ORAL ARGUMENT IN BUS SEARCH CASE
The Eleventh Circuit Court of Appeals heard oral argument Tuesday, April 28, 1998 in United States v. Willie Washington, the sole issue of which was the legality of the "routine bus search" during which Mr. Washington was found to be carrying a large quantity of powder cocaine hidden in a specially made girdle under his pants. William M. Kent argued the case for Mr. Washington.
Mr. Washington was a passenger on a north-bound bus out of Miami that made an intermediate stop at the Greyhound Bus Station in Jacksonville. After the bus had boarded for departure, two federal law enforcement agents boarded the bus taking up positions in the front and rear. A third officer stood outside in front of the bus. The agents announced that they were federal agents with the Department of Justice, that no one was under arrest, but that they wanted everyone to show their tickets, photo identification, and identify their bags. As each passenger was questioned, the officers asked if he had any large sums of money, contraband or weapons in his possession and was asked permission to search the passenger's bags. In Mr. Washington's case, after the search of his bags yielded nothing incriminating the agents further asked to search him, then proceeded to pat his body down, at which time they felt the girdle under his pants.
Mr. Washington, like the other passengers on the bus, was coerced into consenting to the search. After his arrest and federal indictment, Mr. Kent filed a motion to suppress the evidence arguing that it had been found as the result of an unconstitutional search. A suppression evidentiary hearing was held before Magistrate Judge Howard Snyder who ruled that the search was legal. His ruling was adopted by District Judge Harvey Schlesinger. Solely in order to preserve his right to appeal the adverse ruling, Mr. Washington took his case to trial, but without a jury and based upon the evidence already submitted in the suppression hearing. He was found guilty and sentenced to five years imprisonment. His appeal followed.
The government and the district court relied upon the Supreme Court's decision in Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382 (1991), which overturned the Florida Supreme Court's prior ruling that had outlawed such bus searches. The United States Supreme Court held that such searches were not per se unconstitutional but must be individually scrutinized on their particular facts and circumstances. Since the Bostick decision, most defendants have simply acquiesced to the coerced searches. Mr. Kent has consistently argued, however, that such searches are invariably improper, at least in the manner conducted by the federal agents in Jacksonville. Those agents have testified that they search about 17 buses each week at the Greyhound Bus Station. These "routine bus searched" are conducted without any standards or operating procedures other than what the individual agents decide to do on any particular day.
The Appeals Court panel, which consisted of Judges Cox, Roney and Black, expressed skepticism of the government's argument. Judge Roney stated that no one calls these searches what they really are, which is coerced, and said that the issue is whether they are coerced to an unconstitutional degree.
There has not been a published decision from the Eleventh Circuit Court of Appeals on such bus searches since the Bostick decision. The decision in this case may have a wide impact on the future of such searches.
Your lawyer is William M. Kent. Mr. Kent was first admitted to
practice by the State Bar of Florida in 1978. He has also been admitted
to practice before the United States Tax Court (1979), the State bar of
California (1980), the Middle District of Florida (1989) and the United
States Supreme Court (1992). Mr. Kent is one of three lawyers in
the Jacksonville office of the Federal Public Defender. The other
attorneys are James H. Burke, Jr., who is the Managing Assistant in charge
of the Jacksonville office and Mark Rosenblum. Both Mr. Burke and
Mr. Rosenblum have over twenty years criminal law experience. The office
has a full time Jacksonville investigator, Mr. Jerry Cribbs, and a paralegal
specialist (who is also the only Federal Court Certified Spanish Interpreter
in Jacksonville), Mr. Stephen Kruer. The Jacksonville office's administrative
and support staff consists of Mrs. Debbie Dixon and Mrs. Dottie Began.
The office hours are 8:30 to 5:00 Monday through Friday. Collect
phone calls are accepted during office hours at (904) 232-3039. The
office fax number is 232-1937. Mr. Kent's E-mail address is bill_kent@fpdflm.org
.
