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Criminal Justice Magazine
Summer 2004
Volume 19 Number 2

CERT ALERT
Confrontation, Sovereignty, Seizures Top Court Action

By Paul M. Rashkind

Paul M. Rashkind, is a supervisiory assistant federal public defender and chief of appeals for the Office of the Federal Public Defender, Southern District of Florida, in Miami. He also serves on the adjunct faculty of the University of Miami School of Law. He is the Section's vice-chair for publications, chair of the Book Committee, and a contributing editor to Criminal Justice magazine.

The third quarter of the Supreme Court’s 2003–04 Term produced a balanced docket—nine decisions and nine new cert grants relating to criminal cases. In keeping with recent Terms, the cases are spread over a broad spectrum. The decided cases present significant developments in three areas of the law.
First, the Court overruled its own precedent allowing liberal admission of testimonial hearsay, replacing it with a stricter reading of the Confrontation Clause (Crawford).
Second, contrary to its earlier precedent, it permitted an Indian tribe to conduct criminal prosecutions of nontribe members, as a separate sovereign, without implicating the Double Jeopardy Clause, so that the federal government may later prosecute the same offense (Lara).
Third, the Court decided search and seizure questions concerning the sufficiency of search warrants (Groh) and propriety of routine disassembly and searching of auto gas tanks at the border (Flores-Montano).
In addition, the Court agreed to determine the reasonableness of canine drug detection following a traffic stop (Caballes) and of warrantless arrests when the officer arrests for the wrong crime (Devenpeck). The president’s right to seize U.S. citizens as enemy combatants was also added to the docket for this Term (Padilla), joined with the previously scheduled argument on the right of enemy combatants to counsel (Hamdi), discussed in the previous Cert Alert column. (See 19:1 CRIM. JUST. 62 (Spring, 2004).)
The Supreme Court highlighted how little it takes for a pro se defendant to waive the right to counsel (Tovar) and will decide whether a capital lawyer was ineffective or simply exercising trial strategy by contesting only the death phase, but not the guilt phase, at trial (Nixon).
A state’s destruction of evidence was approved in the case of a long-term fugitive (Fisher), but another state’s Brady violations, first uncovered during a federal habeas corpus case, provided “cause and prejudice” to allow it to be heard in the federal proceeding (Banks). The Court cracked down, however, on how specifically a prisoner must set forth claims to effectively exhaust state remedies before federal habeas corpus is allowed (Baldwin).
Two cases will address federal crimes with foreign implications, one concerning wire fraud to prosecute foreign tax evasion (Pasquantino), the other determining if a foreign conviction can be a predicate for the federal crime of firearm possession by a convicted felon (Small).
Prisoners grabbed their share of the Court’s docket. Suits for damages that merely challenge conditions of confinement, but do not challenge the underlying sentence, are now permissible without first establishing the underlying conviction or sentence was successfully challenged (Muhammad). The Court agreed to determine if automatic initial racial segregation of inmates is permissible (Johnson); whether driving under the influence (DUI) with injury is necessarily a crime of violence and aggravated felony under immigration law (Leocal); and if convicted aliens can be removed to foreign countries without that country’s acceptance prior to removal (Jama).

Right to Effective Counsel
Right to self-representation. Iowa v. Tovar, 124 S. Ct. 1379 (2004). During a guilty plea by a pro se defendant, the state trial judge did not advise him of the usefulness of an attorney, the dangers of proceeding without one (especially the independent opinion of a lawyer on the propriety of a guilty plea), and the possibility of legal defenses that might not be recognized by a layperson. The Iowa Supreme Court reversed, holding that the trial court failed in its duty to admonish the defendant on these matters. The U.S. Supreme Court reversed, holding that the Sixth Amendment does not require “scripted admonitions” to effect a waiver of counsel. Waiver of a right is considered knowing and intelligent if the defendant understands the nature of the right “in general” and the “constitutional minimum” ordinarily suffices to effectuate a valid waiver. Each waiver should be decided on its own facts, not according to a preset script.

