The Matlock Blog

Separation Anxiety

Should the government be able to use internal judiciary investigations as the basis of a criminal obstruction of justice prosecution?  That is just the issue raised in the federal prosecution of United States District Judge Samuel Kent of the Southern District of Texas currently pending.

On January 6, the federal prosecutors obtained a superseding indictment against Judge Kent adding three additional counts; one count of aggravated sexual abuse, one count of abusive sexual contact, and one count of obstruction of justice.  These are in addition to the original three counts which included two counts of abusive sexual contact and one count of attempted aggravated sexual abuse.  

The sexual abuse counts are standard federal counts pursuant to 18 U.S.C. §§ 2241 and 2244.  However, the interesting issue is the obstruction of justice charge pursuant to 18 U.S.C. § 1512(c)(2).  That section forbids a person from improperly obstructing, influencing, or impeding “any official proceeding.”

What makes the charge unusual, and potentially problematic, is that it stems from a civil investigation by the United States 5th Circuit Court of Appeals itself.  The Judicial Conduct and Disability Act of 1980 allows the respective federal circuits to discipline district judges and establishes an internal judicial procedure.  

The question becomes can and should federal prosecutors be allowed to utilize the independent civil investigation by the judiciary as a basis for a criminal prosecution?  Certainly making misstatements during an official proceeding of any kind can subject the person to to criminal prosecution, but should there be concern in this case?  Does this cause separation of powers problems?

Obviously as a general rule, we advise clients against making any misstatements during such a proceeding.  Whether a disbarrment  hearing or a civil deposition, they can all result in criminal prosecutions.  But should there be an exception for the judiciary, or perhaps better said, does the separation powers mandate such a result?

I’m of the opinion there should be.  If the judiciary is given the opportunity to investigate and take action on fellow judges as is provided by the Judicial Conduct and Disability Act, then it should remain within the judiciary.

This is not to say that judges are immune from criminal prosecution.  As is the case in the Kent matter, clearling there are standard criminal allegations stemming from his alleged conduct that can be prosecuted.  But the independent, non-partisan, internal civil investigation by the judicial district itself should remain in house and away from the clutches of politically-appointed federal prosecutors.

Holy Land Foundation - Redeux

Jury selection (such as it is in federal court) begins today in the retrial of five defendants charged in United States District Court for the Northern District of Texas of various crimes associated with funding terrorism. The original charges in this case included providing and conspiracy to provide material support to a designated foreign terrorist organization, providing and conspiracy to provide funds, goods and services to a Specially Designated Terrorist, money laundering and conspiracy to commit money laundering, and filing and conspiracy to file false tax returns.

The first trial, which began on July 16, 2007, resulted in a mistrial with the exception of one defendant, who was acquitted on several counts in addition to the mistrial. The mistrial occurred on October 22 after a juror, Kristina Williams of Waxahachie, told the court she had changed her mind on a number of acquittals. The jury deliberated for 19 days.

The retrial is thought to be a more streamlined version of the original two month trial.

As much as I would love to sit and watch this trial, I actually have work to do. But it appears some have the time to follow this trial rather closely. I don't know just how biased this site is, you be the judge. But it does seem to be rather thorough.

Good luck to Fort Worth defense attorney Greg Westfall who represents Abdulrahman Odeh, HLF's former New Jersey representative.

Federal sentencing and the tail that wags the dog.

I finished a federal case today that shows pretty clearly how the tail can wag the dog. First of all, my client is certainly no angel. He will be the first to tell you. In "the system" since childhood, he's done at least three separate trips to TDC for various offenses including attempted murder. So as for a Criminal History score, it's safe to say he's a VI. That's never a good sign. But the problem I have is the offense level.

For those that do not know or understand the Federal Sentencing Guidelines, there is essentially a grid that federal judges are to use in sentencing. One axis is the Criminal History score. This is where my client got the VI...the highest score possible. The other axis is the offense level. Each federal crime has a numerical value assigned to it. From that value, there are other factors that can be used to add to or subtract from the Base Offense Level to compute the Total Offense Level. One of those factors is what is referred to as Relevant Conduct.

Relevant conduct is really just that. What else has the defendant done? Has he acted badly and should he be punished? the problem I have with relevant conduct is that it can also include not only conduct for which the defendant has never been charged with, but also conduct for which the defendant has been charged and actually acquitted!

