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Supreme Court Decides Forfeiture Case, Hears Arguments on Alcohol Advertising, Gun Use in Drug Crimes


December 1995

The U.S. Supreme Court made its first ruling of the new term significant to drug policy and announced that it would hear arguments in a number of other important cases.


The Court ruled 8-1 on November 7 that a defendant who pleads guilty does not have the right to have a hearing or a trial on the amount of assets to be forfeited as a part of his sentence (Libretti v. U.S., No. 94-7427, 58 CrL 2011 (U.S. SupCt 1995); see "Supreme Court Preview," NewsBriefs, November 1994; arguments 58 CrL 3038).

Joseph Libretti entered into a plea agreement to numerous counts of drug, firearms, and money laundering violations in May 1992. As part of his sentence, the judge ordered all assets "owned [by the defendant] by reason of any drug transaction" forfeited. Libretti agreed to this deal, which significantly reduced his prison time.

At a later sentencing hearing, Libretti found out that all of his personal property and his retirement account were to be seized, and he made an objection to the judge and appealed the forfeiture. He argued that he should have a hearing on the amount of the property seized, at which the government would be required to show the "factual basis" for the forfeiture of all the property. The U.S. Court of Appeals for the Tenth Circuit found that the lower court was not required to determine the factual basis for the forfeiture, 38 F.3d 523 (10th Cir. 1994).

Justice O'Connor, writing for the majority, found that when Libretti waived his right to a jury trial in the plea agreement, he also waived his right to a hearing on the amount of the forfeiture, as the forfeiture was part of the sentence, not part of the findings of a potential trial.

Justice Stevens was the lone dissenter in the opinion, finding that while much of the defendant's assets should be forfeited, the lower court's ruling would have provided for forfeiture of all his assets. "For example," Stevens wrote, "nothing in the Court's opinion provides a basis for concluding that the small bank account that petitioner opened while a young boy, and which had not been augmented since 1976, should be subject to forfeiture." He stressed that the amount of the forfeiture should have no bearing on the other provisions in the plea agreement.

Mandatory Minimum Sentencing

The Court agreed to hear a case testing the discretion that judges have to depart from the statutory mandatory minimums in exchange for the defendant's assistance in another prosecution (see U.S. v. Melendez, No. 93-5755, 57 CrL 1218, 55 F.3d 130 (3rd Cir. 1993); cert. granted No. 95-5661, 58 CrL 3061; Linda Greenhouse, "High Court Weighs Judicial Authority and Mandatory Sentencing," New York Times, November 7, 1995, p. A21; Joan Biskupic, "High Court to Hear Mandatory Sentence Dispute," Washington Post, November 7, 1995, p. A10).

Juan Melendez entered into a plea agreement on charges of conspiring to distribute and possess with intent to distribute more than five kilograms of cocaine. The agreement held that the government would file a motion for a downward departure from the Sentencing Guidelines in exchange for Melendez's help with other cases.

The government filed that motion, but not a motion for departure from the mandatory minimum. Because no motion was filed, the court said it was required to give Melendez the 10-year statutory minimum. Melendez appealed, arguing that the motion for departure from the Sentencing Guidelines should apply to the statutory minimum as well.

The U.S. Court of Appeals for the Third Circuit found that the lower court did not have discretion to give Melenez a sentence lower than the statutory minimum. Under the intent of Congress, the court found, only prosecutors have the ability to initiate downward departures.

One judge dissented from the Third Circuit's opinion, arguing that judges have the power to grant downward departures, and do so appropriately. Further, the majority of circuits that have ruled in this matter have found that the trial judge does have the power to make such departures (see U.S. v. Wills, U.S. v. Beckett, 996 F.2d 70, 53 CrL 1389 (5th Cir. 1993); U.S. v. Cheng Ah-Kai, 951 F.2d 490, 50 CrL 1283 (2nd Cir. 1991); U.S. v. Keene, 933 F.2d 711, 49 CrL 1135 (9th Cir. 1991)).

Drug Paraphernalia

On September 27 the Supreme Court decided not to review a case testing the statutory definition of drug paraphernalia, upholding a conviction for violation of drug paraphernalia laws and cultivation of marijuana (see Janus Industries v. U.S., No. 94-2123, 48 F.3d 1548 (10th Cir. 1995); "Supreme Court to Rule in Drug Paraphernalia Case," NewsBriefs, November 1995).

