November 13, 2014
This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York. Judge Nina Gershon enjoined enforcement of a recent congressional resolution prohibiting continued funding of ACORN. Judge Jack B. Weinstein, while denying a suppression motion, raised questions about the practice of not giving Miranda warnings in a secondary inspection area during a border crossing inquiry. Judge Arthur D. Spatt reduced a sentence in light of a later amendment to the sentencing guidelines applicable to crack cocaine offenses. And Judge Eric N. Vitaliano dismissed a religious organization's challenge to the taking of its property for a parking garage.
Bill of Attainder
In ACORN v. United States, 09 CV 4888 (EDNY, Dec. 11, 2009), Judge Gershon granted plaintiffs' motion for a preliminary injunction and enjoined defendants from enforcing Section 163 of Division B-Continuing Appropriations Resolution as an unconstitutional bill of attainder passed by Congress.
Congress passed Section 163 with the aim of barring the Association of Community Organizations for Reform Now, Inc. (ACORN) and related entities from receiving federal funding, even under ongoing contracts with federal agencies. Section 163 provides: 'None of the funds made available by this joint resolution or any prior Act may be provided to [ACORN], or any of its affiliates, subsidiaries, or allied organizations.'
This resolution went into effect on Oct. 1, 2009 and was extended to Dec. 18, 2009. It followed numerous accusations against ACORN (which describes itself as the largest community organization of low-and-moderate-income families in the country), including (1) provision of advice to a purported prostitute and her boyfriend on how to engage in various illegal activities, (2) violation of tax laws governing nonprofit organizations, (3) misuse of taxpayer dollars, (4) voter fraud, and (5) violation of federal election laws. ACORN alleged that it responded by terminating staff members found to have engaged in misconduct, reorganizing its board of directors and hiring new counsel to conduct an internal investigation.
Judge Gershon found a likelihood of success on the merits. Article 1, Section 9, of the Constitution bars passage by Congress of any bill of attainder, 'a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protection of a judicial trial.' Slip op. 7. Judge Gershon first found that the statute here fell within the historical meaning of legislative punishment, because the congressional deprivation was imposed only on ACORN and its affiliates, its consequences cannot be avoided by ACORN through any conduct on its part, and there was no valid, non-punitive purpose for the legislation.
Next, applying the functional test, the court found that Congress had singled out ACORN for punishment, the government's justifications did not stand up to scrutiny, and Section 163 did not further any non-punitive legislative purposes. Third, Judge Gershon found that the legislative history indicated punitive intent. Statements by members of the Senate required 'an implicit finding of wrongdoing by the plaintiffs; protection of taxpayers' money is a logical justification of Section 163 only if wrongdoing is assumed.' Slip op. 16.
Judge Gershon concluded: In these circumstances, where the plaintiffs have received many federal grants and contracts over the years, it cannot be said that such deprivation is anything short of punishment as that has been understood in the bill of attainder cases. Section 163, by singling out ACORN and its affiliates for severe, sweeping restrictions, constitutes punishment under the three factors the Supreme Court has articulated for making this determination. Slip op. 18.
In the court's view, plaintiffs also established the likelihood of irreparable harm. ACORN's pending contracts with the government were suspended, and its pending applications with federal agencies would not be considered as long as Section 163 was in force.
Finally, the court found a preliminary injunction to be in the public interest. Plaintiffs raised a fundamental issue of separation of powers because they 'were singled out by Congress for punishment that directly and immediately affects their ability to continue to obtain federal funding, in the absence of any judicial, or even administrative, process adjudicating guilt,' while the potential harm of an injunction to the government was less. Slip op. 20.
In United States v. Fnu Lnu, aka 'Sandra Calzada,' 09 CR 415 (EDNY, Oct. 1, 2009), Judge Weinstein held that defendant's statements to a Customs and Border Protection (CBP) officer were admissible, despite the lack of Miranda warnings. The court recommended, however, that consideration be given as to whether evolving circumstances since 9/11 may warrant a change in the law.
Defendant Lnu was charged with making a false statement in an application for a passport, misuse of a passport, and aggravated identity theft. She moved to suppress statements made to a CBP officer on grounds that she had not received Miranda warnings.
Defendant was arrested after arriving in the United States by air from the Dominican Republic in December 2008. Prior to her arrival, CBP Officer Frank Umowski conducted a standard search of an FBI database for names appearing on the flight manifest. The officer saw that one passenger had the same name – 'Sandra Calzada' – place and date of birth as a woman targeted in an outstanding New York Police Department arrest warrant.
Accordingly, on reaching the primary passport inspection area, where she presented a passport in the name of Sandra Calzada, defendant was escorted to the secondary inspection area and detained there for some 90 minutes. Officer Umowski tried to ascertain her identity to see if she was a U.S. citizen entitled to enter the country.
During questioning, she claimed that she was Sandra Calzada, that she was born in Puerto Rico and that she was applying for readmission as a U.S. citizen. Her answers, a fingerprint analysis and a review of various documents led to her arrest.
As Judge Weinstein noted, the questioning 'was conducted as part of a routine border crossing inquiry for which no Miranda warning is required.' Officer Umowski's intent and function were solely to determine whether defendant should be allowed entry into the United States, not to gather evidence for a criminal prosecution.
