (1998). Title 8 U.S.C. §1326(a) provides that certain deported aliens who reenter the U.S. shall be fined or imprisoned not more than two years. Section 1326(b)(2) states that, notwithstanding 1326(a), any such alien who was deported due to conviction of an aggravated felony shall be fined or sentenced to no more than 20 years. The Supreme Court held that (b)(2) is not a separate crime, but rather is a sentencing sentencing enhancement that the government need not charge or prove at trial.



E. Double Jeopardy. Monge v. California, 118 S. Ct. ___ (June 26, 1998). Fifth Amendment's Double Jeopardy Clause does not bar a state from having a post-trial hearing in a non-capital case, in which the state is allowed to prove a sentencing enhancement allegation that it failed to prove at trial. To the extent Bullington v. Missouri, 451 U.S. 430 (1981), holds that a state may not have a second opportunity to obtain a death penalty in post-trial proceedings, after the first jury rejected the death penalty, that decision is limited to capital cases.



VI. DEATH PENALTY



A. New Rule Doctrine - Retroactivity under Teague v. Lane



1. New Rule and Federalism. Hopkins v. Reeves, 118 S. Ct. ____ (June 8, 1998). Beck v. Alabama, 447 U.S. 625 (1980), which holds that state courts may not refuse to instruct juries on lesser included offenses, does not require state courts to instruct juries on offenses that are not lesser included offenses of the charged crime under state law.



2. Calderon v. Ashmus, 118 S. Ct. 1694 (1998). California death row inmates filed suit, seeking to enjoin state from alleging compliance with state-favorable provisions of Antiterrorism and Effective Death Penalty Act of 1996. Supreme Court held this is not a justiciable case under Article III. This is not a proper declaratory judgment action since it does not seek a conclusive determination of the underlying controversy, i.e. each inmate's right to to a writ of habeas corpus, but rather the lawsuit merely attempts to limit the state's right to raise a defense to the underlying controversy.



3. Buchanan v. Angelone, 118 S. Ct. 757 (1998). Eighth Amendment does not require that a capital jury be instructed on the concept of mitigating evidence or on particular statutory mitigating factors.



B. Stays.



1. After Recall of Mandate. Calderon v. Thompson, 118 S. Ct. 1489 (1998). A panel of the Ninth Circuit Court of Appeals issued its mandate after deciding case adversely to a capital defendant. The death penalty stay was thereby lifted. The en banc court then recalled the mandate because some judges of the court had a misunderstanding that caused them to fail to timely request an en banc rehearing before issuance of the mandate; the original panel "appears to have made fundamental errors of law that, if not corrected, would lead to a miscarriage of justice." The day after the mandate was recalled, the Supreme Court granted certiorari and expedited consideration of the case, limited to issues about the propriety of recalling the mandate under the facts and the Antiterrorism and Effective Death Penalty Act of 1996. The Supreme Court held that a court of appeals does not have jurisdiction to recall its mandate in a capital habeas case that is final, when that action results in relitigation of same claims on same facts, in violation of 28 U.S.C. §2244(b)(1).



VII. CIVIL vs. CRIMINAL PENALTIES



A. Double Jeopardy Effect of Fines. Hudson v. United States, 118 S. Ct. 488 (1997). Defendant was fined $46,600 by the Comptroller of Currency for causing losses to the government of $900,000 by misapplication of bank funds. He was also charged criminally with misapplication of bank funds. Receding from United States v. Halper, 490 U.S. 435, the Supreme Court held that the double jeopardy clause is not a bar to the later criminal prosecution, because the O.C.C. administrative proceedings were civil, not criminal.



B. Excessive Fines Clause. United States v. Bajakajian, 118 S. Ct. ____ (June 22, 1998). Full forfeiture of $357,144 currency violates the Excessive Fines Clause when the crime to which the forfeiture is tied is the mere failure to report more than $10,000 to be transported outside of the U.S. The forfeiture is a "fine" within the meaning of the Clause. A punitive forfeiture violates the Clause if it is grossly disproportional to the gravity of the offense that it is designed to punish.



