                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         SEP 16 2002
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

    LARRY KENNETH JACKSON,

                Petitioner - Appellant,

    v.                                                 No. 01-6131
                                                 (D.C. No. CIV-99-539-M)
    MIKE MULLIN, Warden,                             (W.D. Oklahoma)
    Oklahoma State Penitentiary,

                Respondent - Appellee.

                            ORDER AND JUDGMENT          *

Before EBEL , Circuit Judge, BRORBY , Senior Circuit Judge, and     MURPHY ,
Circuit Judge.

         Larry Kenneth Jackson was convicted by an Oklahoma trial court of the

first degree murder of his girlfriend Wendy Cade and sentenced to death. The

Oklahoma Court of Criminal Appeals (OCCA) affirmed the conviction and

sentence. Jackson v. State, 964 P.2d 875 (Okla. Crim. App. 1998) (per curiam),

cert. denied, 526 U.S. 1008 (1999). That court also denied post-conviction relief.

*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Jackson v. State, No. PC-97-1349 (Okla. Crim. App. Nov. 20, 1998). Thereafter,

Jackson filed a federal habeas petition, and the federal district court denied relief.

      That court granted a certificate of appealability (COA) on one issue:

whether the trial court’s refusal to instruct on the defenses of voluntary and

involuntary intoxication violated Jackson’s constitutional rights. At a case

management conference, this court granted a COA on an additional issue:

whether the trial court’s refusal to allow voir dire concerning the prospective

jurors’ attitudes toward intoxication defenses violated Jackson’s constitutional

rights. Exercising jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(c),

we affirm the denial of habeas relief on both issues.

FACTS

      Cade died in a room at the Oklahoma City Motel 6 on September 6, 1994,

due to a laceration to her neck that severed her jugular veins. It is undisputed that

Jackson, an inmate at the Joseph Harp Correctional Center, killed her.

       Jackson and Cade had maintained a relationship while Jackson was

incarcerated. She visited him at the prison on Sundays, and at least twice outside

the prison when he was with a prison work crew. Jackson believed they would

marry after his release, but Cade was engaged to and living with Victor Dizer, the

father of some of her children, and was attempting to change her relationship with

                                          -2-
Jackson. Apparently, Jackson and Cade had ongoing arguments about this

relationship change.

      On September 6, Jackson was assigned to a work crew delivering and

installing office/modular furniture at the Jim Thorpe state office building in

Oklahoma City. That day, Cade also went to the building, and the two left in her

Jeep. Sometime before going to the motel, Jackson purchased a quart of beer at

a convenience store. At the same time, Cade went to a nearby liquor store and

purchased a fifth of liquor called Alize, which was a mixed drink of passion fruit

juice and cognac. Jackson drank all of the Alize and half of the quart of beer and

had two puffs on a marijuana cigarette before entering the motel room. While in

the room, the two had sexual intercourse and fought. Jackson claimed he

“blimped out.” He remembered leaving the motel in Cade’s Jeep, having an

accident and abandoning the Jeep. Later that day, a highway patrol trooper found

the Jeep.

      After abandoning the Jeep, Jackson next remembered waking up in a field

and walking until he met two men. He obtained a ride from them to the

apartments where his sister worked. He arrived about 6:00 or 6:30 p.m. Dorothy

Leffette, the sister of one of the men, let him stay with her until morning.

      On September 7, Dizer and Martha Gulley, Cade’s mother, went to the area

where the Jeep was found. Noticing the nearby Motel 6, they went there and

                                          -3-
learned Cade had rented a room. After being notified, the police checked the

room and found Cade’s body lying against the bed. She had sustained over thirty

cuts. The entire bathroom floor, apart from the shower, was covered with blood.

It appeared a struggle had occurred in the bathroom, and Cade had been moved

from the bathroom to the bedroom. There was some blood on the bedroom carpet,

but little blood on Cade’s nude body. The police found a box cutting knife

wrapped in a wash cloth and stuck between the mattress and box springs of the

bed.

       The police located Jackson at Leffette’s apartment. In the room where the

police arrested Jackson, they found Cade’s jewelry, watch, and keys to her Jeep.

Jackson admitted to police officers that if Cade was dead, he did it, but he did not

intend to kill her, did not want to talk about the details of the killing, and did not

remember much about what happened in the motel room.

       At trial, Jackson’s defense was that he killed Cade without malice

aforethought because he had blacked out due to intoxication and being upset.

Rejecting the lesser included offense of manslaughter, the jury found Jackson

guilty of first degree murder.

STANDARDS OF REVIEW

       Under the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), if a claim is adjudicated on the merits in state court, a petitioner

                                           -4-
is entitled to federal habeas relief only if he can establish that the state court

decision “was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United

States,” or “was based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1),

(2). The AEDPA also requires federal courts to presume state court factual

findings are correct and places the burden on the petitioner to rebut that

presumption by clear and convincing evidence.        Id. § 2254(e)(1). If a state court

did not decide a claim on its merits, this court reviews the district court’s legal

conclusions de novo and its factual findings, if any, for clear error.     McCracken v.

Gibson , 268 F.3d 970, 975 (10th Cir. 2001),      petition for cert filed , (U.S. May 17,

2002) (No. 01-10302).

ANALYSIS

I. Failure to Instruct on Voluntary and Involuntary Intoxication

       Jackson argues the trial court denied him due process and his Sixth, Eighth,

and Fourteenth Amendment rights by refusing to instruct the jury, as he requested,

on voluntary and involuntary intoxication. He claims the jury instructions did not

reflect his intoxication defense, despite his offering ample evidence to support the

defense.

                                            -5-
       Jackson fails to cite Supreme Court precedent establishing a constitutional

mandate for intoxication instructions.     1
                                               Supreme Court precedent instead suggests

there is no such mandate.     See generally Montana v. Egelhoff , 518 U.S. 37, 39-40,

43, 51, 56 (1996) (holding Montana statute precluding consideration of voluntary

intoxication in determining existence of mental state which is element of criminal

offense does not violate Due Process Clause);         Taylor v. Withrow , 288 F.3d 846,

851 (6th Cir. 2002) (citing   Egelhoff for proposition that states have great latitude

in formulating defenses to crimes),      petition for cert. filed,   (U.S. Aug. 28, 2002)

(No. 02-6153).

       The alleged error in jury instructions is reviewable, therefore, in the context

of the entire trial, only for the denial of fundamental fairness and due process.

See Henderson v. Kibbe , 431 U.S. 145, 156-57 (1977) (pre-AEDPA);              Foster v.

Ward , 182 F.3d 1177, 1193 (10th Cir. 1999) (same);           Tyler v. Nelson , 163 F.3d

1222, 1227 (10th Cir. 1999) (same);       see also Kentucky v. Whorton , 441 U.S. 786,

789-90 (1979) (per curiam) (reviewing totality of circumstances to decide if

1
        To support an intoxication instruction, Jackson cites Mathews v. United
States , 485 U.S. 58, 63 (1988), which held that “[a]s a general proposition
a defendant is entitled to an instruction as to any recognized defense for which
there exists evidence sufficient for a reasonable jury to find in his favor.” The
decision in Mathews , however, was not based on the Constitution or federal
habeas corpus principles. Rather, it was based on federal common law and rules
and the Supreme Court’s supervisory power over direct appeals. We therefore
conclude the holding in Mathews does not control this habeas case.

                                               -6-
defendant received constitutionally fair trial where presumption of innocence

instruction was not given). “[T]he burden on a petitioner attacking a state court

judgment based on a refusal to give a requested jury instruction is especially great

because ‘“[a]n omission, or an incomplete instruction, is less likely to be

prejudicial than a misstatement of law.”’”         Tyler , 163 F.3d at 1227 (quoting

Maes v. Thomas , 46 F.3d 979, 984 (10th Cir. 1995) (quoting          Henderson , 431 U.S.

at 155)). As a predicate to deciding whether the trial court’s refusal to instruct on

intoxication violated Jackson’s constitutional rights by rendering his trial

fundamentally unfair, this court can examine relevant Oklahoma law.          2

      In Oklahoma, juries may consider voluntary intoxication to determine if

a defendant had the intent to commit first degree murder.          See Bland v. State ,

4 P.3d 702, 715 (Okla. Crim. App. 2000),       cert. denied , 531 U.S. 1099 (2001);

Fitzgerald v. State , 972 P.2d 1157, 1174 (Okla. Crim. App. 1998);          Lamb v. State ,

767 P.2d 887, 889-90 (Okla. Crim. App. 1988). The OCCA, in              Jackson , 964 P.2d

at 891-92, clarified Oklahoma law concerning presentation of an intoxication

defense. That court noted that the trial judge first had a duty to decide whether

2
       This court does not “reexamine state-court determinations on state-law
questions;” rather, this court “is limited to deciding whether [Jackson’s]
conviction violated the Constitution, laws or treaties of the United States.” See
Estelle v. McGuire , 502 U.S. 62, 67-68 (1991); see also King v. Champion ,
55 F.3d 522, 527 (10th Cir. 1995) (“This court may not correct errors of state law
made by state courts.”).

                                             -7-
the defense was adequately raised such that it warranted instruction.   Id. at 891.

“When sufficient, prima facia evidence is presented which meets the legal criteria

for the defense of voluntary intoxication, or any other defense, an instruction

should be given.”   Id. at 892. “A defense of voluntary intoxication requires that a

defendant, first, be intoxicated and, second, be so utterly intoxicated, that his

mental powers are overcome, rendering it impossible for a defendant to form the

specific criminal intent or special mental element of the crime.” Id.; see also

Frederick v. State, 37 P.3d 908, 942 (Okla. Crim. App. 2001) (holding mere

consumption of alcohol and marijuana is insufficient to raise voluntary

intoxication defense without showing consumption prevented defendant from

forming premeditated intent); Bland, 4 P.3d at 718 (upholding trial court’s refusal

to give voluntary intoxication instruction because defendant gave detailed account

of circumstances surrounding crime).

       Applying these standards, the OCCA found that Jackson failed to present

sufficient, prima facie evidence to support giving a voluntary intoxication

instruction:

              We find that Jackson has failed to present evidence that his
       mental powers were so overcome through intoxication that he could
       not form the specific intent to kill. Expert testimony revealed that if
       a person consumed as much alcohol as Jackson claimed to have
       consumed, he would be in a stupor with markedly diminished
       awareness of things going on around him and have diminished ability
       to focus attention and would have severely impaired motor

                                            -8-
      functioning. However, Jackson’s testimony revealed that he did not
      suffer from these conditions.

