Criminal Procedure Final Exam

Spring 1995

Harvard Law School

Visiting Professor Pamela Karlan

Distributed: 8:30-9:30 a.m., May 11-12, 15-19, 22-23, 1995, at the Take-Home Window

Due by: 3:30-4:30 p.m., on the day it is picked up at the Take-Home Window


1. This is a take home examination. You may use any materials you wish. You may not consult anyone else while you are taking the examination.

2. There are two parts to this examination. You must answer all the questions. Part I counts for two- thirds; Part II, for one-third. Budget your time and words accordingly.

3. There is an absolute word limit of 2500 words for the entire examination. If you are typing your answers, this works out to about 10 double-spaced pages with regular margins. You must write, at the end of your examination, the number of words you have used.

4. I recommend you spend at least 90 minutes thinking through, organizing, and reviewing your answers. This examination is designed to test your knowledge and analytic ability, not your physical typing or handwriting stamina.

5. Good luck! And have a wonderful summer.

Part I


NOTE: In the fact pattern, I refer to several provisions or cases we did not read or discuss this semester, particularly various provisions of Title 18, the Sentencing Commission Guidelines, United States v. Bishop, and United States v. Lopez. I do not expect you to read these items in order to answer the questions. Indeed, I urge you not to read them, since the questions depend on my characterization of these materials.

The Richman Boys are a criminal gang in Bloomington, Indiana. In December 1994, the U.S. Attorney charged three of the gang's members, Danny, Matt, and Alexandra, in a four-count indictment. Count I charged Danny and Matt defendants with postal theft -- they stole $75,000 worth of Goofy stamps from the Bloomington Post Office. The maximum sentence for postal theft is 10 years. Count II charged Danny and Matt with using a firearm in the commission of an offense, 18 U.S.C. 924(c); this count carried a five-year mandatory minimum sentence that must be imposed consecutive to any other sentence. Count III charged Danny and Matt with a violation of the Gun-Free School Zones Act of 1990, 18 U.S.C. 922(q)(1)(A), since the Post Office was within 25 feet of the Rebecca Wombat Elementary School. The defendants' potential exposure on Count III was 10 years. Count IV charged Alexandra alone with receipt and sale of stolen property -- Danny and Matt had allegedly given her the stamps to "fence" for them.

The defendants were represented by separate counsel. Danny's lawyer immediately entered into plea negotiations and, in return for pleading guilty to Count III -- the Gun-Free School Zones Act charge -- the prosecutor agreed to drop the other charges.

On January 15, 1995, as Danny and his lawyer, Al E. Bayh, were entering the courthouse for the plea allocution, Danny says to Al, "Hey, I saw the Supreme Court is hearing some guns in schools case this week -- Lazar, or something like that. Do you think --" Al cuts him off: "That case only involves whether a student can be charged at his own school for violating the act. You're a high school dropout, not an elementary school student."

Danny thus entered a plea. Under Federal Sentencing Guideline 2K2.5, Danny's offense level is 8. His clean record put him in Criminal History Category I, leading to a range of 2-8 months. But the judge imposed an upward adjustment under 5K2.9 because Danny was carrying the gun in order to commit another offense, and sentenced him to 12 months in prison.

Alexandra's lawyer, Noel Prosser, also entered into plea negotiations. Noel has a policy of not pleading his clients guilty if the plea agreement requires their cooperation with the government. Accordingly, when the government offered a plea agreement to a lesser charge with a guidelines sentence of 1-7 months, he urged Alexandra to accept the plea as "the best thing we can get," without mentioning to her that if she offered to cooperate and testify against Danny and Matt, the prosecutor would probably make a motion for a downward departure under 5K1.1 and she could get off with no jail time at all.

Noel was convinced that the deal was a good one. So he conducted no further discovery. Thus, he did not find out that the prosecution's star witness, Louise L. Pidgeon, had at first identified another gang member, Sylvia, as the person from who she had bought the stamps. (Sylvia is 5 inches shorter, and 20 years older, than Alexandra.)

Alexandra was convicted and sentenced to 6 months in jail. One fine visiting day, Sylvia came to visit her and revealed that before the FBI picked Alexandra up, they had questioned her (Sylvia) and had told her that Louise had identified her as the culprit. "But I told them nothing," Sylvia reported, "and they gave up."

