G. Paul McCormick is a partner/shareholder in the firm of McCormick & Christoph, P.C., Boulder, CO. A former public defender in Denver and a former head of the Boulder Regional Public Defender's Office, he has been in private practice since 1979. A Past President of the Colorado Criminal Defense Bar, this article is based on an annual criminal law update he prepares for the CCDB. Copyright 1998 by G. Paul McCormick, all rights reserved.
Search and Seizure No Exclusionary Rule -- Parole Revocation Hearings
Pennsylvania Board of Probation and Parole v. Scott, 118 S. Ct. 2014 (1998). The U.S. Supreme Court ruled unanimously, per Justice Thomas, that the exclusionary rule does not extend to parole revocation hearings. Justice Thomas observed that the Court traditionally had refused to extend the exclusionary rule beyond the "criminal trial context." He noted that the Court had refused to apply the exclusionary rule to grand jury proceedings, civil tax proceedings, and deportation proceedings. Even within the "criminal trial context," there have been limitations, for example, when illegally obtained evidence is used to impeach a defendant's testimony. Thomas cited the "costly toll" upon the truth-seeking process, and that in many states parole revocation hearings are not presided over by judicial officers or even lawyers. "We are simply unwilling to intrude into the states' correctional schemes." Thomas was careful to point out that the Court was not passing upon the constitutionality of the search in this case, or whether parole officers needed, at a minimum, a reasonable suspicion to initiate a warrantless search. Finally, in fairly strong dicta, Thomas stated that if the evidence were sought to be introduced in a substantive criminal case, rather than a parole revocation proceeding, the exclusionary rule would apply, and the evidence would have to have been constitutionally seized.
No-Knock Warrant -- Destruction of Property
United States v. Ramirez, 118 S. Ct. 992 (1998). ATF agents obtained a no-knock warrant for Ramirez's residence, to look for a fugitive. The fugitive was not found, but a firearm was found in the possession of Ramirez, who had a previous felony conviction. Agents believed that the fugitive was armed and dangerous. When they stormed the residence, they broke a single window in the garage, and pointed a gun through the opening, hoping to dissuade any of the occupants from rushing to the garage to obtain weapons. The district court and the Ninth Circuit found a Fourth Amendment violation, since there were "insufficient exigent circumstances" to justify the destruction of property. The Supreme Court granted certiorari to review the "heightened standard" employed by the Ninth Circuit.The Court unanimously, per Chief Justice Rehnquist, reversed the Ninth Circuit, and found that the "general touchstone of reasonableness" governs the analysis in this case. Rehnquist acknowledged that "excessive or unnecessary destruction of property in the course of a search may violate the Fourth Amendment," but found the minimal destruction of property in this case to be justified. To the extent that 18 U.S.C. 3109 seems to imply otherwise, the Court found that it was merely a codification of the common law announcement requirement. Section 3109 says that an officer may "break open any outer or inner door or window of a house or any part of a house or anything therein" after notice has been made and admittance refused. Common law, the Court found, would add an exigent circumstances exception to the requirement that notice be given.
Confessions and Fifth Amendment
Fear of Foreign Prosecution -- No Fifth Amendment Privilege
United States v. Balsys, 118 S. Ct. 2218 (1998). Balsys was a resident alien living in New York, but was suspected of being a Nazi war criminal. When interrogated by U.S. officials concerning his Nazi ties, he invoked a Fifth Amendment privilege. However, the U.S. Supreme Court, 7-2, per Justice Souter, found that he had no Fifth Amendment privilege. Souter found, largely from the "context" of the Self-Incrimination Clause within the Fifth Amendment, that it was limited to prosecutions in this country. For example, the introductory language to the Fifth Amendment reads "[n]o person shall be held to answer for a capital or otherwise infamous crime. . . ."Justices Breyer and Ginsburg, dissenting, focused on other language in the Fifth Amendment, within the Self-Incrimination Clause itself, which applies to "any" criminal case. The majority and dissent gave on differing interpretations to a previous case, Murphy v. Waterfront Commission, 378 U.S. 52 (1964) (statements from a state witness who is given state immunity may not be used in a federal prosecution). To the extent necessary, the majority trimmed a portion of the Murphy rationale and went on to state "its reasoning cannot be accepted now" as it was "fatally flawed."
Justice Stevens specially concurred to emphasize that this case will not have "any adverse impact on the fairness of American criminal trials." He simply stated that a different result would impair the administration of justice in this country by immunizing the testimony of foreign citizens in our courts. He was also concerned about foreign governments potentially interfering with procedures here.
Not treated very well in any of the opinions is what will happen to Balsys. Would he be automatically deported, or could he spend an indefinite period in jail to compel his testimony?
Grand Jury
White Defendant -- Standing --
Exclusion of African-Americans from Grand Jury Service
Campbell v. Louisiana, 118 S. Ct. 1419 (1998). Campbell was indicted for second-degree murder in Louisiana. He attacked the indictment on the ground that since 1976, not a single African-American had ever served as a foreperson of the grand jury. However, the Supreme Court found his claim to be broader and was also an allegation that "discrimination shaped the composition of the grand jury itself." Justice Kennedy wrote the opinion of the Court, which for certain portions, was unanimous. The Court extended the ruling in Powers v. Ohio, 499 U.S. 400 (1991) from petit juries to grand juries. Powers had ruled that in the context of a criminal trial, a white defendant had standing to raise the prosecution's racial discrimination against African-Americans in the use of peremptory challenges. Accordingly, Campbell had standing to raise the due process rights of the excluded African-American grand jurors.Justice Kennedy found that Louisiana's reliance on Hobby v. United States, 468 U.S. 339 (1984) was misplaced. In Hobby, the Court found that the selection of the foreperson, based upon alleged discrimination, was of no moment since the foreperson merely performed ministerial tasks. In Hobby, the foreperson was selected from existing grand jurors. The procedure in Louisiana was quite different because the presiding judge selected the foreperson separate from the selection of the other grand jurors. Accordingly, the Supreme Court found that Campbell had standing to raise the due process issue.
Double Jeopardy
No Double Jeopardy Bar -- Sentence Enhancement Proceedings -- Non-Capital Cases
Monge v. California, 118 S. Ct. 2246 (1998). Monge was convicted in California of using a minor to sell marijuana, which normally carries a maximum sentence of seven years. However, under California law, if the defendant has a prior "serious felony offense," the sentencing court doubles the defendant's term of imprisonment. The prosecution pled in the information that Monge had a prior conviction for assault with a deadly weapon, and had previously served a sentence. California provides a number of procedural safeguards concerning the assessment of prior conviction allegations. A defendant may invoke the right to a jury trial, the right to confront witnesses and the privilege against self-incrimination. The prosecution must prove the allegations beyond a reasonable doubt, and the rules of evidence apply.Monge waived his right to a jury trial on the prior conviction, and was granted a bifurcated proceeding. The jury found him guilty on the underlying offense, and the trial court found beyond a reasonable doubt that Monge had sustained a prior conviction. The trial court sentenced Monge to 11 years. During the state appeal, California conceded that at the sentencing proceedings, it had not proved the prior conviction beyond a reasonable doubt, but requested another opportunity to prove the allegations on remand. In a ruling blurred by a plurality opinion, the California Supreme Court granted the prosecution's request and found the retrial on the sentence enhancer would not violate the Double Jeopardy Clause.
