06 December 2007

Federal Oops!

A month ago, I discussed the case of lucky Mr. Ly, who was convicted and sentenced to rape, but not asked to show up to prison for sixteen years. The highest court in the state of Massachusetts held that while Mr. Ly had an obligation not to resist lawful attempts to place him in custody, that he has no duty to affirmative try to bring about his own incarceration. It also held that after sixteen years and plenty of opportunities to incarcerate Mr. Ly, that it was too late for the state to ask for him to serve his sentence now.

The United States Court of Appeals for the 7th Circuit, is decidedly more wrathful and indignant. In a case decided today, it refused a prosecution request to set aside a prosection victory, because the man in prison was released and deported before the prosecution got around to carrying out the increased sentence they were awarded against the man. According to the 7th Circuit, it is perfectly fine to leave a twenty-four month remainder of a sentence hanging over a defendant's head indefinitely, over the objections of the prosecutors, stating:

[T]he United States Attorney’s Office has asked us to proceed as if it
had never appealed in the first place. It wants us to recall the mandate (issued more than 14 months ago) and reinstate the 33-month sentence that we have already held is erroneous. The reason for this proposed step is that the case otherwise will loiter on the district court’s docket until Reyes-Sanchez again illegally reenters the United States, is caught, and is compelled to resume serving time in this case.

It is not clear to us why leaving this case open on the district court’s docket is a bad thing. The prosecutor and district judge have themselves to blame for any untidiness. . . .

Although a court of appeals has the authority to recall its mandate, the power should be used only in extraordinary circumstances when inaction would lead to an injustice. Calderon v. Thompson, 523 U.S. 538, 549–53 (1998). The Court held in Calderon that the negligence of two appellate judges in handling a capital appeal was not a sufficient justification for the recall of an appellate mandate.If judicial negligence does not justify recalling a mandate, how could the prosecutor’s negligence do so? For that is the only reason the United States gives—that the prosecutor’s office was napping when action was required. And it is likewise difficult to see how the bookkeeping issues that occupy the prosecutor’s thoughts amount to an injustice. Many a case remains unresolved for years. Take, for example, the situation when a defendant is a fugitive. That’s functionally Reyes-Sanchez’s situation. Instead of alerting the prosecutor and the district court to a mistaken failure to impose a new sentence, Reyes-Sanchez got on a plane and left the United States. The prospect of a lawful, though higher, sentence should he return is his due.

The United States may seek his extradition from the Dominican Republic, or it may offer to permit his entry under the immigration laws (the technical phrase is “parole into the United States”) so that he could be resentenced. If Reyes-Sanchez declines that opportunity, then his absence will be a voluntary act and he could be resentenced in absentia under Fed. R. Crim. P. 43(c)(1)(B). See United States v. Achbani, No. 06-4190 (7th Cir. Nov. 8, 2007).

According to the prosecutor, United States v. Londono, 100 F.3d 236 (2d Cir. 1996), supports the conclusion that an appellate mandate should be recalled if the defendant is removed from the United States before being resentenced. Londono was decided before the Supreme Court stated in Calderon that recalling an appellate mandate requires compelling circumstances. What is more, Londono does not say that a mandate may be recalled to avoid inconvenient bookkeeping. The defendant in Londono had been removed from the United States before the court of appeals rendered its decision, and the court stated that a recall of mandate was appropriate to consider “the issue of potential mootness, a jurisdictional question that should have been timely presented by disclosure” of the alien’s absence from the United States. 100 F.3d at 237. There was no jurisdictional problem when our decision was made and none when the mandate issued.

If the United States Attorney thinks that a case lingering on the district court’s docket is an intolerable blot on a federal record-keeping system, he is free to dismiss the indictment or recommend that the President commute Reyes-Sanchez’s sentence to time served. As things are, however, the Judicial Branch should stand ready to impose a lawful sentence as soon as the defendant is available for sentencing, or is deemed voluntarily absent for the purpose of Rule 43(c)(1)(B).

The decision was renderd by Chief Judge Easterbrook with with concurrence of Circuit Judges Cudahy and Manion.

The 7th Circuit's indifference to the injustice to the Defendant in this case, and the difference between the prosecution and the judiciary in an adversary process is shocking.

The situation of a fugitive is very different from that of someone who shows up to prison, serves his time until the warden tells him to leave, and is put on a plane out of the country against his will when his prison term is over. Easterbrook's crabbed tunnel vision fails to permit him to see this obvious point.

Moreover, in an adversary system, the burden of enforcing the law is upon the executive branch, and not the judiciary, which interprets the law. While a mistake by a judge is not attributable to "the People" who bring a criminal case, a mistake by the prosecution or the prison warden is generally attributable to the prosecution and cannot be held against a criminal defendant. In the American system of justice, the prosecution does not have an obligation to seek the harshest sentence available. It is permissible for them to say "never mind".

Thus, Judge Easterbrook's outburst in this case is puzzling, troubling, and a firm indication of how out of touch the federal judiciary is with anything resembly notions of fairness and reasonableness in the criminal justice system.

Hat Tip to How Appealing.

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