Amicus Curiae Brief — Ogbomon v. United States

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Y 't {[ L ED

1997

In THE

18 supreme Court, U.S.

Supreme Court of the Unite States

OCTOBER TERM, 1996

LARRY OsA OGBOMON,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

RESPONSE OF AMICUS CURIAE

TO THE SUGGESTION OF MOOTNESS

THOMAS G. HUNGAR

Amicus Curiae, invited by

the Court per Order of

October 7, 1996

MARK A. PERRY

D. JARRETT ARP

SEAN E. ANDRUSSIER

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 955-8500

SS SSsssssssssssssssssssstsssssssssssssssns

WILSON - Eres PRINTING Co., INC. - 789-0096 - WASHINGTON. D.C. 20001

TABLE OF CONTENTS

Il. The Pendency Of The Administrative Order Of

Deportation Against Petitioner Does Not Neces-

III.

. If The Case Is Determined To Be Moot, The

Order Granting Certiorari Should Be Vacated

And The Petition For Certiorari Should Be Dis-

missed Without Vacatur Of The Judgment

TABLE OF AUTHORITIES

Cases Page

Burlington Northern R.R. Co. Vv. Surface Transp.

Bd., 75 F.3d 685 (D.C. Cir. 1996) ........................ 6

Carroll v. Princess Anne, 393 U.S. 175 (1968) ........ 6

Church of Scientology v. United States, 506 U.S.

Jt: | ane a)

County of Los Angeles v. Davis, 440 U.S. 625

CBOTDD o-cceccocaccoseenecsensssstencenennsiannnasnniane 3,8

Doe v. Bolton, 410 U.S. 179 (1978) ~.................... 10

Dove v. United States, 423 U.S. 325 (1976) ............ 15

Dunn v. Blumstein, 405 U.S. 330 (1972) ................ 10

Evitts v. Lucey, 469 U.S. 387 (1985) ............0...... 12

Globe Newspaper Co. v. Superior Court, 457 U.S.