The Supreme Court agreed in a 5-4 opinion authored by Justice O'Connor. She noted that historically, double jeopardy protections have been "inapplicable to sentencing proceedings." A "narrow" exception was carved out in Bullington v. Missouri, 451 U.S. 430 (1981), where a defendant in a capital case was successful in having his death sentence overturned because of irregularities in the jury selection process. Finding that the death penalty phase bore the hallmarks of a trial on guilt or innocence, the Court found retrial to be barred by double jeopardy. Factors of "embarrassment, expense and ordeal," as well as the "anxiety and insecurity" of capital defendants were also taken into account. O'Connor distinguished Bullington, and found even if California's procedures had the "hallmarks" of a trial, the holding of Bullington is limited to capital cases, because "the death penalty is unique." She also observed that it was only a matter of "legislative grace" and not "constitutional command" that certain states in non-capital sentencing proceedings afforded "trial-like protections." The majority did not want to punish those states for implementing those protections, nor create "disincentives" for providing these "important procedural protections."
Justice Scalia dissented, and was joined by Justices Souter and Ginsburg. He agreed with the majority's assessment that Bullington should not be extended to non-capital sentencing proceedings. However, he argued that this was not a sentencing proceeding at all, but rather, a trial upon an element of the offense. Consistent with his opinion in Almendarez-Torres (infra), he argued that when the conviction of a prior offense enhances the penalty beyond the "maximum possible sentence" of the present offense, it is an element of the offense and not a sentence enhancement. Accordingly, the procedural safeguards, such as proof beyond a reasonable doubt, were not a matter of legislative grace, but constitutional requirements.
Scalia predicted that the majority was inviting states to strip important elements from crimes, relabeling them as sentence enhancers, subject to lower standards of proof. In Orwellian style, he predicted that a state could enact the simple crime of assault, bearing a penalty of 30 days in jail, but subject to a series of sentence enhancements authorizing additional punishment up to "life imprisonment or death on the basis of various levels of mens rea, severity of injury and other surrounding circumstances."
Justice Stevens also dissented, but argued that Bullington was not applicable. He generically favored a rule that the prosecution would not get the "second bite at the apple" whenever the evidence in the underlying proceeding was "insufficient." If there were procedural errors that "affect the first proceeding," then double jeopardy would not be a bar. He apparently disagreed with Scalia that the prior conviction was an element of the offense. Rather, even though it was a sentence enhancement proceeding, double jeopardy would bar retrial, since the prosecution conceded it had failed to prove the sentence enhancer beyond a reasonable doubt.
Civil Penalty -- Not Double Jeopardy -- Halper Overruled
Hudson v. United States, 118 S. Ct. 488 (1997). A close reading of Ursery foreshadowed that Halper might be on shaky ground. Now that prophecy has come true. In a case deciding whether a subsequent criminal prosecution was barred by a previous civil monetary penalty and debarment, the Court unanimously abandoned the analysis in Halper. However, due to the number of concurring opinions, it is difficult to predict exactly when a civil proceeding could trigger the Double Jeopardy Clause. It is fair to say those instances will be few and far between. In Halper, basically one factor was used to determine whether a civil proceeding was in the nature of a criminal punishment: when the civil penalty was "grossly disproportionate" to the damages sustained by the government. In Halper, the government lost $585 and incurred $16,000 in expenses, yet the penalty was $130,000.In Hudson, most of the Justices recognized that the Halper standard was unworkable, and imposed, instead, the previous standards found in United States v. Ward, 448 U.S. 242 (1980) and Kennedy v. Mendoza Martinez, 372 U.S. 144 (1963). Now dubbed the Kennedy-Ward test, several non-exclusive criteria will be employed, only one of which roughly approximates the Halper standard. The factors include: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment -- retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned.
Speaking for the majority, Chief Justice Rehnquist found that the facts in this case did not meet the criteria, and were, therefore, civil. The petitioners here were bankers who had violated certain provisions which ultimately resulted in a consent order where they paid penalties ranging from $16,500 to $12,500 respectively (the Tenth Circuit had employed the Halper test and had found these penalties not to be grossly disproportionate). The petitioners were also barred from working in any federally insured depository institution. Because the penalties were found to be civil, the subsequent criminal prosecutions were not barred.
While all the Justices agreed on the result, they differed significantly on the methodology. Chief Justice Rehnquist would apply the Kennedy-Ward factors to the "statute on its face," and "'only the clearest proof' would suffice to override the legislative intent and transform what has been denominated a civil remedy into a criminal penalty" (quoting from Ward). Rehnquist continued that large civil penalties are protected by the Eighth Amendment's Excessive Fines Clause, and by the Due Process and Equal Protection Clauses if the sanctions are "downright irrational."
Justice Scalia concurred, and was joined by Justice Thomas. While Scalia rejoiced at Halper's demise, he reiterated his now often-heard conclusion that the Double Jeopardy Clause applies to successive prosecutions, not successive punishments.
Justice Stevens concurred, and was supported by Justice Souter in a separate concurrence. Stevens would not reach the issue of whether Halper needs to be repealed in its entirety. Rather, he would approach the double jeopardy issue, first using a Blockburger analysis, and following the dictates of United States v. Dixon, 509 U.S. 688 (1993). Here, because the same elements test could not be met, Stevens would concur in the judgment, but not go the extra step of completely overhauling Halper. In a footnote Chief Justice Rehnquist criticized Stevens for merely applying one of the factors in the Kennedy-Ward criteria, rather than all of them.
Justice Souter concurred, and agreed with Stevens, but called the test the "fifth criterion" under the Kennedy-Ward test. Souter was uncomfortable with the "clearest proof" analysis employed by the majority. Not being totally clear, he stated, "I read the requisite 'clearest proof' of criminal character, then, to be a function of the strength of the countervailing indications of civil nature (including the presumption of constitutionality enjoyed by an ostensibly civil statute making no provision for the safeguards guaranteed to criminal defendants)."
Justice Breyer also concurred, and was joined by Justice Ginsburg. While he agreed that Halper had been difficult to implement, he did not join the majority in the implementation of the "clearest proof" test. Rather, he would merely employ the Kennedy-Ward factors. Second, he would not decide those factors based only "on the face" of the statute. Rather, he would also look at the character of the actual sanctions imposed, as occurred in Halper. Although the excessive fines clause could remedy disproportionate penalties, he would not abandon that aspect of Halper's holding.
Discovery
Discovery by Prosecution -- Attorney's Notes --
After Client's Death
Swidler & Berlin v. United States, 118 S. Ct. 2081 (1998). The Office of the Independent Counsel subpoenaed the notes of Vincent Foster's attorney. Independent counsel argued that since Foster had died, the attorney-client privilege should not be enforced. The U.S. Supreme Court, per Chief Justice Rehnquist (6-3), disagreed. Rehnquist found that the great weight of common law, including "considered dicta," supported the position that the privilege survives the client's death. Rehnquist observed that a few exceptions have been made in the common law, for example, testamentary disclosures to determine intent. However, none of those exceptions apply in Foster's situation. He added that disclosure after a client's death would have a chilling effect upon the client "communicating fully and frankly with counsel." Several arguments made by independent counsel were rejected by the court, including that a different rule should apply in criminal cases as opposed to civil cases. Although the Independent Counsel correctly pointed out that several commentators had criticized the rule, Rehnquist found there was no compelling policy reason to abandon it.Justice O'Connor dissented and was joined by Justices Scalia and Thomas. She argued that privilege should yield after the client's death when needed to exonerate an innocent person or when there is a compelling need by law enforcement.
