United States v. David W. Lanier ( 1997 )

DISSENT

MERRITT, Circuit Judge,

dissenting.

In my view the Court’s unexplained entry of an order denying bail in this case pending appeal is improper under fundamental principles of our government and under the Bail Act of 1984,18 U.S.C. § 3143.

The order makes no attempt to explain its result and is unaccompanied by an opinion or any reasoning rebutting the defendant’s extensive argument against immediate imprisonment. A majority of the Court en banc previously held that the defendant’s obscene sexual conduct and assaults on several individuals in his office was not a federal crime under 18 U.S.C. § 242. United States v. Lanier, 73 F.3d 1380 (1996). The Supreme Court’s subsequent opinion in the case does not find that the defendant’s misconduct constitutes a federal crime and studiously avoids reaching any conclusion whatever on this point. The Court has simply asked us to revisit the case leaving out our previous statement that the conduct in question would become a federal crime only if the Supreme Court so declares.

Our Court does not tell us why it has now decided, or why it now assumes, that the defendant’s misconduct makes out a federal crime.

What has intervened since we decided the case en banc is an outcry in the press and television media and among certain groups which have leveled the accusation that the judges who so decided the ease previously were biased or worse.

The essence of why the defendant’s conduct is not a federal crime is that our system of government is a federal, not a unitary national, system of government. Those who drafted the original Constitution believed that this federalist feature of our government was more important to us in preserving our liberty than a Bill of Rights. They believed that there should be no federal common law of crimes declared by federal courts and that it would be the function of the federal courts to protect our federalism and to stand as a barrier against the hue and cry of factions and interest groups asking the federal government to take over the role of the state governments. They believed that the federal courts should prevent the states from encroaching on the national responsibilities of the federal government and — in their view at that time, more important — also to prevent the federal government, particularly the executive, from slowly, step-by-step, assuming and undermining the responsibilities of the states. I believe that this fundamental vision of federalism is still sound and that it is still the role of the federal courts, however unpopular it may be in many quarters, to apply it in this particular case.

The defendant’s conduct here is no different than if, in a fit of personal animosity or spite, he had cruelly attacked an acquaintance or a neighbor in the streets of Dyers-burg, Tennessee. That is the state’s responsibility to deal with. So far as I know, no one would seriously contend that it constitutes a federal crime for a wife to murder her husband or vice versa. The fact that obscene conduct by males in the workplace and sexual harassment in our society generally has become the object of special opprobrium and public scorn does not turn the defendant’s outrageous conduct into a federal crime unless Congress explicitly so declares in a constitutional manner. For the basic reasons stated in our previous en banc decision, restated with approval by the Supreme Court in its Lanier opinion,¹1 do not believe that the defendant’s misconduct constitutes a crime under 18 U.S.C. § 242.

In view of the fact that he has not committed any federal crime, the defendant should not now be incarcerated in a federal prison as though he had committed such a crime. As federal judges we should continue to adhere to the federalist view that ours is a “mixed” government of checks and balances and that the federal government may not incarcerate citizens in federal prisons for conduct, no matter how obscene or egregious, that is only a state crime. In the eyes of the average citizen, it may seem good and politically correct for a federal judge to send a man to federal prison for bad conduct that is a state, but not a federal crime. But it is my view the separation of powers and our system of federalism do not permit us to do so and that we as federal judges have a duty to deny the government’s request that the defendant, having committed no federal crime, be reincarcerated in a federal prison to serve a federal sentence.

If an “exceptional circumstances” test is to be applied, as Judge Nelson now suggests in an opinion circulated after this opinion was first filed, surely this is such a case. A substantial majority of our Court has found no federal crime to exist in a ruling reviewed by the Supreme Court which left the question up in the air and undecided. It is hard to believe that a ease that presents questions of sufficient difficulty to require review en banc and then has puzzled the Supreme Court and is now back before us is not an exceptional case. It is hard to believe that such a case of first impression does not present exceptional circumstances. In the only full judicial discussion of the “exceptional circumstances” test, the Second Circuit held that the test is clearly met if there is a likelihood that “prevailing on appeal may well result in dismissal of the indictment.” United States v. DiSomma, 951 F.2d 494, 498 (2d Cir.1991).

1 . The Supreme Court stated the “fair warning” test in criminal cases in a manner similar to the requirements we articulated previously:

There are three related manifestations of the fair warning requirement. First, the vagueness doctrine bars enforcement of a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. Second, as a sort of junior version of the vagueness doctrine, the canon of strict construction of criminal statutes, or rule of lenity, ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered. Third, although clarity at the requisite level may be supplied by judicial gloss on an otherwise uncertain statute, due process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope. (Quotation marks and citations omitted.) United Slates v. Lanier, -U.S.-,-, 117 S.Ct. 1219, 1225, 137 L.Ed.2d 432 (1997).

The Supreme Court has not suggested that the prosecution in this case comes close to meeting that test.