If you are held in custody without bond, Mr. Kent will normally visit
you once a week at the jail. If you are released on bond, please
contact Mr. Kent at least weekly.
It is office policy to provide you with copies of all correspondence, pleadings and documents coming into or going out of the office on your case. Exceptions may be made in the case of certain sensitive documents relating to governmental cooperation for clients who are in custody.
With the adoption of the federal Constitution and Bill of Rights,
our Country agreed that the right of privacy of its people was fundamental.
Of course, during the last quarter of the 18th Century no one could conceive
the possibility of electronic monitoring that is routine today. The
Florida Times Union reported on May 9, 1998 that official wiretap requests
sought by law enforcement agents reached an historic high last year with
over two million private conversations recorded. This number only
reflects the court authorized wiretaps. Everyone knows but no one
does anything about the untold millions of unauthorized wiretaps.
These range from the recordings of telephone conversations in prisons and
jails to the illegal wiretaps in criminal investigations. The Los Angeles
Times reported on April 26, 1998 that illegal wiretaps in Los Angeles County
criminal cases have been discovered to have been going on since 1985 without
any report to the court in the affected cases. The Times article
stated: "These days, many L.A. County defense lawyers have similar feelings
[of distrust] toward the district attorney's office in the wake of the
discovery that deputy district attorneys assigned to its narcotics unit
have relied on secret wiretaps for years to gather evidence against their
clients--and no one, including judges, knew about the practice. Beyond
the obvious legal question of whether the district attorney knowingly violated
the 4th Amendment's prohibition against unreasonable search and seizure
is one that cannot be resolved in court: Can the county's criminal justice
system carry on in an atmosphere of mistrust?
The wiretap discovery came in the 1996 Lauro Gaxiola cocaine possession
case. Defense lawyers appearing before Superior Court Judge Gregory Alarcon
had spent a year trying to obtain their clients' statements. By law, the
prosecution is required to turn over such statements to the defense. The
lawyers were stunned to learn that the charges were derived from secret
wiretaps. Furthermore, the Los Angeles Police Department and the district
attorney's narcotics unit had conspired to carry out hundreds of such wiretaps
since 1985, all without informing either defense attorneys or trial judges
hearing the cases."
No doubt the law enforcement officers engaged in this illegal conduct rationalized it as being necessary to prosecute criminals. But as the Times article pointed out, based on statistics from the Administrative Office of the United States Courts, which oversees "authorized" federal wiretaps, each wiretap order of roughly 40 days in length results in the interception of an average 2,139 conversations involving 84 separate persons. The Administrative Office's statistics also note that the average tap produces incriminating information less than 20% of the time, resulting in the arrest of two suspects and the conviction of a single individual.
Who will protect us against this invasion and theft of our constitutional
rights if not the Courts? Isn't it time that this was stopped?
President Ronald Reagan liked to challenge his listeners by saying "If
not us, who? If not now, when?" Let's take up a great American's
challenge.
[The views expressed in this client newsletter are strictly those of
the editor, William M. Kent, and do not necessarily reflect the opinions
of the Office of the Federal Public Defender or any other person.]
• In United States v. Margie Mills, 138 F.3d 928 (11th Cir. April 11, 1998), the 11th Circuit Court of Appeals overruled the district court's increase of Mr. and Mrs. Mills' sentences, which had been enhanced due to an "abuse of a position of trust." The Court of Appeals reasoned as follows:
"C. Enhancing Sentences for Breach of Trust
Both Margie and Jack challenge the district court's two-level
increase, under U.S.S.G. § 3B1.3, of their offense levels for abuse
of a position of trust. They argue that the victim was the United
States, and that because they owed only contractual, and not fiduciary,
duties to the United States, they have breached no cognizable trust.
We review the district court's fact findings for clear error, but its determination
whether the facts justify an abuse-of-trust enhancement we review de novo.
