M E M O R A N D U M SUPREME COURT

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1 M E M O R A N D U M TO: FROM: SUBJECT: FPD Staff Attorneys & CJA Panel Attorneys Neil H. Jaffee March/April 2002 Case Summaries DATE: May 1, 2002 SUPREME COURT Mickens v. Taylor, 122 S.Ct (2002). To establish ineffective assistance of counsel claim w here a trial court failed to inquire into pot ential conflict of interest about w hich it knew or reasonably should have know n, defendant must demonst rate that conflict of interest adversely affected counsel' s perf ormance; capital def endant ' s inef fectiveness claim rejected w here he w as unable to demonstrate that potential conflict of interest of his counsel, w ho previously represented victim of homicide w ith which defendant w as charged, adversely affected counsel' s perf ormance. Ashcroft v. The Free Speak Coalition, 122 S.Ct (2002). The Child Pornography Prevention Act of 1996, 18 U.S.C. 2251, et seq., which prohibits the possession or dist ribution of sexually explicit images that appear t o depict minors but w ere produced without using any real children, is over- broad and unconstitutionally proscribes materials that are neither obscene nor produced by the exploitation of real children. Department of Housing and Urban Development v. Rucker, 122 S.Ct (2002). The plain language of a provision of Anti-Drug Abuse Act of 1988 unambiguously requires lease terms that allow a local public housing authority to evict a tenant w hen a member of tenant' s household or a guest engages in drug-related criminal activity, regardless of w het her the t enant knew, or had reason to know, of that activity. NOTEWORTHY CERT. GRANTS Lockyer v. Andrade, 122 S.Ct (2002) (whether a sentence of tw o consecut ive indet erminat e terms of 25 years to life under California' s Three Strikes statute, on conviction of tw o counts of petty theft of videotapes w orth $153.54, w as so grossly disproportionate to defendant ' s crime that, as applied, the law violates the Eighth Amendment proscript ion against cruel and unusual punishment).

2 Ewing v. California, 122 S.Ct (2002) (w het her a sentence of an indeterminate term of 25 years to life under California's Three Strikes statute violates federal constitutional provisions against cruel and unusual punishment because it is grossly disproportionate to offense of " stealing golf clubs" ). Scheider v. National Organization for Women, Inc., No , 2002 WL (Apr. 22, 2002) (w hether activities of political protesters who engage in sit-ins and demonstrations that obstruct public' s access to business premises and int erf ere w ith f reedom of potent ial customers to obt ain services offered there can be prosecuted under Hobbs Act). Sattazahn v. Pennsylvania, 122 S.Ct (Mar. 18, 2002) (whether imposition of deat h sent ence on ret rial w here def endant had received life sentence in initial trial due to hung jury in penalty phase but conviction w as reversed on appeal, violates defendant' s double jeopardy and due process right s). Abdur' Rahman v. Bell, No , 2002 WL (Apr. 22, 2002) (w het her a motion for relief from judgment filed pursuant to Fed.R.Civ.P. 60(b) constitutes a prohibited "second or successive" habeas petition as a matter of law and whether a court of appeals abuses it discretion in ref using to permit consideration of an essent ial intervening procedural rule w hen the f ailure to do so precludes a habeas petitioner from ever receiving any adjudication of its claims on the merits). D.C. CIRCUIT & DISTRICT COURT In re: Richard A. Smith, 285 F.3d 6 (D.C. Cir. 2002). Savings clause of 2255 aut horizes defendant to f ile 2241 habeas petition to challenge 924(c) conviction, w hich is clearly invalid under Bailey and progeny; court of appeals does not reach question of w hether there is an "actual innocence" exception to AEDPA. United States v. Bruce, 285 F.3d 69 (D.C. Cir. 2002). The supervised release policy statements contained in Chapter 7 of the sentencing guidelines, including 7B1.4's revocation table, are not binding upon sentencing court; therefore, district court has discretion to impose supervised release revocation sentence outside range provided in revocation table. United States v. Hicks, 283 F.3d 380 (D.C. Cir. 2002). Apprendi claim filed af ter denial of 2255 mot ion, w hich had raised unrelated claim, const itut ed an amendment and did not relate back to original motion under Fed.R.Civ.P. 15(c) to original motion because amendment raised entirely new legal claim arising from new facts; Apprendi claim filed more than one year after defendant's conviction became final was time-barred under 2255's statute of limitations; court of appeals does not reach question of w hether Apprendi applies retroactively to cases on collateral review. 2

