The Appellate Corner's mission is to discuss both noteworthy and notorious developments in the appellate courts in the field of criminal law and procedure. This installment focuses on a couple of recent court of appeals decisions that have created or further expanded splits among the circuits on two important issues of criminal procedure. In addition, this Appellate Corner highlights a recent district court opinion dismissing the indictment of a violent criminal on vague and unspecified due process principles of "fair play," "balance," and "moderation." It is a remarkable example of judicial activism for its candid detachment not only from the text of the Constitution but from all prior court precedent and doctrine. While not an appellate decision, that clearly is where its destiny lies.

A split among the circuits has developed recently regarding the question of whether counsel's failure to urge the suppression of evidence taken in violation of the Fourth Amendment may alone constitute ineffective assistance of counsel for which relief may be granted on federal habeas review. In Holman v. Page, 95 F.3d 481 (7th Cir. 1996), the Seventh Circuit held that it could not. Holman's underlying Fourth Amendment claim was that his counsel incompetently failed to raise on direct appeal his contention that his post-arrest statement should have been suppressed as the fruit of an allegedly illegal arrest. Because the Supreme Court's decision in Stone v. Powell, 428 U.S. 465 (1976), precludes federal habeas relief for Fourth Amendment violations, Holman was forced to contend (in the words of the Seventh Circuit) that "a narrow walkway might permit him to raise Fourth Amendment issues through the back door via a Sixth Amendment claim that his attorney's handling of the issue . . . was incompetent."

The Seventh Circuit held that counsel's incompetence in handling the suppression of illegally gathered evidence could not - by itself - satisfy the prejudice requirement for ineffective assistance of counsel claims under Strickland v. Washington, 466 U.S. 668 (1984). Judge Manion, writing for a unanimous panel, relied heavily on the reasoning of Stone. There the Supreme Court explained that the judicially created exclusionary rule under the Fourth Amendment is not for the benefit of the individual accused or the accuracy of the fact-finding, but rather is solely intended to deter unconstitutional police conduct. Quoting Justice Powell's concurrence in Kimmelman v. Morrison, 477 U.S. 365 (1986), the Seventh Circuit stated that "[t]he harm suffered by a defendant whose counsel was ineffective in attempting to have reliable evidence suppressed 'is not the denial of a fair and reliable adjudication of his guilt, but rather the absence of a windfall.'" And, according to the majority, prejudice in the Strickland sense relates to the fairness of the proceedings and to the confidence one may place in the outcome, not to the fact that the result simply would have been different-"he would have gotten away with the crime"-had the evidence been excluded. As such, the Court held that "although counsel may be ineffective in dealing with a defendant's Fourth Amendment claims, the defendant suffers no prejudice under Strickland as a result."

Judge Wood, joined by Judges Ripple and Rovner, dissented from the denial of rehearing en banc, 102 F.3d 872. She contended that the Supreme Court's majority decision in Kimmelman v. Morrison had in fact resolved this issue (the panel's view was that Morrison had reserved the question) and that the standard for prejudice is simply whether the verdict would have been different absent the excludable evidence. She also noted that the Seventh Circuit's holding created a conflict with the First, Second, Fifth, Eighth, Tenth, and Eleventh Circuits. A petition for certiorari in Holman is currently pending in the Supreme Court (No. 96-7873, filed Feb. 12, 1997); perhaps the Court will take the opportunity to resolve this interesting issue regarding the reach of Stone and the meaning of Morrison.

The Supreme Court recently denied a petition for certiorari in a Fourth Circuit case presenting another important issue as to which the circuits are split: whether a district judge errs in refusing to ask prospective jurors whether they would lend greater credibility to the testimony of law enforcement officers based solely on their status as such. Explicitly overruling prior circuit precedent, the Fourth Circuit sitting en banc held in United States v. Lancaster, 96 F.3d 734 (4th Cir. 1996) (en banc), that no such per se rule exists. The Court of Appeals held instead that the voir dire as a whole should be examined to determine whether it was reasonably sufficient to probe the prospective jurors for bias and partiality. Judge Williams, writing the majority opinion for seven other judges, concluded that the prior mandate was "simply inconsistent with the broad deference traditionally and wisely granted trial courts in their conduct of voir dire." Moreover, she noted that the old rule admitted of no limiting principle because jurors might conceivably give undue credit to any number of identifiable classes of witnesses, not just police officers. (Indeed, in his panel concurrence, Judge Luttig had argued that unless the Circuit's precedent were overruled, the Court would similarly have to require that jurors be asked whether they would give special credence to the word of a criminal defendant simply because he is a criminal defendant.) In scrapping the per se rule, Judge Williams stated that the Fourth Circuit was joining the Third, Fifth and Eleventh Circuits.

