In my last post we looked at a section of the Anti-terrorism and Effective Death Penalty Act (AEDPA) which made it illegal to “knowingly provide material support or resources to a foreign terrorist organization.” In that case the Supreme Court upheld the law against a claim that it violated due process by being vague. Today we are going to look at another case in which the Supreme Court last week ruled that a statute violated due process by be being vague.

In Skilling v. United States the Supreme Court vacated the conviction of former Enron executive, Jeffrey Skilling for conspiracy to conspiracy to commit “honest-services” wire fraud.

IN United States v. McNally the Supreme Court limited the crimes of mail fraud and wire fraud to those in which the perpetrator attempted to gain a material reward. Excluded were crimes that deprived the citizenry of good government. To ameliorate the situation Congress passed 18 US 1346 which defined the term “scheme or artifice to defraud” to include a scheme or artifice to deprive another of the intangible right of honest services. But in Skilling the Supreme Court found that the term, “honest services” to be vague. It covers many things and it is unclear exactly what is covered and what is not. Therefore it limited prosecution for honest services fraud to those involving bribes or kickbacks which it claims is the core of an honest services prosecution. The Due Process Clause’s void-for- vagueness doctrine requires that legislation be written

[1] with sufficient definiteness that ordinary people can understand what conduct is prohibited and [2] in a manner that does not encourage arbitrary and discriminatory enforcement.”

Since Skilling was charged with manipulating the stock market to artificially increase the value of Enron stock and there was no allegation that he received a bribe or a kickback, the conviction was vacated.

In dissent, Justice Thomas says that limiting Section 1346 prosecutions to those involving bribes or kickbacks does not fulfill the intent of Congress in passing the section. After all, Section 1346 was passed to fill loopholes caused by McNally and the defendants in McNally did not receive a bribe or kickback. While he agrees the statute does not stand up to the requirements of due process he would invalidate the law and let Congress start over again.

Several times we have discussed the habeas corpus related sections of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Today we look at another section of the act, 18 U. S. C. §2339B, which makes it a federal crime to “knowingly provide material support or resources to a foreign terrorist organization.” The AEDPA was part of Newt Gingrich’s Contract on America which was passed and signed by President Clinton following the bombing of the Oklahoma City Federal Building.

The Supreme Court held in Holder v Humanitarian Law Project that one can be convicted of a crime for violating 18 U. S. C. §2339B even if one does not intend to support the violent acts of a terrorist organization. The plaintiffs in Holder want to support the lawful, non-violent activities of a couple organizations who are considered terrorist organizations by the government.

The Kurdistan Workers’ Party (also known as the Partiya Karkeran Kurdistan, or PKK) and the Liberation Tigers of Tamil Eelam (LTTE) are on the Secretary of State’s list of foreign terrorist organizations. The plaintiffs filed suit asking that the government be restrained from enforcing the AEDPA against them for supporting the humanitarian and political goals of these organizations. They claimed that the material support provisions as applied to them would violate the First Amendment and the Due Process clause of the Fifth Amendment. The Due Process Clause is violated whenever the law is so vague that one cannot tell what conduct violates the law.

The Court pointed out that the terms of §2339B have been clarified several times to make them less vague. For example “training ” is defined as “instruction or teaching designed to impart a specific skill, as opposed to general knowledge” and “expert advice or assistance” is defined as “advice or assistance derived from scientific, technical or other specialized knowledge.” With the definition in the legislation it is hard to say that the plaintiffs did not know what behavior is illegal.

The second, and more difficult issue raised by the plaintiffs is the question of whether the statute violates their freedom of speech under the First Amendment. As to the First Amendment’s guarantee of freedom of speech the court found that while many of the activities the plaintiffs want to perform such as training members of the PKK on how to use humanitarian and international law to peacefully resolve disputes, and teaching PKK members how to petition various representative bodies such as the United Nations for relief involve speech they also violate the law which forbids “training” and “expert advice or assistance.” The majority opinion by Chief Justice Roberts finds that the extreme danger that terrorist groups present justifies the limited impact upon free speech of the statute. It points out that the statute does not ban independent activities, only those that are coordinated with the alleged terrorist groups. These group have killed many people including Americans. Furthermore, our treaty obligations require that we inhibit the activities of these groups. The skills the plaintiffs want to teach PKK and LTTE can be used not only for good but also to promote terrorist activities. The terrorist organization can use any funds they receive as a result of the plaintiff’s activities are fungible and they may be used to promote terrorism.

The dissent by Justice Breyer stresses the high burden that the government must demonstrate standard before impinging on the right of free speech. It points out it is political speech that it is at issue and that the government’s burden is highest when it wants to prohibit political speech. As the dissent points out, “Not even the “serious and deadly problem” of international terrorism can require automatic forfeiture of First Amendment rights.” Strict scrutiny is needed when the government denies freedom of speech on content grounds. The dissent further states that the government has failed to prove it’s “fungible” claim and the mere fact that speech may lend legitimacy to the organizations is insufficient reason to deny the plaintiff’s claim to freedom of speech.

