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November 1992


                      Supreme Court Cases
                        1991-1992 Term

                               By

                   William U. McCormack, J.D.
                         Special Agent
                       Legal Instructor
                          FBI Academy


     The 1991-1992 term of the U.S. Supreme Court produced a
number of cases of interest to law enforcement.  The Court
decided cases concerning the law of entrapment in a Federal
child pornography sting operation, the admissibility of
statements made by a child sexual assault victim to police
officers and others, and the admissibility at a murder trial of
the "battered child syndrome."

     The Court ruled in cases concerning the Government's
obligation under the sixth amendment's Speedy Trial Clause to
bring to trial a charged defendant, the effect of the Double
Jeopardy Clause of the fifth amendment on complex drug
prosecutions, and the jurisdiction of U.S. courts to try a
Mexican citizen abducted to the United States.  It also decided
a case interpreting the scope of a law enforcement officer's
qualified immunity from a civil suit alleging a constitutional
violation.

     With regard to first amendment issues, the Court considered
two cases.  One case struck down an ordinance designed to
prevent the bias-motivated display of symbols, such as burning
crosses; the other invalidated a parade permit scheme designed
to recoup expenses incurred for police protection and
administrative costs.

JACOBSON v. UNITED STATES, 112 S.Ct. 1535 (1992)

     In Jacobson, the Court overturned the Federal child
pornography conviction of a Nebraska farmer because he was
entrapped by a U.S. Postal Service child pornography sting
operation.  The case began in February 1984, when the defendant
legally ordered and received two magazines containing
photographs of nude preteen and teenage boys from a California
adult bookstore.  Subsequently, Congress changed the law and
made it illegal to receive sexually explicit depictions of
children through the mail.

     The U.S. Postal Service obtained the defendant's name from
a mailing list seized at the adult bookstore and then began an
undercover operation to explore the defendant's willingness to
order illegal child pornography.  Over the next 2 1/2 years, the
Postal Service and Customs Service, through five fictitious
organizations and a bogus pen pal, repeatedly contacted the
defendant through the mail, exploring his attitudes toward child
pornography, disparaging the legitimacy and constitutionality of
efforts to restrict the availability of sexually explicit
material, and offering him the opportunity to order illegal
child pornography.

     Twenty-six months after the Postal Service's first mailings
to the defendant, the Government still had no evidence that he
illegally possessed or received child pornography in the mail.
Rather, the defendant's only responses to some mailings revealed
certain personal inclinations, including a predisposition to
view photographs of preteen sex and a willingness to promote a
given agenda by supporting lobbying organizations.  Eventually,
however, the defendant ordered a magazine containing child
pornography from a catalogue provided during the Postal
Service's sting operation.

     The defendant was tried and convicted of the illegal
receipt of the pornographic magazine despite his entrapment
defense.  On appeal, the Supreme Court reversed, finding that
the defendant was entrapped as a matter of law.  The Court ruled
that the prosecution failed to show, beyond a reasonable doubt,
that the defendant was predisposed to receive child pornography
through the mail prior to the time when the Government first
contacted him.

     The Court noted that in typical drug stings or Government-
sponsored fencing operations, where the defendant is simply
provided with the opportunity to commit a crime, the entrapment
defense is of little use to the defendant because the ready
commission of the criminal act amply demonstrates the
defendant's predisposition.  However, in this case, the Court
concluded that the defendant's 1984 lawful purchases and his
expression of certain generalized personal inclinations to view
teenage sexual material was not sufficient to prove, beyond a
reasonable doubt, that he was predisposed to commit the crime
charged, independent of the Government's coaxing.

WHITE v. ILLINOIS, 112 S.Ct. 736 (1992)

     In White, the Court upheld the admissibility of out-of-
court statements made by a child sexual assault victim to her
babysitter, her mother, the police, and medical personnel who
treated her.  The Court decided that a witness need not be
unavailable for trial before her out-of-court statements can be
admitted as exceptions to hearsay evidentiary rules.

     In the case, a babysitter and the mother of a 4-year-old
child determined that the child had just been sexually assaulted
in her home by the defendant.  After the child described the
assault, the mother notified the police.  When the police
arrived at the house, they obtained a more-detailed description
of the assault from the 4-year-old victim.  The police then took
her to a hospital, where she described the sexual assault to the
nurse and doctor who were treating her.