3 In re: Sealed Case, 283 F.3d 349 (D.C. Cir. 2002). Plea colloquy w as sufficient under Fed.R.Crim.P. 11(c)(1) w here district court properly ensured that defendant understood elements of conspiracy charge to which he was pleading guilty; since guilty plea taken in compliance w ith Rule 11, appeal w aiver provision of plea agreement w as ef fective. Toolasprashad v. Bureau of Prisons, No , 2002 WL (D.C. Cir. Apr. 19, 2002). Prisoner' s transfer and reclassification in retaliation for exercising his First Amendment rights in f iling administ rative grievances against FCI st aff members w ho allegedly harassed and intimidated him, could, if proven, constitute " adverse determinations" under Privacy Act; reverses district court's dismissal of prisoner' s complaint. United States v. Draffin, No (D.C. Cir. Apr. 26, 2002). District court's failure to depart under U.S.S.G. 4A1.3 on overstatement of criminal history grounds did not constitute plain error w here defendant did not ask court to grant departure on that ground and record did not unequivocally demonstrate sentencing court misconstrued departure authority. United States v. Long, 185 F.Supp. 2d 3 0 (D.D.C. 2001). Dist rict court declined to consider as relevant conduct photographs of alleged minor engaged in sexually explicit conduct even t hough photographs w ere in same package as several photographs of other victims that formed basis for defendant's convictions for possessing such visual depictions since jury had not been asked to determine w hether defendant had possessed additional photographs or whether person depicted was minor; defendant's conduct in transporting minor from his home in Maryland to defendant's home in District of Columbia w ith intent to engage in criminal sexual activity w ith minor, for w hich defendant w as acquitted, w as relevant conduct to be considered by sentencing court in relation to convicted count of possession of materials depicting that minor engaging in sexually explicit conduct; diminished capacity departure denied under U.S.S.G. 5K2.13 w here defendant's diagnosed sexual disorder did not significantly impair ability to understand law fulness of actions or exercise pow er of reason and to extent defendant suffered from unusually diminished capacity due to sexual disorder, dow nw ard departure not w arranted since defendant w as w ithin heartland of guidelines applicable to persons who committed sex offenses and suffered from some sexual disorder; extreme psychological injury suffered by minor victims of defendant's sex offenses was not " much more serious" than injury normally resulting from such sexual abuse and t hus did not w arrant upw ard depart ure under U.S.S.G. 5K2.3; fact that defendant w as church pastor and school teacher, provided alcohol and drugs to minors to facilitate sexual abuse, and took actions to obtain custody of tw o of the minors did not make conduct unusually heinous, cruel or degrading to victims, and therefore did not support upw ard depart ure under U.S.S.G. 5K2.8. 3