| ah 8

Honig Vv. Doe, 484 U.S. 305 (1988) ...... sanmasaiuadiulaas 2, 4, 9, 10

Liner v. Jafco, Inc., 375 U.S. 301 (1964) —............. 2

Mintzes v. Buchanon, 471 U.S. 154 (1985) ............ 15

Murphy v. Hunt, 455 U.S. 478 (1982) -................... 6

Nebraska Press Ass’n Vv. Stuart, 427 U.S. 539

§ , ) ETT NEES 8

North Carolina v. Rice, 404 U.S. 244 (1971)........ 11, 12

Pollard v. United States, 352 U.S. 354 (1957) ........ 12

Roe v. Wade, 410 U.S. 118 (1978) ............................ 10

Rosario v. Rockefeller, 410 U.S. 752 (1973) ......... 10

Sibron v. New York, 392 U.S. 40 (1968) ............. 12

Southern Pac. Terminal Co. v. ICC, 219 U.S. 498

ft ) EE En 7

Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115

|, | EES ee x

Tiverton Bd. of License Comm’rs Vv. Pastore, 469

it S 8) | eee ee 13

U.S. Bancorp Mortgage Co. v. Bonner Mall Part-

nership, 115 S. Ct. 386 (1994) ............................ 2, 15, 16

United States v. ?reckenridge, 93 F.3d 132 (4th

Cer, RBBB) nnncececceccecsseccsecsetnsesastectnenssaamnannnene 10

United States v. Concentrated Phosphate Export

Ass’n, Inc., 393 U.S. 199 (1968) ...........0........... 8,14

United States v. Frady, 456 U.S. 152 (1982)........ 10

United States v. Green, 507 U.S. 545 (19938)........ 15

iii

TABLE OF AUTHORITIES—Continued

Page

United States Vv. Munsingwear, Inc., 340 U.S. 36

(1950) .. 15

United States Parole Comm'n v. “Geraghty, 445

EEE ES 2,9

United States v. W. T. Grant Co., 345 U.S. 629

LIE x

Vitek v. Jones, 445 U.S. 480 (1980) _ ee

Washington v. Harper, 494 U.S. 210 (1990) ae

Weinstein Vv. Bradford, 423 U.S. 147 (1975) ........5, 7, 14

Wisconsin Dep't of Industry v. Gould Inc., 475

a 7

STATUTES

8 U.S.C. § 1101(42) .. fiasntndiiepennssdetsbenenesnenevecns 11

8 U.S.C. § 1101 (a) (43) (M) . aesleianiadactieiadidbintienesasenannses 11

RE ED cxrnemansicmncsusae eiiisiiianestintneieeatendennsesoccss 11

a ea 11

8 U.S.C. § 1182(a) (6) (B) (i) nn 11

Lk Te fT]: | — - 14

18 U.S.C. § 1344(2) ......... ee onlin siehibapeniiiinmeninn 4

i ls OF INO cecccccccscscseccscsescscceceseve ieesieiatiniiitiilina 4d

UBC. § SREB CE) .«.......:...-.2.-..22202..2.-- iota 1-6, 9-11, 14

18 U.S.C. § 3683 (e) (3) nn... — aie 11

28 U.S.C. § 2256 ... at iecieiene . 7,10

42 U.S.C. § 408 (a) (7) (B) sieiegininiehtnenes cdimabibitin ein 4

EEE Ee 4

Illegal Immigration Reform and Immigrant Re-

sponsibility Act of 1996, Pub. L. No. 104-208,

110 Stat. 3009 (1996), reproduced at 138 Cong.

Rec. H11787 (daily ed. Sept. 28, 1996) :

ESE 14, 15

ical ee ee 11

OTHER AUTHORITIES

13A C. Wright, A. Miller & E. Cooper, Federal

Practice & Procedure (2d ed. 1984 & Supp.

CE 3, 5

In THE

Supreme Court of the Wuited States

OcToBER TERM, 1996

No. 95-8736

LARRY Osa OGBOMON,

. Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

RESPONSE OF AMICUS CURIAE

TO THE SUGGESTION OF MOOTNESS

Pursuant to this Court’s order of December 24, 1996,

amicus curiae respectfully submits this response to the

suggestion of mootness filed by the Acting Solicitor

General.

INTRODUCTION

This case presents the question whether the district

court possessed statutory authority under 18 U.S.C.

§ 3583(d) to require petitioner's deportation as a con-

dition of supervised release. The term of supervised re-

lease to which petitioner was sentenced in this case was

revoked by the district court on April 10, 1996. U.S. Br.

6; Suggestion of Mootness (“Suggestion”) at 2; Order

Revoking Supervised Release—Judgment and Commit-

ment at | (N.D. Ga. Apr. 10, 1996). Meanwhile, in

August 1996, petitioner was sentenced by a different dis-

trict court in a separate proceeding to 24 months’ im-

prisonment, to be followed by five years’ supervised

release, with the condition that petitioner “ ‘shall be

deported immediately upon completion of the term of

imprisonment and shall remain outside the United States

during the period of supervised release, in accordance with

18 U.S.C. § 3583(d) and with U.S. v. Chukwura.’” U.S.

Br. 7 n.5; United States v. Ogbomon, No. CR 96-PT-

124-NE, Judgment in a Criminal Case (“Alabama Judg-

ment”) at 3 (N.D. Ala. Aug. 29, 1996).

ARGUMENT

“Under Article III of the Constitution this Court may

only adjudicate actual, ongoing controversies.” Honig v.

Doe, 484 U.S. 305, 317 (1988); see also Liner v. Jafco,

Inc., 375 U.S. 301, 306 n.3 (1964) (mootness doctrine

derives from Article III's “case or controversy” require-

ment). An actual controversy must exist at all stages of

appellate review. U.S. Bancorp Mortgage Co. v. Bonner

Mall Partnership, 115 S. Ct. 386, 389 (1994). As this

Court has recognized, however, “Art. III justiciability is

‘not a legal concept with a fixed content or susceptible of

scientific verification.” United States Parole Comm'n v.

Geraghty, 445 U.S. 388, 400-401 (1980). Rather,

“‘{t}he justiciability doctrine [is] one of uncertain and

shifting contours.’” /d. at 401.

This case amply illustrates the uncertainty referred to

in Geraghty. On the one hand, in view of the district

court’s revocation of petitioner’s term of supervised re-

lease and accompanying deportation condition, there is

considerable merit to the suggestion that the case should

be dismissed as moot. On the other hand, the district

court’s revocation order does not necessarily render this

case moot in the constitutional sense. At the time the

district court issued its revocation order, petitioner was

likely to be (and now has been) subjected to the same

official action at issue in this case (namely, imposition of

a judicial order of deportation pursuant to 18 U.S.C.