Specific Crimes
Homicide Felony Murder -- Capital Crime -- Submission of Lesser Non-Included Offenses Not Necessary
Hopkins v. Reeves, 118 S. Ct. 1895 (1998). In Beck v. Alabama, 447 U.S. 625 (1988), the U.S. Supreme Court held unconstitutional an Alabama statute that prohibited instructions on lesser included offenses in capital cases, when such lesser included offenses were generally given in non-capital cases. In this case, the defendant was charged with felony murder, which, under Nebraska law, does not have any lesser included homicide offenses. Nevertheless, the defendant asked that the jury be instructed on second-degree murder and manslaughter, since it was a capital case. Analogizing to Beck, the Eighth Circuit reversed the defendant's conviction, because the lesser offenses were not permitted to the jury.The U.S. Supreme Court, per Justice Thomas, disagreed (8-1). The majority ruled that the Constitution required nothing more than the instruction in lesser included offenses. Dubbing these as "lesser related offenses," or what some states call "lesser non-included offenses," Justice Thomas continued that their submission to the jury would "not only [be] unprecedented but also unworkable." Unfortunately, Thomas added unnecessary dicta alluding that in any crime, the submission of lesser non-included offenses is unwise, because they involve "elements that the State had not attempted to prove, and indeed that it had ignored in the course of the trial."
Justice Stevens briefly dissented, arguing that under Enmund v. Florida, 458 U.S. 782, (1982), a capital case of felony murder must include an implied element that the defendant intended to kill the victim, or that the defendant had the moral equivalent of such an intent. Therefore, he continued, it would be proper to submit the case to the jury on second-degree murder and manslaughter.
Capital Murder -- Penalty Phase -- Mitigating Factors --
Jury Instructions
Buchanan v. Angelone, 118 S. Ct. 757 (1998). Buchanan received a death verdict in a Virginia trial, based upon his killing of four relatives. Under Virginia law, in order to return a death verdict, the jury must first find beyond a reasonable doubt, in this case, that the crime was "vile." Then the jury was instructed that it may fix the punishment at death "or, if you believe from all of the evidence that the death penalty is not justified, you shall fix the punishment . . . at life imprisonment." Although Virginia has since changed its instruction to amplify what may be mitigation, the previous instructional scheme did not mention the word "mitigation," did not delineate mitigating factors, nor did it elaborate upon the calculus of aggravation versus mitigation. To remedy this problem, the defendant tendered such instructions, which were rejected by the trial court and all courts on appeal.The U.S. Supreme Court, per Chief Justice Rehnquist, 6-3, affirmed, and continued to impose no specific formula for jury consideration of mitigation, other than the Eighth Amendment's requirement that the "sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence." However, the states are free to "shape and structure" the jury's consideration of mitigation, so long as the jury is not precluded from considering any relevant mitigation. Rehnquist added that "our decisions suggest that complete jury discretion is constitutionally permissible." Although it is unclear whether it was essential for the majority's decision, Rehnquist added that the "entire context of the sentencing phase supported the conclusion that the jury did not ignore relevant mitigating evidence." Rehnquist cited the extensive testimony presented by the defendant of his mental health problems and background, together with the argument of both the prosecution and the defense, wherein they "agreed" that there was substantial mitigating evidence.
Justice Scalia concurred with the majority, but added that he continued to adhere to his view that the Eighth Amendment does not require sentencing juries to be given discretion to consider mitigating evidence.
Justice Breyer dissented, and was joined by Justices Stevens and Ginsburg. Justice Breyer argued that the instruction could have misled the jury into believing that the only necessary predicate for a death verdict was the proof of the aggravator (vileness) beyond a reasonable doubt. He distinguished the cases relied upon by the majority because they generally treated instructional schemes which specifically mentioned the word mitigation, listed mitigating factors or focused on "weighing aggravating against mitigating circumstances." None of those safeguards were present here. Implicitly, Breyer was arguing that the majority had reached a new low-water mark when it came to guaranteeing that the jury must consider mitigating circumstances. He also disagreed with the majority that the "entire context" was relevant. Regardless of the arguments of counsel and the presentation of evidence, jury instructions are given directly by the court and are the only source of the law for the jury.
Drugs
Conspiracy--To Possess Cocaine or Crack Cocaine --
Relevant Conduct-- Federal Sentencing Guidelines
Edwards v. United States, 118 S. Ct. 1475 (1998). In this brief opinion, the Supreme Court unanimously, per Justice Breyer, found that the defendant could be sentenced for possession of crack cocaine, even though the jury verdict may have been based upon the possession of powdered cocaine. The defendant was charged with conspiracy with intent to distribute a controlled substance, pursuant to 21 U.S.C. 841, 846. The jury was instructed that the conspiracy could have "involved measurable amounts of cocaine or cocaine base." The defendant creatively argued that, since the word "or" was used in the jury instruction, the jury might have convicted the defendant solely based upon conspiracy to possess powdered cocaine. However, Justice Breyer did not reach the defendant's "statutory and constitutional claims," because the sentencing judge must take into account "relevant conduct" in fashioning the sentence. U.S.S.G. 1B1.3. The Court hinted that it might have had to consider the defendant's statutory and constitutional claims if his sentence had exceeded a "cocaine-only conspiracy," or if the crack-related activities were not part of the "same course of conduct or common scheme or plan."Carrying a Weapon During Drug Trafficking Crime --
In Locked Glove Compartment or Trunk -- Federal Mandatory Minimum Sentence
Muscarello v. United States, 118 S.Ct. 1911 (1998). 18 U.S.C. 924(c)(1) imposes a 5-year mandatory minimum sentence on anyone who "uses or carries a firearm" "during and in relation to" a "drug-trafficking crime." In a 5-4 decision authored by Justice Breyer, the Court found the respective defendants to have "carried a firearm" when it was possessed in either a locked glove compartment or in the trunk of a vehicle.Justice Breyer observed that the word "carry" has "many different meanings," some of which would include "conveyance in a vehicle." Rejecting the defendants' and the dissent's position that "carry" means "on or about one's person," Breyer quoted from numerous sources, including Moby Dick, the Bible and Robinson Crusoe to show that, on occasion, the word had a broader connotation. He also observed that nowhere could it be gleaned that Congress intended the more "narrowly focused" definition. Justice Breyer observed that there was limiting language in the statute to prevent the word "carry" to become synonymous with the word "transport." 18 U.S.C. 925(c)(1) requires the defendant to carry the firearm "during and in relation to" a drug-trafficking crime (emphasis original). But Breyer failed to point to the facts in these cases, which would support the carrying of the weapons having been "in relation to" the drug crime. Indeed, the dissent argued that the Court had broadly found that any firearm found in the vehicle would automatically be presumed to have been "carried" in relation to the underlying drug offense.
Finally, Breyer noted that the dissent's presumption that the firearm must be carried on or about the person failed to take into account the broad definition of "firearm," which includes a bomb, grenade, rocket or missile. He dryly observed that these devices would rarely be carried on or about the person, but could be "carried" nearby.
Justice Ginsburg dissented, and was joined by Chief Justice Rehnquist and Justices Scalia and Souter. Justice Ginsburg argued that Bailey v. United States, 516 U.S. 137 (1995) and the rule of lenity required a different result. She also quoted from the Bible and Teddy Roosevelt (as in "carry a big stick"), and concluded that "carrying" conveying "various messages." She noted that the Federal Sentencing Guidelines would have enhanced one of the defendants' sentences to 10 to 16 months, based upon possession of a firearm, which was far short of the 5-year minimum for one who "carries" a firearm. The majority finding, she insisted, undermines the guidelines by its broad interpretation of "carry." She further noted that in Bailey, the Court found that the companion term, "used" a firearm, as found in the same statute, should be given a narrow definition, unlike the majority's reasoning in this case. She would have implemented the rule of lenity to cure the ambiguity in the statute, and would have construed "carry" to mean "on or about one's person."