United States v. Kummer, 89 F.3d 1536, 1546 (11th Cir.1996).
After submission of this case, another panel of this court resolved
this issue in the Millses' favor. A breach-of-trust enhancement under
§ 3B1.3 is not appropriate unless the victim of the breach itself
conferred
the trust. United States v. Garrison, 133 F.3d 831, 844-46 (11th Cir.1998).
And a Medicare funded care provider, as a matter of law, does not occupy
a position of trust vis-a-vis Medicare. Id. at 852-53. The Millses'
sentences could therefore not be enhanced because of any breach of public
trust by lying to Medicare.
The Millses' presentence reports, however, also found that they
abused their positions of private trust as officers of First American.
Arguably, First American was a victim of the Millses' crime; because
of their actions, it incurred extensive criminal liability and the burden
of increased government oversight. But Garrison apparently requires
us to hold that the United States is, as a matter of law, the only possible
victim of a Medicare fraud crime and that therefore this private position
of trust is irrelevant. See id. at 848 (noting that Garrison
was CEO of a health care provider). Section 3B1.3 does not therefore apply
to the Millses, and they are entitled to resentencing without the enhancement."
• In United States v. Lozano, 138 F.3d 915 (11th Cir. April 8, 1998), the 11th Cir. agreed with every other circuit that has considered the issue in holding that an illegal alien defendant could be convicted and sentenced for the crime of being found in the United States after illegally reentering the United States following deportation after conviction for a prior aggravated felony, even though the earlier aggravated felony conviction took place prior to enactment of the applicable guideline and prior to the enactment of the statutory definition that made the defendant subject to the aggravated felony enhancement. This decision made a 16 level difference in the guidelines.
• In United States v. Leonard, 138 F.3d 906 (11th Cir. April 8, 1998),
the 11th Circuit reversed the conviction of a rear seat passenger of a
car stopped and found to contain nine bricks of cocaine and a 9 mm Glock
handgun hidden in the tailgate. The Court upheld the convictions
of the owner and driver of the car but reversed the passenger's conviction
holding as follows:
"However, while the jury could have inferred that Leonard knew
the cocaine and gun were in the car, the Government points to no
evidence that he possessed them, actually or constructively. The
record only shows that Leonard was a passenger in the back seat of the
station wagon when it was stopped. There is no evidence to indicate that
Leonard ever had ownership, dominion or control over the cocaine, the gun,
or the vehicle in which they were concealed.
The record also does not support a conviction on the grounds
that Leonard aided or abetted the other two defendants. To sustain
a conviction for aiding and abetting, the evidence must show that the defendant
shared the criminal intent of the principal(s) and committed an overt act
in furtherance of the criminal venture. See United States v. Guida,
792 F.2d 1087, 1095 (11th Cir.1986). Regardless of the "guilty knowledge"
evidence from which a jury could infer Leonard knew the cocaine and gun
were in the tailgate, there is no evidence that he committed any overt
acts to aid their possession or concealment. While it is unwise,
merely sharing a vehicle in which one knows cocaine and a gun are hidden
does not amount to possession or aiding or abetting their possession.
The evidence is insufficient to show either that Leonard possessed the
cocaine or the Glock pistol, or that he aided and abetted their possession.
Therefore, his convictions on Counts One and Three of the indictment must
be reversed. As the Government has failed to prove that Leonard committed
a drug trafficking crime, his conviction on Count Two for carrying a firearm
during and in relation to a drug trafficking crime likewise must be reversed.
See, e.g., United States v. Simpson, 94 F.3d 1373, 1377 n. 1 (10th Cir.1996)
(proof of the underlying drug trafficking offense is an essential element
of a § 924© violation).