     At trial, the State twice attempted to have the 4-year-old
victim testify.  However, because she apparently experienced
emotional difficulty when brought into the courtroom, the victim
left without testifying.

     The State then called the babysitter, the mother, the
police officer, the nurse, and the doctor to testify regarding
the child's description of the assault.  The defendant objected
on hearsay grounds, but the judge found the out-of-court
statements of the victim admissible under exceptions to the
hearsay rule as spontaneous declarations and statements made in
the course of securing medical treatment.  The defendant was
thereafter found guilty.

     The Supreme Court sustained the conviction, rejecting the
defendant's argument that the witness must be unavailable at
trial before such hearsay statements are admissible.  Instead,
the Court held that a finding of unavailability of an out-of-
court declarant is necessary only if the out-of-court statement
was made at a prior judicial proceeding.

     In this case, the vicitm made the statements to the mother,
babysitter, and police officer shortly after the incident, and
to medical personnel in the course of receiving medical
treatment.  Such statements are materially different than
statements made at judicial hearings because they carry special
guarantees of credibility and reliability.

     The Court stated that an utterance or declaration offered
in a moment of excitement, or spontaneously without the
opportunity to reflect on the consequences of the exclamation,
may justifiably carry more weight than a similar statement made
in the relative calm of the courtroom.  Similarly, a statement
made by a person to a treating physician or nurse carries
special guarantees of reliability, since the person knows that a
false statement may cause misdiagnosis or mistreatment.

     Last, the Court pointed out that its recent decisions in
Coy v. Iowa, 487 U.S. 1012 (1988) and Maryland v. Craig, 110
S.Ct. 3157 (1990), which require a showing of necessity before a
child sexual assault victim could testify at trial behind a
screen or by closed-circuit television rather than face the
defendant in an open courtroom, were not controlling.  The Court
affirmed that no necessity requirement exists as a predicate to
the admissibility at trial of out-of-court declarations of a
child sexual assault victim.

ESTELLE v. MCGUIRE, 112 S.Ct. 475 (1992)

     In Estelle, the defendant was charged with the murder of
his infant daughter, who died as a result of multiple internal
injuries.  The defendant claimed to police that his daughter
fell off a couch.  At trial, the State introduced evidence
through two physicians that the victim was a battered child,
including testimony concerning several prior injuries to the
infant, such as partially healed rib fractures.

     The defendant was convicted, and his conviction was upheld
by the State appellate courts.  However, the U.S. Court of
Appeals for the Ninth Circuit granted habeas corpus relief to
the defendant, finding that the "battered child syndrome"
evidence was erroneously admitted and that there was a
prejudicial instruction to the jury concerning the use of the
prior injury evidence.  The Supreme Court reversed the Ninth
Circuit and held that habeas corpus relief was inappropriate in
this case, since there was no constitutional error committed by
the trial court in admitting the "battered child syndrome"
evidence.

     In its opinion, the Court first made clear that habeas
corpus review is only appropriate where there has been a
conviction that violated the Constitution, laws, or treaties of
the United States.  In this case, the Court held that no
constitutional violation occurred.

     The State was required to prove that the infant's death was
caused by intentional means, and the "battered child syndrome"
evidence helped the State to do that.  Even though the State did
not offer evidence to prove that the defendant caused the
previous injuries to his daughter, and even though the defendant
did not raise accident as a defense at trial, the "battered
child syndrome" evidence was relevant and not in violation of
the Due Process Clause of the 14th amendment.

DOGGETT v. UNITED STATES, 112 S.Ct. 2686 (1992)

     In Doggett, the Court determined that a delay of 8 1/2
years between a defendant's indictment and trial violated his
sixth amendment right to a speedy trial.  In this case, the
defendant was indicted in 1980 on drug charges, but left the
country for Panama 4 days before police officers arrived at his
home to arrest him.

     The next year, law enforcement officers determined that the
defendant was under arrest in Panama, but did not file an
extradition request because they thought it would be futile.
Upon the defendant's release from jail in Panama, he traveled to
Colombia and reentered the United States in 1982, undetected by
law enforcement officials.

