Vol. 77, No. 2, February
2004
United States v. Shabaz: Colliding Branches of
Government
The separation of powers into three co-equal branches of government
provides us with a system of checks and balances. But what happens when
the branches collide? Which branch prevails? Read how the U.S. Court of
Appeals for the Seventh Circuit recently made that determination in a
case that weighed the powers of the executive and judicial
branches.
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
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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