             Jackson testified that he was aware of things going on around
      him just before and just after the murder. Jackson told Dr. Donica
      that he and Cade were physically fighting in the motel room, they
      interrupted their fighting long enough to make up and have sex, then
      they began hitting each other again. Jackson said he went into the
      bathroom to put on his clothes and Cade came in and started hitting
      him, they both fell to the floor, they both got up, continuing to hit
      each other, then Cade fell to the floor. He left the bathroom and sat
      on the bed, when he went back into the bathroom he saw Cade laying
      on the floor with blood on her. He told [Dr.] Donica that he was
      frightened so he got his clothes on and left. This testimony belied
      Jackson’s defense that he was so intoxicated he could not form the
      requisite intent to kill.

Jackson, 964 P.2d at 892. 3

      In light of the high standards imposed by AEDPA, we conclude that the

failure to give a voluntary intoxication instruction did not render Jackson’s trial

fundamentally unfair. The only evidence in this case supporting a voluntary

intoxication defense is the various statements of Jackson. Jackson’s statements,

3
       Jackson submits the OCCA’s disbelief of his defense caused the court to
engage in review held erroneous in      Hogan v. Gibson , 197 F.3d 1297 (10th Cir.
1999). Hogan , however, is distinguishable. In that case, the OCCA determined
a lesser included offense instruction was unnecessary because sufficient evidence
supported the malice murder conviction.       Id. at 1305. This court held that
determination did not satisfy the requirements of      Beck v. Alabama , 447 U.S. 625,
627 (1980), which requires a court instead to decide whether the defendant
presented sufficient evidence to warrant giving a lesser included offense
instruction. Hogan , 197 F.3d at 1305-06. Unlike in       Hogan , the OCCA in this
case did assess whether Jackson presented sufficient evidence to warrant
intoxication instructions.   See Jackson , 964 P.2d at 892.

                                          -9-
however, were conflicting. During his September 7, 1994, interview with police

detectives, Jackson did not indicate he was too intoxicated to remember the

killing. Although he mentioned drinking in passing, he stressed that he was

angry, on edge and had “blimped out.” On September 16, 1994, Jackson told an

Oklahoma Department of Corrections’ internal affairs investigator that he had one

beer and smoked marijuana and felt “messed up” from them. On June 24, 1995,

Jackson told Dr. Donica about drinking half a quart of 3.2 beer and taking two

puffs from a marijuana cigarette. According to Dr. Donica, this small amount of

beer would have decreased Jackson’s inhibitions against aggressiveness, mildly

impaired his intellectual functioning, and mildly to moderately diminished his

awareness of what he was doing and what was happening. Dr. Donica, however,

did not say Jackson was intoxicated.

      Only later did Jackson indicate he was intoxicated. Fourteen months after

the crime, Jackson remembered consuming the Alize.     On November 27, 1995,

Jackson, for the first time, mentioned to Dr. Donica that he drank the bottle of

liquor. From this new information, Dr. Donica estimated Jackson’s blood alcohol

to have been 0.20 from 11 a.m. to 12:30 p.m., 0.19 at 3 p.m., and 0.12-0.13 at

6:30 p.m. With a blood alcohol of 0.20 or higher, Dr. Donica stated a person may

be in an alcoholic stupor with markedly diminished awareness of anything going

on around him and severely impaired motor functioning. At trial, Jackson

                                        -10-
testified that although he was not sure, he guessed he was drunk and could not

remember the killing both because he was upset and under the influence of

intoxicating alcohol.   Leffette, who first saw Jackson about 6:00 or 6:30 p.m. on

the day of the murder, testified that he was acting fine, did not smell of alcohol

and did not appear intoxicated or under the influence of drugs.

       As the OCCA determined, the evidence did not suggest Jackson was in such

an alcoholic stupor. All of the evidence established that Jackson did consistently

remember after drinking where he went, getting into a fight with Cade, grabbing

her around the neck, leaving the motel, waking up in the field, asking for a ride,

and telling the driver where he wanted to go. Further, Jackson specifically

remembered that while they were in the motel room, Cade ate the chicken she

bought at a fast food restaurant; they had sex; they talked about their relationship;

she got more aggressive as they talked; she followed him into the bathroom

raving, hollering, screaming, kicking and striking him; he hit her to contain

her; and he grabbed her and pulled her towards him after she came into the

bathroom. Thus, Jackson remembered the details of the events before and after

the murder, suggesting he had control of his mental faculties, had coherent

decision-making ability, and was not in a state of intoxication such that his

judgment was impaired.

                                         -11-
      Jackson asserts the OCCA’s dissent correctly decided this case. The

dissent criticized the majority for (1) failing to find sufficient evidence to support

a prima facie case of intoxication; (2) weighing the evidence; and (3) using an

incorrect test by reciting that Jackson had not proved his defense beyond a

reasonable doubt. Jackson, 964 P.2d at 902-03 (Lane, J., dissenting).

      The first criticism is addressed by the prior discussion. Contrary to the

dissent’s assertion, the majority did not weigh the evidence. See id. at 892

(recognizing trial court should not weigh evidence). Nor did the majority require

Jackson to prove his defense beyond a reasonable doubt to obtain instructions on

that defense. While the majority noted that recent Oklahoma law required

a defendant to raise a reasonable doubt about his ability to form requisite criminal

intent, the majority further expressed concern that the test was too stringent.

Id. at 891-92. The majority therefore clarified that if there was sufficient,

prima facie evidence presented, which met the legal criteria for voluntary

intoxication, then the trial court must give a voluntary intoxication instruction.

Id. at 892.

      Before this court, Jackson argues in only very general terms that he was

also entitled to instructions on involuntary intoxication. Neither the OCCA nor

the federal district court specifically addressed the issue. Involuntary intoxication

is a complete defense if the defendant is so intoxicated he cannot distinguish

                                         -12-
between right and wrong. Jones v. State, 648 P.2d 1251, 1258 (Okla. Crim. App.

1982). “Involuntary intoxication results from fraud, trickery or duress of another,

accident or mistake on defendant’s part, pathological condition or ignorance as to

effects of prescribed medication.” Patton v. State, 973 P.2d 270, 290

(Okla. Crim. App. 1998). No evidence in this case supported giving an

involuntary intoxication instruction. Jackson himself testified he assumed the

Alize contained alcohol because it came from a liquor store.

      Given the context of this case, the trial court’s failure to instruct on

intoxication did not rise to the level of error rendering the trial fundamentally

unfair. See Maes , 46 F.3d at 985. Accordingly, the OCCA’s decision was not

unreasonable.   See 28 U.S.C. § 2254(d).

II. Voir Dire

      Jackson argues the voir dire process precluded him from seating a fair and

impartial jury because he did not have an opportunity to ask about any bias and

hostility toward his diminished capacity/voluntary intoxication defense and he

could not determine which jurors to remove with peremptory challenges.           He,

therefore, asserts the trial court denied him his constitutional right to be tried in a

fundamentally fair proceeding.

      Our resolution of the first issue dictates the outcome of this issue.

Nonetheless, upon consideration of the merits, we further conclude the OCCA’s

                                         -13-
decision that the voir dire was constitutionally proper was not contrary to or

an unreasonable application of clearly established Supreme Court precedent.

See id. § 2254(d)(1).

       “This court’s review of the state trial court’s voir dire is ‘limited to

enforcing the commands of the United States Constitution.’”         Neely v. Newton ,

149 F.3d 1074, 1083-84 (10th Cir. 1998) (quoting        Mu’Min v. Virginia , 500 U.S.

415, 422 (1991)) (pre-AEDPA);       see also Sallahdin v. Gibson , 275 F.3d 1211,

1222 (10th Cir. 2002). The underlying purposes of voir dire are to pick an

impartial jury and to assist counsel’s exercise of peremptory challenges.      Mu’Min ,

500 U.S. at 431. Thus, inquiry is permitted to determine if prospective jurors

have any bias, opinion or prejudice that would affect fair determination of the

trial issues. Neely , 149 F.3d at 1084 (citing    Mu’Min , 500 U.S. at 422).

       “[T]he trial court[, however,] retains great latitude in deciding what

questions should be asked on     voir dire .” Mu’Min , 500 U.S. at 424; see also

Rosales-Lopez v. United States    , 451 U.S. 182, 189 (1981) (plurality).   “To be

constitutionally compelled, . . . it is not enough that [certain] questions might be

helpful. Rather, the trial court’s failure to ask these questions must render the

defendant’s trial fundamentally unfair.” Mu’Min, 500 U.S. at 425-26; see also

Ristaino v. Ross, 424 U.S. 589, 594-95 (1976) (“The Constitution does not always

entitle a defendant to have questions posed during voir dire specifically directed

                                           -14-
to matters that conceivably might prejudice veniremen against him. . . . Thus, the

State’s obligation to the defendant to impanel an impartial jury generally can be

satisfied by less than an inquiry into a specific prejudice feared by the

defendant.”) (footnote omitted).

      Addressing whether the trial court allowed Jackson “sufficient voir dire to

determine if there were grounds to challenge a particular juror for cause and to

intelligently exercise his peremptory challenges,” the OCCA determined:

      [T]he trial court did not abuse its discretion in disallowing Jackson’s
      questions regarding his theory of defense. The questions were an
      effort to test jurors’ willingness to accept his theory of defense rather
      than to test their impartiality. Ultimately, instructions on voluntary
      intoxication were not given. Therefore, defense counsel’s proposed
      questions would only have confused the jury.

Jackson , 964 P.2d at 883.

      This determination was not contrary to or an unreasonable application of

clearly established Supreme Court precedent.    See 28 U.S.C. § 2254(d)(1).

Although the trial court refused to allow Jackson to question the venire panel

about his specific defense or its underlying facts, the trial judge did give him

latitude to ask the panel whether they would believe the testimony of

psychologists or psychiatrists. And Jackson’s counsel did ask the prospective

jurors whether they would give credit or weight to psychology and psychiatry

experts and whether they would follow the instructions. Jackson, therefore, did

have an opportunity to ascertain bias or prejudice on the part of the prospective

                                         -15-
jurors. Cf. Sellers v. Ward , 135 F.3d 1333, 1341-42 (10th Cir. 1998) (upholding

trial court’s refusal to allow defendant to ask prospective jurors if they would find

specific facts mitigating);   McQueen v. Scroggy , 99 F.3d 1302, 1328-29 (6th Cir.