4 OTHER COURTS Jenkins v. Artuz, No , 2002 WL (2d Cir. Apr. 1, 2002). Witness' s f alse t est imony at murder trial denying that w itness had entered into plea agreement w ith state, combined w ith prosecutor' s summation supporting w itness' s false testimony, violated defendant' s due process right w here know ing use of false test imony reasonably could have affected t rial' s out come, as w itness w ho test ified falsely provided only evidence of motive and testimony of other prosecution witnesses was weak or problematic. Fernandez v. Roe, No , 2002 WL (9 th Cir. Apr. 8, 2002). Defendant made prima facie showing of Batson violation where prosecutor struck four of seven Hispanics, twenty-one percent of strikes were made against Hispanics though they constituted only about tw elve percent of venire, tw enty-nine percent of strikes had been made against Hispanics at time judge w arned prosecutor not to st rike any more Hispanics, prosecut or st ruck only prospective African-American jurors, and prosecutor failed to engage in meaningful questioning of any minority jurors, though one Hispanic juror w as ultimately seated, and prosecutor claimed he relied on scores assigned to juror questionnaires. United States v. Durham, No , 2002 WL (11 th Cir. Apr. 4, 2002). District court's findings were not sufficient to justify use of stun belt to rest rain defendant at trial; alt hough court concluded t hat def endant w as " height ened securit y risk" due to escape attempts and violence of alleged crimes, court made no findings relating to stun belt' s operation and failed to consider less restrictive alternatives to prevent escape and ensure courtroom safety. United States v. Zillgit, No , 2002 WL (2d Cir. Apr. 4, 2002). Under Apprendi, defendant convicted of conspiracy involving marijuana and cocaine must be sentenced for indeterminate quantity of marijuana only w here jury made no findings as to drug type or quantity. United States v. Maxw ell, 285 F.3d 336 (4 th Cir. 2002). In imposing supervised release term upon second revocation of defendant's supervised release, district court required to subtract imprisonment term imposed upon defendant as part of first revocation sentence, as w ell as term of imprisonment imposed as part of second revocation sentence, from total amount of supervised release authorized by st atut e for underlying crime. United States v. Norris, 281 F.3d 357 (2d Cir. 2002). Apprendi requirements do not apply to Sentencing Guidelines enhancements, such as those based upon drug quant ity, w eapons possession, and supervision of criminal activity, and factual determinations regarding enhancements were not required to be made by jury but 4

5 could be made by sentencing court; reverses district court's decision applying Apprendi to Guidelines enhancements. United States v. How ell, No , 2002 WL (10 th Cir. Apr. 5, 2002). District court abused discretion by categorically excluding all evidence relating to nature of prosecution w itnesses' prior felony convictions admitted for impeachment w ithout determining whether probative value of nature of convictions substantially out w eighed prejudicial effects. United States v. Mariscal, No , 2002 WL (9 th Cir. Apr. 1, 2002). Officer lacked reasonable suspicion to make traffic stop based upon vehicle's unsignalled right-hand turn where turn was not illegal under state law, in absence of any traffic that might be affected by vehicle's movement. United States v. Cruz, 285 F.3d 692 (8 th Cir. 2002). Evidence was insufficient to prove defendant constructively possessed drugs found in house w here defendant had key to house, stayed there occasionally, and police found documents bearing different versions of defendant' s name but defendant did not ow n or lease house and government did not present any testimonial, forensic, or physical evidence indicating that defendant resided there or had know ledge or control of drugs concealed in premises. United States v. Fitch, 282 F.3d 364 (6 th Cir. 2002). Plea agreement provision that excluded relevant conduct as increase to base offense level precluded prosecutor's request at sentencing hearing for organizer or leader upw ard adjustment to base offense level. United States v. Lukse, No , 2002 WL (6 th Cir. Apr. 17, 2002). Government breached plea agreement requiring it to file downward departure mot ion under U.S.S.G. 5K1.1 if def endant provided government w ith subst ant ial assistance, by refusing to file a motion after defendant w as caught smoking marijuana in jail after government had decided that defendant did provide subst antial assistance in investigation of ot her suspect s. United States v. Runyan, No , 2002 WL (5 th Cir. Apr. 18, 2002). Government failed t o present sufficient evidence directly tying particular images of child pornography introduced into evidence at defendant's trial to Internet, as required to support conviction for distribution of child pornography; although defendant had expressed intent to distribute via Internet images of minor girl he had taken w ith digital camera and then scanned into computer, there w as no evidence that def endant actually disseminat ed pictures t o anyone, much less that he had t ransported images in interstate or foreign commerce via Internet or ot her means, nor w as t here any evidence that def endant actually dist ributed any of ot her 5

