No. 96-7589 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 STUART COHEN, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUPPLEMENTAL BRIEF FOR THE UNITED STATES WALTER DELLINGER Acting Solicitor General Department of Justice Washington, D.C. 20530-0001 (202) 514 - 2217 ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-7589 STUART COHEN, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUPPLEMENTAL BRIEF FOR THE UNITED STATES This supplemental brief is filed in response to petitioner's supplemental brief filed April 17, 1997, advising the Court that petitioner has completed "the term of imprisonment imposed for his violation of supervised release," and "is no longer under any form of supervision due to his conviction or revocation." Pet. Supp. Br. 1. That development renders the case moot. 1 In December 1996, petitioner completed the term of imprisonment imposed upon him for his violation of the condition of ___________________(footnotes) 1 Petitioner notes (Pet. Supp. Br. 1) that he sent a letter, dated March 11, 1997, to the Solicitor General stating that petitioner was no longer subject to any term of imprisonment or conditions of supervision. While the government received that letter on March 14, 1997, it did not come to the attention of the attorneys handling this case. ---------------------------------------- Page Break ---------------------------------------- 2 his supervised release, and he was released from custody. The district court did not impose a term of supervised release to follow the period of imprisonment imposed upon revocation. Resp. Supp. App. A4; Pet. Supp. Br. 1. Petitioner is therefore no longer subject to potential confinement or to any other restrictions as a result either of his underlying offense or of his supervised release violation. Under this Court's decision in Lane v. Williams, 455 U.S. 624 (1982), therefore, petitioner's case is moot. In Lane v. Williams, two defendants who had been reincarcerated upon violating the terms of their parole collaterally attacked their parole-violation sentences. They contended that their guilty pleas to their underlying offenses were invalid, because the trial courts that accepted their guilty pleas failed first to advise them that their sentences would, as required by state law, contain mandatory terms of parole in addition to their terms of imprisonment. This Court concluded that the defendants' claims for relief were moot, because they did not seek to set aside their convictions (and go to trial or plead anew), but rather "elected only to attack their sentences, and * * * those sentences expired during the course of these proceedings." 455 U.S. at 631. As in Lane, petitioner "ha[s] never attacked, on either substantive or procedural grounds, the finding that [he] violated the terms of [his] [supervised release]." Lane, 455 U.S. at 633. Rather, as petitioner notes, he "makes an argument which would ---------------------------------------- Page Break ---------------------------------------- 3 affect only the length of the term of his sentence for revocation," Pet. Supp. Br. 2, a term that has now been fully served. And there are no non-speculative collateral legal consequences attributable to the length of his revocation sentence to avoid mootness. Petitioner acknowledges that he is not arguing any "possible collateral consequences from the fact of revocation." Pet. Supp. Br. 2 (citing Minnesota v. Dickerson, 508 U.S. 366, 371 n.2 (1993)). Similarly petitioner recognizes that the length of his imprisonment upon revocation "will not alter the number of criminal history points attributable to the sentence in a future case to which the federal Sentencing Guidelines apply." Pet. Supp. Br. 2; see also id. at 2 n.1. 2 Contrary to petitioner's suggestion (Pet. Supp. Br. 3) , the length of petitioner's imprisonment upon revocation would also make no difference in computing the relevant time period under Guidelines 4A1.1(e), which provides for the addition of two criminal history points if a crime is committed less than two years after release from imprisonment. That period is based on the defendant's actual date of release from imprisonment -- a date that would not change even if petitioner prevailed in this Court. In any event, the length of petitioner's sentence "cannot affect a ___________________(footnotes) 2 Guidelines 4A1.2 (k) (1) provides that the term of imprisonment upon revocation and the original term of imprisonment should be added together to compute criminal history points under 4A1.1. Because petitioner's original sentence was greater than 13 months, however, he would receive three points for his mail fraud, wire fraud, and conspiracy convicting under Guidelines 4A1.l(a), regardless of the length of his imprisonment