§ 3583(d)). Moreover, it is theoretically possible that a

ruling on the merits in petitioner's favor could provide

him with some meaningful relief. Accordingly, the Court

may possess authority to decide this case on the merits.

Even if the case is justiciable, however, prudential con-

siderations militate in favor of dismissal.

I. The District Court’s Revocation Of The Term Of

Supervised Release And Accompanying Deportation

Requirement Did Not Render The Case Non-

Justiciable

A. Petitioner Was Reasonably Likely To Be Subjected

To The Same Official Action Again

This Court has held that the discontinuance of chal-

lenged government action will not necessarily render a

challenge to that action moot if there is a sufficiently

substantial likelihood that the challenged action will be

repeated. See Washington v. Harper, 494 U.S. 210, 219

(1990) (case not moot where “there is a strong likeli-

hood” that the challenged governmental conduct might

recur); Vitek v. Jones, 445 U.S. 480, 487 (1980) (case

not moot because “it is not ‘absolutely clear . . . that the

allegedly wrongful behavior could not reasonably be ex-

pected to recur’”); County of Los Angeles v. Davis, 440

U.S. 625, 631 (1979); see generally 13A C. Wright, A.

Miller & E. Cooper, Federal Practice & Procedure

§ 3533.7 (2d ed. 1984 & Supp. 1996). Moreover, “[t]he

burden of demonstrating mootness ‘is a heavy one.”

County of Los Angeles v. Davis, 440 U.S. at 631.

After the district court revoked petitioner's term of

supervised release in this case, there was a “strong like-

lihood” that petitioner would again be placed on super-

vised release and ordered deported pursuant to 18 U.S.C.

§ 3583(d). To be sure, this Court “generally [has] been

unwilling to assume that the party seeking relief will

repeat the type of misconduct that would once again

place him or her at risk of that injury.” Honig v. Doe,

484 U.S. 305, 320 (1988). At the time petitioner’s

term of supervised release was revoked, however, he had

already been arrested pursuant to a criminal complaint

filed in the United States District Court for the Northern

District of Alabama charging him with bank fraud. U.S

Br. 6, 7 n.5. Accordingly, the likelihood that petitioner

would again be sentenced to prison and a term of super-

vised release was far greater than would normally be the

case.’ And as an alien defendant subject to deportation,

there was also a “strong likelihood” that, in keeping with

what appears to be common practice in the district courts

in the Eleventh Circuit, he again would be ordered de-

ported as a condition of his supervised release.

Ultimately, the United States District Court for the

Northern District of Alabama did order petitioner de-

ported as a condition of supervised release pursuant to

18 U.S.C. §3583(d). Alabama Judgment at 3. If a

“strong likelihood” of a recurrence is sufficient to satisfy

the justiciability requirements of Article IIl, a fortiorari

an actual recurrence should suffice to preserve this Court’s

jurisdiction to decide the question presented. Accord-

ingly, the fact that the term of supervised release and

accompanying deportation condition imposed in this case

have been revoked does not compel dismissal of the case

as Moot.

1 Indeed, petitioner ultimately pleaded guilty in the Northern

District of Alabama to eight counts of bank fraud (18 U.S.C.

§ 1344(2) ), two counts of a scheme to defraud (18 U.S.C. § 2314) ),

and one count of misusing a social security number (42 U.S.C.

§ 408(a) (7) (B)). Alabama Judgment at 1. In accordance with

the applicable Sentencing Guidelines range, his term of imprison-

ment exceeded 12 months (id. at 2, 4), and a term of supervised

release was therefore mandatory. U.S.S.G. §5D1.1.

B. This Case May Be Capable Of Repetition Yet

Evading Review

The Acting Solicitor General contends (Suggestion 5-

10) that this case does not satisfy the mootness exception

for cases that are “capable of repetition, yet evading re-

view.” See, e.g., Weinstein v. Bradford, 423 U.S. 147,

149 (1975) (per curiam); see generally 13A C. Wright,

A. Miller & E. Cooper, Federal Practice & Procedure

§ 3533.8 (2d ed. 1984 & Supp. 1996). Even if correct,

that contention would not undermine the justiciability of

this case under the analysis discussed in Part I.A above.

