HTTP/1.0 200 OK Content-Type: text/html Lawmaker Prods Court, Raises Brows
Pubdate: Sun, 10 Jul 2005
Source: Chicago Tribune (IL)
Copyright: 2005 Chicago Tribune Company
Author: Maurice Possley
Bookmark: (Cocaine)
Bookmark: (Corruption - United States)


Demands Longer Term In Chicago Drug Case

In an extraordinary move, the chairman of the House Judiciary
Committee privately demanded last month that the 7th U.S. Circuit
Court of Appeals in Chicago change its decision in a narcotics case
because he didn't believe a drug courier got a harsh enough prison

Rep. James Sensenbrenner (R-Wis.), in a five-page letter dated June 23
to Chief Judge Joel Flaum, asserted that a June 16 decision by a
three-judge appeals court panel was wrong.

He demanded "a prompt response" as to what steps Flaum would take "to
rectify the panel's actions" in a case where a drug courier in a
Chicago police corruption case received a 97-month prison sentence
instead of the at least 120 months required by a drug-conspiracy statute.

"Despite the panel's unambiguous determination that the 97-month
sentence was illegal, it appears to ... justify the sanctioning of
both the illegal sentence and its own failure to [increase the
sentence] by stating `[that the panel's decision] not to take a
cross-appeal [ensures] that the [courier's] sentence cannot be
increased.' The panel cites no authority for this bizarre proposition
and I am aware of none," wrote Sensenbrenner, who cited a 1992 ruling
as precedent for his argument that the longer prison term should have
been imposed.

"I ask that all necessary and appropriate measures be taken, whether
by members of the panel and/or by the other judges of the court, to
ensure that the [1992] precedent ... is followed," said the
congressman, who heads a committee with budgetary oversight of the

Jay Apperson, the congressional counsel who brought the ruling to
Sensenbrenner's attention, added: "We can't have judges violating the

Flaum declined comment on the situation, saying he does not publicly
discuss matters pending before the court.

He sent a letter back to Sensenbrenner saying it was inappropriate to
comment on a pending case. But the panel amended its ruling to cite a
Supreme Court case that showed Sensenbrenner was wrong.

Apperson, who is chief counsel of a House Judiciary subcommittee,
argues that Sensenbrenner is simply exercising his judicial oversight
responsibilities. But some legal experts believe the action by the
Judiciary Committee chairman, who is an attorney, is a violation of
House ethics rules, which prohibit communicating privately with judges
on legal matters, as well as court rules that bar such contact with
judges without contacting all parties.

Further, the letter may be an intrusion on the Constitution's
separation-of-powers doctrine, or, at least, the latest encroachment
by Congress upon the judiciary, analysts said.

`Completely inappropriate'

David Zlotnick, a law professor at Roger Williams University in Rhode
Island and an expert on federal sentencing law, said, "I think it's
completely inappropriate for a congressman to send a letter to a court
telling them to change a ruling."

However, Stanley Brand, a Washington, D.C., attorney and former House
counsel, said: "I don't think it's appropriate, but I don't know if it
rises to the level of an ethical violation. It's unseemly. It's not
something members ought to do, but they do it. . . . The context is

Sensenbrenner's letter is the latest example of a threat leveled by
congressmen unhappy with court decisions, particularly controversial
ones such as those in the Terri Schiavo case. Some Republicans in
Congress sharply criticized judges for not acting to save the
brain-damaged Florida woman, whose parents sought in court to have her
feeding tube reinserted despite her husband's wish to let her die.

"This loss happened because our legal system did not protect the
people who need protection most, and that will change," House Majority
Leader Tom DeLay (R-Texas) said after Schiavo died March 31. "The time
will come for the men responsible for this to answer for their behavior."

In May, during a speech at Stanford University, Sensenbrenner said his
committee was considering the creation of an office of inspector
general to oversee the federal judiciary.

"I do not believe that creating an IG for the judiciary will violate
the separation-of-powers doctrine that promotes the independence of
the three branches of government," he said.

Sen. Dick Durbin (D-Ill.), a member of the Senate Judiciary Committee,
called Sensenbrenner's letter part of a series of threatening actions
by Republican House leaders aimed at the federal judiciary, according
to Durbin spokesman Joe Shoemaker.

"This is part of a broader and very disturbing pattern that goes to
the heart of the separation of powers," Shoemaker said.