     He lived openly using his true name until 1988, when a
simple credit check by law enforcement disclosed his address and
led to his arrest.  The defendant unsuccessfully moved to
dismiss the 1980 drug indictment, arguing that the Government's
failure to prosecute him earlier violated his sixth amendment
right to a speedy trial.

     The Supreme Court began its opinion by reviewing the four
factors used to determine speedy trial claims.  These factors
include 1) whether delay before trial was uncommonly long, 2)
whether the Government or the criminal defendant is to blame for
that delay, 3) whether, in due course, the defendant asserted
his right to a speedy trial, and 4) whether the defendant
suffered prejudice as a result of the delay.

     Concerning the first inquiry, the Court found that the 8
1/2-year delay was not only uncommonly long but also
extraordinary, and thus, clearly triggered the speedy trial
inquiry.  The Court stated that post-accusation delay becomes
presumptively prejudicial at least as it approaches 1 year.

     Concerning the second speedy trial factor, the Court
determined the Government to be at blame for the length of the
delay.  The Court found that for 6 years, Government
investigators made no serious effort to find the defendant and
were thus negligent in their attempts to arrest him.  The third
speedy trial factor also weighed in the defendant's favor
because the trial court found that the defendant was not aware
of his indictment before his arrest; thus, the defendant had a
good reason for not invoking his right to a speedy trial until
after his arrest.

     With respect to the last speedy trial factor, the Court
stated that prejudice to a defendant includes the anxiety and
concern of a defendant generated by the delay and the
possibility that a defendant's defense will be impaired by
dimming memories and loss of exculpatory evidence.  However, the
Court held that specific proof of prejudice does not have to be
demonstrated where excessive delay presumptively compromises the
reliability of a trial.

     The Court concluded by distinguishing the different reasons
for the delay.  If the delay is caused by the Government's bad
faith, the length of delay allowed will be shortened.  When the
delay is not in bad faith but attributable only to the
Government's negligence, it will be accorded less weight in
determining prejudice to the defendant.  However, even delay
occasioned by the Government's negligence creates prejudice that
compounds over time, and at some point, as here, becomes
intolerable.

UNITED STATES v.  FELIX, 112 S.Ct.  1377 (1992)

     In Felix, the Court dealt with the effect of the Double
Jeopardy Clause of the fifth amendment on two overlapping drug
prosecutions.   This case arose out of a Federal drug
investigation of a methamphetamine manufacturing facility
operated by the defendant in Oklahoma, which law enforcement
officers raided and shut down.  However, the defendant evaded
arrest and moved his operation to Missouri.

     Eventually, he was arrested and indicted in Missouri for
the methamphetamine manufacturing activities he conducted in the
State.  At the defendant's trial in Missouri, he claimed he was
working covertly for the Government.  To counter this defense,
the prosecution introduced evidence of his prior illegal acts in
Oklahoma to show his criminal intent, and the defendant was
convicted.

     The Government then brought a second indictment in Oklahoma
against the defendant, charging him with a conspiracy and
manufacturing a controlled substance in Oklahoma.  Part of the
overt acts forming the basis of the Oklahoma conspiracy charge
included activity for which the defendant had already been
convicted in Missouri.

     The defendant was convicted of all of the Oklahoma charges.
On appeal, he claimed his Oklahoma conviction violated his
protection against double jeopardy, since he had been previously
tried and convicted in Missouri on evidence of the same criminal
actions.

     The Court upheld the conviction, ruling that the Double
Jeopardy Clause only prevents duplicative prosecution for the
"same offense."  First, the Court determined that introduction
at the Missouri trial of the defendant's acts in Oklahoma for
purposes of showing criminal intent was not in any way a
prosecution of the defendant for the Oklahoma charges.  Second,
the Court ruled that a substantive offense and a conspiracy to
commit that offense are not the "same offense" for double
jeopardy purposes.  Thus, the Oklahoma conspiracy charge against
the defendant was a completely distinct offense from the
Missouri crimes for which he had already been convicted.