In any event, however, this case may also satisfy the

“capable of repetition, yet evading review” exception.

1. “Capable Of Repetition”

For reasons already set forth above, the issue pre-

sented in this case is clearly “capable of repetition” with

respect to petitioner; indeed, it already has reoccurred

by virtue of petitioner’s conviction and sentence in the

Northern District of Alabama. The Acting Solicitor Gen-

eral asserts, however, that “(t]he legal issues raised by the

Alabama judgment are not identical to the legal issues

raised [by the Georgia judgment]” because, at the time

the district court in Alabama entered judgment, petitioner

was subject to an outstanding administrative deportation

order. Suggestion at 6. The proffered distinction is un-

persuasive.

The question presented in this case is precisely the

same as that raised by the Alabama judgment, namely,

whether 18 U.S.C. § 3583(d) authorizes federal district

courts to require that alien defendants be deported.

There is no merit to the suggestion that “{a]n order of

judicial deportation under Section 3583(d) entered after

a final administrative order of deportation raises different

legal issues from those raised by the instant case.” Sug-

gestion at 6. Either Section 3583(d) authorizes judicial

orders of deportation or it does not; neither petitioner

nor the Government has put forward an interpretation of

Section 3583(d) that would authorize judicial orders of

deportation only in circumstances where the defendant

has already been subjected to an administrative order of

deportation.” In any event, the language of Section

3583(d) cannot support such a construction.

There is no evidence that the Alabama district court

relied in any way on the INS’s determination that peti-

tioner was a deportable alien. Indeed, irrespective of the

administrative deportation order, it is indisputable that

petitioner is an alien who is subject to deportation. Br.

of Amicus Curiae 15 n.7. And in any event, a case may

be “capable of repetition” even absent a showing that the

legal issue likely will recur in precisely the same factual

setting (cf. Carroll v. Princess Anne, 393 U.S. 175, 178-

179 (1968) ), or that precisely the same challenged action

will recur (see Burlington Northern R.R. Co. v. Surface

Transp. Bd., 75 F.3d 685, 688-689 (D.C. Cir. 1996)).°

Accordingly, this case clearly satisfies the “capable of

repetition” requirement.

2 Indeed, the Government has disavowed any such interpretation,

asserting instead that Section 3583(d) merely authorizes the dis-

trict court “to provide, as a condition of supervised release, that

an alien defendant who is subject to deportation, i.e., an alien who

has been or will be ordered deported by the Attorney General

under the INA, ‘be surrendered to immigration officials for de-

portation proceedings under the [INA] .. . for the purpose of de-

termining whether he is “an alien defendant... subject to depor-

tation” ’ and for such deportation.” U.S. Br. 30 (citation omitted).

* Murphy V. Hunt, 455 U.S. 478 (1982) (see Suggestion at 6-7),

is leside the point. In that case, the only constitutional claim

raised by the criminal defendant was a challenge to the denial of

pretrial bail; his subsequent conviction rendered that claim moot.

The possibility that the defendant might later assert a separate

claim for bail pending appeal was not sufficient to preserve the

case from mootness because the constitutionality of denying bail

to a person awaiting trial is obviously “a question distinct from

the constitutionality of [denying bail] .. . to a person who has

been tried and convicted.” 455 U.S. at 481 n.5.

2. “Evading Review”

A more difficult question is presented by the “evading

review” portion of this exception to the mootness doctrine.

To be sure, petitioner’s apparent failure to file a notice

of appeal from his Alabama sentence (Suggestion at 7

n.3) will preclude further review (absent a motion to

vacate sentence under 28 U.S.C. § 2255), but that omis-

sion obviously does not demonstrate that “the challenged

action was in its duration too short to be fully litigated

prior to its cessation.” Weinstein v. Bradford, 423 U.S.

147, 149 (1975) (per curiam).

On the other hand, even if petitioner had filed a timely

notice of appeal and sought to challenge the Alabama

district court’s order of deportation, it is far from clear

that he would have been able to obtain review in this

Court before being deported pursuant to the judgment in

that case.* Judgment was entered in the Alabama action

on August 29, 1996. Petitioner was sentenced to 24

months in prison, but because his sentence is concurrent

with his earlier revocation sentence in the Georgia action

(Alabama Judgment at 2), and accounting for credit for

time served, he is likely to be released early in 1998. Ac-

cording to the Alabama judgment, petitioner “shall be

deported immediately upon completion of the term of

imprisonment.” Alabama Judgment at 3. It follows,

therefore, that petitioner likely will be deported consid-

erably less than 24 months from the date judgment was

entered in the Alabama action.