upon revocation. ---------------------------------------- Page Break ---------------------------------------- 4 subsequent" criminal history calculation unless petitioner again violates the law. Lane, 455 U.S. at 633 n.13. Petitioner himself is "able -- and indeed required by law -- to prevent such a possibility from occurring." Ibid. Because this Court "is without power to decide moot questions or to give advisory opinions which cannot affect the rights of the litigants in the case before it," the petition should be dismissed. Amalgamated Ass'n of Street, Electric Ry. & Motor Coach Employees v. Wisconsin Employment Relations Bd., 340 U.S. 416, 418 (1951); see also North Carolina v. Rice 404 U.S 244, 246 (1971) (same) (per curiam). CONCLUSION The petition for a writ of certiorari should be dismissed. Respectfully submitted. WALTER DELLINGER Acting Solicitor General APRIL 1997 ---------------------------------------- Page Break ---------------------------------------- UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA VIOLATION OF SUPERVISED RELEASE ORDER vs . STUART COHEN, CR-90-0706 (ADS) Defendant. WHEREAS the defendant having pled guilty on December 21, 1990 in the United States District, Court for the Eastern District of New York before the Honorable Arthur D. Spatt to a violation of Title 18, United States Code, sections 371, 1343, 3147, 1341, and 2 and was sentenced on June 11, 1993 to a term of imprisonment of fifteen (15) months upon the Government's motion for a downward departure pursuant to Sentencing Guideline 5K1.1 and with a special condition that during incarceration, the defendant undergo drug and psychiatric treatment; a term of three (3) years supervised release with a special condition that the defendant undergo drug and psychiatric treatment under the direction of the probation department and that the defendant pay a fine of 2,500.00 and a special assessment of 50.00. ON October 4, 1994, a modification of the special conditions of supervised release was imposed mandating the defendant's participation in a inpatient drug abuse treatment program as directed by the Probation Department. ON March 28, 1995, a further modification of the special conditions of supervised release was imposed mandating that the defendant is to enter a long-term (minimum 12 months) residential drug treatment program that treats individuals who are high functioning but experience both mental illness and chemical dependency. ON April 11, 1995, a further modification of the special conditions of supervised release was imposed mandating that the defendant agree to reside and participate in a community correctional center for a period not to exceed 90 days or until acceptance into a long-term (minimum 12 months) residential drug treatment program. This placement is a sanction for failure to abstain from the use of cocaine. ---------------------------------------- Page Break ---------------------------------------- PAGE 2 RE: Stuart Cohen ON May 5, 1995, a summons was issued for the defendant to appear in Court on May 12, 1995 on a violation of conditions of supervised release. ON May 19, 1995, the defendant having appeared in court and the defendant having been represented by Neil Lenowitz, Esq. and the United States having been represented by Assistant U.S. Attorney Leonard Lato and the defendant having pled guilty to a violation of supervised release, namely, the use of drugs, and sentencing was adjourned until July 31, 1995 to afford the defendant with the opportunity to enter a long-term inpatient drug treatment program. Special conditions imposed at the time of release directed the defendant to voluntarily enter an 18 month intensive drug/mental health rehabilitation program as determined by the probation department, comply with treatment recommendations and to undergo drug testing as directed. Failure to abide with any conditions were to result in the defendant being brought before the Court prior to the sentence date. ON June 6, 1995, the defendant having failed to comply with the conditions as directed, the sentence date was scheduled for June 8, 1995 at 9:00 a.m. ON June 8, 1995, the defendant was remanded to the custody of the United States Marshal pending a hearing on the violation of the conditions of supervised release, which was scheduled for June 15, 1995 at 5:00 p.m. ON June 15, 1995, the hearing on the violation of supervised release was held and sentencing was adjourned to June 16, 1995 and further adjourned to June 21, 1995 to allow the Probation Department to make arrangements for the defendant's placement in a program. ON June 21, 1995, the defendant having appeared with his counsel, Neil Lenowitz, Esq. and the Government having been represented by Assistant United States Attorney Leonard Lato