1996) (upholding trial court’s refusal to allow specific question concerning

intoxication as mitigating evidence because it implicated legal standard and when

counsel was able to ask other questions concerning juror’s attitudes concerning

alcohol). Further, the permitted questioning was sufficient to allow Jackson to

exercise intelligently his peremptory challenges.

       Even assuming additional questions may have been helpful, in light of the

high standards set by the Supreme Court cases and the great amount of deference

given to trial courts, Jackson has not met his burden of showing the trial court

unconstitutionally restricted his voir dire by refusing to allow him to question the

prospective jurors about intoxication, thereby rendering his trial fundamentally

unfair. See Mu’Min , 500 U.S. at 425-26; Neely , 149 F.3d at 1084. Accordingly,

the OCCA’s determination was not contrary to or an unreasonable application of

clearly established Supreme Court precedent.     See 28 U.S.C. § 2254(d)(1).

                                          -16-
     The judgment of the United States District Court for the Western District

of Oklahoma is AFFIRMED.

                                                 Entered for the Court

                                                 Michael R. Murphy
                                                 Circuit Judge

                                      -17-


18‐1023‐cr
United States v. Eberhardt

                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ).
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.

              At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 4th day of November, two thousand nineteen.

PRESENT:  BARRINGTON D. PARKER,
          DENNY CHIN,
          JOSEPH F. BIANCO,
                      Circuit Judges.
------------------------------------x
UNITED STATES OF AMERICA,
               Appellee,

                             v.                                        18‐1023‐cr

CHRISTOPHER EBERHARDT,
               Defendant‐Appellant.
------------------------------------x

FOR APPELLEE:                                      MONICA J. RICHARDS, Assistant
                                                   United States Attorney, for James P.
                                                   Kennedy, Jr., United States Attorney for
                                                   the Western District of New York,
                                                   Buffalo, New York.

FOR DEFENDANT‐APPELLANT:                           PETER F. LANGROCK, Langrock,
                                                   Sperry & Wool, LLP, Middlebury,
                                                   Vermont.
              Appeal from the United States District Court for the Western District of

New York (Siragusa, J.).

              UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

              Defendant‐appellant Christopher Eberhardt appeals the judgment of the

district court entered April 3, 2018, following his conviction by a jury on one count of

distribution, five counts of receipt, and two counts of possession of child pornography,

and sentencing him principally to 180 monthsʹ imprisonment. Eberhardt argues that

the district court abused its discretion when it denied his motion for a mistrial based on

allegations of prosecutorial misconduct during summation. We assume the partiesʹ

familiarity with the underlying facts, procedural history, and issues on appeal.

              We review the district courtʹs denial of a motion for mistrial for abuse of

discretion. See United States v. Zemlyansky, 908 F.3d 1, 9 n.3 (2d Cir. 2018). ʺWhen

reviewing claims of prosecutorial misconduct based on inappropriate remarks in the

Governmentʹs . . . summation[], we will reverse if the misconduct caused substantial

prejudice by so infecting the trial with unfairness as to make the resulting conviction a

denial of due process.ʺ United States v. Certified Envtl. Servs., Inc., 753 F.3d 72, 95 (2d

Cir. 2014) (internal quotation marks omitted). In determining whether a defendant has

suffered ʺsubstantial prejudice,ʺ we consider the severity of the misconduct, the

measures adopted to cure the misconduct, and the certainty of conviction absent the

                                              2
misconduct. See United States v. Elias, 285 F.3d 183, 190 (2d Cir. 2002). Where

Eberhardt failed to object to statements at trial, we review for plain error. See United

States v. Carr, 424 F.3d 213, 219 (2d Cir. 2005).

1.     The Severity of the Misconduct

                The alleged misconduct falls into three general categories: statements

vouching for the governmentʹs evidence or inserting personal opinion, statements

designed to inflame the juryʹs passions, and statements mischaracterizing or misstating

the evidence.

                As to the first category, Eberhardt contends that the prosecutor engaged in

impermissible vouching and inserted his personal opinion into closing arguments three

times: (1) when he announced to the jury ʺthere is no question that [we] have brought

you the right defendant,ʺ Def. Appʹx at 28; (2) when he referred to the laptop as

Eberhardtʹs ʺprized possession,ʺ saying ʺI think he cared for it a lot,ʺ Def. Appʹx at 32;

and (3) when he described the testimony of the case agent as to the absence of

incriminating evidence on Eberhardtʹs phone using the personal pronoun ʺIʺ five times

and noting the testimony as ʺsignificant.ʺ Def. Appʹx at 41‐42. Eberhardt did not

object to any of these statements at trial.

                As to the second category, Eberhardt argues that the prosecutor inflamed

the juryʹs passions during summation with the following three statements: (1) a

comment that Brian Gayheart was ʺfive or six years youngerʺ than Eberhardt and

                                               3
ʺnever going to leave his parentsʹ home,ʺ Def. Appʹx at 31; (2) the invocation of

testimony concerning statements Eberhardt made about a young boy that would make

the jurors think their children were potential victims, Def. Appʹx at 29‐30; and (3) a

reference to Eberhardtʹs mother as ʺmommy.ʺ Def. Appʹx at 39. Eberhardt objected to

each of these statements, with the court remaining silent as to the first objection and

sustaining the remaining objections.

              As to the third category, Eberhardt argues that the prosecutor three times

misstated or mischaracterized the evidence when he suggested that Eberhardt: (1)

ʺclean[ed] outʺ his cell phone prior to his arrest, Def. Appʹx at 38; (2) viewed

pornography online on his phone after the laptop was seized, Def. Appʹx at 40‐41; and

(3) had a relationship with Christopher Best, the friend who bought Eberhardt the

laptop on which the pornography was found, that was somehow unusual. Def. Appʹx

at 48. Eberhardt objected to each of these statements, and the objections were all

sustained.

              Of the nine statements Eberhardt identifies as misconduct, six were not

inappropriate. With the exceptions discussed below, the prosecutor did not intimate

the existence of additional evidence, improperly inflame the juryʹs passions, or misstate

or mischaracterize the evidence. For example, the prosecutorʹs statements regarding

Eberhardtʹs comments about the young boy appealed to relevant facts and so did not

inflame the juryʹs passions. See United States v. Modica, 663 F.2d 1173, 1180 (2d Cir.

                                             4
1981) (per curiam) (alterations and internal quotation marks omitted). Moreover, the

prosecutorʹs suggestion that Eberhardt had cleared out his cell phone prior to its seizure

was a permissible inference drawn from facts presented at trial. See United States v.

Salameh, 152 F.3d 88, 138 (2d Cir. 1998) (per curiam).

              Three statements, however, were at least arguably inappropriate: the

statement that the laptop was Eberhardtʹs prized possession, the discussion of the case

agentʹs testimony, and the comment about Eberhardtʹs relationship with Best. As to

the first two statements, the government concedes that the prosecutor inserted his

personal opinion. Both statements, however, were couched in a discussion of relevant

evidence, including the evident care Eberhardt showed for the laptop by wrapping it in

its original packaging and storing it in Gayheartʹs closet after each use, and the agentʹs

testimony explaining that one can view pornography on a device without saving it to

that device. To the extent these statements constituted any misconduct, it was mild

and not severe.

              The government concedes that the discussion of the relationship between

Best and Eberhardt mischaracterized the evidence. ʺ[I]t is improper for a prosecutor to

mischaracterize the evidence or refer in summation to facts not in evidence.ʺ United

States v. Rosa, 17 F.3d 1531, 1548‐49 (2d Cir. 1994). When discussing Bestʹs and

Eberhardtʹs relationship, the prosecutor observed that Best was ʺthe one that when he

came back from Afghanistan, we didnʹt hear about gifts for mom or dad or – .ʺ Def.

                                             5
Appʹx at 48. Again, the misstatement was not severe and, as discussed below, was

immediately followed by an objection and curative instruction.

              Even where no single comment by the prosecutor resulted in ʺsubstantial

prejudice,ʺ we must also consider the cumulative impact of improper statements. See

United States v. Melendez, 57 F.3d 238, 241 (2d Cir. 1995). Here, taken in the context of

the trial as a whole, any misconduct constituted an ʺaberration in an otherwise fair

proceeding,ʺ thereby mitigating its severity and foreclosing ʺsubstantial prejudice.ʺ

Elias, 285 F.3d at 191.

2.     Curative Measures

              This Court considers not only the severity of the statement, but also

measures taken to cure any misconduct. See Elias, 285 F.3d at 190. After Eberhardtʹs

counsel objected to the prosecutorʹs comment about Best and moved for a mistrial, the

judge sustained the objected, denied the motion, and immediately instructed the jury

that counselʹs comments were not evidence. These instructions mitigated any

prejudice to Eberhardt. Indeed, the district court reminded the jury throughout the

trial that the lawyersʹ statements were not evidence and should not be considered as

such. See, e.g., Govʹt Appʹx at 22 (instructing the jury prior to opening arguments that

ʺcertain things are not evidence and should be considered by you as such [including]

. . . [s]tatements, arguments, and questions by the lawyersʺ); Govʹt Appʹx at 600 (during

closing arguments stating ʺcomments of counsel are not evidenceʺ); Govʹt Appʹx at 618‐

                                             6
19 (when ruling on an objection during closing arguments stating ʺcomments that

counsel make on summations . . . are not evidenceʺ); Govʹt Appʹx at 659‐60 (during

closing arguments stating ʺ[a]rguments and statements by the lawyers are not

evidenceʺ).

3.    Certainty of Conviction

              Finally, we consider the certainty of conviction in the absence of the

misconduct. See Elias, 285 F.3d at 190. Here, there was no question that child

pornography was found on the laptop recovered from Gayheartʹs closet; the question

was rather to whom the laptop belonged. The government presented overwhelming

evidence that the computer belonged to Eberhardt: three witnesses testified that the

computer belonged to Eberhardt, the registered owner of the laptop was ʺChris E,ʺ who

had logged in 608 times, there were no other user accounts, the laptop was password

protected, and a fragment of data stating ʺmy name is Chris Eberhardt and I live in the

USA my add is po box 125 Fayette NYʺ was recovered from the laptop. In addition,

there was trial testimony that, when law enforcement officers spoke to Eberhardt on

February 13, 2015, he admitted, among other things, that the laptop was his and that he

used it at the Gayheartʹs residence to receive child pornography. Given this evidence,

in all likelihood the jury would have found Eberhardt guilty even absent the improper

comments.