This Court has indicated that orders of less than two

years’ duration ordinarily evade review. Southern Pac.

Terminal Co. v. ICC, 219 U.S. 498, 514-516 (1911);

see also Wisconsin Dep't of Industry v. Gould Inc., 475

U.S. 282, 285 n.3 (1986) (applying “capable of repeti-

* By the same token, even if petitioner were to file a motion

under 28 U.S.C. § 2255 seeking to challenge the deportation por-

tion of his sentence in the Alabama case, it is unlikely that he

could obtain full review prior to being deported.

tion, yet evading review” exception to permit review of

three-year debarment that expired prior to decision).

Thus, the relatively short duration of petitioner’s imprison-

ment suggests that this case may well be one that satisfies

the “evading review” prong of the “capable of repetition,

yet evading review” doctrine. Indeed, more than 32

months have passed since petitioner initially was sentenced

in this case, and this Court has not yet had an opportunity

to decide the merits.

The Acting Solicitor General notes, however, that

“[iJf a defendant (such as petitioner) anticipates that he

will complete his term of imprisonment and then face

deportation under a term of supervised release before

completion of the entire process (including any

review by this Court), the defendant may seek to protect

his ability to obtain relief by requesting a stay of the

judicial deportation order.” Suggestion at 7-8. Plainly,

the possibility that petitioner might have been able to

obtain a stay and thereby preserve his ability to receive

full appellate review of the Alabama sentence militates

against application of the “capable of repetition, yet evad-

ing review” exception in this case. That possibility is not

necessarily fatal, however; the Court has at times deemed

the exception applicable even in circumstances where it

would seem that a stay, if sought and granted, could have

preserved a live controversy pending appellate review.

See, e.g., Globe Newspaper Co. v. Superior Court, 457

U.S. 596, 602-603 (1982); Nebraska Press Ass’n v.

Stuart, 427 U.S. 539, 546-547 (1976): Super Tire Eng’g

Co. v. McCorkle, 416 U.S. 115, 125-127 (1974).

Moreo‘er, a strong likelihood that a challenged action

will recur, standing alone, is sufficient to satisfy Article

III's “controversy” requirement. See, e.g., Harper, 494

U.S. at 219 (focusing solely on likelihood of recurrence ) ;

Vitek, 445 U.S. at 487 (same); County of Los Angeles

Vv. Davis, 440 U.S. at 631 (same): United States v. Con-

centrated Phosphate Export Ass'n, Inc., 393 US. 199,

203 (1968) (same); United States v. W. T. Grant Co.,

345 US. 629, 633 (1953) (same). For purposes of

Article III justiciability, therefore, the question whether

the issue is likely to evade review in a future case does

not appear to be dispositive. “[T)he ‘yet evading review’

portion of [this Court’s] ‘capable of repetition, yet evading

review’ test is prudential; whether or not that criterion is

met, a justiciable controversy exists.” Honig v. Doe, 484

US. at 341 (Scalia, J., dissenting). Accordingly, the dis-

trict court’s revocation of the sentence imposed in this

proceeding does not render the case non-justiciable.

Il. The Pendency Of The Administrative Order Of De-

portation Against Petitioner Does Not Necessarily

Render The Case Moot

The analysis set forth in Part I above Suggests that, if

the Alabama district court's judgment were the only de-

portation order pending against petitioner, this case would

present a justiciable controversy despite the district court’s

revocation of the term of supervised release and deporta-

tion condition. Obviously, however, the matter is further

complicated by the fact that petitioner is also subject to

an administrative order of deportation that has apparently

become final. U.S. Br. 6 n.4: Suggestion at 7 n.4.

It is well established that a case is moot if it is “im-

possible for the court to grant ‘any effectual relief what-

ever’ to a prevailing party.” Church of Scientology v.

United States, 506 U.S. 9, 12 ¢ 1992). The pending ad-

ministrative deportation order may well deprive petitioner

of any “ ‘legally cognizable interest in the outcome’ ”

(United States Parole Comm'n v. Geraghty, 445 U.S. 388,

396 (1980)), thereby rendering the case moot. On the

other hand, there are at least two possible bases for con-

cluding that the administrative order does not render the

case non-justiciable.