6 images contained on computer disks or on computer hard drive by transporting images in interstate or foreign commerce. United States v. Mason, 284 F.3d 555 (4 th Cir. 2002). A juvenile conviction cannot be count ed as predicate of fense in det ermining w het her def endant is career offender under U.S.S.G. 4A1.2, 4B1.2. United States v. Herrera, No , 2002 WL (5 th Cir. Apr. 17, 2002). A person is an " unlaw ful user" of drugs f or purposes of st atut e under which any person who is an unlawful user of or addicted to controlled substance may not possess firearm, 18 U.S.C. 922(g)(3), if he or she is one w ho uses drugs so frequently and in such quantities as to lose pow er of self-control and thereby pose danger to public, that is, one whose use of drugs falls just short of addiction, as that term is defined in 21 U.S.C. 802(1). United States v. Hammond, No , 2002 WL (4 th Cir. Apr. 12, 2002). BOP' s recording of prisoner' s t elephone conversations w as w ithin law enf orcement and consent except ions in Title III and FBI w as f ree to use int ercept ed conversations w ithout obtaining int erception order under Title III. United States v. Thompson, No , 2002 WL (10 th Cir. Apr. 16, 2002). Improper sealing of fraud indictment warranted dismissal with prejudice w here def endant s' innocent destruction of business and personal records that occurred during sealing period substantially affected defendants' ability to defend against charges. United States v. Yu, 285 F.3d 192 (2d Cir. 2002). Apprendi violation w arrant ed vacatur of sentence where defendant pleaded guilty to two counts of conspiracy to distribute heroin and one count of attempted distribution of heroin but refused to admit to drug quantity charged in indictment and district court made drug quantity determination at sentencing under preponderance standard. United States v. Banks, 282 F.3d 699 (9 th Cir. 2002). Delay of seconds after single knock and announcement by of ficers execut ing search w arrant at def endant ' s apart ment bef ore making forced entry w as, w ithout affirmative denial of omission or other exigent circumstances, insufficient in duration to satisfy Fourth Amendment safeguards. United States v. Jimenez, No. 01-CR563GEL, 2002 WL (S.D.N.Y. Feb. 21, 2002). Dow nw ard depart ure for extraordinary physical condition just ified under U.S.S.G. 5H1.4 w here defendant suffered from brain aneurism resulting in severe memory loss, psychot ic disorders, and ot her physical sympt oms. 6

7 United States v. Pineda-Torres, No , 2002 WL (9 th Cir. Apr. 23, 2002). Admission of expert testimony explaining structure of drug trafficking organizations violated Fed.R.Evid. 401 and 403 w here only element of charged drug offenses at issue w as defendant s know ledge of drugs seized from his car and government did not charge defendant with drug conspiracy or present any evidence connecting him to drug trafficking organization. United States v. Quinones, No. S3 00 CR. 761(JSR), 2002 WL (S.D.N.Y. Apr. 25, 2002). By cut ting of f a capital def endant s ability to establish actual innocence, for example, t hrough evolving scientif ic development s such as DNA testing, the Federal Death Penalty Act violates due process; however, court provides government w ith additional briefing opportunity before filing final order. United States v. Day, 285 F.3d 1167 (9 th Cir. 2002). Defense counsel s erroneous advice that defendant only could make sentencing entrapment argument if he w ent to t rial prejudiced defendant, w ho did not receive 3-level accept ance of responsibility reduction included in plea offer, by depriving him of opportunity to intelligently consider plea offer and make informed decision. United States v. Diaz, 285 F. 3d 92 (1 st Cir. 2002). Defendant s 922(g) conviction, w hich involved cocking and pointing a small gun while attempting to break up an altercation outside a restaurant but w ithout a showing of an intent to fire the gun, w as insufficient to support an upw ard adjust ment under U.S.S.G. 2K2.1 for posing a substantial risk of death or bodily injury to multiple individuals. United States v. Sofsky, No , 2002 WL (2d Cir. Mar. 28, 2002). Condition of supervised release prohibiting defendant, convicted of receiving child pornography, from accessing a computer or the Internet w ithout probation officer s approval, inflicted greater deprivation on defendant s liberty than was reasonably necessary and exceeded district court s sentencing discretion; although defendant did not object below to supervised release condition, court of appeals does not apply strict plain error standard of review w here challenged condition w as not recommended in PSR and defendant had no prior notice condition w ould be imposed when he w as sentenced. 7