Ineffectiveness of counsel v. strategy. Florida v. Nixon, 124 S. Ct. 1555, cert. granted, Mar. 1, 2004; decision below at 857 So. 2d 172 (Fla. 2003). Questions: “In a capital murder case, did the Florida Supreme Court: (A) apply an incorrect standard, contrary to Strickland v. Washington, 466 U.S. 668 (1984), Bell v. Cone, 535 U.S. 685 (2002), and Roe v. Flores-Ortega, 120 S. Ct. 1029 (2000), by finding defense counsel ineffective per se under United States v. Cronic, 466 U.S. 648 (1984), despite having found counsel’s strategy not to contest overwhelming evidence of guilt but to vigorously contest the sentence in the defendant’s best interest and reasonably calculated to avoid a death sentence, and (B) err in concluding that Boykin v. Alabama, 395 U.S. 238 (1969) prohibited trial counsel from adopting a strategy, after fully informing his client, without objection, not to contest overwhelming evidence of guilt to protect the best interest of his client in contesting the appropriateness of imposing the death penalty?”

Search & Seizure
Sufficiency of search warrants. Groh v. Ramirez, 124 S. Ct. 1284 (2004). The U.S. Supreme Court held that a search was “unreasonable” under the Fourth Amendment where the search warrant failed to describe the things to be seized in the search. The search warrant application specified the weapons, explosives, and records sought for seizure at a Montana ranch, but the warrant as signed by the magistrate failed to specify any of these items, and failed to cross-reference the application upon which it was based. After the search proved fruitless, the residents of the ranch sued the law enforcement officers, claiming a Fourth Amendment violation. The officers interposed a “qualified immunity” defense. Finding a constitutional violation, the Supreme Court noted that the warrant was plainly invalid. Because the warrant did not describe the items at all, it was obviously deficient, making the search effectively warrantless. The Court rejected the argument that the particularity requirements of the Fourth Amendment were satisfied because the warrant did not exceed the scope of the application: “[U]nless the particular items described in the [supporting] affidavit are also set forth in the warrant itself (or at least incorporated by reference, and the affidavit present at the search), there can be no written assurance that the Magistrate actually found probable cause to search for, and seize, every item mentioned in the affidavit.” In effect, the searching officers were limited only by their own restraints, which means there was no external limit at all. The Court held that a qualified immunity defense could not prevail because no reasonable officer could claim to be unaware of the basic rule forbidding warrantless searches. It rejected the claim that the officer’s conduct was merely “negligent,” noting that the executing officer, with even a brief glance at the deficient language of the warrant, could not possibly have believed the warrant to be valid, and that no exigency excused his “mistake.”

Border searches. United States v. Flores-Montano, 124 S. Ct. 1582 (2004). Without reasonable suspicion, U.S. Customs officers at the international border with Mexico removed, disassembled, and searched a vehicle’s fuel tank for contraband. The district court suppressed pot found as a result of the search. The court of appeals summarily affirmed, holding that the search of a fuel tank does not fit within “routine” border search exception to the Fourth Amendment. A unanimous Supreme Court reversed, holding that a nondestructive search of a vehicle at the border of the United States does not require “reasonable suspicion” to justify disassembling the fuel tank of the border-crosser’s vehicle. The Court rejected the defendant’s argument that he had “a privacy interest in his fuel tank,” noting that privacy interests at the border are less than “in the interior,” and that just as the automobiles themselves may be searched, so may their fuel tanks. Since the equally (or more) intrusive search of the passenger compartment of the vehicle is permissible at the border, so too is the search of a gas tank, which involves lesser privacy interests. The search did not involve destructive disassembly and the Court noted that it was not reaching the question of “exploratory drilling searches” or whether and under what circumstances a border search might be deemed unreasonable because of the particularly offensive manner in which it was carried out.

Dog sniffs. Illinois v. Caballes, 124 S. Ct. ___ , cert. granted, April 5, 2004; decision below at 802 N.E.2d 202 (Ill. 2003). The driver was stopped for speeding. The trooper called in the license number and registration at a snail’s pace, allowing time for a canine unit to arrive. The dog alerted on the car’s trunk, which led to a conviction for cannabis trafficking. The Illinois Supreme Court overturned the conviction, holding that a permissible canine sniff requires “specific and articulable facts.” The U.S. Supreme Court granted certiorari to decide whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop.