                                             7
              Considering the mildness of the misconduct, the repeated curative

instructions, and the certainty of conviction absent the misconduct, we conclude that

Eberhardt did not suffer ʺsubstantial prejudice,ʺ and, accordingly, that the district court

did not abuse its discretion when it denied the motion for mistrial.

                                      *      *      *

              We have considered all of Eberhardtʹs remaining arguments and find

them to be without merit. For the foregoing reasons, the judgment of the district court

is AFFIRMED.

                                          FOR THE COURT:
                                          Catherine OʹHagan Wolfe, Clerk of Court

                                             8


280 S.C. 479 (1984)
313 S.E.2d 327
Mary Ellen KANE, Respondent,
v.
James F. KANE, Appellant.
0085
Court of Appeals of South Carolina.
Heard November 15, 1983.
Decided February 21, 1984.
*480 Thomas Kemmerlin, Jr. of Sherwood N. Fender & Associates, Beaufort, for appellant.
John Earl Duncan of Rogers, Duncan, Fullwood & Perrin, Lexington, for respondent.
Heard Nov. 15, 1983.
Decided Feb. 21, 1984.
SHAW, Judge:
This appeal is from a divorce decree granting respondent, Mary Ellen Kane, a divorce from appellant, James F. Kane, on the ground of a continuous one year separation. Mrs. Kane brought this action in April of 1980. The parties had obtained a foreign (Dominican Republic) divorce in February of 1977. In contemplation of this foreign divorce, the parties entered into a separation and support agreement in September of 1976. Under this agreement, the parties made provision for, among other things, alimony of $530 per month, child support, and the sale of the marital home. We affirm.
In her petition, Mrs. Kane did not attack the foreign divorce or the agreement. She proceeded as if this was the parties' initial divorce proceeding requesting alimony, child support, attorney's fees, and an equitable distribution of the marital property.
The trial judge held that the foreign divorce was void for lack of jurisdiction and ruled that the agreement was unfair because Mrs. Kane was unaware of her husband's financial status when she signed the agreement. He then made his own award of alimony ($830 per month), child support, and attorney's fees (the judge ruled that a de facto distribution of the marital home had already occurred and that no additional equitable distribution was called for or necessary).
*481 Mr. Kane is appealing only the award of alimony claiming that the Family Court lacked the power and jurisdiction to modify the agreement, that Mrs. Kane is estopped from seeking to change the benefits to which she is entitled under the agreement, and that the agreement was fair when entered.
Mr. Kane initially argues that the agreement between the parties is a true property settlement agreement which may not be modified by the court. Darden v. Witham, 258 S.C. 380, 188 S.E. (2d) 776 (1972). The Supreme Court in Darden ruled that the agreement in question was a true property settlement agreement based on the following factors: the agreement provided for alimony payments over a set period with no termination of payments if the wife should die or remarry; the agreement contained no language authorizing subsequent modification; the agreement was denominated a "separation and property settlement agreement" and was specifically intended to cover all claims arising out of the marital relationship.
Here, the agreement was denominated a "separation and support agreement"; while the agreement did provide for the sale of the marital home, the distribution of the furniture therein, each party's use of a condominium, and the transfer of a car to Mrs. Kane, the primary thrust of the agreement was alimony and support and custody of the children; the alimony payments specifically terminated upon Mrs. Kane's death or remarriage; there was no language authorizing subsequent modification nor any language stating that the agreement was intended to cover all claims arising out of the marital relationship.
The intentions of the parties to a contract of separation must be determined, insofar as possible, from the terms of the contract, and once determined, must be given effect by the court. Weston v. Weston, 210 S.C. 1, 41 S.E. (2d) 372 (1947). Under the agreement, the alimony payments terminated upon Mrs. Kane's death or remarriage. Child support for the minor child ended when the child turned eighteen or entered college, whichever occurred earlier; however, Mr. Kane agreed to help with the expenses of a college education. It appears from the terms of the agreement that alimony and child support were the parties' main considerations. The property distributions here were merely incidental *482 to the separation. Nearly all separation, support, and alimony agreements include some property distributions. It is normal that upon separation an allocation of the property must be made. Winterbottom v. Winterbottom, 268 S.C. 361, 234 S.E. (2d) 14 (1977). When the parties, for their own convenience, dispose of marital property in an agreement primarily intended to cover alimony and child support, the disposition of the property is merely incidental, and a true property settlement is not involved. Winterbottom, supra.
Mr. Kane next argues that Mrs. Kane is estopped from seeking to change the benefits to which she is entitled under the agreement because she consented to the foreign divorce and accepted the benefits under the agreement for nearly four years. In Peoples Nat. Bank of Greenville v. Manos Bros., Inc., 226 S.C. 257, 84 S.E. (2d) 857 (1954), the Supreme Court noted:
The doctrine of estoppel, being an equitable one, is essentially flexible, and therefore to be applied or denied as the equities between the parties may preponderate.
While some cases have held that a spouse may be estopped from attacking an invalid foreign divorce, see Smoak v. Smoak, 269 S.C. 313, 237 S.E. (2d) 372 (1977), or a separate maintenance agreement, see Kendall v. Kendall, 213 S.C. 471, 50 S.E. (2d) 191 (1948), we believe that a person is not estopped to attack a decree of divorce merely by reason of accepting benefits received under the decree. Davis v. Davis, 236 S.C. 277, 113 S.E. (2d) 819 (1960).
The equities of this situation show that Mrs. Kane has a high school education while Mr. Kane has a doctorate. Mrs. Kane was represented by counsel in negotiating this agreement; however, Mr. Kane paid all attorney's fees involved. No financial statements were provided by Mr. Kane to the opposing counsel or to Mrs. Kane. When she signed the agreement, Mrs. Kane was completely unaware of her husband's financial status. Therefore, equity requires that the application of the doctrine of estoppel be denied.
Family Courts ordinarily do not have jurisdiction to enforce contractual agreements not incorporated or merged into court orders. Bryant v. Varat, 278 S.C. 77, 292 S.E. (2d) 298 (1982); Fielden v. Fielden, 274 S.C. 219, 262 *483 S.E. (2d) 43 (1980); Zwerling v. Zwerling, 273 S.C. 292, 255 S.E. (2d) 850 (1979). However, where as here, a party asserts an agreement as a bar to the other party's claim for relief, the court must necessarily decide whether the agreement is a "fair contractual disposition" of the rights and claims of the parties. McKinney v. McKinney, 274 S.C. 95, 261 S.E. (2d) 526 (1980). In effect, this is what Mr. Kane asked the court to do. By raising the agreement in his answer, he conferred jurisdiction upon the Family Court to examine the agreement for fairness. Drawdy v. Drawdy, 275 S.C. 76, 268 S.E. (2d) 30 (1980); Fischl v. Fischl, 272 S.C. 297, 251 S.E. (2d) 743 (1979); see also Section 20-7-420(2), 1976 S.C. Code of Laws (1983 Cum. Supp.).
Based or the evidence, it appears that Mr. Kane did not offer any financial statements and that Mrs. Kane did not request any during the negotiation of the settlement agreement. The negotiations were conducted by separate counsel with each party selecting their own attorney. It is completely unknown that knowledge each attorney had concerning Mr. Kane's financial status and on what information the agreement was based. Without such testimony, it would be impossible for the trial judge to make an informed decision concerning the agreement's fairness.
Having determined that the agreement was unfair, the trial judge properly received full testimony de novo from both parties to determine their actual current financial situation. Mrs. Kane is a high school graduate and holds an hourly wage job. At the time of the hearing she had a take home pay of $180 every two weeks. She stated that her standard of living had deteriorated since the parties' separation. She asked for one thousand dollars per month alimony and five hundred dollars per month as child support for their minor son, Steven.
Mr. Kane is the Dean of the Business School at the University of South Carolina. He holds a doctoral degree. His income for the year prior to the hearing reached ninety four thousand dollars including his salary from the University of South *484 Carolina, from serving on boards of various corporations and from doing consulting work.
The parties were married in 1954 and there were four children, one of whom was a minor at the time of the hearing.
Mrs. Kane followed Mr. Kane while he pursued his education. She maintained the home, helped rear the four children and worked at various jobs throughout the marriage.
The standard of living for both parties was established after Mr. Kane finished his education. His standard has been maintained or improved while Mrs. Kane's has deteriorated. Alimony is not intended to be a reward to one nor a punishment to the other. It is basically for the purpose of maintaining the status quo as near as possible established by the parties.
An award of alimony rests in the sound discretion of the trial judge. Factors to be considered in determining the adequacy of an award of alimony include (1) the financial condition of the husband and the needs of the wife; (2) the health and age of the parties, their respective earning capacities, their individual wealth; (3) the wife's contribution to the accumulation of their joint wealth; (4) the conduct of the parties; (5) the respective necessities of the parties; (6) the standard of living of the wife at the time of the divorce; (7) the duration of the marriage; (8) the ability of the husband to pay alimony; and (9) the actual income of the parties. Lide v. Lide, 277 S.C. 155, 283 S.E. (2d) 832 (1981); Powers v. Powers, 273 S.C. 51, 254 S.E. (2d) 289 (1979); Nienow v. Nienow, 268 S.C. 161, 232 S.E. (2d) 504 (1977).
Mrs. Kane asks that the lower court order be affirmed. The amount accordingly awarded is left largely to the discretion of the trial judge whose judgment will not be disturbed absent an abuse thereof. Powers v. Powers, 273 S.C. 51, 254 S.E. (2d) 289 (1979); Bailey v. Bailey, 269 S.C. 1, 235 S.E. (2d) 801 (1977).
Now, accordingly, the order of the lower court is
Affirmed.
CURETON and GOOLSBY, JJ., concur.


537 U.S. 895
CUMMINGSv.UNITED STATES.
No. 02-5106.
Supreme Court of United States.
October 7, 2002.

1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.

