Vol. 77, No. 2, February 2004

United States v. Shabaz: Colliding Branches of Government

by Frank M. Tuerkheimer

ollisions between the various branches of government, separated 220 years ago both to provide for a workable government and to avoid the risk of tyranny, occur from time to time. A review of a recent decision by the U.S. Court of Appeals for the Seventh Circuit reveals that a recent collision between the branches occurred in Wisconsin just a few months ago, in United States v. Shabaz.¹ This collision arose when the executive branch asserted its right to decide what charges should be presented and the judicial branch asserted its right to ensure that its prerogatives on sentencing were not impermissibly constrained. Prosecution and sentencing are, quintessentially, executive and judicial functions, respectively. United States v. Bitsky, which became In re United States of America in the Seventh Circuit,² presents a common scenario but one in which each party dug in its heels. I have dealt with this issue both as a practicing attorney³ and as an academic.⁴ Hence I followed the Wisconsin case with more than a passing interest. Ironically, had this scenario taken place just a few weeks later the result might have been entirely different.

The Collision

Constitutional confrontations between the different branches of government often have their origins in small places. In this case, the origin is the Adams County jail. On Feb. 11, 2001, Steven Vosen was arrested and brought to the jail for booking. He was drunk and cursed at Kenneth Bitsky, an Adams County undersheriff. Bitsky slammed Vosen into a wall. Vosen suffered cuts to his face and head: minor, but demonstrable injuries. Bitsky then attempted to persuade another officer to write a false report and threatened a second officer to not tell what she had seen during the incident. Bitsky subsequently was charged by a grand jury in the Western District of Wisconsin in a three-count indictment: one count alleged a violation of the Civil Rights Act based on Bitsky's handling of Vosen; and two counts charged an obstruction of justice with respect to Bitsky's attempts to cause a false report to be written and to intimidate a colleague.

Tuerkheimer

Frank M. Tuerkheimer, N.Y.U. 1963, is Habush-Bascom Professor of Law at the U.W. Law School and of counsel at LaFollette Godfrey & Kahn, Madison.

Shortly before the scheduled trial was to begin before Judge John Shabaz on April 14, 2003, the U.S. Attorney's Office for the Western District of Wisconsin and the attorney for Bitsky reached a plea agreement. Bitsky was to plead guilty to one of the obstruction counts, and the United States was to move to dismiss the remaining charges after sentencing. Under federal procedure, the prosecution does not have the unfettered power to dismiss a criminal charge once it has been brought; it must obtain the approval of the court.⁵ Each of the three counts of the indictment carried a maximum penalty of 10 years' imprisonment. However, the Federal Sentencing Guideline range for the obstruction charge was substantially less than the guideline range for the Civil Rights Act violation. Judge Shabaz conditionally accepted Bitsky's plea of guilty to one of the obstruction counts pending receipt of the presentence report. A sentencing hearing was scheduled.

At the sentencing hearing Judge Shabaz rejected the plea agreement, which he had the power to do under U.S. Sentencing Guidelines 6B1.2(a). Judge Shabaz rejected the agreement because it was his view that the plea agreement undermined the sentencing guidelines, since the plea agreement precluded him from imposing the higher sentence he thought was warranted, given Bitsky's conduct. Judge Shabaz's refusal to accept the plea agreement resulted in an adjournment of the sentencing. At the adjourned date Bitsky informed the court that he intended to proceed to sentencing without a plea agreement. Judge Shabaz then sentenced Bitsky to a term of 16 months imprisonment on the obstruction count to which he had pleaded guilty, and scheduled trial on the remaining counts to take place in approximately three weeks.

The following day the government filed a motion under Rule 48(a) of the Federal Rules of Criminal Procedure to dismiss the remaining two counts. Included with the motion was an affidavit of Assistant U.S. Attorney John Vaudreuil that explained that the decision to accept the guilty plea to one count was to satisfy the principal prosecution goal to ensure a felony conviction of Bitsky, which carried with it the certainty that Bitsky would have to resign from his position and no longer work in law enforcement. According to Vaudreuil, this end would be obtained without the risk of a trial, which might result in an acquittal on all counts.

Two days later Judge Shabaz granted the motion to dismiss with respect to the other obstruction count, but denied it with respect to the Civil Rights Act count, characterizing that proposed dismissal as "a sweetheart deal" that was not "a reasonable resolve of this case." Judge Shabaz did not address the standard for dismissal under Rule 48(a) but, rather, relied on the sentencing guidelines, even though the plea agreement was no longer before the court. Judge Shabaz concluded that when the 24-to-30 months Guideline range for the Civil Rights Act count was compared to the sentence on the obstruction count (16 months), it was clear that the obstruction count did not reflect the seriousness of the offence behavior. Judge Shabaz, in denying the Rule 48(a) motion to dismiss, said he would follow the intent of the Guidelines "until so directed otherwise by a higher authority than the Department of Justice." He noted that the government was concerned with the risk of trial and then, with obvious sarcasm, stated that "if that is the case it should withdraw from litigation for all trials have the potential of risk."