• In United States v. Hubert, 138 F.3d 912 (11th Cir. April 8,
1998), the court upheld a two level increase in the guideline sentence
for "obstruction of justice" based on the trial judge's opinion that the
defendant's testimony in his own defense was perjury. The 11th Circuit
held:
"Next we deal with Hubert's contention that the district court
erred in enhancing his sentence for obstruction of justice based
upon his testimony at trial and at two prior bond revocation hearings.
Upon reviewing the record, we hold that the two-level enhancement was proper.
Perjury under oath on material matters, not due to confusion or mistake,
justifies such an increase. United States v. Dunnigan, 507 U.S. 87, 93-94,
113 S.Ct. 1111, 1115-16, 122 L.Ed.2d 445 (1993). Hubert may claim
that the sentence enhancement impermissibly chills his constitutional right
to testify but this argument has been soundly rejected by both this Circuit
and the Supreme Court. See United States v. Lawrence, 972 F.2d
1580, 1580 (11th Cir.1992); Dunnigan, 507 U.S. at 96, 113 S.Ct. at 1117.
Hubert may further object that the district court failed to make a sufficiently
detailed finding that he committed perjury and obstructed justice, but
in the context of the record of the hearing, detailed findings were not
necessary and would have been redundant. The Pre-Sentence Investigation
Report, which the district court adopted, spelled out the perjurious statements
and the government elaborated on these perjurious statements during the
sentencing hearing.
• In United States v. Webb, __F.3d__, 1998 WL 210556 (11th Cir.(Ga.)),
the 11th Cir. Held that a district court was mistaken in thinking that
it could not grant a downward departure for a career offender on the basis
that his prior record overstated his likelihood of further criminal conduct.
[A career offender under federal guidelines is a person whose current crime
is either a "crime of violence" or a "serious drug offense" and who has
two prior such convictions.] The court held:
"Generally, a defendant may not appeal a district court's refusal
to depart downward. United States v. Baker, 19 F.3d 605, 614-15 (11th Cir.1994).
A defendant may appeal the court's failure to downward depart, however,
on the ground that the court erroneously believed it lacked the authority
to depart.Id. at 615.
Webb posits that, in this instance, the district court denied
his request for a downward departure on the ground that it believed it
lacked the authority under the guidelines to grant such a request. Webb
further suggests that the relevant guideline provision does, in effect,
authorize a sentencing court to depart downward based on a finding that
a defendant's career offender classification over represents the seriousness
of his prior criminal history or his likelihood of recidivism. . . . Id.
As noted, the record is far from clear as to the rationale underlying the
court's denial of Webb's request for downward departure; on balance, however,
the record more strongly suggests that the court believed that it was not
authorized to depart downward in this
case. We therefore resolve the ambiguity reflected in the record with
respect to this issue in favor of the defendant and conclude that the court's
decision was based on its belief that it lacked the discretion to grant
Webb's request for a departure. See United States v. Hadaway, 998
F.2d 917, 919 (11th Cir.1993) ("Although the record is somewhat ambiguous,
it appears that the district court declined to depart downward because
it lacked the authority to do so rather than because it determined that
the facts did not warrant a departure.")
We further conclude that the guideline provision pursuant to which Webb
seeks a departure in his sentence, U.S.S.G. § 4A1.3, does authorize
such a departure under certain circumstances. This provision permits a
court to depart either downward or upward from a defendant's prescribed
sentence "[i]f reliable information indicates that the criminal history
category does not adequately reflect the seriousness of the defendant's
past criminal conduct or the likelihood that the defendant will commit
other crimes...." U.S.S.G. S 4A1.3. Webb correctly notes that our circuit
has never explicitly held that § 4A1.3 confers on the sentencing
court the authority to depart downward, given the findings articulated
above, in the specific case of a defendant who has been classified as a
career offender. Consistent with every other circuit to have addressed
this issue, we now hold that § 4A1.3 does authorize the sentencing
court to downward depart regardless of a defendant's status as a
career offender under § 4B1.1. See e.g., United States v.