Yet Judge Weinstein saw 'some force in the defendant's argument that because of increased criminal penalties and prosecutions arising out of post-9/11 border inquiries, Miranda warnings are appropriate when a person entering the country is questioned in a secondary inspection area.' Recognizing the 'dramatic departure from current law' entailed in such a concept, Judge Weinstein noted that any decision about these issues should best be made by administrative agencies or appellate courts.
In United States v. Lake, 01 CR 641 (EDNY, Dec. 11, 2009), Judge Spatt relied on Amendment 706 to the Sentencing Guidelines in reducing a term of incarceration. When imposing sentence prior to the amendment, the court had not taken into account the then-existing guidelines disparity between crack and powder cocaine offenses.
Defendant Lonnie Lake pled guilty to five counts of conspiracy to possess and distribute marijuana, powder cocaine and crack cocaine. His base offense level was 38. Given the other relevant factors, his guidelines sentencing range was 292 – 365 months, with a mandatory minimum of 240 months. In 2003, Judge Spatt sentenced Mr. Lake to a non-guidelines sentence of 252 months, based on the strong support shown by Mr. Lake's family and his post-arrest rehabilitation, including completion of a drug and alcohol treatment program.
Years later, citing the sentencing disparity between powder cocaine and crack cocaine offenses, the Sentencing Commission issued Guidelines Amendment 706, reducing by two levels the base offense levels applicable to crack cocaine offenses. The Sentencing Commission voted to apply the amendment retroactively, effective March 2008.
Mr. Lake moved here for a reduction in his sentence. His revised guidelines range is 235-293 months, with the same mandatory minimum of 240 months.
As Judge Spatt observed, the court now has jurisdiction to reduce Mr. Lake's term of imprisonment, and may do so after considering factors set forth in 18 U.S.C. §3553(a), if the reduction is consistent with applicable policy factors issued by the Sentencing Commission. 18 U.S.C. §3582(c) (2). The relevant policy statement, U.S.S.G. §1B1.10(b)(2)(B), advises that where, as here, defendant's original term of imprisonment was a non-guidelines sentence, a reduction is generally not appropriate.
Pointing to Mr. Lake's continuing impressive efforts at rehabilitation, Judge Spatt found an exception to the general rule to be warranted. Had the revised guideline range been in effect when Mr. Lake was originally sentenced, the court would have sentenced him to the mandatory minimum. Constrained by that limit, Judge Spatt reduced the sentence to 240 months.
Religious Land Use
In Congregation Adas Yereim v. City of New York, 07 CV 1457 (EDNY, Dec. 8, 2009), Judge Vitaliano dismissed a religious organization's complaint under the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §2000cc et seq. (RLUIPA), and 42 U.S.C. §1983, challenging the approval of a sanitation garage and transfer of title from plaintiffs to the Department of Sanitation (DOS) pursuant to eminent domain proceedings.
Plaintiff Congregation Adas Yereim claimed that the city violated RLUIPA, and its due process rights, by approving the garage, instead of its proposed religious use for congregation property, by taking that property, through eminent domain proceedings, for DOS use as a sanitation garage.
The congregation had submitted an application for a special use permit to allow it to construct a yeshiva and residential facilities. The property instead was condemned for public use, through various state governmental and judicial proceedings, and the congregation withdrew its application following approval of the garage. Challenging these proceedings under RLUIPA, the congregation alleged that they were infected by both substantive defects, including the anti-Semitic motives of local officials, and procedural defects, including inadequate notice, at various stages, to the congregation and other plaintiffs (neighbors of the proposed garage).
The court dismissed the complaint on several grounds, none of which reached the merits of these allegations.
It found that plaintiffs' challenge to the state court eminent domain proceeding ran afoul of the Rooker-Feldman doctrine, because it necessarily sought to dissolve the state court order that had transferred title in the property from the congregation to the City of New York. Slip op. 11-13. The court also found that RLUIPA applied only to zoning and land use regulation, not to eminent domain proceedings. The state court proceeding involved neither a landmarking law nor a zoning law. Such laws differ from eminent domain procedures, 'which allow local governments to assume full ownership of private property for public use, and which derive directly from the New York Constitution.' Slip op. 15.
The actions taken by defendants prior to the initiation of the state court proceedings – opposition to the congregations' application and efforts to obtain approval for the city's proposed garage project – did not result in injuries caused by state court proceedings, and did not deprive the court of subject matter jurisdiction under Rooker-Feldman. Slip op. 10-11. However, the court found that all of plaintiffs' claims in this regard were barred by RLUIPA's four-year statute of limitations, since the relevant events all took place in 2001 and the action was not commenced until 2007. Slip Op. 17.
Finally, plaintiffs' §1983 claim that they did not receive notice of critical events in the city's quest under the Uniform Land Use Review Procedure (ULURP) to acquire the project site was barred both by §1983's three-year statute of limitations and by collateral estoppel. The issues were argued by and necessarily decided against plaintiffs in the state court actions. The state court specifically rejected these claims, 'holding that the notice provided by defendants complied with state law and ULURP,...and did not violate due process.' Slip op. 19.
Harvey M. Stone and Richard H. Dolan are partners at Schlam Stone & Dolan. Bennette D. Kramer, a partner of the firm, assisted in the preparation of the article.
[This article is reprinted with permission from the January, 2010, issue of the New York Law Journal. Copyright © 2010 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]