The Result

Where are we now? We have one obstruction count under which Bitsky has been sentenced and another has been dismissed. That leaves the most serious charge as the open charge, the Civil Rights Act count, which Judge Shabaz wants prosecuted and which the government wants dismissed.

Judge Shabaz then issued an order that the remaining count be tried, but AUSA Vaudreuil advised the court that the government did not intend to proceed to trial on the open count. The following day, in a hearing before Judge Shabaz, the government reiterated its position and Judge Shabaz stated that the government's request to dismiss the open count was in bad faith:

"The United States Attorney is clearly motivated solely by a desire to usurp the court's sentencing authority. ... That purpose is clearly contrary to the public interest and a bad faith exercise of his authority. Were the government allowed to dismiss count 1 of the indictment the public interest would not be served."

That same day Judge Shabaz entered a one-page order appointing a private attorney as "special counsel to prosecute the defendant on count 1 of the indictment." Judge Shabaz also ordered the Department of Justice to pay the expenses of the special counsel.

The appointment of an outside special prosecutor raised an entirely separate set of issues. While there have been court-appointed special prosecutors under the Independent Counsel legislation following the Watergate scandal, in each instance in which a special prosecutor or independent counsel was judicially appointed, appointment was pursuant to authority given to the courts by Congress, triggered by the initiative of the U.S. Department of Justice. The constitutionality of this process was upheld by the U.S. Supreme Court in Morrison v. Olson.⁶ The practical ramifications of a pure outsider being appointed to prosecute are extraordinary. For example, is the executive branch required to turn over its file to this person to assist this person in prosecuting a case that the executive branch has decided should not be prosecuted? To what extent can such a person comply with the requirement to turn over exculpatory evidence if this person has something less than full access to the Justice Department files, and why should such access be given in the first place to implement a prosecution that the department feels should not go ahead? If there is a motion to dismiss or any other litigation, is this person acting on behalf of the United States per the caption or pursuant to his or her personal concept of what the law should be? Finally, of course, the end result is that if there is to be a trial, as was contemplated here, the trial would be before none other than the judge who appointed the special prosecutor in the first place precisely for the purpose of continuing the prosecution. While not a kangaroo court, this is not exactly the traditional setting in which a criminal defendant finds himself or herself.

Had Judge Shabaz not appointed a special prosecutor, the open count simply could have languished until the speedy trial provision of either Rule 48(b) or the Sixth Amendment to the U.S. Constitution would have compelled a dismissal of the charge. With the appointment, however, that option was precluded. The prosecution view that certainty of a felony conviction was essential and the court's view that its sentencing prerogative could not be curtailed were now in a head-on collision. The government brought a writ of mandamus before the Seventh Circuit.

After an initial series of filings, the Seventh Circuit invited either Judge Shabaz or the appointed special prosecutor to respond, if either wished, to the mandamus petition. Judge Shabaz chose to act on his own behalf. Judge Shabaz said that he denied leave to dismiss the open Civil Rights Act count because that dismissal was "a transparent attempt to circumvent the court's sentencing authority." Judge Shabaz continued that the case presented the question of the proper balance of power between prosecutorial discretion and the sentencing authority of the judiciary. He then stated the issue as whether a motion to dismiss pursuant to Rule 48(a) may be denied when advanced for the sole purpose of circumventing the rejection of a plea agreement pursuant to Rule 11 of the Federal Rules of Criminal Procedure and the sentencing guidelines. Judge Shabaz saw that a resolution of the issues required a consideration of the relationship between the powers of the two branches of government.

The prosecution, however, did not look at the scenario from the vantage point of sentence, but rather as a simple question as to who could decide whether a prosecution should continue. This question required a focus on Rule 48(a), which on its face is a judicial constraint on the government's ability not to prosecute. According to the government, a judge can deny a Rule 48(a) motion only if the government's purpose in seeking the dismissal is to harass the defendant. For example, if the dismissal were granted and the prosecution were reinstated, that continued process would certainly constitute harassment of the defendant, which the court, under its Rule 48(a) power, could prevent by denying the dismissal. Absent such harassment of the defendant, the government claimed, the court has no authority under Rule 48(a) to interfere with the determination to discontinue a case.

As to his appointment of a special prosecutor, Judge Shabaz argued that the authority to deny a Rule 48(a) motion to dismiss inherently had to include the authority to appoint special counsel to compel prosecution, because in the absence of such authority the denial would be meaningless. His only cited authority on this point was Young v. United States,⁷ a contempt of court proceeding in which the court indeed appointed a special counsel to handle a contempt charge, based on the long-standing principle that courts had the power to protect the integrity of their orders. Judge Shabaz shifted the focus, however, from ensuring the integrity of court orders - the subject of a contempt charge in Young - to the ability of the court to defend the integrity of its powers under the Sentencing Guidelines.