Applying the new standard, the majority concluded that the District Court's extensive questioning of potential jurors as to whether their family relationships with law enforcement officers or their employment with law enforcement agencies might make it difficult for them to be completely impartial in the case sufficiently placed the potential jurors on notice that bias in favor of law enforcement officials was inappropriate. In addition, the Court's questioning whether potential jurors would be prejudiced against the defendants because of their status as inmates and its catch-all probing of any other forms of bias or partiality was sufficient to ensure that the testimony of the police officers was not given heightened credibility solely because of their status as officers.

Judge Murnaghan wrote a vigorous dissent joined by Judges Ervin, Hamilton, and Michael. He criticized the majority for abandoning circuit precedent and a rule adhered to by the First, Second, Seventh, Eighth, Ninth, and D.C. Circuits. He also contended that the per se rule constituted a narrow exception to the general principle of deference to a trial court's supervision of voir dire and that it was necessary to root out impermissible bias in cases where the government's case turns on the credibility of law enforcement officer testimony. This bias, he felt, could not adequately be exposed through questions about potential jurors' relationships with law enforcement officers and agencies, bias against the defendants as inmates, and general biases. Finally, the dissent criticized the majority for discarding a per se rule in favor of a case-by-case test "that gives [district courts] little [guidance] or none at all." Curiously, Judge Motz did not join Judge Murnaghan's dissent, although she professed her total agreement with his reasoning. She wrote separately to urge the adoption of the per se rule under the Court's supervisory authority even if the rule were not constitutionally mandated. Given the Supreme Court's recent denial of certiorari in Lancaster, we will have to wait for this conflict in the circuits to be resolved.

While still a long way from resolution in the Supreme Court, the recent District Court decision in United States v. Stokes, 947 F. Supp. 546 (D. Mass. 1996), raises significant issues regarding constitutional interpretation and judicial restraint in the criminal procedure context. The defendant in that case had previously been charged under Massachusetts law with first degree murder, two counts of assault with a dangerous weapon, and unlawfully carrying a firearm in connection with a 1990 shooting. He was convicted on all but the first degree murder charge, of which the jury acquitted him. On the firearms charge, Stokes received a four and one-half years to five years sentence. (His total sentence on all counts was over twenty-three years.)

In 1995, just before the five-year federal statute of limitations was to expire, the United States charged Stokes, whom the United States characterized as a "violent recidivist," with being a felon in the possession of a firearm in violation of 18 U.S.C. §922(g)(1). Judge Harrington (a Reagan appointee) rejected all of the claims raised by Stokes in his motion to dismiss. The Court concluded that the indictment was returned before the expiration of the statute of limitations. The Court further held Stokes' due process pre-indictment delay complaint meritless because he "failed to offer any evidence" of improper tactical delaying by the United States and "utterly failed to make out a claim of actual prejudice." Judge Harrington also rejected Stokes' claim that his Sixth Amendment speedy trial rights had been violated and that the indictment was the result of impermissible post-arrest delay under Federal Rule of Criminal Procedure 48(b).

Having disposed of the claims actually asserted by Stokes, the Court then expressed its own concerns about the indictment. The nub of the Court's complaint was that the underlying murder for which Stokes had been acquitted in state court would constitute relevant conduct for sentencing and, when combined with his criminal history, would result in a sentence of life imprisonment without the possibility of parole for the federal firearms offense under the Sentencing Guidelines. Judge Harrington felt that the possibility of such a sentence after Stokes had been acquitted of the murder charge in state court raised "vexing issues of due process, double jeopardy and selective prosecution."