My client was convicted by a jury of one count of Distribution of 2.71 grams of Crack Cocaine. That's it. No conspiracy count. No more than 2.71 grams of crack from one sale. This investigation was quite large, netting some 30 or more defendants. Many of them were charged with conspiracy counts and multiple counts of distribution. Not my client.

If you were to do the math of the Sentencing Guidelines based solely on what my client was actually convicted of, his sentence would be between 70 and 87 months in federal prison. This is because his base offense level would be a 20. However, the government sought to enhance my client's Relevant Conduct by attributing a drug quantity amount in excess of 500 grams. That is an increase of 18,000 percent! By the way, my client was never charged with any other drug charge. But because of this exponential increase in Relevant Conduct, he went from 70 to 87 months to a mandatory 360 months.

Now don't get me wrong. I am as "Law-and-Order" as anyone. I have no problem with mandatory minimums and I don't get worked up by the Sentencing Guidelines. I'm not anti-death penalty. I don't think drug offenders should get a chance at taxpayer-funded rehabilitation. What I do have a problem with is the idea that the government can charge, try and convict someone for one undercover drug sale of a relatively minor amount, and then pile on the Relevant Conduct in order to obtain an almost "Kingpin"-type sentence. I don't want this to sound like sour grapes since I just got my ass whipped today, but if you've got the evidence that my client is responsible for 500 grams worth of crack, then just charge him with it. Let a jury decide if he really is responsible for that amount. Don't backdoor the amount at sentencing. This is the classic tail wagging the dog.

The President and the Footnote

For those keeping up with the ongoing saga of my friend and your's, Scooter Libby, you know of the interesting turn of events over the last week with regard to the commutation of his 30-month prison sentence by President Bush. For a little background, Libby was originally sentenced to a 30-month federal prison sentence and a $250,000 fine along a the mandatory $400 special assessment following his conviction on four counts of perjury, obstruction of justice and making false statements to federal investigators. Long story made short is that the president decided to commute the prison sentence, but left "intact and in effect the two-year term of supervised release, with all conditions, and all other components of the sentence." Grant of Executive Clemency at 1 (here).
So the first question that arose was "What about the supervised release?" You see the federal statute that authorizes, or actually mandates supervised release, states pretty clearly that a defendant may "be placed on a term of supervised release after imprisonment." 18 U.S.C. Section 3583(a). However, Libby supposedly never went to prison. His sentence was commuted. Or was it? In reality, I think Howard Kieffer who runs a BOP Watch List-Serv, makes the case pretty well that this was really all much ado about nothing. In reality, Libby did go to prison, if only momentarily. Libby, like every other criminal defendant in both the state and federal system got credit for his initial book-in. Remember, Libby was never arrested, rather he was summoned to court. The U.S. Marshal's service would have processed him into custody at that time. When that happened, Libby was "in the system" so to speak. It would be the same as someone who was arrested for DWI and bonded out within hours of the arrest. The point is, he gets credit towards any future sentence for that one day. So in the end, he "served" time in confinement. So the question of whether Libby can now actually serve his term of supervised release is answered. I suppose. Of course that hasn't stopped the judge in the case from ordering briefs on the question due today. (here)
There is also pretty good caselaw on the subject in Schick v. Reed, 419 U.S. 256 (1974). It seems the presidential commutation power not only allows the president to shorten a sentence, but also to change the sentence from one form to another. It also apparently allows the president to add a condition to the sentence was not present, or in fact not even authorized by law in the original sentence. There is good discussion of this at TalkLeft and some at SCOTUSblog.
The next interesting issue is the footnote in the order. It seems the federal judge in the case thinks the president himself should weigh in on the subject. The footnote on page 2 states "If either party believes that it would be helpful to solicit clarification from the White House regarding the President's position on the proper interpretation of Section 3583 in light of his Grant of Executive Clemency, they are encouraged to do so." Order at 2. This raises an interesting issue. What happens if the president does offer his interpretation of the statute. Then let's say the judge issues an order citing that interpretation as the basis for his decision. Then, just for the sake of argument, someone appeals. Now we have a legal proposition the basis of which is a presidential interpretation of a federal sentencing statute. Talk about a slippery slope. What about Separation of Powers? Since when the Executive Branch get to interpret the laws? These are the things that keep me up at night.