VIII. PAROLE AND OTHER EARLY RELEASE



A. Clemency Procedures. Ohio Adult Parole Authority v. Woodard, 118 S. Ct. 1244 (1998). (1) Inmate interviews conducted at the request of the inmate, as part of the clemency process, do not impose an unconstitutional condition on the inmate's Fifth and Fourteenth Amendment privilege against self-incrimination. (2) State clemency procedures may not be successfully challenged on due process grounds merely because the clemency decision is committed to the Executive's authority. A plurality of the fragmented Court held, however, that some minimal Court supervision remains available if it is shown that the State denied an inmate access to clemency procedures, or decided clemency by a "coin flip."



IX. PRISONER'S RIGHTS



A. Americans with Disabilities Act. Pennsylvania Department of Corrections v. Yeskey, 118 S. Ct. ____ (June 15, 1998). The ADA applies to state prisoners. A state prison inmate may not be disqualified from placement in a boot camp program that will lead to early parole, based solely on a medical history of hypertension.



X. COLLATERAL RELIEF: HABEAS CORPUS AND §2255



A. Impact of Antiterrorism and Effective Death Penalty Act of 1996



1. Application to Competency for Execution Claims. Stewart v. Martinez-Villareal, 118 S. Ct. 1618 (1998). AEDPA does not prevent further hearing on a claim that was earlier dismissed as premature. Renewal of the claim does not constitute a successive petition. Specifically, the Court held that in a 28 U.S.C. §2254 case, a Ford v. Wainwright claim (incompetency to be executed) that is dismissed by the federal district court as premature (because the petitioner's execution is not imminent) may be re-presented to the district court when it is ripe without implicating the successive petition bar of the AEDPA. Thus, the 9th Circuit correctly reversed the district court's dismissal of the claim. If this had been a true AEDPA successive petition, and the 9th Circuit had ruled on it as such, either allowing or denying the petitioner leave to file the petition, the Supreme Court would not have had jurisdiction to review that decision. "This case does not present the situation where a prisoner raises a Ford claim for the first time in a petition filed after the federal courts have already rejected the prisoner's initial habeas application. Therefore, we have no occasion to decide whether such a filing would be a `second or successive habeas corpus application' within the meaning of AEDPA." However, if it were, the Court indicated that dismissal would be required. Cf. In re Medina, 109 F.3d 1556 (11th Cir. 1997) (holding Ford claim barred as successive petition).



2. Stays After Recall of Mandate. Calderon v. Thompson, 118 S. Ct. 1489 (1998). A panel of the Ninth Circuit Court of Appeals issued its mandate after deciding case adversely to a capital defendant. The death penalty stay was thereby lifted. The en banc court then recalled the mandate because some judges of the court had a misunderstanding that caused them to fail to timely request an en banc rehearing before issuance of the mandate; the original panel "appears to have made fundamental errors of law that, if not corrected, would lead to a miscarriage of justice." The day after the mandate was recalled, the Supreme Court granted certiorari and expedited consideration of the case, limited to issues about the propriety of recalling the mandate under the facts and the Antiterrorism and Effective Death Penalty Act of 1996. The Supreme Court held that a court of appeals does not have jurisdiction to recall its mandate in a capital habeas case that is final, when that action results in relitigation of same claims on same facts, in violation of 28 U.S.C. §2244(b)(1).



3. Jurisdiction. Hohn v. United States, 118 S. Ct. ____ (June 15, 1998). Hohn filed a §2255 petition, seeking to obtain the benefit of the Supreme Court's holding in Bailey. While his §2255 petition was pending, Congress passed the AEDPA, which limited the right to appeal such proceedings by requiring a certificate of appealability. Certificates may only issue if the defendant makes a substantial showing of the denial of a "constitutional right." The district court denied the §2255 petition based on waiver, because the defendant had not raised the issue on direct appeal. The court of appeals denied a certificate of appealability because the Bailey issue was one of statutory construction, not involving a constitutional right. The defendant sought certiorari in the Supreme Court and the Acting Solicitor General conceded that the Bailey issue involved a constitutional right, suggesting that the Supreme Court grant certiorari, vacate and remand the case. The Supreme Court was faced with the question of whether it had jurisdiction since there had never been a certificate of appealability in the underlying appeal. Receding from House v. Mayo, 324 U.S. 4, 48 (1945) (per curiam), a divided Court held that it has certiorari jurisdiction to review the lower court's refusal to grant a certificate of appealability. It then vacated the denial of the certificate of appealability and remanded the appeal for further proceedings.