and probation officer Kathleen M. Dunn was present. The Court sentenced the defendant to a restoration of supervised release for the outstanding balance of the term with the special conditions that the defendant be released from the custody of United States Marshal immediately and that between 7:00 and 8:00 p.m. on June 21, 1995, the defendant enter the community correctional facility, Le Marquis, located at 12 East 31st Street, New York, New York, pending acceptance into a an 18 month inpatient residential drug/mental health therapeutic community and the defendant shall comply with all conditions as directed by the probation department. ---------------------------------------- Page Break ---------------------------------------- Re: Stuart Cohen PAGE 3 The Counseling Service of the Eastern District of New York evaluated the defendant medically and psychiatrically pending acceptance into a residential drug/mental health program. On August 2, 1995, The Counseling Service scheduled an intake appointment for the defendant with Damon House, a residential drug treatment program. The defendant was found ineligible for the program due to his psychiatric history and a MICA (mentally ill chemical abuser) program was recommended. Suzanne,Higgins of the Counseling Service made an appointment with Mr. Cohen for August 16, 1995 at 7:00 p.m. to have him sign release of information forms so that appointments with MICA facilities could be made. The defendant failed to attend. On August 22, 1995, a hearing was scheduled before the Court at the request of the defendant since he no longer felt that he needed to enter an inpatient program based on his psychiatric evaluation and his positive adjustment at the Community Corrections Center. The Court's decision was for the defendant to remain at the Community Corrections Center pending his admission into a MICA program. On August 23, 1995, the defendant was directed to report to the Counseling Service and on that date, the defendant became disruptive during his "session and caused a commotion. On August 25, 1995, A urine sample provided by the defendant on August 20, 1995 was returned positive for cocaine. On August 30, 1995, in a telephone conversation with Probation Officer Kathleen Dunn the defendant informed Ms. Dunn that he wished that the Judge would have sentenced him to On September 6, 1995, the defendant failed to keep an appointment with the Counseling Service, claiming he over slept. On September 11, 1995, the defendant counseling, but failed to attend a scheduled a group therapy session. The defendant continued to engage in inappropriate activities which led to his discharge from the Community Corrections Center. The Court ordered that a arrest warrant be issued for the defendant and Deputy United States Marshals executed the warrant. On September 12, 1995, the defendant was arraigned on the violation of supervised release before United States Magistrate Judge Viktor V. Pohorelsky and was remanded pending a hearing before the Court on September 14, 1995 at 5:00 p.m. ---------------------------------------- Page Break ---------------------------------------- Re: Stuart Cohen page 4 On September 14, 1995 at 5:00 pm, the defendant appeared with his attorney, Neil Lenowitz, Esq. and the United States was represented by Assistant United States Attorney Mark O. Wasserman, and probation officer Kathleen Dunn was present and the defendant pled guilty to violating supervised release on the charge of the use of drugs, it is now, ORDERED AND ADJUDGED, that the defendant's term of supervised release is revoked and the defendant is remanded to the custody of the Attorney General of the United States for a term of imprisonment of eighteen (18) Months with credit for time already served, since September 11, 1995 and a special condition that the defendant undergo mandatory drug abuse/psychiatric treatment program during the entire term of incarceration. The Court recommends to the United States Bureau of Prisons that the defendant be incarcerated at a facility such as FCI Fairton, FCI AllenWood or FCI Fort Dix that has mandatory drug abuse/mental health treatment programs. The defendant was advised of his right to appeal this sentence and the Court orders that the Federal Defender Services Unit of the Legal Aid Society represent the defendant on the appeal, should he decide to appeal. IT IS FURTHER ORDERED, that the Clerk of the Court deliver certified copies of this order to the United States Marshal, United States Attorney, United States Probation Department, and the Federal Defender Services Unit, all for the Eastern District of New York. SO ORDERED. Dated: Uniondale, New York September 18, 1995 A TRUE COPY ATTEST ROBERT C. HEINEMANN Hon. Arthur D. Spatt United States District Judge