Presidential authority to seize U.S. citizen. Rumsfeld v. Padilla, 124 S. Ct. 1353, cert. granted, Feb. 20, 2004; decision below at 352 F.3d 695 (2d Cir. 2003). The Second Circuit held that the president lacked the authority to seize and detain a U.S. citizen based on the president’s determination of an enemy combatant status. It also decided that personal jurisdiction existed as to the secretary of defense. The Supreme Court granted certiorari to decide: (1) whether the president has congressional authority to seize and detain a U.S. citizen based on the president’s determination of an enemy combatant status, despite limitation of 18 U.S.C. § 4001(a); and (2) whether the district court had jurisdiction of the respondent, Donald Rumsfeld.

Reasonableness of warrantless arrest. Devenpeck v. Alford, 124 S. Ct. ___, cert. granted, Apr. 19, 2004; decision below at 333 F.3d 972 (9th Cir. 2003). Under the Fourth Amendment’s objective test, an arrest is deemed “reasonable” if there is probable cause to believe that a violation of law has occurred. Two federal circuits find an arrest reasonable if, based on an objective assessment by a reasonable officer, there is probable cause to arrest for any offense. At least five federal circuits disagree, finding an arrest to be reasonable only if there is probable cause to arrest for crimes “closely related” to the crime or crimes articulated by the arresting officer. Questions: Does an arrest violate the Fourth Amendment when a police officer has probable cause to make an arrest for one offense, if that offense is not closely related to the offense articulated by the officer at the time of the arrest? For the purpose of qualified immunity, was the law clearly established when (1) there was a split in the circuits regarding the application of the “closely related offense doctrine,” (2) the Ninth Circuit had no controlling authority applying the doctrine, and (3) Washington State law did not apply the doctrine?

Double Jeopardy
Double jeopardy; tribal sovereign immunity. United States v. Lara, 124 S. Ct. 1628 (Apr. 19, 2004). In Duro v. Reina, 495 U.S. 676 (1990), the U.S. Supreme Court determined that the retained or inherent authority of an Indian tribe does not include authority to prosecute criminally nonmembers of the tribe. Congress then passed remedial legislation permitting such prosecutions. The defendant was first prosecuted for assault by a tribe then sought double jeopardy protection against a prosecution for the same offense by the federal government. The court of appeals held that the legislation, 25 U.S.C. § 1301, cannot overrule a Supreme Court decision, so its grant of powers is ineffective. The Supreme Court reversed, holding that as a result of congressional recognition of the tribes’ criminal jurisdiction over nonmember Indians, the Spirit Lake Tribe acted in its capacity as a sovereign authority when it prosecuted the defendant; thus, the Double Jeopardy Clause does not prohibit the federal government from prosecuting the defendant for a discrete federal offense.

Trial
Confrontation: admission of testimonial hearsay. Crawford v. Washington, 124 S. Ct. 1354 (2004). The Supreme Court overruled its prior precedent in Ohio v. Roberts, 448 U.S. 56 (1980), and abandoned its “reliability” test for the admission of out-of-court testimonial statements against criminal defendants. The Court held that the Confrontation Clause of the Sixth Amendment bars the admission of such statements. Although, historically, the primary object of the Confrontation Clause was to prevent the use of ex parte examinations of witnesses as evidence against the accused, the Court noted that Ohio v. Roberts allowed the admission of these statements upon a finding of “mere reliability.” This is too unpredictable a standard, as it depends on the factors a judge weighs, and substitutes this determination for the only test of reliability that the Confrontation Clause meant to preserve, namely, the crucible of in-court confrontation and cross-examination, a test for which the ultimate decision maker is the jury, not the judge. “[W]e decline to mine the record in search of indicia of reliability. Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” The Court left open the question of how nontestimonial hearsay should now be admitted under the Confrontation Clause, limiting its holding to the admission of testimonial hearsay. Also left open was the exact definition of “testimonial” hearsay, although the Court stated that it encompassed, at minimum, testimony at a preliminary hearing, before a grand jury, or at a former trial, and includes police interrogations.