4. Relief Based On New Statutory Rules. Bousley v. United States, 118 S. Ct. 1604 (1998). Bailey v. United States, 516 U.S. 137 (1995), holds that "use" of a firearm under 18 U.S.C. §924(c) requires active employment of a firearm. What happens to defendants who pled guilty to such a crime, before Bailey, based on the mistaken belief that the government could prove a §924(c) violation without proving active employment of a firearm? In Bousley the Supreme Court held that a defendant who pled guilty to an offense based on a false understanding of the elements of the offense can attack his conviction collaterally under 28 U.S.C. §2255 on the grounds of involuntariness, even where the courts do not decide until years after the plea that the elements are different than those the defendant believed applicable and even though the defendant fails to pursue a direct appeal of the voluntariness of his plea. In this case, the defendant challenged his guilty plea to using a firearm in a drug offense, 18 U.S.C. §924(c), where, five years after the plea, the Supreme Court decided Bailey. Bailey is applicable retroactively and is not Teague-barred, because Teague applies only to procedural rules, not limitations on the reach of criminal statutes and because the underlying principle here, that involuntary pleas violate due process, is not a new rule. However, where the defendant has failed to pursue a direct appeal of his entry of the plea (even though he was relying on circuit precedent that would have foreclosed a challenge to the elements of the offense), his failure to appeal constitutes a procedural default barring review of his habeas involuntariness claim, absent a showing of cause for the default. Futility is not a bar if the futility is merely the unwillingness of a particular court to at a particular time to agree with a particular argument. Neither would a Bailey claim be deemed so "novel" as to constitute cause for the failure to anticipate it. Absent cause for the default, only a showing of actual innocence of the offense will warrant overcoming the procedural default. To show actual innocence in this context, the defendant must show that he is factually innocent not only of the offense to which he pled guilty, but also of any offense which the government agreed to forego in exchange for the defendant's guilty plea.



B. Mootness. Spencer v. Kemna, 118 S. Ct. 978 (1998). The expiration of a defendant's sentence causes his petition for writ of habeas corpus to be moot because it no longer presents an Article III controversy. Decision limits the types of collateral consequences that avoid mootness. If the habeas takes too long, get a writ of mandamus!



Related case from 1995 Term:



1. Mootness. Calderon v. Moore, 116 S. Ct. 2066 (1996). Although a habeas corpus action should be dismissed if it becomes moot after the petition is filed, the proceeding is not moot and should not be dismissed if there is available even a partial remedy.



C. Procedural Default.



1. Trest v. Cain, 118 S. Ct. 478 (1997). A federal court of appeals is not required to raise sua sponte the defense of procedural default.



2. Breard v. Greene, 118 S. Ct. 1352 (1998). By not asserting his Vienna Convention claim in state court, a death-sentenced habeas petitioner failed to exercise his rights under the Vienna Convention in conformity with the laws of the United States and the Commonwealth of Virginia, and could not raise a claim of violation of his rights under the Convention in a federal habeas corpus proceeding.



D. New Rule Doctrine - Teague v. Lane.



1. New Rule by a Court of Appeals. Hopkins v. Reeves, 118 S. Ct. ____ (June 8, 1998). Beck v. Alabama, 447 U.S. 625 (1980), which holds that state courts may not refuse to instruct juries on lesser included offenses, does not require state courts to instruct juries on offenses that are not lesser included offenses of the charged crime under state law.



1. Bottom of Fax Page 12 sent by the State's Attorney's Office to the U.S. Attorney's Office.