Speaking for the majority, Justice Breyer answered with a rather narrow definition of the rule of lenity. "Some statutory ambiguity" is insufficient to invoke the rule. Rather, it should only be utilized when the Court can make "no more than a guess as to what Congress intended." He concluded that the rule can only be implemented when there is "grievous ambiguity or uncertainty in the statute," and, of course, found that the ambiguity here failed to meet that high standard.
Perjury and Related Offenses
False Statement -- 18 U.S.C. 1001 -- No 'Exculpatory No'
Brogan v. United States, 118 S. Ct. 805 (1998). Federal agents contacted Brogan at his home and, after a partial advisement of rights, asked if he had received any cash or illegal gifts when he was a union officer. Brogan denied any involvement, whereupon the agents disclosed that there was evidence to the contrary, and told him that lying to federal agents was a crime. Defendant was found guilty in a federal trial of making a false statement in violation of 18 U.S.C. 1001, along with other charges.The sole issue in this case was whether Brogan's "exculpatory no" constituted a false statement under Section 1001. Speaking for a 7-2 majority, Justice Scalia gave literal meaning to Section 1001, and found that the mere utterance of "no" constituted "any" false statement. Many circuits had adopted the so-called "exculpatory no" doctrine, finding that the right to remain silent was closely akin to a simple denial of wrongdoing. However, Scalia responded, no matter how such an argument "tugs at the heart strings, neither the text nor the spirit of the Fifth Amendment confers a privilege to lie."
Justice Ginsburg especially concurred and was joined by Justice Souter. Ginsburg observed that this use of the statute could turn "a violation of state law into a federal felony by eliciting a lie that misled no one." She added that quite often, questioning by investigating officers occurs in a noncustodial setting without a full advisement of rights. Typically, an oath to tell the truth is not administered. While she doubted that Congress intended to "cast so large a net," she nevertheless concurred with the majority, but then made a plea to Congress to modify and reform the statute. As presently drafted, she observed, the statute is an invitation for prosecutorial abuse. On this issue, Scalia countered, the "supposed danger" is not with overzealous prosecutors, but with Congress itself.
Justice Stevens dissented, and was joined by Justice Breyer. He argued that merely because the facts of this case fit within the words of the statute, it did not preclude a judicial gloss limiting the statute's application, citing several cases where, in his opinion, that process had occurred. For example, Justice Stevens doubted that a narcotics agent making a "false statement" to a drug peddler would be prosecutable under the statute, even though the actions fell within its clear wording. Scalia jabbed at Stevens, criticizing him for advocating an expansive "user-friendly judicial rule," but with no way of knowing when or how the rule is to be invoked. Scalia agreed with Stevens that "reasonable law enforcement actions" are generally exempt from criminal proscriptions. Beyond that, Scalia criticized Stevens for seeking a narrower judicial interpretation only because the "offense seems to him harsh," which, Scalia added, "it may well be."
Racketeering
Federal Money Laundering -- Venue
United States v. Cabrales, 118 S. Ct. 1772 (1998). Cabrales deposited $40,000 in a Florida bank, which were alleged proceeds from drug activity in Missouri. She was charged in Federal District Court in Missouri with conspiracy to avoid a transaction reporting requirement, in violation of 18 U.S.C. 371, 1956(a)(1)(B)(ii). She was also charged with conducting a financial transaction to avoid the reporting requirement, in violation of 18 U.S.C. 1956(a)(1)(B)(ii), and engaging in a monetary transaction in criminally derived property of a value greater than $10,000, in violation of 18 U.S.C. 1957. The Supreme Court unanimously found, per Justice Ginsburg, that, while the conspiracy charge could be made in Missouri, the financial transaction counts must be charged in Florida. Venue was in Florida as to those counts, even though her money laundering in Florida could be shown as overt acts in furtherance of the conspiracy. In the final analysis, Ginsburg opined, it would make no difference, since the transaction in Florida would be "relevant conduct" under the Federal Sentencing Guidelines.
Bribery and Racketeering -- No Requirement that Federal Funds Be Affected
Salinas v. U.S. 118 S. Ct. 469 (1998). Salinas was a deputy sheriff at a county jail in Texas where a federal prisoner was being housed. The prisoner paid him designer watches and a pickup truck for "contact visits" with his wife and, on other occasions, with his girlfriend. Salinas was convicted of bribery, pursuant to 18 U.S.C. 666 and conspiracy as contained in the RICO Act. He unsuccessfully argued to the Supreme Court that the bribery statute necessarily included an element that the bribe must have had an effect upon federal funds. In addition, he argued that the RICO conspiracy may only apply when the conspirator agrees to commit two of the predicate acts RICO forbids.The U.S. Supreme Court, per Justice Kennedy, disagreed with both arguments. While it is an element of 18 U.S.C. 666(a)(1)(B) that the official work for an entity that receives benefits under a federal program, the statute does not require proof that the bribe affected federal funds in some way. Turning to the RICO argument, Justice Kennedy observed that there was no overt act requirement for conspiracy under RICO. "A conspirator must intend to further an endeavor which, if completed, would satisfy all of the elements of a substantive criminal offense, but it suffices that he adopt the goal of furthering or facilitating criminal endeavor."
Other Evidentiary and Constitutional Issues
Bruton Redacted Statements -- Use of Blanks or 'Deleted' -- Improper
Gray v. Maryland 118 S. Ct. 1151 (1998). Gray was jointly tried with his co-defendant in a murder case in Maryland. The trial court denied Gray's motion for separate trial, but redacted the co-defendant's written and oral confessions to omit any reference to Gray. Nevertheless, in the written confession, blanks were left where Gray's name once appeared, and when the confession was read into the record by the arresting detective, he testified as follows, "Me, deleted, deleted, and a few other guys ran after [the victim]." Not to keep the jury guessing, the prosecutor followed up with this question: "After [the co-defendant] gave you that information, you subsequently were able to arrest Kevin Gray; is that correct?" In a 5-4 decision, the U.S. Supreme Court per Justice Breyer, found that "as a class," redactions involving an obvious blank, the word "delete," or a similar symbol notify the jury that a name has been deleted and are "similar enough to Bruton's unredacted confessions as to warrant the same legal results." The majority found that the cautionary instruction given by the trial court was insufficient, since, as Bruton found, the extrajudicial statements of the co-defendant are "powerfully incriminating." As the Court in Bruton observed, cautionary instructions under these circumstances simply cannot be presumed to be effective. Breyer pointed out that the result would have been the same, despite the prosecutor's attempt to "blatantly link" Gray to the deletions.However, Justice Breyer was less than clear when addressing how the statement could have properly been redacted. He rhetorically asked why the co-defendant's statement could not have been redacted to "me and a few other guys." The dissent seized upon this issue, marshaled by Justice Scalia and joined in by Chief Justice Rehnquist and Justices Kennedy and Thomas. Scalia argued that the court had never opted for changing the actual words of the co-defendant's confession, because there was a risk, when tampering with the confession, the wrong meaning might be conveyed. Scalia forecasted problems in the future with other Bruton statements. For example, "me and the defendant" committed the crime could, under the majority's reasoning, be redacted to "me and somebody else" committed the crime. Or, it could be redacted to just "me," which would be misleading, since it would delete any reference to complicity.