Destruction of evidence as a due process violation. Illinois v. Fisher, 124 S. Ct. 1200 (2004) (per curiam). Following his arrest in 1988, the defendant became a fugitive. In 1999, while still a fugitive, the drug evidence in his case was destroyed, even though his counsel had requested access to it in a discovery motion filed before the defendant fled. He was captured after the evidence was destroyed. The Appellate Court of Illinois held that the Fourteenth Amendment’s Due Process Clause required dismissal of the drug-trafficking charges because the police, albeit acting in good faith and in accordance with normal procedures, destroyed the drug evidence that the defendant had requested 10 years earlier. The U.S. Supreme Court reversed. Arizona v. Youngblood, 488 U.S. 51 (1988), held that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process. Acknowledging that the bad faith of the prosecution is irrelevant in a Brady context, the Court noted that a different test applied with respect to the failure to preserve evidence that, rather than being exculpatory, is merely “potentially useful.” At most, the defendant could have hoped that a test of the destroyed drugs (a fifth test—the four prior ones had all been positive for drugs) would have exonerated him. The Court rejected the lower court’s reliance on the fact that the drugs were the defendant’s “only hope for exoneration,” pointing out that the material factor was not the centrality of the evidence to the case, but the fact that it was only “potentially” useful, rather than exculpatory.

Federal Crimes
Firearms offenses based on foreign convictions. Small v. United States, 124 S. Ct. 1712, cert. granted, Mar. 29, 2004; decision below at 333 F.3d 425 (3d Cir. 2003). Title 18 U.S.C. § 922(g)(1) proscribes possession of a firearm in or affecting commerce by one who has been convicted in any court of a crime punishable by more than a year in prison. Petitioner’s only conviction occurred in Okinawa, Japan, and it was this Japanese conviction that served as the predicate felony in this section 922(g)(1) prosecution. The district court denied the petitioner’s motion to dismiss the indictment, which argued that foreign felonies were not intended to count because the term “in any court” means any court in the United States. The Third Circuit affirmed, consistent with decisions of the Fourth and Sixth Circuits; but the Second and Tenth Circuits hold that foreign convictions do not count. Question: Does the term “convicted in any court” contained in section 922(g)(I) include convictions entered in foreign courts?

Wire fraud and foreign tax evasion. Pasquantino v. United States, 124 S. Ct. ___, cert. granted, Apr. 5, 2004; decision below at 336 F.3d 321 (4th Cir. 2003). The defendants smuggled liquor from the United States to Canada to avoid higher taxes in Canada. They were subsequently convicted in a U.S. court under the federal wire fraud statute. The Fourth Circuit initially reversed the convictions under the common law “revenue rule,” which states that U.S. courts are not bound to enforce foreign judgments for taxes, fines, or penalties. The en banc court of appeals vacated that decision and affirmed the convictions. The Supreme Court granted certiorari to consider whether the federal wire fraud statute (18 U.S.C. § 1343) authorizes criminal prosecution of an alleged fraudulent scheme to avoid payment of taxes potentially owed to a foreign sovereign, given the lack of any clear statement by Congress to override the common law revenue rule, the interests of both the legislative and executive branches in guiding foreign affairs, and the Supreme Court’s prior rulings concerning the limited scope of the term “property” as used in the wire fraud statute.