UNITED STATES v. ALVAREZ-MACHAIN, 112 S.Ct. 2188 (1992)

     In Alvarez-Machain, the defendant, a citizen and resident
of Mexico, was indicted for participating in the kidnap and
murder of Drug Enforcement Administration (DEA) Agent Enrique
Camarena-Salazar and a pilot working with Camarena.  In 1990,
the defendant was forcibly kidnapped at the behest of the DEA
from Mexico, flown to El Paso, Texas, and arrested by DEA
officials.  The Mexican government officially protested the
abduction.

     The defendant successfully moved to dismiss his indictment,
claiming that the U.S. Government lacked jurisdiction to try him
because he was abducted in violation of the United States-Mexico
Extradition Treaty.  The Supreme Court reversed and held that
the defendant's forcible abduction did not prohibit his trial in
the United States.

     The Court noted that a defendant brought before a court in
accordance with an extradition treaty may raise jurisdictional
claims under the terms of the treaty.  However, when a treaty is
silent on forcible abductions, it does not govern a court's
jurisdiction to try an abducted defendant.  In this case, the
Court found that the United States-Mexico Extradition Treaty
said nothing about the obligation of the two countries to
refrain from forcible abductions, and thus, did not govern the
jurisdiction of a U.S. court to try the defendant.

     (Note: This opinion should not be interpreted as
     authorizing law enforcement officers to conduct
     foreign abductions, since any such activity raises
     important political and foreign policy issues that
     must be considered at the highest level of
     government.)

HUNTER v. BRYANT, 112 S.Ct. 534 (1991)

     The Court in this case reemphasized the important
protection that qualified immunity provides to law enforcement
officers sued for violating the Constitution by dismissing a
lawsuit against law enforcement officers alleged to have made an
arrest without probable cause.  The case began in 1985, when the
plaintiff walked into the University of Southern California's
administrative offices and delivered two photocopied handwritten
letters that referred to a plot to assassinate President Reagan.

     The rambling letters referred to the potential assassin as
"Mr. Image," who was described as "Communist white men within
the National Council of Churches."  The letter stated that "Mr.
Image wants to murder President Reagan on his up and coming trip
to Germany."

     Campus police contacted the Secret Service, and a
university employee identified the plaintiff as the person who
delivered the letter.  Two Secret Service agents then went to
the plaintiff's home to interview him, and he admitted writing
the letter but refused to identify "Mr. Image."

     The agents then obtained consent to search the plaintiff's
residence and found the original of the letter.  However, the
plaintiff refused to answer questions concerning his feelings
toward the President or to state whether he intended to harm the
President.  The two agents then decided to make a warrantless
arrest of the plaintiff for making threats against the
President.

     The plaintiff was arraigned and held without bond for 2
weeks before the criminal complaint was dismissed.  He then sued
the arresting agents for a constitutional violation, alleging
that they had arrested him without probable cause.

     The trial court denied the agents' motion for summary
judgment on qualified immunity grounds, and the U.S. Court of
Appeals for the Ninth Circuit affirmed the district court's
finding that whether probable cause existed for the arrest was
for a jury to decide.  The Supreme Court reversed and held that
the civil suit should have been dismissed on qualified immunity
grounds.

     The Court stated that qualified immunity shields law
enforcement officers from constitutional lawsuits if reasonable
officers could have believed their actions to be lawful in light
of clearly established law and the information the officers
possess.  In the context of a warrantless arrest, the Court
stated that even law enforcement officials who "reasonably but
mistakenly conclude that probable cause is present" are entitled
to immunity.

     The Court held that the Ninth Circuit's decision was wrong
because it placed the question of immunity in the hands of the
jury when that determination should be made by the court long
before trial.  The Court then stated that the agents were
entitled to immunity if, as in this case, a reasonable officer
could have believed that probable cause existed to arrest the
plaintiff.  The Court concluded that the qualified immunity
standard gives ample room for mistaken judgments and protects
all but the plainly incompetent or those who knowingly violate
the law.