The majority and dissent also quibbled over whether the ruling could be reconciled with Richardson v. Marsh, 481 U.S. 200 (1987). In Richardson, the parties had agreed to the method of redaction, but, later, when the defendant testified, she inferentially admitted that she was the other person in the co-defendant's confession. No Bruton violation was found. Scalia argued that, because Gray's name was deleted, the jury could only place him within the statement by inference, which of course, was not prohibited in Richardson. Justice Breyer answered by drawing classifications within the area of inference. He concluded that the inference in Richardson was attenuated, but added that the inference here was "obvious." When a statement has been obviously redacted, and is submitted to the jury with deletions, the jury need only look to who is seated next to the co-defendant to figure out the name of the person deleted.
Acting Willfully -- Federal Dealing in Firearms Statute
Bryan v. United States, 118 S. Ct. 1939 (1998). Bryan was convicted of dealing in firearms without a license, contrary to 18 U.S.C. 924(a)(1)(D). He allegedly used "straw purchasers" in Ohio to acquire pistols he could not have purchased himself. The straw purchasers made false statements when purchasing the guns, and Bryan filed off the serial numbers before he sold the guns on Brooklyn street corners to known drug dealers. To no one's surprise, he had no federal license to deal in firearms. He argued unsuccessfully on appeal that his conviction should be set aside because the government failed to prove an essential element, that he had actual knowledge of the federal licensing requirement, principally relying upon Ratzlaf v. United States, 510 U.S. 135 (1994).The Supreme Court, 6-3, rejected the defendant's claim, per Justice Stevens. The opinion focused upon whether Bryan "willfully" violated the statute. Both the majority and the dissent conceded that "willfully" is "word of many meanings," and a "variety of phrases have been used to describe this concept." Justice Stevens settled on a definition of having a "bad purpose" and the defendant acting with "knowledge that his conduct was unlawful." Stevens distinguished the term "knowingly" from "willfully" in that the former merely requires proof of knowledge of the facts that constitute the offense, without having to prove an "evil-meaning mind" directing the "evil-doing hand." While "willfully" requires knowledge that the conduct is unlawful, the majority stopped short of requiring the government to prove that the defendant had actual knowledge of the federal licensing requirement. How a citizen could generically know the conduct was unlawful without knowing of the specific statute was not answered in the opinion.
Justice Stevens distinguished Ratzlaf and related cases, where actual knowledge of the statute was required, because those areas involved "highly technical statutes that presented the danger of ensnaring individuals engaged in apparently innocent conduct." The majority did not feel that this statute was highly technical, even though certain persons who sell firearms on an "occasional" basis, or who sell for hobby or personal collection purposes, are exempted from the statute. See 18 U.S.C. 921(21)(C).
In this context, the majority turned to the actual instructions given in the case. The trial court instructed the jury that "a person acts willfully if he acts intentionally and purposefully and with intent to do something the law forbids . . . with the bad purpose to disobey or disregard the law. . . . The person need not be aware of the specific law or rule that his conduct may be violating." In another instruction, the Court misstated the law when it said, "in this case, the government is not required to prove that the defendant knew that a license was required, nor is the government required to prove that he had knowledge that he was breaking the law."
While conceding this latter language was improper, the Court found that from the context of the entire instructions, "it seems unlikely that the jury was misled." But more importantly, the Court apparently did not want to reach this issue, since it had not been adequately raised on appeal, nor objected to by the defendant at trial. Justice Souter concurred, stating that had the defendant specifically objected to the erroneous jury instruction, he would have vacated the conviction.
Justice Scalia dissented, and was joined by Chief Justice Rehnquist and Justice Ginsburg. Basically, Scalia quarreled with the majority's conclusion that "willfully" merely connoted knowledge of the law in general, rather than the specific law. Because the statutory context requires "some awareness" of the law necessary for conviction, but is not more specific, Scalia would have found that the mens rea requirement was ambiguous. In that context, he would invoke the rule of lenity and resolve the issue in favor of the defendant, especially "in our era of multiplying new federal crimes."
Misapplication of Student Loan Funds --
No Intent to Defraud Necessary
Bates v. United States, 118 S. Ct. 285 (1997). In a unanimous opinion, authored by Justice Ginsburg, the United States Supreme Court found that the crime of knowingly and willfully misapplying student loans funds, pursuant to 20 U.S.C. 1097(a) does not require a judicially imposed element of intent to defraud. The Court found from context and other similar statutory provisions that Congress did not intend such a requirement. The lack of intent to defraud requirement was ruled not to be a "trap for the unwary." The Court noted that under the interpretation of this law given by the Seventh Circuit, the government was required to prove that the defendant knew his actions were a "violation of the law." In a footnote, Justice Ginsburg explained that while the government disputed the propriety of that element, it had not been properly preserved for this appeal.
Defenses
Defendant's Right To Present a Defense --
No Polygraph Evidence
United States v. Scheffer, 118 S. Ct. 1261 (1998). The Supreme Court had a chance to visit the issue of the admissibility of polygraph evidence, but aside from ruling on its prohibition in military trials, the Court shed little light on this ongoing controversy. Airman Scheffer was working as an informant on drug investigations for the Air Force. From time to time, he was subject to drug testing and polygraph examinations. In April 1992, Scheffer was asked to submit to a drug urine test. Shortly thereafter, but before the results of the urine test were known, he passed a polygraph examination administered by the Air Force.One of the questions he passed concerned whether he had taken any drugs since joining the Air Force. Later, when the urine test results proved to be positive, Scheffer was court-marshaled on that charge, among others. At trial, he sought to introduce the polygraph results to bolster his credibility when he testified that he must have innocently ingested the drugs. Unfortunately, the President had signed Rule 707 of the Military Rules of Evidence, which per se bans the use of polygraph evidence. When Scheffer appealed his conviction, the Unites States Court of Appeals for the Armed Forces reversed, finding that the per se exclusion of polygraph evidence violated Scheffer's Sixth Amendment right to present a defense.
The Supreme Court reversed for various reasons announced by a divided Court. Justice Thomas, at times speaking for eight Justices, upheld Rule 707 because the President did not act arbitrarily in promulgating a per se rule, since there were differing conclusions in the different jurisdictions about the admissibility of polygraph evidence. Thomas further found that the three cases relied upon by Scheffer were inapposite, since they involved a more fundamental and compelling justification to present defense evidence. See Rock v. Arkansas, 483 U.S. 44 (1987) (defendant improperly precluded from presenting testimony based on her hypnotically refreshed memory, when she was the only witness at the scene); Washington v. Texas, 388 U.S. 14 (1967) (statutes preventing co-defendants or co-participants in crime from testifying for one another or the introduction of accomplice testimony violated the defendant's Sixth Amendment right to present a defense); Chambers v. Mississippi, 410 U.S. 284 (1973) (Mississippi's "voucher rule," which prevented a party from impeaching his own witness, and a hearsay rule that excluded the testimony of three persons to whom the witness had confessed, denied the defendant a fair opportunity to defend himself).
However, Justice Thomas apparently went too far when he generally condemned polygraph evidence, at least in the judgment of five other Justices. Justice Kennedy concurred in the judgment, and was joined by Justices O'Connor, Ginsburg and Breyer. He doubted that the "rule of per se exclusion is wise, and some later case might present a more compelling case for introduction of the testimony than this one does." He was in "substantial agreement" with dissenting Justice Stevens in rejecting Justice Thomas' claim that polygraph evidence could unfairly influence the jury and, further, should be disallowed because it might involve the ultimate issue in the trial. Kennedy characterized it as a "tired argument" which had long since been given its "deserved repose." He made it quite clear that the opinion in this case did not turn upon any lingering concern about usurping the jury's responsibility to decide ultimate issues in either federal or military courts.