Habeas Corpus
Brady claims; exhaustion; cause and prejudice; Federal Rule of Civil Procedure 15(b). Banks v. Dretke, 124 S. Ct. 1256 (2004). During the penalty phase of Banks’s capital trial, the state suppressed the fact that its witness who testified to Banks’s violent propensity was a paid informant. And the state continued to suppress this information during Banks’s state postconviction proceedings. The information was first disclosed during federal habeas proceedings. The Supreme Court reversed the denial of habeas relief to this Texas death row inmate, finding that one Brady claim undermined the reliability of the jury’s death penalty verdict, and that a certificate of appealability should have been granted by the Fifth Circuit with regard to Banks’s Brady claim regarding the guilt phase of his trial. Applying pre-AEDPA rules, the Supreme Court rejected the argument that Banks failed to exhaust his Brady claim in state court, finding both “cause” and “prejudice” for his failure to develop this claim in state proceedings. The Court also found that Banks was wrongly denied a certificate of appealability on his Brady claim relating to another witness, for whom the state let stand a false denial that he had been extensively coached by the state for his trial testimony. In dismissing this claim, the federal district court found that Federal Rule of Civil Procedure 15(b) does not apply in federal habeas proceedings. Rule 15(b) allows evidence aired during a trial—as Banks’s Brady claim had been during his federal evidentiary hearing—to be treated as if raised in the pleadings. The Court noted that its own precedent had assumed that Rule 15(b) applied in habeas proceedings, and that jurists of reason could therefore have disagreed with the dismissal of this Brady claim.
Exhaustion: fairly presenting issues to state court. Baldwin v. Reese, 124 S. Ct. 1347 (2004). A state prisoner ordinarily does not “fairly present” a federal claim to a state court—so as to exhaust available state remedies within the meaning of 28 U.S.C. § 2254(b)(1)—if that court must read beyond a petition, a brief, or similar papers to find material, such as a lower court opinion in the case, that will alert it to the presence of such a claim.

Immigration
Removal of convicted aliens. Jama v. INS, 124 S. Ct. 1407, cert. granted, Feb. 23, 2004; decision below at 329 F.3d 630 (8th Cir. 2003). Question presented: Whether the attorney general can remove an alien to one of the countries designated in 8 U.S.C. § 1231(b)(2)(E) without obtaining that country’s acceptance of the alien prior to removal.

Immigration: DUI as an aggravated felony. Leocal v. Ashcroft, 124 S. Ct. 1405, cert. granted, Feb. 23, 2004; decision below unreported (11th Cir. 2003). The court of appeals interpreted 18 U.S.C. § 16 to include driving under the influence (DUI) with serious bodily injury as a “crime of violence”—and, therefore, an “aggravated felony” as defined under section 101(a)(43)(F) of the Immigration and Naturalization Act—although the statute under which the petitioner was convicted required nothing more than negligence for a conviction. That ruling conflicts with decisions of other federal courts of appeals and with the interpretation of the Board of Immigration Appeals. Question: Whether, in the absence of a mens rea of at least recklessness with respect to the active application of force against another, DUI with serious bodily injury is a “crime of violence” under 18 U.S.C. § 16 that constitutes an “aggravated felony” under section 101 of the Immigration and Naturalization Act.

Prisoners’ Rights
Prerequisites to challenging conditions of confinement. Muhammad v. Close, 124 S. Ct. 1303 (2004) (per curiam). Under Heck v. Humphrey, 512 U.S. 477 (1994), in order for an inmate to seek damages in a 42 U.S.C. § 1983 action for an unconstitutional conviction or imprisonment, the inmate must first establish that the conviction was reversed on direct appeal, expunged, declared invalid, or called into question in a federal habeas corpus proceeding. The Supreme Court refined Heck’s applicability, holding that its prerequisite does not apply when the section 1983 complaint only seeks damages for the conditions of confinement but does not challenge the fact or duration of the underlying sentence.

Prisoner segregation by race. Johnson v. California, 124 S. Ct. ___, cert. granted, Mar. 1, 2004); decision below at 321 F.3d 791 (9th Cir. 2003). Questions: Is a state’s practice of routine racial segregation of state prisoners for at least a 60-day period subject to the same strict scrutiny generally applicable to all other challenges to intentional racial segregation, or is it excused from such scrutiny and subject only to the more relaxed review afforded under Turner v. Safley, 482 U.S. 78 (1987)? Does California’s practice of routine racial segregation of state prisoners for at least a 60-day period violate the Equal Protection Clause?

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