But Sen. John Cornyn (R-Texas) took the Senate floor in April to
criticize a Supreme Court ruling in a death penalty case and suggested
that recent incidents of courthouse violence may be the result of
anger over judges' decisions.

Cornyn, a former Texas Supreme Court justice and also a member of the
Senate Judiciary Committee said, "I don't know if there is a
cause-and-effect connection, but we have seen some recent episodes of
courthouse violence. . . . And I wonder whether there may be some
connection between the perception in some quarters, on some occasions,
where judges are making political decisions yet are unaccountable to
the public."

A spokesman for Sensenbrenner said he would not comment on his letter
to the appellate judge. "The letter speaks for itself," said Thomas
Schreibel, the congressman's chief of staff.

Apperson, who is chief counsel of the House Judiciary Subcommittee on
Crime, Terrorism and Homeland Security, insisted the request for the
court to change its ruling was "appropriate. . . . This is the
committee with oversight of the judiciary--that's exactly what we are
supposed to do."

At issue was the court's decision to uphold a 97-month prison term for
Lissett Rivera, who was convicted for her role as a courier in a drug
ring headed by former Chicago Police Officer Joseph

Sensenbrenner said in his letter to Flaum that federal law required
the sentence to be 120 months.

Contrary to court rules, Sensenbrenner's letter was not sent to
Rivera's appellate attorney, Steve Shobat, who received a copy only
after the letter was placed in the official court file.

"To try to influence a pending case is totally inappropriate," Shobat
said. "My client had a very small role in this case, and to think that
she is the focus of the head of the House Judiciary Committee? It is

Law professor Zlotnick echoed Shobat, saying, "To try to influence a
court ruling is entirely inappropriate, particularly in an ex parte
[without notifying all parties] proceeding. They are trying to
intimidate the judiciary."

Rivera was convicted, along with other defendants, of participating in
a conspiracy to distribute more than 5 kilograms of cocaine--a charge
that carries a mandatory minimum sentence of 120 months in prison.
Miedzianowski and more than 20 others, including street gang leaders,
were convicted of taking part in the distribution of 350 kilograms of

Evidence at the trial showed that Rivera, who had no criminal record,
was personally involved in handling less than 5 kilograms.

Precedent for lesser sentence

At sentencing, U.S. District Judge Blanche Manning imposed the
97-month term, citing a 1993 court ruling that allowed that the drug
quantity that relates to an individual be taken into account in
imposing a sentence less than the minimum required.

At the time, federal prosecutor Brian Netols told Manning, "I think
that would be the appropriate sentence."

Shobat appealed, contending the sentence still was too high. The U.S.
attorney's office did not appeal the sentence as a violation of the
120-month minimum.

The three-judge panel on the case, Frank Easterbrook, Ilana Diamond
Rovner and Diane Wood, issued its opinion, written by Easterbrook,
stating that the sentence should have been 120 months.

"By deciding not to [challenge the 97-month sentence], the United
States has ensured that Rivera's sentence cannot be increased," the
opinion states.

Apperson said the committee learned of the decision after being
contacted the day of the ruling by "a citizen who I assume had seen it
on the court's Web site."

After Sensenbrenner's letter was placed in the court file, the
three-judge panel issued a revised final paragraph of its decision
that added a citation explaining why it was not legal to change
Rivera's sentence and why the precedent cited by Sensenbrenner was

Sensenbrenner also wrote a letter to Atty. Gen. Alberto Gonzales,
demanding that the decision be appealed further and that he
investigate why the U.S. attorney's office in Chicago did not appeal
Rivera's sentence.

Bryan Sierra, a spokesman for the Justice Department, said
Sensenbrenner's letter was being reviewed.

Randall Samborn, a spokesman for U.S. Atty. Patrick Fitzgerald,
declined to comment.

The deadline for filing a petition requesting a rehearing on the
appellate decision passed without any motions filed, according to the
court record.

Charles Geyh, a professor at Indiana University School of Law, in
Bloomington, Ind., said, "This is contrary to the judicial system.
Proceedings are initiated by parties."

Geyh, an expert on separation of powers and author of a forthcoming
book titled "When Courts and Congress Collide," said, "The federal
judiciary has a lot less clout and a lot less power when it comes to
control of its budget, and when you have someone like Mr.
Sensenbrenner--this is a thinly veiled attempt to exercise control
over judges and their decisions."

He added: "The way to resolve matters in the courts is that the losing
party appeals. This hybrid . . . of in the middle of litigation having
someone rattle a saber--this is potentially dangerous to the process."
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