Justice Stevens dissented, and would have found the Rule 707 blanket rule of exclusion contrary to the defendant's right to present a defense. He observed that polygraph reliability studies show accuracy to 85-90 percent. Critics apparently concede the polygraph accuracy at 70 percent. He found these statistics more reliable than, for example, the reliability of handwriting analysis. Indeed, he argued, there is "no legal requirement that expert testimony must satisfy a particular degree of reliability to be admissible" (citing the admissibility of expert testimony about defendant's "future dangerousness" being admissible in death penalty cases, despite the Court's observation that it is wrong "most of the time"). Finally, Stevens found it "incongruous" for the government to argue the unreliability of the polygraph, having been the party that selected the examiner, the equipment, the testing procedures and the questions asked of the defendant.
Sentencing
Excessive Fine -- Criminal Forfeiture
United States v. Bajakajian, 118 S. Ct. 2028 (1998). Bajakajian was caught boarding an international flight carrying $357,144 in undisclosed cash. When confronted by Customs inspectors, he initially stated that he and his wife had only $15,000 cash between them. When the $357,144 was discovered, and for months thereafter, he gave a variety of untruthful explanations, and attempted to encourage his friends to lie about the source of the money. Finally, it was learned that Bajakajian was transporting the currency out of the United States to repay a "lawful debt." The district court found that Bajakajian had failed to report the money because of fear stemming from his "cultural differences" and his "distrust for the government." Bajakajian pled guilty to 18 U.S.C. 5316(a)(1)(A) (transporting more than $10,000 in unreported currency), and sought a bench trial on the criminal forfeiture count brought pursuant to 18 U.S.C. 982(a)(1) (which on its face would require forfeiture of the entire $357,144). The district court imposed three years probation and a $5000 fine on the Section 5316 violation. As to the Section 982 forfeiture, the district court held that full forfeiture would be extraordinarily harsh and "grossly disproportionate to the offense in question" and, therefore, would violate the Excessive Fines Clause. Instead, the Court ordered forfeiture of $15,000, which it found would "make up for what . . . a reasonable fine should be."The government appealed, seeking full forfeiture of the $357,144. The Court of Appeals found that the full forfeiture required by Section 982 was unconstitutional. The Supreme Court (5-4), per Justice Thomas, found under these facts, that full forfeiture of Bajakajian's $357,144 would violate the Excessive Fines Clause. This opinion, which partially draws its authority from the Magna Carta and early chapters of the Bible, is must reading for forfeiture aficionados.
Although the majority will no doubt try to limit its ruling to the narrow facts of this case, the opinion (and its footnotes) may have broad implications for both civil and criminal forfeiture proceedings. Indeed, the dissent, led by Justice Kennedy (and joined by Chief Justice Rehnquist and Justices O'Connor and Scalia) predicts an upheaval of forfeiture law and "serious disruption of the vast range of statutory fines." The majority noted that this was the first time the Excessive Fines Clause had actually been applied in a case. The majority found the criminal forfeiture statute to punish persons (in personam) and not property (in rem). In rem civil forfeitures historically punished the "guilty property," rather than the offender. Unfortunately, the majority reiterated that the owner of the forfeited property could be entirely innocent of any crime. In contrast, criminal forfeitures serve to punish the offender and are, therefore, punitive in nature. The majority reiterated that generally, in rem civil forfeitures are remedial in nature. However, in a footnote the majority acknowledged that if a fine constituted punishment "even in part," the Excessive Fines Clause would apply (admitting that the federal forfeiture laws had "blurred the traditional distinction between civil in rem and criminal in personam forfeiture.")
The majority adopted a "gross disproportionality" test and found that the government's request for full forfeiture would be grossly disproportionate. The majority noted that the maximum fine under the guidelines was $5000 (although the offense itself carried a maximum $250,000 fine). The majority also relied on the specific nature of a Section 5316 offense, which it characterized as a reporting crime. There was no evidence that the cash in question was linked to money laundering or drug activity. In addition, there was no financial harm to the government, it merely having suffered from the lack of disclosure from Bajakajian. The majority termed the harm as "minimal," and the only victim being the government. The majority answered a criticism from the dissent in a footnote by stating that it was not necessarily approving the $15,000 forfeiture as appropriate, or for that matter, any number in between $15,000 and $357,144. The majority narrowed its ruling to the holding that the government's request of forfeiture of the entire amount would be excessive.
Along the way, the majority invoked a rather narrow definition of "instrumentality" as that term is used in criminal forfeiture statutes, and arguably in the civil forfeiture statutes. Under these facts, the Court found that the cash in question was not an instrumentality of the crime, even though it was a necessary element of the offense. The Court found that the gravamen of the crime was failure to report, rather than possession of the cash. Possession of the cash could have been validated by merely reporting its existence.
The dissent apparently agreed that the gross disproportionality test was appropriate, but accused the majority of being unfaithful in applying it. The dissenters would have found the offense to be serious, since it is punishable "by a prison sentence, a heavy fine and the forfeiture here at issue." The dissent pointed out that the government has a need for such information to investigate other serious crimes. Justice Kennedy laid out in full detail all of the "lies" given by the defendant about the source of the money, and implied that merely because no illegal source of the cash was disclosed does not mean such a source did not exist. Kennedy strongly implied that the sentence imposed by the District Court on the Section 5316 violation was too lenient. Kennedy surmised that drug lords and money launderers would be comforted by the majority's opinion, since only 5 percent of the unreported cash was seized by the government, a small price to pay in the illegal money business. He also predicted that legislatures could now circumvent the Excessive Fines Clause by characterizing forfeitures as in rem or by imposing prison sentences in lieu of fines. Either way, he argued, the intent of the Excessive Fines Clause would be circumvented.
Criminal Weapons Possession--
Enhanced Penalty -- Based on Prior Convictions Where Civil Rights Were Not Completely Restored
Caron v. United States, 118 S. Ct. 2007. Caron was found in possession of six rifles and shotguns. Because of his four prior convictions, he was subject to an enhanced sentence, pursuant to 18 U.S.C. 924(e). However, three of his prior convictions were vintage 1958, 1959 and 1963, all occurring in Massachusetts. Under Massachusetts law, five years after conviction, Caron was permitted to carry rifles, shotguns and, indeed, handguns in his home or business. The definition of prior convictions (a crime punishable by imprisonment for a term exceeding one year) does not include cases where the person has had "civil rights restored." See 18 U.S.C. 921(a)(20).The district court refused to rely upon Massachusetts prior convictions in formulating the sentencing calculus, and did not impose an enhanced sentence. It logically ruled that, since Caron possessed rifles and shotguns, the possession of which was legal under Massachusetts law, the prior convictions could not be counted. The First Circuit reversed, and relied upon the prior convictions because Caron "remains subject to significant firearms restrictions." The Supreme Court (6-3), per Justice Kennedy, agreed with the First Circuit, even though its interpretation of statute creates "incongruities." The majority basically ruled that, since Caron was not permitted to carry weapons under all circumstances, his civil rights had not been completely restored.
Apparently, the majority was relying upon the fact that Caron could not carry a handgun away from his business or home. The majority observed that the federal statutory scheme was not imposing an enhanced penalty on a violation of state statute, but, rather, was creating a different crime committed by persons who possess weapons where their state right to possess weapons was not completely reinstated. As an editorial note, one has to wonder whether any state has completely restored the right to possess weapons by previous offenders. The government could easily conjure up a situation where a state statute would forbid possession, e.g., fully automatic weapons possessed by a postal worker in a McDonalds.
