Alex M. Azar, II*
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
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.