First, as long as the Executive Branch continues to

take the position that district courts lack authority to issue

orders of deportation under 18 U.S.C. § 3583(d), the

potential mootness problem created by duplicative admin-

istrative orders of deportation is likely to occur in most,

if not all, cases arising under Section 3583(d). That fact

may suggest that a form of the “capable of repetition, yet

evading review” doctrine should be applied to avoid de-

priving this Court of its ultimate authority to decide the

meaning of Section 3583(d). Cf. Honig v. Doe, 484

U.S. at 335-36 (Scalia, J., dissenting) (noting that the

Court has sometimes “dispens[ed] with the same-party

requirement entirely, focusing instead upon the great

likelihood that the issue will recur between the defendant

and other members of the public at large without ever

reaching us”) (emphasis eliminated); Rosario v. Rocke-

feller, 410 U.S. 752, 756 n.5 (1973); Doe v. Bolton,

410 U.S. 179, 187 (1973); Roe v. Wade, 410 US. 113,

125 (1973); Dunn v. Blumstein, 405 U.S. 330, 333 n.2

(1972).

Second, there is a theoretical (albeit highly attenuated )

possibility that petitioner could obtain some meaningful

relief from a ruling in his favor in this case. If this Court

were to hold that federal district courts lack jurisdiction

to impose deportation as a condition of supervised release,

it would follow that the Alabama district court lacked

jurisdiction to impose that condition on petitioner. Accord-

ingly, petitioner could move to correct his sentence pur-

suant to 28 U.S.C. § 2255.° The question to be decided

5 Petitioner presumably would have to satisfy the “cause and

prejudice” standard to sustain a collateral attac’ ©: his sentence.

See United States v. Frady, 456 U.S. 152, 167-los (1982). It is

well established that ineffective assistance of counsel constitutes

“cause” for failing to raise an issue on direct review. United

States v. Breckenridge, 93 F.3d 132, 134 n.1 (4th Cir. 1996). Thus,

petitioner could prevail in a collateral challenge by showing that

defense counsel in the Alabama action rendered ineffective as-

sistance by failing to seek appellate review of the deportation

order. Given the existing circuit conflict, the Solicitor General's

confession of error on the Section 3583(d) issue, and the pen-

dency of petitioner’s petition for a writ of certiorari seeking this

Court’s review of that issue, it is at least conceivable that peti-

tioner would be able to make this showing.

in this case—whether Section 3583(d) authorizes a fed-

eral district court to order an alien defendant deported

as a condition of his supervised release—thus may “affect

the rights” of petitioner. North Carolina v. Rice, 404

U.S. 244, 246 (1971) (per curiam).

The possibility of “effectual relief” is not necessarily

eliminated by the outstanding administrative deportation

order. It appears that there could conceivably be inde-

pendent consequences attributable to the supervised re-

po *- groeing the district court in the Alabama

action. For example, the order provides that petitioner

shall be deported . . . and shall remain sanlide the

United States during the [60-month] period of supervised

release.” Alabama Judgment at 3. In the unlikely even-

tuality that the Attorney General were to authorize peti-

tioner to reenter the United States within five years after

his release from prison, see 8 U.S.C. § 1182(a)(6)(B)

( i), petitioner could not reenter the country without con-

comitantly violating the deportation condition of his su-

i ion t istri

U.S.C. § 3583(e)(3).* ipzregtes

In analogous circumstances, this Court has recogni

* . * : ized

that the mere possibility of collateral consequences arising

from a criminal conviction or sentence will preserve a

“In particular, if petitioner (after his deportation) we

qualify as a “refugee” based on a well-founded fear of siete

see 8 U.S.C. § 1101(42), the Attorney General might have discre-

tion to authorize his reentry notwithstanding his earlier removal

and criminal history, depending on whether any of petitioner’s

prior offenses constitutes an “aggravated felony.” See 8 U.S.C.