As to due process, he viewed the federal prosecution on the firearms charge as simply an attempt to use the Guidelines to punish Stokes for a murder that he had been acquitted of and for which the federal government had no statutory authority to prosecute. In his words: "The life sentence that defendant would receive here would be punishment for the murder and not for the firearms offense charged." Judge Harrington acknowledged that the Supreme Court had sanctioned the incorporation of related conduct into Guidelines sentences so long as the total sentence does not exceed the statutory sentence for the offense charged. But he nonetheless concluded that "[t]o nullify the state court acquittal and to find defendant guilty of murder by a mere preponderance of the evidence is a practice which raises a grave constitutional question." (The Supreme Court has since made clear in its recent decision in United States v. Watts, 117 S. Ct. 633 (1997) (per curiam), that a sentencing court may properly consider conduct of which a defendant has been acquitted, so long as that conduct has been proven by a preponderance of the evidence.) Judge Harrington recognized that he could avoid this "grave constitutional question" by employing a discretionary downward departure under the Guidelines, but found that "reliance on a discretionary downward departure procedure dodges the truly vexing constitutional issue of due process presented in this case."

As for double jeopardy, the Court started its analysis by finding that the federal prosecution passed muster under the test set forth in Blockburger v. United States, 284 U.S. 299 (1932), because the state and federal firearms charges each require proof of different essential elements. Nonetheless, Judge Harrington stated that "the grave disparity between a four and one-half year term in state prison and life imprisonment without the possibility of parole in federal prison for the same offense is in the nature of double jeopardy." (Emphasis added.) At this point, the Court conceded that the dual sovereignty doctrine permits separate prosecutions by the state and federal governments for the same conduct. Without explanation, however, Judge Harrington concluded: "Yet the dual sovereignty doctrine cannot continue to be used as a cloak to circumvent the spirit of the principle of double jeopardy when such a shockingly disparate sentence can result."

With regard to the selective prosecution issue, Judge Harrington noted that the U.S. Attorney had secured a waiver of the Department of Justice's Petite policy (which normally prohibits federal prosecutions after state prosecutions for the same conduct unless a compelling federal law enforcement interest will be served) on the grounds that the state sentence failed adequately to protect the public from a violent recidivist. The Judge ordered the U.S. Attorney's Office to answer a question as to how often it sought waivers of the Petite policy, but it refused to answer. The Court concluded that there was no evidence of a selective prosecution for any invidious reason, but it was "concerned about the selection of a defendant for federal prosecution after a state court jury acquittal, and on a charge for which he was convicted in state court."

Having worked through this analysis, Judge Harrington found that several factors "give rise to constitutional implications": (1) the substantial delay between the date of the offense and the return of the federal indictment; (2) a successive prosecution for firearms possession for which Stokes had already been convicted and sentenced and for which he would face a "disparate" sentence of life imprisonment without the possibility of parole; (3) "[i]n effect, a successive prosecution" for a murder of which he had been acquitted, but would now be tried under a preponderance of the evidence standard; and (4) "[a] form of actual 'selective' prosecution, in that the prosecutorial decision is the product of unfettered discretion." Finally, Judge Harrington held that "[a]lthough no one factor, by itself, may offend constitutional canons, the effect of all of the factors in the aggregate, in my judgment, violates the Due Process Clause." He explained: "Fair play is the essence of due process . . . . It is not fitting for the United States to be vindictive, as a spirit of vengeance is not in keeping with the precepts of balance and moderation which are the foundation of our legal tradition." Thus, finding the whole greater than the sum of its parts, Judge Harrington dismissed the indictment. An appeal to the First Circuit is pending.

*Alex M. Azar II is an attorney at Wiley, Rein & Fielding in Washington, D.C. He clerked for Justice Antonin Scalia and Judge J. Michael Luttig of the Fourth Circuit and recently served as an Associate Independent Counsel on the Whitewater investigation. The views expressed are solely those of Mr. Azar. Readers are encouraged to e-mail the author at "AAZAR@WRF.COM" with suggestions of noteworthy or notorious cases for discussion in future issues.