Shoupe, 35 F.3d 835, 839 (3rd Cir.1994) ("[W]here a defendant's offense
level has been augmented by the career offender provision, a sentencing
court may depart downward in both the criminal history and offense level
categories under § 4A1.3."); United States v. Reyes, 8 F.3d
1379 (9th Cir.1993) ("Since it is well established that a downward departure
from career offender status is permissible ... we look only to the circumstances
of this case to determine whether the district court's stated basis for
departure is appropriate.") (citation omitted); United States v.
Clark, 8 F.3d 839, 843 (D.C.Cir.1993) ( "The circuits that have confronted
the issue unanimously agree that the policy statement in § 4A1.3
permits a downward departure ... for those who would otherwise qualify
as career offenders.... Thus the district court was well within its legal
authority in basing its downward departure on this factor."); United States
v. Rogers, 972 F.2d 489, 493 (2nd Cir.1992) ("Contrary to the government's
argument, there is nothing unique to career offender status which would
strip a sentencing court of its sensible flexibility in considering departures.")
(internal quotation marks omitted); United States v. Bowser, 941 F.2d 1019,
1023 (10th Cir.1991) ("As a threshold issue, we agree ... that the Sentencing
Guidelines permit the district court to depart downward from career offender
status."); United States v. Brown, 903 F.2d 540, 545 (8th Cir.1990) ("[Although]
the government contends the guidelines prohibit departure in all career
offender cases ... [t]he overall policy provisions of the guidelines make
clear that the Sentencing Commission did not intend to so completely restrict
sentencing judges in this area.").
We therefore conclude that the district court erroneously believed that
it lacked the discretion to depart downward in this instance and, further,
that § 4A1.3 does authorize a sentencing court to downward depart
given the appropriate factual determinations. We express no view as to
whether a downward departure should, in fact, be granted in this case,
but hold that the district court may exercise its discretion to decide
whether such a departure is warranted with respect to Webb.
Accordingly, we VACATE Webb's sentence and REMAND for resentencing
consistent with this opinion."
"Guilt and crimes are so frequent in the world, that all of them cannot be punished; and many times they happen in such a manner that it is not of much consequence to the public whether they are punished or not." President John Adams.
The 11th Circuit has granted oral argument for the week of July 13, 1998 in United States v. William MacAllister. Mr. MacAllister was convicted after trial of conspiracy to export cocaine from the United States to Canada. He is a Canadian citizen who never entered the United States during the course of the alleged conspiracy. During the course of the alleged conspiracy Mr. MacAllister argued against any involvement with or travel to the United States. He ultimately was extradited over his objection from Canada to the United States for his prosecution here. All of the contacts with the United States in the case were created by United States DEA agents. This appeal argues that the government improperly created jurisdiction in this country by entrapment. Given the trend that is developing for the United States to try to apply its criminal laws around the world, without regard for our national borders or the rights or sovereignty of other nations or other countries' citizens, this case is of great importance. Mr. Kent will argue the case on behalf of Mr. MacAllister.
An appeal is currently pending before United States District Judge William Terrell Hodges on the question whether a person may be detained without bond if he is found to be an economic danger to the community. This is an issue of first impression in this Circuit. No matter which way the district court rules an appeal to the Court of Appeals can be expected. This case will probably make new law for the Circuit and nation.
A motion to suppression is currently pending before Magistrate Judge
Timothy Corrigan involving an unusual immunity issue. The client
was previously granted immunity from prosecution in connection with a credit
card fraud. Thereafter it is alleged the client resumed the same
credit card fraud activity. When private investigators working for
the alleged victim of the fraud turned their file over to Secret Service
and Postal Inspectors, the client was immediately a suspect based on the
prior immunized investigation. The agents based the new investigation
on the prior file's investigation materials. Mr. Kent has argued
that under Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653
(1972), the derivative use of evidence from an immunized prosecution
invalidated the current indictment. This is another case that will
likely end up at the Court of Appeals.
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