2
C. A. 9th Cir. Certiorari denied. Reported below: 281 F. 3d 1046.


                              NONPRECEDENTIAL DISPOSITION
                                 To be cited only in accordance with
                                         Fed. R. App. P. 32.1

                     United States Court of Appeals
                                     For the Seventh Circuit
                                     Chicago, Illinois 60604

                                      Submitted July 2, 2009∗
                                       Decided July 13, 2009

                                                Before

                                FRANK H. EASTERBROOK , Chief Judge

                                RICHARD A. POSNER, Circuit Judge

                                ILANA DIAMOND ROVNER, Circuit Judge

No. 09-1097                                                       Appeal from the United
                                                                  States District Court for the
UNITED STATES OF AMERICA,                                         Northern District of Illinois,
      Plaintiff-Appellee,                                         Western Division.

                v.                                                No. 93 CR 20024
                                                                  Philip G. Reinhard, Judge.
KARL V. FORT ,
      Defendant-Appellant.

                                                 Order

      The district court sentenced Karl Fort to life imprisonment for cocaine offenses,
and we affirmed. United States v. Edwards, 105 F.3d 1179 (7th Cir. 1997). After the
Sentencing Commission reduced the Guideline range for crack-cocaine offenses, and
made that change retroactive, Fort asked the district court to reduce his sentence. The
request was denied with the observation that Fort and his co-conspirators distributed
so much cocaine (more than 4.5 kilograms) that the revised Guidelines do not affect his
range and therefore do not entitle him to a sentence reduction.

∗ This successive appeal has been submitted to the original panel under Operating Procedure 6(b). After
examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed. R.
App. P. 34(a); Cir. R. 34(f).
No. 09-1097                                                                  Page 2

        Fort does not contest this understanding on appeal. Instead he maintains that he
is entitled to a full resentencing--and thus to the benefit of United States v. Booker, 543
U.S. 220 (2005), and Kimbrough v. United States, 128 S. Ct. 558 (2007)--even though the
Sentencing Commission’s revisions did not affect his range. That argument is
inconsistent with 18 U.S.C. §3582(c)(2), which authorizes a district judge to reduce the
sentence only if a retroactive change to the Guidelines reduces the recommended
sentence range. See United States v. Forman, 553 F.3d 585 (7th Cir. 2008). Moreover, we
held in United States v. Cunningham, 554 F.3d 703 (7th Cir. 2009), that when resentencing
under an amended Guideline, a district judge cannot reduce a sentence by more than
the Commission has authorized.

      For the reasons given in Forman and Cunningham, the decision appealed from is
affirmed.


183 Ga. App. 349 (1987)
358 S.E.2d 837
BASS
v.
THE STATE.
74009.
Court of Appeals of Georgia.
Decided April 28, 1987.
Rehearing Denied June 18, 1987.
John T. Chason, Drew R. Dubrin, for appellant.
Lewis R. Slaton, District Attorney, Paul L. Howard, Joseph J. Drolet, Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.
McMURRAY, Presiding Judge.
Defendant Larry Lamar Bass was indicted for rape, aggravated sodomy and kidnapping. He was tried on August 4 and 5, 1986, and found guilty on all three charges. On appeal the sole error enumerated is the refusal of the trial court to excuse a challenged juror for cause. Held:
During the voir dire of the jury panel, the assistant district attorney asked the prospective jurors collectively if anyone knew or recognized the defendant. A prospective juror named Terrell responded affirmatively, stating that he had been a witness in another case when Bass was brought into the same court for a preliminary hearing. To the question if he thought that would have any effect on any decision he might make in this case, Terrell replied: "Well, the evidence I heard at the time, I think it would." The assistant district attorney then asked Terrell, "and because of what you heard before, you think you're already somewhat prejudiced?" Terrell answered, "I believe what I heard, yes."
When defense counsel undertook his voir dire he directed his questions to Terrell, as follows: "Mr. Terrell, I think you said something *350 earlier about the fact that you were a witness  A. In another case when his [Bass's] case was brought into the city court, and it was bound over. Q. For that reason you feel like you couldn't be a fair and impartial juror? A. I think what I heard at the time, I formed an opinion, yes. [Defense counsel]: Your honor, I'm going to ask that he be excused for cause. The Court: Well, the test is whether or not you will follow and be controlled by the evidence and the instructions of the court. The Juror: I could be, yes. The Court: You would follow the evidence and be controlled by it? The Juror: Yes. The Court: And follow instructions of the court and apply the law as the court gives you in its charge? The Juror: Yes, sir. [Defense Counsel]: Your honor, I think he said he could be influenced by the court. And I think the terminology by your honor was he would be. From that reason I'd like to ask him a few more questions. The Court: No, sir, I think that is adequate. I think that I'm satisfied he said he would follow the evidence, be guided by the evidence and the instructions of the court. [Defense Counsel]: So you were in court when he [Bass] was in city court? The Juror: On another case, yes. [Defense Counsel]: Okay. And at that time you did form some opinion? The Juror: From what I heard, I did form an opinion, yes."
After the jury was selected and sworn without reaching Terrell, they were excused from the courtroom and the following colloquy ensued: "[Defense Counsel]: May it please the court, as far as the voir dire is concerned, I have this objection. I would ask your honor to strike the entire jury panel, because your honor left a juror on there that was in attendance at the preliminary hearing on this case of Mr. Bass, heard evidence about the case and I think the question by the court, leading question by the court, as a matter of fact, cannot cure any things he has heard in person. The Court: Now you see, that is the trouble that we get into about the jurors speaking out, not speaking out. Quite candidly I didn't understand. I thought he was speaking of some other preliminary hearing, not the one in this particular case. [Defense Counsel]: Well, he was present when this case  The Court: I caught that part. [The State]: Well, your honor, in any rate, the latter juror that was empaneled was juror number 41. The man that [defense counsel] is talking about, Mr. Terrell was juror number 46. We didn't even get to that point. [Defense Counsel]: Your honor, what happened is this. That I had to rearrange my  The Court: Well, this man sat, I couldn't hear. Tell you the truth that is the reason I got up and walked down there. I don't often do that, but I went down there so I could see if I could hear what they were saying. But I missed out on one juror, if that is the one I am thinking about, who I understood said that he had been at a preliminary hearing on the rape case. [Defense Counsel]: On Mr. Bass's case. Heard evidence when Mr. Bass was present. The Court: Is that the one? [Defense *351 Counsel]: Yes, sir. [The State]: Well, your honor, I would contend that the juror, I think the court came down to make sure that the juror said that he could be a fair and impartial juror. The Court: Well, I came down to try and hear what they were saying. [Defense Counsel]: He was already down there. The Court: Because I can't hear. I really can't and counsel can't either, as a matter of fact. [The State]: Well, your honor, as the state indicates, the last juror that was impaneled was juror number 41. And we had a jury of 12. And the other juror that [defense counsel] made reference to was juror number 46, somebody we didn't even reach anyway. We already had a jury by that time. He did not have to use a strike to remove that juror.... The Court: Oh, we didn't reach that juror. [Defense Counsel]: Well, your honor, I think the reason we didn't reach it, because we had alternate jurors to consider and I had to rearrange, I had to make sure I saved a strike for that one juror who had already seen part of the trial, and even though we did not reach him, it is possible we could have reached him because the state still had about five or six strikes. I had strikes and I had to use up my strikes saying to myself I have got to save one of these strikes for that man who has already heard part of a trial and has formed an opinion about the case and has told other jurors he has heard part of the case and has formed an opinion, which brings up another matter. The Court: Overrule the motion.... [Defense Counsel]: Yes, sir. But I have another motion on the same juror. That motion is that he stated that he had heard part of the trial in which he, Mr. Bass, was at the preliminary hearing. Mr. Terrell was at another hearing in the same courtroom listening and heard part of the evidence and said he had formed an opinion about the case and the other jurors heard that. Here's a juror that has heard evidence about the case and had already formed an opinion. He informed 48 other jurors in the courtroom or whatever that he had formed an opinion that this man was guilty by hearing part of the case already. The Court: He didn't say that. If he did, I didn't hear him. [Defense Counsel]: For that reason I would ask that this panel be stricken. The Court: All right. Overrule. Take a recess. [Defense Counsel]: Another issue, your honor, is along the same lines on the same juror, is that the juror, I think only acquiesced in leading questions by the court and I think that the fact that a juror shall be fair and impartial should come from the juror himself...."
From this necessarily lengthy quotation of the trial transcript, it becomes obvious that Terrell had formed a definite opinion as to defendant's guilt or innocence; that he was not asked nor did he state whether he could be a fair and impartial juror; that the court's questions went only to whether Terrell would follow the evidence and instructions of the court; and that the judge could not hear all of Terrell's responses and was mistaken as to what he actually said. Since *352 defendants rarely put up evidence to rebut a showing of probable cause, it seems inevitable that Terrell would have decided that Bass was guilty from what he heard at the preliminary hearing where the State's evidence was that a crime had been committed and the defendant had committed the crime. See, e.g., Daniel, Ga. Criminal Trial Practice (1985 ed.), § 11-2. In any event, "a juror who from having heard any of the testimony delivered on oath [in this case at a coroner's inquest] has formed and expressed any opinion in regard to the guilt or innocence of the [accused] at the bar [cit.], is incompetent and shall be set aside for cause. [OCGA § 15-12-164.]" Douberly v. State, 184 Ga. 573, 576 (7) (192 SE 223) (1937). The examination conducted by the trial court included no inquiry as to whether Terrell's mind was "perfectly impartial" between the State and the accused as required by OCGA § 15-12-164 (a) (3), even though the judge thought it had occurred and so stated in overruling defendant's objections. We feel it is clear that this prospective juror should have been excused for cause.
However, since Terrell did not serve on the jury, being venireman number 46 on the panel and not reached before the jury and alternate were selected, the issue here is whether this error requires reversal. The State argues that the question is controlled by King v. State, 177 Ga. App. 788 (1) (341 SE2d 307) (1986), wherein this court held that when a jury is selected prior to reaching the offending juror and the defendant has strikes remaining, the error is harmless. King v. State, supra, was decided on February 12, 1986, but on February 25, 1986, the Supreme Court in Harris v. State, 255 Ga. 464 (339 SE2d 712) (1986) (a non-death penalty murder case) adopted the concurring opinion of Justice Gregory in Blankenship v. State, 247 Ga. 590, 597 (277 SE2d 505) (1981) (a death penalty murder case), which had rejected the harmless error rule when the trial court has refused to strike "an unqualified juror" and the defendant has not utilized all of his peremptory strikes.
Justice Gregory reasoned that under the mechanics of the jury selection procedure, such a complex and highly variable sequence of events may occur that the harmless error rule should not be followed. The court in Harris v. State, supra, agreed, stating that "a true determination of the harm caused by a trial court's refusal to strike an unqualified juror would require omniscience. The defendant's use of his peremptory strikes will thus no longer play a role in our evaluation of the harm caused by the refusal to strike an unqualified juror. A defendant is entitled to a panel of forty-two qualified jurors. OCGA § 15-12-160.... The defendant's failure to exhaust his peremptory strikes before the twelfth juror was impaneled does not render the error harmless. This ruling will apply to trials commencing after the date of publication..." Harris v. State, 255 Ga. 464, supra at 465.
*353 Defendant's attorney, in fact, argued to the trial court that his peremptory strike strategy was adversely affected by the failure to disqualify Terrell, and also that Terrell's statements in regard to his pre-formed opinion of defendant's guilt had conceivably affected the entire panel of veniremen. In light of the reasoning and ruling in Harris v. State, supra, we are unable to conclude that the trial court's error in refusing to excuse Terrell for cause was harmless and are bound to reverse the case sub judice in order that a new trial may be conducted before a properly drawn jury.
Judgment reversed. Sognier and Beasley, JJ., concur.