The dissent, authored by Justice Thomas, was joined by Justice Scalia and the Justice Souter. Justice Thomas observed, ". . . it is bizarre to hold that the legal (emphasis original) possession of firearms under state law subjects a person to sentence enhancement under federal law." He emphasized the admission of the majority that its interpretation created "incongruities," and added, ". . . ex-felons cannot be expected to realize that a federal statute that explicitly relies on state law prohibits behavior the state law allows." At a minimum, he argued there are two plausible interpretations of the statute and the rule of lenity should apply in the defendant's favor, something the majority refused to do.
Responding to the dissent, Justice Kennedy wrote, "While we do not dispute the common sense of this approach, the words of the statute do not permit it."
Defendant's Prior Conviction -- Sentence Enhancer --
Not an Element of the Crime
Almendarez-Torres v. United States,118 S.Ct. 1219 (1998) Subsection (a) of 8 U.S.C. 1326 provides that any alien who was once deported who then returns to the United States without special permission can receive up to two years in prison. Subsection (b) of the same statute authorizes a prison term up to 20 years for any alien described in Subsection (a) the deportation was subsequent to a conviction for an "aggravated felony." Almendarez-Torres was indicted for having been "found in the United States... in violation of Section 1326." Almendarez-Torres pled guilty to that charge, and also admitted at his plea hearing that he had been earlier deported pursuant to three earlier convictions for aggravated felonies. At sentencing, Mr. Almendarez-Torres unsuccessfully argued that, because the indictment failed to set forth an accusation concerning the prior convictions, his maximum sentence should have been two years. Instead, the court sentenced him to 85 months.In a 5-4 decision, the Supreme Court rejected the defendant's argument again. Justice Breyer, writing for the majority, found that subsection (b) was merely a sentence enhancer, and did not describe a separate element which must be pled and proven. Justice Breyer basically relied on two factors. First, he found that "the relevant statutory subject matter is recidivism," which is "as typical a sentencing factor as one might imagine." Secondly, Justice Breyer relied upon the specific words of the statute. At the beginning of subsection (a), the statute includes the words "subject to subsection (b)." Then, in subsection (b), it begins with the words "[n]otwithstanding subsection (a)." Breyer rhetorically asked, "what are those words doing there," unless to show that Congress intended subsection (b) to be a sentence enhancer? Because of the reliance upon the specific language of this statute, it is unlikely that this ruling will have the effect of unraveling the sentence enhancer/element of crime equations in other statutes. For example, Breyer observed that in 18 U.S.C. 922(g)(1) (possession of a weapon by a previous offender), the prior conviction is an element of the offense, because otherwise, the conduct would not be unlawful. Since this case did not raise any "standard of proof claims," the majority expressed "no view on whether some heightened standard of proof might apply to sentencing determinations which bear significantly on the severity of sentence."
Justice Scalia dissented, joined by the unlikely compatriots of Stevens, Souter and Ginsburg. Scalia argued that subsections (a) and (b) create separate criminal offenses. He noted that subsection (b) does not say that it is a sentence enhancer, and "the text of the statute supports, if it does not indeed demand, the conclusion that subsection (b)(2) is a separate offense." However, the thrust of Scalia's argument was that the statutes were not clear and susceptible to "two constructions." He would have invoked the doctrine of constitutional doubt, and opt for the elemental approach. He also observed, the same result would have been "dictated by the rule of lenity." In typical Scalian style, he accused the majority of "feebleness" and "temerity," paired with allegations that the majority misread the pivotal case of McMillan v. Pennsylvania, 447 U.S. 79 (1986) (state statute providing that visible possession of a firearm during an offense to be a sentence enhancer, and not an element of the crime, was constitutional). Scalia accused the majority of "ignoring or distorting" the analysis of McMillan, and "selectively" recruiting certain portions of that opinion. Scalia first observed that the Pennsylvania statute explicitly stated the "visible possession of a firearm" was not an element, but merely a sentence enhancer. Most importantly, he felt the McMillan case turned on the fact that, as a consequence of the Pennsylvania statute, a mandatory minimum sentence was imposed, rather than, as here, the maximum sentence greatly increased.
Justice Breyer responded that McMillan turned on "various features," not just the lack of alteration to the maximum sentence. Breyer argued that this statute's "broad, permissive sentencing range does not itself create significantly greater unfairness," since the trial court can exercise "discretion within broad statutory ranges." The difference "between a permissive maximum and a mandatory minimum does not systematically, or normally, work to the disadvantage of a criminal defendant." Replying to Scalia's "constitutional doubt," Breyer admitted that while the statute is "somewhat complex," the doctrine is inapplicable, since a majority of the Court did not "gravely doubt" that the statute is unconstitutional.
Clemency Proceedings -- Minimum Due Process --
No Fifth Amendment Violation
Ohio Adult Parole Authority v. Woodard, 118 S. Ct. 1244 (1998). A divided Court gave differing reasons why a Section1983 claim had not been made in this case. Woodard sustained a murder conviction and death sentence from Ohio, which were affirmed on direct appeal. The Ohio Adult Parole Authority commenced its clemency investigation pursuant to state law, and informed Woodard he could have his "voluntary interview" on three days' notice. He was only given 10 days' notice of the clemency hearing. He contended he did not have a meaningful opportunity to prepare his clemency application. He also complained that his lawyer was improperly excluded from the interview process, and could only participate in the hearing at the discretion of the parole board chair. Woodard was precluded from testifying or submitting documentary evidence at his hearing. One of Woodard's chief complaints was that his ability to make a "voluntary statement" was hampered by his pending post-conviction proceedings.Chief Justice Rehnquist, who delivered the majority opinion, was only joined by three Justices when he stated that persons facing clemency proceedings were entitled to no due process protections. Justice O'Connor, joined by Justices Souter, Ginsburg and Breyer, concurred in the judgment and ruled that minimal due process safeguards apply at clemency hearings. She agreed with Justice Stevens' dissent when he stated that it is incorrect that a prisoner be deprived of all interest in his life without due process. Stevens would have remanded to the district court for findings as to what minimum due process safeguards applied. O'Connor merely found that the due process afforded Woodard was sufficient. She did not elaborate on what the de minimis safeguards might be, except to say that if a state official "flipped a coin to determine whether to grant clemency or whether the state arbitrarily denied the prisoner access to the clemency process could be violations."
However, the Court unanimously rejected Woodard's Fifth Amendment argument, even though his post-conviction proceedings were pending, and what he said during the clemency proceedings could be used against him. The Court did not see him in a different position than any other defendant who makes a "choice" to make a statement in the course of criminal proceedings. The Court also found that his statement was not "compelled," even though the Ohio Parole Board could draw adverse inferences from Woodard's refusal to answer questions.
Habeas Corpus
Federal Habeas Corpus -- Recall of Mandate --
Abuse of Discretion
Calderon v. Thompson, 118 S. Ct. 1489 (1998). Thompson was convicted in California for rape and murder, and sentenced to death. Thirteen years after his conviction, and seven years after he filed his first petition for federal habeas corpus relief, a panel of the Ninth Circuit issued its mandate denying habeas corpus relief, which prompted the scheduling of his execution date. Thereafter, Thompson unsuccessfully pursued state habeas and clemency. Two days before his scheduled execution, the Ninth Circuit, sitting en banc, recalled its mandate and granted habeas corpus relief.The U.S. Supreme Court (5-4), per Justice Kennedy, held that the Ninth Circuit had abused its discretion in recalling the mandate, especially so close to Thompson's execution date. Reading between the lines, it is fair to say that the majority considered this to be a flagrant abuse of discretion. The majority first found that the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. 2244, did not apply, since, technically, this was Thompson's first habeas corpus petition. Nevertheless, the Court looked to the "values and purposes underlying the AEDPA when performing the abuse of discretion calculus. The majority did find that the courts of appeals have "inherent power" to recall their mandates, subject to review for abuse of discretion. However, the majority ruled, recall was only to be used in "extraordinary circumstances" and as a "last resort" to be held in reserve against grave, unforeseen contingencies." The Court acknowledged there were other circumstances which could trigger a recall, for example, to correct mere clerical errors in the judgment itself, or when fraud has been committed upon the court.