§§ 1101(a) (43) (M) (aggravated fraud felonies), 1157 (refugees)

1158 (asylum); see also Illegal Immigration Reform and Inmni-

grant Responsibility Act of 1996 (IIRAIRA), Pub. L. No. 104-

208, §§ 321(a) (7) & 604, 110 Stat. 3009 (1996) (revising 8 U.S.C

§§ 1101 (a) (43) (M) & 1158), reproduced at 188 Cong. Rec. H11808,

H11825 (daily ed. Sept. 28, 1996). The Attorney General, however,

has no authority to override a federal district court’s supervised

release order.

case from mootness despite the expiration or completion

of the sentence. See, e.g., Evitts v. Lucey, 469 U.S. 387,

391 n.4 (1985) (“possibility” of collateral consequences

suffices to avoid mootness); Sibron v. New York, 392

U.S. 40, 55 (1968) (“The mere ‘possibility’ [of adverse

collateral legal consequences] . . . is enough to preserve

a criminal case from ending ‘ignominiously in the limbo

of mootness.’”); see also North Carolina v. Rice, 404

U.S. at 248 (remanding for determination whether “there

may be benefits to” modification of already-served sen-

tence that would preserve case from mootness). Indeed,

the Court has applied this principle to permit review of

an expired sentence without requiring any showing of

precisely what consequences, if any, could potentially re-

sult if the sentence went uncorrected. Pollard v. United

States, 352 U.S. 354, 358 (1957) (“The possibility of

consequences collateral to the imposition of sentence is

sufficiently substantial to justify our dealing with the

merits.” ).

To be sure, the foregoing cases involved situations in

which the conviction or sentence actually under review

could theoretically have collateral consequences; here, by

contrast, the collateral consequences are attributable to

a judgment entered in a different case. But the principle

enunciated in those cases seems applicable here as well,

because it demonstrates that petitioner may retain a

judicially cognizable interest in challenging the order of

deportation imposed by the Alabama district court. If

that is so, this case arguably satisfies all of the require-

ments for justiciability; the revocation of the deportation

requirement imposed by the court below does not moot

the case because the same requirement was likely to be

reimposed in a later case, and the imposition of the ad-

ministrative order of deportation does not moot the case

because the extant judicial deportation order may con-

ceivably have collateral consequences.

Ill. Even Though This Case May Be Justiciable Under

Article III, Prudential Considerations Militate In

Favor Of Dismissal

Even if the foregoing analysis is correct, it is obvious

that this case lies at or near the outer boundaries of

Article III justiciability. Particularly in view of petitioner's

apparent unwillingness to take readily available steps to

preserve a live controversy (such as his refusal to comply

with the law while on supervised release, his failure to

file an appeal from the Alabama sentence, and his failure

to seek administrative or judicial review of the administra-

tive deportation order), it is difficult to justify the addi-

tional expenditure of this Court’s resources that would be

ment which may conceivably affect the outcome’ of the

litigation” ).”

As Previously noted, moreover (see Br. of Amicus

Curiae at 19 n.9), a recently enacted revision of the INA’s

deportation procedures raises a question about the on-

this Act [the INA], a proceeding under this section [new

INA Section 240] shall be the sole and exclusive pro-

cedure for determining whether an alien may be admitted

to the United States or, if the alien has been so admitted.

“Of course, petitioner is not the only person who would be

affected by this Court’s resolution of the question presented in

this case, so there are countervailing reasons for proceeding to

address the merits if the case is justiciable.

removed from the United States.” IIRAIRA, Pub. L. No.

104-208, § 304(a)(3), 110 Stat. 3009 (1996), repro-

duced at 138 Cong. Rec. H11798 (daily ed. Sept. 28,

1996), to be codified at 8 U.S.C. § 1230(a)(3) (effec-

tive April 1, 1997).

The Acting Solicitor General now takes the position

that this provision “overrides the holding of the court

of appeals in this case” as to cases arising after April l,

1997. Suggestion at 9." It remains to be seen, however,

whether the Eleventh Circuit will agree with that inter-

pretation; the principle that implied repeals are disfavored

certainly suggests that Section 3583(d) will continue to

authorize judicial deportation even after IRRAIRA’s effec-

tive date. See Br. of Amicus Curiae at 19 n.9.

On its face, moreover, ITRAIRA §$ 304(a)(3) man-

dates exclusivity only as to the procedures for removal of

aliens who have been “so admitted,” i.e., admitted under

* The Acting Solicitor General also contends that the enactment

of this provision renders inapplicable the mootness exception for

controversies that are “capable of repetition, yet evading review.”