U.S. Customs agents raided Janus' smoke shop and found marijuana growing materials (i.e., a hydroponic garden with grow lights and an irrigation system) and recently-uprooted marijuana plants in an upstairs bedroom. Janus had argued that the statutory definition of drug paraphernalia, which was included in a search warrant for his business, was vague and did not specify Congress' interest in regulating it. The U.S. Court of Appeals for the Tenth Circuit found that because drug paraphernalia includes many and varied items, the statute must be broad. The Court also found that regulation of intrastate drug paraphernalia sales is within Congress' power under the Commerce Clause.

Alcohol Advertising

The Court heard arguments in a case testing the power of the state to regulate advertising of alcohol prices (Linda Greenhouse, "Justices Consider Limit on Liquor Ads," New York Times, November 2, 1995, p. B14; Tony Mauro, "R.I. Liquor Case Looms Large for Tobacco Industry," USA Today, November 2, 1995, p. 3A; see 44 Liquormart v. Rhode Island, No. 94-1140, 39 F.3d 5 (1st Cir. 1994); "Supreme Court Preview," NewsBriefs, November 1994).

The case challenges a 1956 Rhode Island law that prohibits the advertising of liquor prices and sets limits on other types of advertising of alcoholic beverages with the goal of reducing alcohol use. A district court ruled in 1992 that restrictions on prices of alcohol are a violation of commercial speech constitutional protections. The First Circuit U.S. Court of Appeals overturned that decision, finding that the state did not have to show that the regulation would actually lower consumption of alcohol, only that the provision was reasonable.

This case may have ramifications for state regulation of other products and legal services such as tobacco and gambling, and the justices expressed concern that states might start to limit advertising on other legal products. Justices asked if price advertising might soon be limited on products like firearms, butter, and red meat. The Court's ruling may also have an impact on pending cases challenging regulations on other forms of alcohol advertising (see "Court Rules Baltimore Can Ban Cigarette and Alcohol Billboards," NewsBriefs, November 1995). A decision is expected next year.

Automobile Searches

The Supreme Court agreed to hear a case testing the ability of police to search a property without a search warrant based on probable cause (see U.S. v. Ornelas-Ledesma, Nos. 94-3349 and 94-3350, 16 F.3d 714 (7th Cir. 1994)).

Saul Ornelas and Ismael Ornelas-Ledesma were driving a car with California license plates through Milwaukee and stopped to check into a motel. When police ran the license plate of the car, the registration showed that it belonged to a person with a record of drug distribution.

When police stopped the two, they consented to a search of the car. One of the officers found 4.4 pounds of cocaine behind a loose door panel. The two pleaded guilty, but later arged that the cocaine should not be used as evidence because the search went beyond the scope of the consent they gave.

The U.S. Court of Appeals for the Seventh Circuit ordered the trial judge to decide if the officers, acting on the factors of a "drug courier profile," had probable cause to search behind the loose panel of the car. The judge did find that there was probable cause, and the Seventh Circuit upheld the convictions.

In the Supreme Court appeal, the two men are arguing that the Seventh Circuit should have conducted its own review of the facts of the case instead of sending it to the trial judge for review.

Firearms and Drug Offenses

On October 30, the Court heard arguments in a case about the statutes regarding carrying a weapon while in the commission of a drug crime (see Bailey v. U.S. and Robinson v. U.S., Nos. 94-7448 and 94-7492, 56 CrL 1060, 36 F.3d 106 (DC Cir. (en banc) 1994); arguments 58 CrL 3063).

18 USC §924 provides for increased penalties for a defendant who, "during and in relation to any crime of violence or drug trafficking crime, ... uses or carries a firearm." What constitutes using or carrying a firearm has been an issue in lower courts.

Bailey was arrested when police discovered 30 grams of cocaine in the passenger compartment of his car. A search of the car found money and a loaded pistol in the trunk. In another case, Robinson was arrested after police made a controlled buy of crack cocaine. During a search of his house, they found money, drugs, and a pistol in a locked trunk in an upstairs closet.

The U.S. Court of Appeals for the District of Columbia en banc ruled 5-4 that two factors must be determined to decide if the defendants used or carried a weapon during the drug crimes: how close the firearm was to the drugs when the crime was committed, and how accessible the firearm was to the defendant. In both of these cases, the DC Circuit upheld convictions.

During the arguments, the justices questioned Congress' meaning of "use," "carrying," "possession," and active and passive use of a firearm.

Alan Untereiner, counsel for the defendants, argued that to constitute use or carrying of the firearm, the defendants would have had to touch the firearm or actively engage the firearm while committing the crime in question. Deputy Solicitor General Michael R. Dreeben, arguing for the government, supported the DC Circuit's interpretation of the statute, and stated that there was much overlap in the terms "use," "carrying," and "possession."