Apparently after the panel had ruled, counsel for Thompson "suggested" that the matter be heard en banc. Through some "procedural misunderstandings within the court" that request got waylaid. The Ninth Circuit felt that, since it was partially responsible for the misunderstanding, the recall should issue. The Ninth Circuit also asserted that the decision of the original panel "would lead to miscarriage of justice." The majority seized upon the miscarriage of justice language and ruled that unless Thompson could show to a clear and convincing level that he was innocent, the miscarriage of justice test could not be met. "Innocence" in this context gets a little complicated. On appeal, Thompson's counsel argued that the evidence was weak concerning his rape conviction, and if the rape conviction was overturned the death penalty was in doubt, since the rape in addition to the murder had triggered the death penalty.
However, at trial, Thompson apparently asserted his innocence to all charges. It is unclear whether the majority focused upon the rape evidence solely, or the "totality of the evidence of Thompson's guilt." But in either event, the majority detailed what it called the overwhelming evidence of guilt, together with Thompson's less-than-convincing testimony at trial. There being no showing of actual innocence, the miscarriage of justice test was not met, and the recall of mandate was found to be an abuse of discretion.
Justice Souter dissented, and was joined by Justices Ginsburg, Breyer and Stevens. Souter agreed that the AEDPA did not apply, and would have found the recall of mandate "wholly appropriate." He observed that the Ninth Circuit's failure to review the panel's decision was "administrative inadvertence" which was "awkwardly corrected." He also criticized the majority which required a showing of clear and convincing evidence of actual evidence.
Federal Habeas Corpus -- Mootness
Spencer v. Kemna, 118 S. Ct. 978, (1998). Spencer was sentenced to prison and later released on parole. He allegedly committed forcible rape while on parole, which prompted a revocation. When he returned to prison, he initiated an appeal concerning procedural irregularities at his revocation hearing. Eventually, the Supreme Court of Missouri denied his claims. Six months before the expiration of his sentence, Spencer filed a federal petition for writ of habeas corpus, pursuant to 28 U.S.C. 2254, alleging generally that he had not received due process in the parole revocation proceedings. Before the Federal District Court could respond to the habeas petition, Spencer was released on parole, and two months after that, the term of his imprisonment expired.For some reason, not explained in the Supreme Court opinion, the district court did not rule on the habeas request until almost two years later, and ruled that Spencer was no longer "in custody" within Section 2254(a), thus making his claims moot. The court of appeals affirmed, and so did the Supreme Court (per Justice Scalia). The majority recognized that while in prior cases, it has "presumed" "collateral consequences" in a habeas request attacking an underlying conviction, it was unwilling to do so when the attack is upon a parole revocation proceeding where the underlying sentence has been completely served. In that situation, the petitioner must demonstrate the actual collateral consequences.
The majority found Spencer's showing to be inadequate. Spencer had argued that his revocation could be used to his detriment in a future parole proceeding. Apparently in the interim period, Spencer had committed another felony and had been sentenced to seven years in prison. Nevertheless, Scalia wrote that it was only a "possibility," rather than a "probability" that the prior revocation would be so used. He looked to Missouri law, which considers a prior revocation as "simply one factor among many that may be considered by the parole authority."
Justice Stevens dissented, and argued that the primary case relied upon by the majority, Lane v. Williams, 455 U.S. 624 (1982) (majority opinion written by Justice Stevens) was inapposite. He agreed that in Lane, the Court found that the habeas claims were moot, since the petitioners were attacking their revocation proceedings, and had each discharged their sentences by the time the case was heard. Stevens would have distinguished Lane, because the petitioners there were challenging their sentences, rather than whether they had been afforded due process at their revocation hearings. Because an accusation of forcible rape is serious, he would have found that Spencer had a "personal stake in the outcome."
Justice Souter concurred, and was joined by Justices O'Connor, Ginsburg and Breyer. Souter concurred to add an additional reason why, in this case, Spencer had not been able to establish a collateral consequence worthy of avoiding mootness. Spencer had claimed that a Section 1983 civil rights action could be barred under Heck v. Humphrey, 512 U.S. 477 (1994), because he could not demonstrate that the underlying criminal proceedings had terminated in his favor. Souter highlighted his concurrence in Heck, where he stated that the "favorable termination requirement" would not apply to prisoners no longer in custody. In that light, Souter agreed that Spencer's habeas request was moot.
Antiterrorism and Effective Death Penalty Act -- Certiorari Review of Denial ofProbable Cause Certificate
Hohn v. United States, 118 S. Ct. 1969 (1998). In a 5-4 opinion, the U.S. Supreme Court, per Justice Kennedy, found that it had jurisdiction under 28 U.S.C. 1254(1) to review denied applications for certificates of appealability made by a circuit judge or a panel of the court of appeals, notwithstanding the Antiterrorism and Effective Death Penalty Act. Hohn filed a habeas corpus petition under 28 U.S.C. 2255 seeking to vacate his conviction of using a firearm during a drug trafficking offense (18 U.S.C. 924(c)(1). The district court denied his petition, and he filed a notice of appeal to the Eighth Circuit. A three-judge panel treated his appeal as a request for a certificate of appealabiltiy, pursuant to the AEDPA, and declined to issue the certificate. Hohn then sought certiorari relief in the Supreme Court pursuant to 28 U.S.C. 1254(1), which provides "cases in the courts of appeals may be reviewed by the Supreme Court."The majority found it had jurisdiction under 1254(1), and that the request to the Eighth Circuit was a "case" in the court of appeals. This holding does not seem to be tied to the facts of this specific case, and likely applies to any denial of a certificate of appealabiltiy. Along the way, the majority had to overrule a previous per curiam decision which had held the Court lacked certiorari jurisdiction to review denials of certificates of probable cause in the courts of appeals. See House v. Mayo, 324 U.S. 42 (1945).
Justice Scalia dissented and was joined by Chief Justice Rehnquist and Justices O'Connor and Thomas. He argued that a request in the court of appeals for a certificate of appealability was not a "case" under 1254(1). He further criticized the Court for so easily overruling House, which was precedentially on point.
Antiterrorism and Effective Death Penalty Act -- Declaratory Judgment Act --Improperly Used
Calderon v. Ashmus, 118 S. Ct. 1694 (1998). Ashmus filed for relief under the Declaratory Judgment Act to determine which portions of the AEDPA would apply to his potential federal habeas corpus proceeding in a capital case. Specifically, he sought, given California's compliance status, whether Chapter 153 or 154 would apply. The Ninth Circuit had reached the merits of the issue, but the U.S. Supreme Court unanimously reversed, per Chief Justice Rehnquist. Rehnquist found that the matter was not properly within the Declaratory Judgment Act, since no habeas corpus proceeding had begun. The issues raised by Ashmus could more properly be decided if and when he files his petition for habeas corpus.Ashmus was concerned because even the filing of the petition itself could be held to different standards, depending upon which portion of the AEDPA were to apply. To answer that concern, Justice Breyer concurred and was joined by Justice Souter. If California qualifies as an "opt in" state, and if petitioner cannot amend a "bare bones petition," he might qualify for an interlocutory appeal, pursuant to 28 U.S.C. 1292(b).