ON MOTION FOR REHEARING.
Relying upon Pope v. State, 256 Ga. 189, 195 (345 SE2d 831), the State again argues that any error regarding Terrell was harmless since he was the 46th venireman. In Pope v. State, supra, the Supreme Court restated the rule that errors regarding a prospective juror "qualified 43rd or later" are to be deemed harmless. This rule does not conflict with our holding in the case sub judice. Although Terrell was the 46th venireman, he was the 38th qualified juror.
Judgment adhered to.


63 F.Supp.2d 1278 (1999)
Thien Van VO, Petitioner,
v.
Joseph GREENE, District Director, United States Immigration and Naturalization Service, Denver, Colorado, Respondent.
Arounkon "Tay" Saynourath, Petitioner,
v.
Joseph Greene, District Director, United States Immigration and Naturalization Service, Denver, Colorado, Respondent.
Civil Action Nos. 98-WM-2427, 98-WM-2428.
United States District Court, D. Colorado.
August 31, 1999.
*1279 James Salvator, Lafayette, CO, for petitioners.
Michael Hegarty, Assistant U.S. Attorney, Denver, CO, for respondent.

MEMORANDUM OPINION AND ORDER
MILLER, District Judge.
These related cases are before me on the petitioners' applications for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2241. Petitioners are subject to final orders by the United States Immigration and Naturalization Service (INS) for deportation to countries that refuse to readmit them. They contend their indefinite detention by defendant, pending deportation, deprives them of substantive and procedural due process in violation of the Fifth Amendment. They seek release on bond upon reasonable terms. Under the circumstances of these cases, I conclude the petitioners are entitled to relief.

Background: 98-WM-2427
Petitioner Thien Van Vo is a Vietnamese citizen who has been a lawful permanent resident of the United States since he immigrated to this country in 1991 at the age of fifteen. In 1995, he was convicted of second degree sexual assault and sentenced to probation; this crime qualifies as an aggravated felony under the Immigration and Nationality Act. 8 U.S.C. § 1101(a)(43)(A). He completed his probation successfully.
On March 26, 1998, the INS took him into custody, charging in a Notice to Appear that he was removable from the United States as an alien convicted of an aggravated felony. On April 13, 1998, the parties stipulated to a bond of $30,000. At a hearing on the merits held April 30, 1998, the immigration judge found Vo was removable to Vietnam. This decision became the final administrative order when Vo waived his right to appeal.
Vo never posted the $30,000 bond. He has remained in INS custody because the government of Vietnam has not responded to the INS's request for a travel document. The declaration of Patrick O'Reilly, a staff officer for the INS, acknowledges that the government of Vietnam has not honored the INS's request for travel documents for persons in Vo's circumstances. Government Exhibit 1. This has been the case for some time. At best, the declaration gives vague hope that sometime in the future the government may negotiate a "repatriation agreement" with Vietnam.[1]
As a result of the inability of the INS to deport him, Vo has been detained beyond the ninety-day removal period, provided in 8 U.S.C. § 1231(a)(2), because he is an aggravated felon. See §§ 1227(a)(2)(A)(iii), 1231(a)(6).
On August 19, 1998, pursuant to INS policy, a Long Term Review Panel reviewed Vo's detention status for release. The Panel recommended continued detention. *1280 Then, pursuant to 8 C.F.R. § 241.4, entitled "Continued detention beyond the removal period," Vo's detention status was again reviewed by the INS, supposedly in accordance with memoranda dated February 3, 1999, and April 30, 1999, from Michael A. Pearson, Executive Associate Commissioner of the INS, concerning "Detention Procedures for Aliens Whose Immediate Repatriation is not Possible or Practicable." See Exhibit B to defendant's Supplemental Brief. This Section 241.4 review was conducted by two staff persons who recommended continued detention. Respondent Greene accepted that recommendation. See Custody Review Pursuant to 8 C.F.R. 241.4, in Vo's Administrative ("A") File.

Background: 98-WM-2428
Petitioner Arounkon "Tay" Saynouroth is a native of Laos. He has been a lawful permanent resident of the United States since 1982, when he arrived here at age six. He was convicted of theft in 1994 and menacing in 1995; he received a one-year sentence of imprisonment for the latter conviction.[2]
In April 1997, the INS took Saynouroth into custody, charging that he was deportable based on his convictions. On June 18, 1997, an immigration judge ordered him deported; Saynouroth failed to appeal, and this order became the final administrative decision. Laos has refused to issue the necessary travel documents, and Saynouroth has remained in INS custody since April 1997.
The government has provided a second declaration of Patrick O'Reilly to the effect that Laos currently is not issuing travel documents for persons, such as Saynouroth, who departed Laos without a passport and exit visa.[3] The likelihood of Saynouroth's deportation may be even more tenuous than that of Vo; Mr. O'Reilly's declaration indicates that no repatriation agreement with Laos is even in the discussion stage. See note one, supra.
Like Vo, Saynouroth has continued in detention beyond the removal period because of his status as an aggravated felon. See § 1227(a)(2)(A)(iii).
In August 1998, a custody review panel interviewed Saynouroth in connection with a review of his detention status. Saynouroth was represented by present counsel at his interview. The two panel members were unable to conclude that Saynouroth would not be likely to pose a threat to the community. See "A" File, submitted by respondent. This determination was reviewed by two deportation officers on September 29, 1998, and by assistant district counsel for the INS, Weldon S. Caldbeck, on October 7, 1998. It became final with the respondent's approval on October 8, 1998. Although Director Greene testified that each detainee should have his status reviewed every six months, the record before me contains no evidence that Saynouroth has been given a review pursuant to 8 C.F.R. § 241.4.
Both petitioners are confronted with the reality of detention for the foreseeable future. With the almost 20 years' detention of the Mariel Cubans[4] as a troubling precedent, they face indefinite confinement that could be a virtual life sentence.

Issues
This case presents two issues:
Does the Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) deprive this court of jurisdiction to *1281 consider a habeas petition filed under 28 U.S.C. § 2241 challenging the constitutionality of a person's detention by the INS?
May legal aliens subject to non-appealable, final orders of deportation to countries that refuse to accept them be detained indefinitely without violating due process?

Jurisdiction
The government has challenged my jurisdiction to hear this matter, asserting that IIRIRA deprived district courts of jurisdiction to consider habeas petitions filed under 28 U.S.C. § 2241. Specifically, 8 U.S.C. § 1252(g) provides:
Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or to execute removal orders against any alien under this Act.
Although this language is of broad sweep, the question remains whether its intent was to deprive this court of its authority under section 2241 to hear and determine fundamental constitutional issues such as the liberty interest question presented here. The repeal of habeas jurisdiction by implication is not favored. Felker v. Turpin, 518 U.S. 651, 116 S.Ct. 2333, 2338-39, 135 L.Ed.2d 827 (1996) (citing Ex parte Yerger, 75 U.S.(8 Wall.)85, 19 L.Ed. 332 (1868)). IIRIRA does not expressly repeal section 2241, and, in the absence of clear evidence of congressional intent, this court's jurisdiction pursuant to section 2241 should be maintained for the issues of this case.
Neither the Supreme Court nor the Tenth Circuit has decided that precise issue. Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, ___ n. 7, 119 S.Ct. 936, 942 n. 7, 142 L.Ed.2d 940 (1999); Fernandez v. Immigration and Naturalization Serv., 113 F.3d 1151, 1154-55 (10th Cir.1997) (declining to consider whether Antiterrorism and Effective Death Penalty Act of 1996 left available habeas claims). See also Jurado-Gutierrez v. Greene, 190 F.3d 1135 n. 8 (10th Cir.1999) (expressing no opinion regarding whether 8 U.S.C. § 2252, as amended by IIRIRA, curtails traditional habeas corpus review under 28 U.S.C. § 2241). There is a split of authority among other courts, see American-Arab, 525 U.S. at ___ n. 7, 119 S.Ct. at 942 n. 7 and cases cited therein, but I must agree with my colleagues, Judge Weinshienk and Judge Babcock, that IIRIRA does not deprive this court of jurisdiction to hear habeas petitions for alleged substantial constitutional violations. Jurado-Gutierrez v. Greene, 977 F.Supp. 1089, 1091 (D.Colo.1997); Martinez v. Greene, 28 F.Supp.2d 1275, 1279 (D.Colo.1998). The review of the constitutionality of deprivation of liberty by executive detention certainly qualifies as a substantial issue. It is the appropriate subject of this court's jurisdiction. Phan v. Reno, 56 F.Supp.2d 1149 (W.D.Wash. 1999) (1999 WL 521980); Sandoval v. Reno, 166 F.3d 225 (3d Cir.1999); Henderson v. INS, 157 F.3d 106 (2d Cir. 1998), cert. denied, ___ U.S. ___, 119 S.Ct. 1141, 143 L.Ed.2d 209 (1999); Goncalves v. Reno, 144 F.3d 110 (1st Cir. 1998), cert. denied, ___ U.S. ___, 119 S.Ct. 1140, 143 L.Ed.2d 208 (1999).