R.A.V. v. CITY OF ST. PAUL, MINN., 112 S.Ct. 2538 (1992)

     In R.A.V., the Court struck down a city ordinance designed
to prevent the bias-motivated display of symbols or objects,
such as Nazi swastikas or burning crosses.  The case concerned
the prosecution of a teenager who assembled a crudely made cross
and burned it on the front lawn of an African-American family.
The defendant was charged under a St. Paul ordinance that made
it a misdemeanor to place on public or private property a symbol
or object, such as a Nazi swastika or burning cross, "which one
knows or has reasonable grounds to know arouses anger, alarm or
resentment in others on the basis of race, color, creed,
religion or gender."

     The trial court granted the defendant's motion to dismiss
the charges as an impermissible restriction on the first
amendment freedom of speech, but was reversed by the Minnesota
Supreme Court, which held that prosecution under the ordinance
was permissible since it was limited to conduct that amounts to
"fighting words."  The U.S. Supreme Court reversed the Minnesota
Supreme Court and held that the ordinance was invalid under the
first amendment, even when interpreted to prohibit only
"fighting words," because it prohibits otherwise permitted
speech solely on the basis of the subjects the speech addresses.

     The Court began by noting that the first amendment
generally prevents the Government from proscribing or
prohibiting speech or even expressive conduct, such as flag
burning, because of disapproval of the ideas expressed.  The
Court stated that certain categories of speech, such as
defamation, obscenity, or "fighting words," can be regulated
because of their constitutionally proscribable content.  The
Court then noted that the Government may not regulate speech
based on hostility or favoritism toward a particular message and
to hold otherwise raises the possibility that the Government may
effectively drive certain ideas or viewpoints from the
marketplace of ideas.

     Applying these principles to the St. Paul ordinance, the
Court found that the ordinance's prohibition on "fighting words"
was directed to speech that insulted or provoked violence "on
the basis of race, color, creed, religion or gender."  As such,
it sought to regulate speech based on its content or message.
The Court stated that the first amendment does not permit a
government to impose special prohibitions on those speakers who
express views on disfavored subjects.

     The Court pointed out that there were adequate content-
neutral alternatives to punish the type of conduct in this case,
such as arson or property crime charges.  Thus, the city had not
demonstrated that the ordinance was necessary to serve a
compelling interest of the city to prevent this type of
activity.  The Court concluded by stating that it believed
burning a cross in someone's front yard is reprehensible, but
the city has sufficient means to prevent this type of conduct
without violating the first amendment.

FORSYTH COUNTY, GA v. NATIONALIST MOVEMENT, 112 S.Ct. 2395
(1992)

     In this first amendment case, the Court struck down a
county ordinance that required the issuance of permits for
parades, assemblies, and other uses of public property by
private organizations and permitted the imposition of a fee
based upon the expense to the county caused by the parade or
assembly.  The ordinance provided that every permit applicant
shall pay an amount to be determined by the county administrator
in order to meet the expenses incident to the administration of
the ordinance and to the maintenance of public order.  However,
the sum could not exceed $1,000 per day.

     In 1989, the Nationalist Movement (a Ku Klux Klan
affiliate) proposed to demonstrate for 1 1/2 to 2 hours on the
county courthouse steps in opposition to the Federal holiday for
the birthday of Martin Luther King, Jr.  The county imposed a
$100 fee based on the administrator's time in issuing the
permit.  The Nationalist Movement refused to pay and sued
requesting a temporary restraining order and permanent
injunction against the county, claiming the ordinance illegally
infringed the first amendment freedom of speech.

     In its opinion striking down the ordinance, the Court
restated the general rule that there is a heavy presumption
against a prior restraint of speech.  The Court recognized that
a government may regulate the uses of public forums, but if a
permit scheme controls the time, place, or manner of speech, it
must not be based on the content of the speech.  Instead, it
must be narrowly tailored to serve a significant governmental
interest and must leave ample alternatives for the
communication.

     The Court found two problems with the county ordinance in
this case.  First, it vested unbridled discretion in the county
administrator to determine what fee to charge, and thus, did not
contain adequate standards for the county administrator to
apply.  Second, it impermissibly allowed consideration of the
content of the speech in setting the fee.

     Because the costs imposed on an applicant were designed to
offset police protection and other county expenses, it was
necessary for the administrator to assess the content of the
message and to estimate the response of others to that content.
The fee assessed for a parade permit, therefore, would
impermissibly depend on the administrator's measure of the
amount of hostility likely to be created by speech based on its
content.