Suggestion at 8-10. But the relevant question for purposes of this

mootness exception (at least as it applies to the revocation of

supervised release in this case) is whether the controversy be-

tween petitioner and the United States is “capable of repetition,

yet evading review,” not whether similar controversies involving

other defendants are likely to arise with frequency in the future.

Weinstein v. Bradford, 423 U.S. at 149. When petitioner’s super-

vised release and accompanying deportation condition were revoked

in this case, and at all times thereafter, there was a reasonable

probability that he would again be subjected to the same judicial

order; that fact suffices to demonstrate that the controversy is

“capable of repetition.” “[H]owever much the new [law] may re-

duce the practical importance of this case, it does not completely

remove the controversy.” United States v. Concentrated Phosphate

Export Ass'n, 393 U.S. at 203. And in any event, the frequency

with which this issue arises in the Eleventh Circuit suggests that

it is likely to arise again with respect to other defendants in the

future, at least until April 1, 1997 (and quite possibly thereafter

as well).

IIRAIRA’s amended admissions provision; at least argu-

ably, therefore, Section 304(a)(3) does not affect other

Statutes to the extent they authorize deportation of aliens

who were not admitted under ITRAIRA. But for present

purposes, the possibility that the Eleventh Circuit may

adopt the Government's reading of this provision and

thereby eliminate the present circuit conflict tends to

reduce still further the justification for additional expendi-

ture of this Court's resources on this case.”

IV. If The Case Is Determined To Be Moot, The Order

Granting Certiorari Should Be Vacated And The

Petition For Certiorari Should Be Dismissed Without

Vacatur Of The Judgment Below

When a criminal case is rendered moot by the death of

the defendant, this Court will vacate the order granting

certiorari (if appropriate) and dismiss the petition for

certiorari ''nited States v. Green, 507 U.S. 545 ( 1993);

Dove « United States, 423 U.S. 325 (1976): see also

Mintzes v. Buchanon, 471 U.S. 154 (1985). By analogy,

the same approach would appear # be appropriate in

this case if the Court concludes that the case is moot.

In civil cases that become moot as a result of happen-

stance while awaiting appellate review, this Court has

held that the judgment of the lower court should be

vacated and the case dismissed. U.S. Bancorp Mortgage

Co. v. Bonner Mall Partnership, 115 S. Ct. 386, 390

(1994); United States v. Munsingwear, Inc., 340 US. 36,

39-40 (1950). That approach does not appear to have

been extended ‘to the criminal context, however, and there

is nO reason to do so in this case. Indeed, even if vacatur

might be an appropriate response to mootness in some

criminal cases, it would be particularly inappropriate here.

* As the Acting Solicitor General observes (Suggestion at 10),

that possibility also militates against granting one of the other

pending petitions that presents this same issue.

In the civil context, this Court has traditionally “dis-

posed of moot cases in the manner most consonant to

justice . . . in view of the nature and character of the

conditions which have caused the case to become moot.”

Bonner Mall, 115 S. Ct. at 391 (internal quotation marks

omitted). The “principal condition” relied upon by the

Court has been “whether the party seeking relief from

the judgment below caused the mootness by voluntary

action.” Ibid. Thus, when a petitioner moots the case by

entering into a settlement agreement, he “has voluntarily

forfeited his legal remedy by the ordinary processes of

appeal or certiorari, thereby surrendering his claim to

the equitable remedy of vacatur.” Jd. at 392.

Any mootness resulting from the revocation of peti-

tioner’s term of supervised release is directly attributable

to petitioner’s voluntary misconduct in committing addi-

tional federal crimes while on supervised release. “It is

petitioner's burden, as the party seeking relief from the

status quo of the appellate judgment, to demonstrate . . .

equitable entitlement to the extraordinary remedy of

vacatur.” 115 S. Ct. at 392. If a voluntary settlement

agreement between petitioner and respondent “constitutes

a failure of equity that makes the burden decisive” (ibid. ),

a fortiori petitioner’s voluntary commission of additional

crimes precludes him from meeting his heavy burden in

this case.

CONCLUSION

and the need for this Court's review is sufficiently slight,

that the better course would be to vacate the order

granting certiorari and dismiss the petition as moot or,

in the alternative, to dismiss the writ of certiorari as

improvidently granted.

Respectfully submitted.

THomasS G. HUNGAR