Matt insisted on going to trial. During voir dire, the prosecutor, Mia Culpa, used four of her six peremptory challenges to strike African American venire members. Relying on Batson and Powers, Matt's lawyer, Bea Fried, objected to Culpa's use of her peremptories. Fried asked the judge, Warren Pease, either to declare a mistrial, reseat the challenged jurors, or call in an entire new venire and begin voir dire over again.

Culpa argued that she had not struck on the basis of race, but rather on the basis of the challenged jurors' residence in what she called "bad neighborhoods":

"Jurors who live in the projects are likely to take the side of those who are having a tough time, who've dropped out of school. The people I struck probably believe that the authorities pick on kids and ruin their lives.

"The rules of the game down on the West Side [where the four challenged jurors lived] are probably different than they are in upper middle class communities. And they probably see police activity, which is, on the whole, more intrusive than you see in communities that are not so poor and violent. So it just seems to me that they're not that likely to be favorable to the prosecutor. You know I'd strike any juror, black or white, who lives in public housing."

Fried pointed the court to United States v. Bishop, 959 F.2d 820 (9th Cir. 1992), in which the Ninth Circuit held that residence was not a race-neutral reason for striking jurors from certain, predominantly black, neighborhoods (there, Compton, California).

"I guess I agree with you, Ms. Fried," Judge Pease said, and he required the reseating of the four African American jurors.

On the fourth day of trial, however, Judge Pease entered the courtroom and made the following statement: "You know, my ruling on the peremptory issue has really bothered me. And sitting here, I can see from the facial expressions of some of those jurors I reseated that they're just not listening when the federal agents testify. I'm going to have to declare a mistrial so we can start over with a fairly selected jury. Bishop is just another crazy Ninth Circuit decision; I don't know what got into me. We'll start again with a new jury tomorrow. Good day, ladies."

Matt's second trial began the next day. Fried raised a double jeopardy claim but, for reasons not disclosed by the record, did not seek an immediate appeal when the motion to dismiss on double jeopardy grounds was denied. After trial, Matt was convicted of all three charges on March 10, 1995, and sentenced to 62 months in jail. In April, however, the Supreme Court announced, in United States v. Lopez, 63 U.S.L.W. 4343 (1995), that section 922(q)(1)(A) was unconstitutional because it exceeded Congress' power under the Commerce Clause. Fried successfully moved to set aside Matt's conviction on that count. Judge Pease then sentenced Matt to the mandatory five-year minimum on the section 924(c) conviction, with six months' concurrent sentence for the postal theft.

Matt has now timely filed an appeal to the United States Court of Appeals for the Seventh Circuit.

Question 1: You are a staff lawyer at the Youthful Offender Post-Conviction Project. Danny contacts you and asks whether he can challenge his conviction. Assess his potential legal claims and their likelihood of success. What advice do you give Danny about whether to challenge his conviction?

Question 2: Alexandra contacts you and asks you to appeal her conviction. Identify her potential claims and assess their relative merits.

Question 3: You are clerking for Judge Cara Mazoff on the Seventh Circuit. On appeal of Matt's conviction, the judge asks you what to do with regard to Matt's double jeopardy claim.

Question 4: Assume that the Seventh Circuit reverses Matt's conviction on double jeopardy grounds. Culpa now seeks a new indictment of Matt, this time charging him with one count of RICO -- the federal racketeering statute. RICO requires that the government prove that the defendant has engaged in a pattern (at least two) of predicate acts. Culpa specifies three predicate acts: possession of a weapon, commission of a postal theft, and extortion. Matt faces a twenty-year mandatory sentence if convicted. Fried moves to dismiss the new charges on double jeopardy grounds. Your meteoric rise through the legal profession has landed you on the bench as a United States District Judge for the Southern District of Indiana. How would you rule?

* * * * *

Part II

On the next page are two cartoons by Honoré Daumier, a nineteenth-century French artist. I have translated his original captions into English. Discuss either or both with regard to the themes and issues we discussed this semester.

© 1995 by Pamela Karlan