Sunday, August 29, 1999
BENCHMARKS
Misconduct not always harmful
BY BEN KAUFMAN
The Cincinnati Enquirer
Appeals charging government misconduct came to starkly different conclusions recently.
Detroit drug courier Reginald Coleman was sentenced to 100 months in prison in 1996. He appealed, saying the judge should have heard his argument that government misconduct justified a shorter term.
Initially, the 6th Circuit said in 2-1 opinion that U.S. District Judge Nancy Edmunds must hear Mr. Coleman's evidence. If it justifies a shorter sentence, fine; if not, tough.
Before Judge Edmunds could act, prosecutors won a rehearing by the entire 6th Circuit.
Mr. Coleman's luck held; the court voted 9-6 to order Judge Edmunds to consider evidence of government misconduct before sentencing.
Mr. Coleman was among African-Americans targeted by an undercover Bureau of Alcohol, Tobacco and Firearms agent investigating state parolees suspected of new crimes. The agent approached them as they left parole offices and asked them to deal in illegal drugs or firearms.
Mr. Coleman walked into the trap and pleaded guilty to two drug-trafficking charges after delivering crack cocaine five times. He asked Judge Edmunds to grant him a “downward departure” from the prison term recommended by sentencing guidelines, claiming it was an improper investiga tive technique to target only African-Americans.
In both opinions, 6th Circuit judges disagreed on what Judge Edmunds actually did and whether she was wrong.
Led by Judges Nathaniel R. Jones and Gilbert S. Merritt, both majorities said she mistakenly believed she could not consider evidence of government misconduct because guidelines did not include it as a mitigating factor and it was a claim for selective prosecution that had no place in sentencing.
Judge Alan E. Norris wrote dissents in both appeals. He said Judge Edmunds did consider Mr. Coleman's claim but denied it for lack of evidence.
In a separate opinion for all of the dissenters in the second appeal, Judge Cornelia G. Kennedy also attacked the majority's treatment of Mr. Coleman's claim of misconduct.
Mr. Coleman said the undercover agent's invitation to deliver drugs amounted to coercion of an African-American,financially strapped state parolee.
Judge Kennedy said the majority mistakenly focused on the agent rath er than Mr. Coleman.
“I do not believe that the guidelines permit a downward departure ... simply to punish the government (with a shorter sentence) without a showing that the government misconduct affected the culpability of the defendant,” she wrote. “I do not see how government misconduct, unless it affected the defendant's conduct so that it lessens the seriousness of what he or she did, can be a mitigating factor.”
In the second case, federal missteps drew scorn from the 6th Circuit but failed to win a new trial for Marvin Fullerton.
After an informant's final “buy” during a 1997 probe, a Drug Enforcement Administration (DEA) agent directed a cooperating East Cleveland cop to make the arrest.
However, before Mr. Fullerton was put in the police car, a DEA agent confiscated his pager and dialed the number DEA used to set up the informant's drug deals. It buzzed.
Jurors convicted Mr. Fullerton of distributing cocaine and he appealed.
His first argument said DEA had no arrest warrant and he was held at least three days before agents filed a complaint. Only on the fourth day was Mr. Fullerton brought before a magistrate to determine whether there was probable cause to hold him.
Barring extraordinary circumstances, persons arrested without warrants must be brought before a magistrate within 48 hours, and the unanimous 6th Circuit said the prosecutor was “disingenuous” to suggest Mr. Fullerton was in local custody on local charges. Nothing in the record supported that claim.
There also was no evidence of extraordinary circumstances to justify the “entirely unacceptable” delay, Judges Boyce F. Martin Jr., Richard Suhrheinrich and Jones said.
Even so, they rejected his “novel” request for a new trial without the damning pager as evidence. Instead, Mr. Fullerton could emulate others who said federal agents violated their rights: sue.
Judge Martin also wrote that using the pager as evidence was harmless error “given the extensive testimony ... supporting Fullerton's conviction.”
Mr. Fullerton's second argument focused on the prosecutor's closing comment that the defense was “trying to blow smoke in the jury's faces. This is a case beyond a reasonable doubt.”
That misconduct “pushes the boundaries of what we consider not to be flagrant nearly to the breaking point,” Judge Martin wrote. “His remarks may have misled the jury or prejudiced the accused.”
That said, the 6th Circuit decided not to decide whether it was flagrant. Even if it was, Judge Martin wrote, it was another harmless error.
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