Discussion
In these cases, both petitioners are lawful resident aliens who have resided in this country a significant portion of their lives. Both were convicted of aggravated felonies, and both completed the sentences imposed. As a result of their convictions, petitioners were ordered deported. Both orders of deportation are final, and petitioners do not challenge them here.
Petitioners do challenge, however, the nature of their detention by respondent pending deportation. Because their native countries have thus far refused to issue the *1282 necessary documents allowing their deportation from the United States, they have been, are, and, absent the unforeseen, will continue to be subject to indefinite detention. As a consequence, petitioners assert their challenge to their detention is constitutional rather than statutory. Petitioners rely heavily on Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382 (10th Cir.1981), an early Mariel Cuban case, as Tenth Circuit precedent that INS detention in the absence of a meaningful likelihood that the detainee's country will accept him is "impermissible punishment rather than detention pending deportation." Id. at 1387. See also Tam v. Immigration and Naturalization Serv., 14 F.Supp.2d 1184, 1192 (E.D.Cal.1998) ("At some point, indefinite detention of a deportable alien caused by an unenforceable INS order must intersect with the Constitution"); Hermanowski v. Farquharson, 39 F.Supp.2d 148, 157 (D.R.I.1999) ("[E]ven deportable aliens enjoy some measure of the due process right to be free from unreasonable detention by the government").
The INS response focuses on the statutory justifications for its actions, arguing that the detentions are pursuant to law and regulation, that its interpretation and enforcement of immigration laws are entitled to Chevron deference,[5] and that its actions, pursuant to the statute and regulations, were not violative of the petitioner's constitutional rights.[6] The government uses later Mariel Cuban cases in an attempt to distinguish Rodriguez-Fernandez and to argue that the statute and regulations, particularly with periodic review of detention, are not violative of petitioner's constitutional rights. See Barrera-Echavarria v. Rison, 44 F.3d 1441 (9th Cir.), cert. denied, 516 U.S. 976, 116 S.Ct. 479, 133 L.Ed.2d 407 (1995). This includes the argument that Rodriguez-Fernandez is distinguishable because of significant changes in the statutes and regulations since the 1981 decision, which have led to different results even within the Tenth Circuit. See Rodriguez v. Thornburgh, 831 F.Supp. 810, 812 (D.Kan. 1993); Barrios v. Thornburgh, 754 F.Supp. 1536, 1540 (W.D.Okla.1990) (distinguishing Rodriguez-Fernandez and following contrary authority because of change of procedures).
The government's reliance on Mariel Cuban cases is misplaced as this case is readily distinguishable.[7] The Mariel Cubans are "excludable" aliens. The petitioners are "deportable" aliens. An "excludable" alien is one seeking admission to this country as a privilege. He "has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative." Landon v. Plasencia, 459 U.S. 21, 103 S.Ct. 321, 329, 74 L.Ed.2d 21 (1982). Excludable aliens, like the Mariel Cubans, may be denied due process rights, "including the right to be free of detention." Gisbert v. U.S. Attorney General, 988 F.2d at 1442. See also Barrera-Echavarria v. Rison, 44 F.3d at 1449-1450 (excludable alien has "no constitutional right to be paroled into *1283 the United States, even if the only alternative is prolonged detention").
Petitioners are not "excludable," as they are permanent legal residents of the United States who may be deported and are generally classified as "deportables." Once aliens are admitted, their constitutional status changes so that they enjoy rights to due process. Landon v. Plasencia, 103 S.Ct. at 329. Those constitutional rights include a fundamental liberty interest in being free from incarceration under the Fifth Amendment. Phan v. Reno, 56 F.Supp.2d 1149 (W.D.Wash.1999) (1999 WL 521980 at *4); Hermanowski v. Farquharson, 39 F.Supp.2d at 157; Tam v. INS, 14 F.Supp.2d at 1190.
If this distinction is recognized then different results would obtain depending upon the petitioners' classification. However, the recent decision of Zadvydas v. Underdown, 185 F.3d 279 (5th Cir.1999) expressly rejects this distinction when the alien residents, like petitioners, are subject to a final order of deportation. In that circumstance, the court concluded that there is little, if any, basis for distinguishing between deporting a resident alien and expelling an excludable alien since both are subject to irrevocable decisions to expel and their status before the plenary jurisdiction of the United States is identical. Id. at 296-97. The Zadvydas court interprets the holding of Landon as granting lawful resident aliens only procedural due process rights before removal, as opposed to a "broadly privileged constitutional status" in relation to excludable aliens.
I decline to follow this reasoning. The Rodriguez-Fernandez v. Wilkinson case remains Tenth Circuit precedent that indefinite detention of an excludable alien amounts to impermissible punishment. 654 F.2d at 1387. Necessarily, the same would apply to deportable aliens such as petitioners. Further, although Landon is a procedural due process case, its broad language recognizing the constitutional right of lawfully admitted aliens to due process contains no such limitations. 103 S.Ct. at 329 ("permanent resident alien has a right to due process ..."). Similar broad language that the Fifth Amendment protects aliens from deprivation of liberty without due process (see Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 1890, 48 L.Ed.2d 478 (1976)) should not be read to exclude protection of substantive due process rights.
Moreover, given that resident aliens have acknowledged constitutional rights, we cannot make those rights vanish by the legal expedient of a final order of deportation. In so concluding, the Fifth Circuit compounds legal fictions. Denial of constitutional rights to the excludable alien rests on the fiction that, although an alien is physically present in the United States, his "detention ... is only a continuation of exclusion." Rodriguez-Fernandez v. Wilkinson, 654 F.2d at 1387. See also Phan v. Reno, 1999 WL 521980 at *3-4. The Zadvydas court builds upon this fiction by equating the deportable alien with the excludable once the deportation order is final. The court ignores the facts of admission and acquired constitutional status, classifying the resident alien as if his detention were the continuation of exclusion. I disagree. The distinction between "deportable" and "excludable" should be maintained beyond the entry of a final order of deportation.[8]
Otherwise, the heart of the government's argument is that the plenary power given our political branches to regulate immigration necessitates a limited, deferential review of the agency's action by the court. Immigration and Naturalization *1284 Serv. v. Aguirre-Aguirre, 526 U.S. 415, ___, 119 S.Ct. 1439, 1445, 143 L.Ed.2d 590 (1999). It is beyond cavil that "the power to expel or exclude aliens [is] a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control." Shaughnessy v. U.S. ex rel Mezei, 345 U.S. 206, 73 S.Ct. 625, 628, 97 L.Ed. 956 (1953). This "plenary power" is far reaching. "[O]ver no conceivable subject is the legislative power of Congress more complete." Reno v. Flores, 507 U.S. 292, 113 S.Ct. 1439, 1449, 123 L.Ed.2d 1 (1993) (alteration in original; internal quotations omitted). See also Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 29 S.Ct. 671, 676, 53 L.Ed. 1013 (1909). This includes the power of Congress to impose rules that would otherwise be improper if applied to citizens. Mathews v. Diaz, 96 S.Ct. at 1891.
The government then contends that these basic principles require that I apply the lesser standard of whether the applicable statutes and regulations advance a legitimate governmental purpose in order to survive a constitutional challenge. See Reno v. Flores, 113 S.Ct. at 1449. The government misapplies the law. The issues of this case are not ones of interpretation or administration of a regulation. This case concerns the deprivation of liberty, triggering the strict scrutiny standard: any infringement must be narrowly tailored to serve a compelling state interest. Id. at 1447; United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 2101, 95 L.Ed.2d 697 (1987); Martinez v. Greene, 28 F.Supp.2d at 1281. I apply that standard in my review of the substantive and procedural due process issues.

1. Substantive Due Process

I begin with the analysis of whether the petitioner's substantive due process rights have been unlawfully infringed. If the government's actions survive substantive due process scrutiny, then I must still determine whether the requirements of procedural due process have been met. United States v. Salerno, 107 S.Ct. at 2101.
On the record before me[9] petitioners are both subject to at best indeterminate and at worst life detention. Plainly, the fundamental liberty interest of the due process clause is at issue. "Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action." Foucha v. Louisiana, 504 U.S. 71, 112 S.Ct. 1780, 1785, 118 L.Ed.2d 437 (1992) (quoting Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 2458, 73 L.Ed.2d 28 (1982); omitting alteration in quotation). "In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception." United States v. Salerno, 107 S.Ct. at 2105.
As the Washington panel observed:
Petitioners' liberty interest is fundamental and deserving of due process protection.
As a general rule, government invasions of fundamental liberty interest are subject to strict scrutiny review: a deprivation will comport with due process only if it is narrowly tailored to serve a compelling government interest.
Phan v. Reno, 56 F.Supp.2d 1149, 1154.
When determining whether detention serves a compelling government interest, I should first decide "whether the detention is imposed for the purpose of punishment or whether it is merely incidental to another legitimate governmental purpose." Gisbert v. United States Attorney General, 988 F.2d at 1441 (citing Schall v. Martin, 467 U.S. 253, 104 S.Ct. 2403, 2412, 81 L.Ed.2d 207 (1984)). There is no evidence before me, in the record of this case or in the legislative history and text of IIRIRA, that the government intended petitioners' *1285 detention as punishment, and the government disclaims any punitive purpose.
In the absence of any intent to punish, I will consider whether there is an alternative purpose rationally connected to the detention and whether the detention appears excessive in relation to the alternative purpose. Gisbert, 988 F.2d at 1441-42. There are rational reasons for continued detention of aliens convicted of an aggravated felony: "(1) ensuring the removal of aliens ordered deported; (2) preventing flight prior to deportation; and (3) protecting the public from dangerous felons." Phan, 56 F.Supp.2d at 1154-1155. Accordingly, the narrow issue before me is whether the detention of petitioners is excessive in relation to these purposes.
I agree with the panel of Washington judges that one must balance the likelihood of deportation against the potential danger of the petitioner and the risk that he will abscond. If it is less likely that the government can actually deport the alien, then:
the government's interest in detaining that alien becomes less compelling and the invasion into the alien's liberty more severe. Dangerousness and flight risk are thus permissible considerations and may, in certain situations, warrant continued detention, but only if there is a realistic chance that an alien will be deported. Detention by the INS can be lawful only in the aid of deportation. Thus, it is "excessive" to detain an alien indefinitely if deportation will never occur.