Judge Shabaz's submittal was made on Aug. 28, 2003. The court's decision followed on Sept. 16, 2003. A three-judge panel composed of Judges Posner, Easterbook, and Wood considered the government's mandamus petition, in a decision written by Judge Posner. Judge Posner immediately noted why the contempt authority that Judge Shabaz relied on in citing Young v. United States was different. The theory permitting the judiciary to prosecute contempt was that the judiciary should not be dependent on the executive to assure compliance with its orders. In this case, however, Judge Posner noted, no judicial order was flouted; rather, the district court was telling the prosecution which crimes to prosecute. And as long as these were not crimes against the judiciary, according to Judge Posner, Judge Shabaz "stepped outside the boundaries of his authorized powers."

Judge Posner observed that under Rule 48(a), the court's permission was required to dismiss a charge. He noted, however, that the rule's principal purpose was to protect the defendant from government harassment, something not in issue here. He then went to the heart of the matter: the government wanted to dismiss the civil rights count with prejudice and Judge Shabaz disagreed with that exercise of prosecutorial discretion. Judge Posner acknowledged that Judge Shabaz thought the government had exaggerated the risk of losing trial and, in Judge Shabaz's words, "the evidence was strong and conviction extremely likely." In what is perhaps the most caustic part of his opinion, Judge Posner observed that Judge Shabaz "is playing U.S. attorney. It is no doubt a position that he could fill with distinction, but it is occupied by another person."⁸

Since Judge Shabaz had made a finding that the prosecution was acting in bad faith (namely it was using its executive powers in an effort to circumvent the sentencing powers of the judiciary), Judge Posner then turned to the question of bad faith. He found no appellate decision that actually upheld the denial of a motion to dismiss on the basis of prosecutorial bad faith. Judge Posner was not surprised because bad faith was not a parameter that the court could take into account in assessing the conduct of a cobranch of the government. Judge Posner noted that the prosecutory power of the executive branch in conjunction with the legislative power of Congress assured that no one could be convicted of a crime without the concurrence of all three branches. "When a judge assumes the power to prosecute the number shrinks to two."⁹

Conclusion

The Seventh Circuit Court of Appeals granted the government's mandamus petition and ordered Judge Shabaz to grant the government's motion to dismiss the civil rights count against Bitsky and to vacate the appointment of the special prosecutor.¹⁰ The unambiguous message of this litigation is that when it comes to decisions to drop existing charges, unless the dropping of the charge is part of a harassment scenario, the judiciary must defer to the executive. However, the issue probably will not arise again in the near future.

On Sept. 23, 2003, one week after the Seventh Circuit's decision, U.S. Attorney General John Ashcroft issued a memorandum to all federal prosecutors setting forth departmental policy concerning the charging of criminal offenses and the disposition of charges and sentencing. The crux of the memorandum is that in all federal criminal cases prosecutors must charge and pursue the most serious readily provable offense or offenses that are supported by the facts unless an assistant attorney general or designated supervisory attorney authorizes otherwise. The most serious offenses are defined as those generating the most substantial sentence under the Sentencing Guidelines. A charge is not readily provable if the prosecutor has a good faith doubt for legal or evidentiary reasons as to the government's ability to readily prove a charge at trial. If that is the situation, the charges should not be filed. Once filed, the most serious readily provable charge may not be dismissed except as permitted by an assistant attorney general or a designated supervisory attorney.

Unless one were to perceive of the relatively minor injuries Bitsky inflicted on Vosen - minor when seen on the spectrum of classical cases under the Civil Rights Act - as taking the case into the realm of the not readily provable, the application of the Ashcroft memorandum to the facts of the Bitsky case would make it impossible for the prosecution to enter into the plea agreement that was entered into here. In this post-Ashcroft memorandum scenario, there never would have been the collision between court and prosecution that led to the mandamus litigation and ensuing decision. So, juxtaposed with great constitutional principles, is the vastly more mundane but often overriding concept that timing is everything.

Endnotes

¹As captioned by the government in its petition for a writ of mandamus.

²In re United States of America, 345 F.3d 450 (7th Cir. 2003).

³United States v. Cowan, 524 F.2d 504 (5th Cir. 1975), cert. denied, 425 U.S. 971 (1976).

⁴Frank M. Tuerkheimer, Prosecution of Criminal Cases: Where Executive and Judicial Powers Meet, 25 Am. Crim. L. Rev. 251 (1987).

⁵Fed. R. Crim. P. 48(a).

⁶487 U.S. 654 (1988).

⁷481 U.S. 787, 801 (1987).

⁸345 F.3d at 453.

⁹Id. at 454.

¹⁰This result is identical to the outcome in United States v. Cowan, cited supra n.3, which I litigated almost 30 years earlier on behalf of the U.S. Department of Justice. There is no intervening precedent to the contrary.

Wisconsin Lawyer