The dissent suggests that since the statute bans “material” aid that it only bans that aid that promotes terrorism and it suggests remanding the case to determine whether or not the plaintiffs proposed actions aid the organizations to commit terrorist acts. It would hold that the statute is limited to banning support for terrorist actions and not peaceful actions committed by groups on the Secretary of State’s list.

As President Kennedy said: “There is little value in insuring the survival of our nation if our traditions do not survive with it. And there is very grave danger that an announced need for increased security will be seized upon by those anxious to expand its meaning to the very limits of official censorship and concealment.”

Now that the government is prosecuting many business executives for criminal offenses an article in the New York Times points out that conservative leaders are joining with criminal defense attorneys and people on the left in arguing that the government has exceeded its power by using criminal laws to intrude upon the private lives of individuals. Conservatives are objecting to the excessive power used by Federal agents and courts to pursue individuals charged with criminal offenses.

Conservatives such as Reagan attorneys general Edwin Meese III and DickThornburg now find themselves working with organizations such as the American Civil Liberties Union to oppose the over criminalization of American society.Meese has criticized the astounding number and vagueness of federal criminal laws. Conservatives have pointed out that there are over 4400 Federal criminal crimes criminalizing such activities as making a false weather report or importing lobsters.

Experts in the field point to conservative justices Antonin Scalia and Clarence Thomas who have joined with more moderate justices in decisions limiting the ability of the government to use evidence at trial when the evidence is not subject to critical cross examination.

Conservatives find themselves particularly in opposition to criminal laws that allow for the seizure of private property used in criminal activity. Religious groups attack laws that prevent rehabilitation of criminals. Many conservatives are worried about the enormous cost of maintaining the world’s largest prison system.

The Sixth Appellate District of California’s District Court of Appeal found that a probation condition in People v. Murrillo requiring the defendant to take all prescribed medication was vague and that it may have been overbroad.

Angela Murillo, age 21, was charged with having sex with a minor, her sixteen year old boyfriend. She was quite remorseful during her probation interview. She told the probation officer that she had taken drugs since she was ten years old and that she was an alcoholic. Furthermore she said that she used a inhaler for asthma and that she had been diagnosed with ADHD and bipolar disorder but that she did not take any medication for mental disorders.

At sentencing Murillo’s counsel objected to three of the probation officer’s recommendations: 1) chemical testing, 2) possession or consumption of drugs or alcohol or being any place that either of them were being used or sold, and 3) entering a rehabilitation program. the court accepted the probation officer’s recommendation and added two more conditions: that Murillo obtain psychological counseling as directed by probation and that she take all medications prescribed by her doctor. The trial Court asked Murillo whether she accepted the conditions and she agreed to them.

On appeal she objected to the condition that she refrain from use of alcohol and that she take all prescribed medications on the grounds that they were not related to her criminal behavior. The Appellate Court found that the alcohol condition related to her criminal behavior in that she had a long term history of alcohol abuse and that alcohol reduced inhibitions and could lead to future criminal conduct.

As to the requirement that take all prescribed medication the court found the condition vague since under the facts of the case it is not clear whether the judge meant that she had to take all prescribed medications or just psychiatric medications. There is no evidence that she failed to take any medication for physical problems. Therefore, there is no relationship between taking physical medications and criminal behavior. As a result the condition is an abuse of discretion.

But the question remained whether by failing to object to the conditions at sentencing, Murillo waived the right to object on appeal. The court found that there was no logical reason for her not to have objected at trial and therefore the failure to object was incompetence of counsel. The court found, citing In Re Sheena K., Murillo did not waive the right by failing to object at sentencing. Under the Sheena K. test waiver occurs if proof of the illegal condition needs the fact finding ability of the trial court. In this case only the trial court can determine whether the condition is unconstitutional and therefore the failure to object result in waiver. But because the appellate court found incompetence of counsel without needing a factual input from the trial court waiver is not an issue.

Before remanding the case to the trial court for a determination of the necessity of requiring the defendant to take psychiatric medications the appellate court put forth several issues for the trial court’s consideration. First, since the medication issue infringes Murillo’s right of privacy any condition must be closely tailored to an important state right. Second, Murillo has a Fourteenth Amendment liberty interest protecting her from the forced taking of psychotropic medication and any probation condition enforceable by jail or prison is a coerced. Citing Sell v. United States the Court found that the Court should consider the following conditions before order the taking of psychotropic medications: 1) that an important governmental interest is at stake, 2) that the involuntary taking of medication will insure a timely prosecution and a fair trial (its hard to see how this is appropriate in a post conviction probation sentencing) 3) that the involuntary use of medication will significantly further the state interest, and 4) that the taking of medication is medically necessary.