Id. (emphasis added)
In both these cases, actual deportation is unlikely for the foreseeable future. Accordingly, the government's interest in detaining the petitioners is less compelling, and its detention of petitioners becomes a more severe infringement upon their liberty interests.
One could logically extend the Washington panel's reasoning to mean that when the government is unable to fulfill its deportation purpose, the limitation of the liberty interest cannot survive. As the subsequent decisions of the Washington court make clear, however, I should balance the ongoing interest of the government to effect deportation with the petitioners' liberty interest, their threat to the community, and the likelihood that petitioners will abscond if released. See Sivongxay v. Reno, 56 F.Supp.2d 1167 (W.D.Wash.1999) (1999 WL 521988); Phan v. Smith, 56 F.Supp.2d 1158 (W.D.Wash. 1999).
Concerning Vo, although convicted of second degree sexual assault, he has never been incarcerated but instead was sentenced to probation that he successfully completed. In addition, the government at one point agreed to release him upon bond. On the other hand, based upon the fact that he has been convicted of serious crimes, he may pose some potential danger to the community. Balancing that potential risk against his rights to liberty and the fact there is no evidence that he would be a risk of flight, I conclude that his continued indefinite detention violates his substantive due process rights as a matter of law. Phan v. Smith, 56 F.Supp.2d at 1159-60.
With regard to Saynouroth, although his criminal record is more extensive, he again has served the time allotted for those crimes and, were he a citizen rather than a resident alien, he would not be detained. Again weighing his liberty interest  enhanced by the indeterminate term of detention  I conclude that further detention violates his substantive due process rights as a matter of law.
My conclusions in this regard do not exclude ongoing supervision or bond requirements to serve the governmental interest of insuring removal of aliens ordered deported and preventing their flight to avoid deportation. I also note that the petitioners both asked that they be released on bond.

*1286 2. Procedural Due Process

Although I have determined the continued detention of petitioners is a violation of their substantive due process rights, I also consider whether the detention passes muster under a procedural due process analysis.
Rodriguez-Fernandez found no circumstances to justify the continued detention of an excludable alien who had committed no crime in the United States, analogizing detention pending deportation to "incarceration pending trial or other disposition of a criminal charge," concluding it is "justifiable only as a necessary, temporary measure." 654 F.2d at 1387.
The standards for pretrial detention are articulated in United States v. Salerno. The Supreme Court upheld provisions of the Bail Reform Act of 1984 allowing pretrial detention of persons charged with specific crimes. The Court rejected a due process challenge to the statute, concluding the government's regulatory interest in community safety outweighed an individual's liberty interest under the circumstances contemplated by the Act.[10] The Court relied upon the procedural protections of 18 U.S.C. § 3142 in holding the Act was not facially unconstitutional. 107 S.Ct. at 2103-04.
Under the Bail Reform Act, a pretrial detainee has the following rights: (1) to a finding by a neutral decision maker of probable cause to believe that the arrestee committed the charged crime; (2) to representation by counsel at the detention hearing; (3) to testify in his or her own behalf, to present information by proffer or otherwise, and to cross-examine witnesses who appear at the hearing; (4) to a judicial decision guided by statutorily enumerated factors, including the nature and circumstances of the charges, the weight of the evidence, the history and characteristics of the putative offender, and the danger to the community; (5) to require the government to prove its case by clear and convincing evidence; (6) to written findings of fact and a written statement of reasons for a decision to detain; and (7) to seek review or appeal of a detention decision. 18 U.S.C. § 3142; Salerno, 107 S.Ct. at 2104. Further, "[t]he Bail Reform Act carefully limits the circumstances under which detention may be sought to the most serious of crimes." Salerno, 107 S.Ct. at 2101. See 18 U.S.C. § 3142(f)(1).[11]
Of the procedural requirements of the Bail Reform Act listed above, it is significant that the burden remains on the government to prove by clear and convincing evidence that no condition or combination of conditions or release will reasonably assure the appearance of the criminal defendant and the safety of any other person and the community.
The regulations applicable to petitioners' detention reverse this burden. 8 C.F.R. § 241.4 permits respondent to continue to detain petitioners "beyond the removal period, as necessary, until removal from the *1287 United States."[12] The burden is on each petitioner to demonstrate by clear and convincing evidence that his release "would not pose a danger to the community or a significant flight risk[.]" § 241.4(a). Even then, however, the decision to release the petitioners remains within the discretion of respondent. Id.
Further, the regulations do not contain any of the procedures cited with approval in Salerno. Petitioners are not guaranteed representation, a hearing, the right to testify, a neutral decision maker, or the right to appeal an adverse decision. Instead, they receive only summary review by an INS officer who fills out a form that is then forwarded to the respondent for approval.[13] Indeed, Respondent Greene acknowledged he was not a neutral decision maker.
Although the respondent has produced internal guidelines providing some measure of protection to aliens in petitioners' position, respondent admitted that the procedures were not followed in these cases. There is no evidence that respondent accorded petitioners' custody status meaningful and impartial review. "The absence of any individualized assessment or consideration of the petitioners' situations in light of the pertinent factors set forth in the regulations violates their procedural due process rights." Phan, 56 F.Supp.2d 1149, 1157. Perfunctory review by INS staff is not adequate process.
Based upon the record before me, I conclude the procedural measures provided petitioners did not meet the requirements of due process under the Fifth Amendment.[14]
Therefore, I find that petitioners are entitled to habeas relief under the circumstances of these cases, subject to reasonable bond terms.
Accordingly, it is ordered:
1. The applications for writ of habeas corpus are granted, subject to reasonable bond terms.
2. Judgment shall enter in favor of petitioners.
3. The parties are directed to agree on bond terms consistent with 8 C.F.R. § 241.5 on or before September 10, 1999. If no agreement can be reached, bond will be set by the court.
4. Petitioners shall remain in custody pending release on bond.
5. Petitioners may have their costs, but their requests for attorneys' fees are denied.
NOTES
[1]  No immediate action should be anticipated. Mr. O'Reilly reports that, although the United States government "is increasingly normalizing its relations with Vietnam," the return of Vietnam nationals "is a sensitive and complicated matter for both governments." Declaration, ¶¶ 4, 5. In May 1998 Vietnam invited the United States to submit a proposed repatriation agreement for negotiation. As of the date of the hearing in this matter, the government had not yet done so.
[2]  The theft offense is an aggravated felony. § 1101(a)(43)(G).
[3]  Saynouroth and his family arrived in the United States under a refugee status.
[4]  The Mariels are Cuban citizens who came to the United States in 1980 in boat lifts from Mariel, Cuba. They were excluded or denied admission, and detained to be returned to Cuba. Cuba has refused to accept them. See Gisbert v. United States Attorney General, 988 F.2d 1437 (5th Cir.1993); Barrera-Echavarria v. Rison, 44 F.3d 1441 (9th Cir.), cert. denied, 516 U.S. 976, 116 S.Ct. 479, 133 L.Ed.2d 407 (1995).
[5]  Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (the court should give deference to the agency's interpretation of the statute it administers). Immigration and Naturalization Service v. Aguirre-Aguirre, 526 U.S. 415, ___, 119 S.Ct. 1439, 1445, 143 L.Ed.2d 590 (1999), holds Chevron deference applicable to INS interpretation of relevant statutes.
[6]  In its Response to Order to Show Cause, the government initially argued that petitioners had not exhausted their administrative remedies. This argument may have been based upon Mr. Greene's mistaken interpretation that petitioners had the right to appeal to the Board of Immigration Appeals (BIA) the INS's refusal to grant bond. Mr. Greene apparently believed that this right of appeal was conferred by 8 C.F.R. § 236.1(d)(3). That regulation provides no such appeal from the director's decision under § 241.4.
[7]  One distinguishing feature is the difference in INS regulations between possible parole of excludable aliens (8 C.F.R. § 212.12) and continued detention of removable or deportable aliens (8 C.F.R. § 241.4). This difference is discussed infra, note 14.
[8]  The Tenth Circuit's recent opinion in Jurado-Gutierrez v. Greene, 190 F.3d 1135 (10th Cir.1999), albeit in a different context, suggests the distinction between excludable and deportable aliens survives removal proceedings. See 190 F.3d at 1152-1153 (extension of discretional relief pursuant to 8 U.S.C. § 1182(c), as amended by AEDPA, to excludable aliens but not to deportable aliens did not violate the Equal Protection Clause).
[9]  The government has not met its burden of showing that detention is temporary pending deportation "and not simply incarceration as an alternative to departure." Rodriguez-Fernandez v. Wilkinson, 654 F.2d at 1390.
[10]  "When the Government proves by clear and convincing evidence that an arrestee presents an identified and articulable threat to an individual or the community, we believe that, consistent with the Due Process Clause, a court may disable the arrestee from executing that threat." 107 S.Ct. at 2103.
[11]  The crimes that will give rise to a rebuttable presumption that no condition or combination of conditions will reasonably assure "the safety of any other person and the community" for purposes of the Bail Reform Act include crimes of violence, felonies carrying a maximum sentence of life imprisonment or death, and offenses for which a maximum term of imprisonment of ten years or more is prescribed by certain of the Controlled Substances Acts. 18 U.S.C. § 3142(f)(1). Any felony will support this presumption if the detainee has two or more prior convictions for any of the above offenses.

In contrast, the aggravated felonies that will subject a deportable alien to detention, while serious, are much broader in nature. These crimes include non-violent offenses such as money laundering, theft, gambling, bribery, and certain types of fraud or tax evasion. See 8 U.S.C. § 1101(a)(43)(A)-(U).
[12]  According to 8 U.S.C. § 1231(a)(1)(A), "the Attorney General shall remove the alien from the United States within a period of 90 days[.]"
[13]  At the hearing held on petitioners' applications for habeas relief, respondent conceded that he had not met petitioners despite the fact that he had denied their requests for release.
[14]  The government's reliance on the case law arising from the Mariel Cuban situation does not require a different result. First, as discussed above, petitioners have more rights as lawful aliens than do aliens who have not legally entered the United States. Landon v. Plasencia, 103 S.Ct. at 325-26.

Second, contrary to the government's arguments, Rodriguez-Fernandez remains a viable precedent and recognizes that the burden is on the government to demonstrate the detention is temporary. 654 F.2d at 1390.
Finally, the regulations governing the Mariel Cubans provide substantially more rights to those aliens than are available to petitioners. See 8 C.F.R. § 212.12 (providing for annual review by two-member panels, written recommendations, and the opportunity for the alien to submit information orally or in writing; the alien is not held to a clear and convincing standard). Thus, contrary to long established precedent, the regulations grant more procedural rights to excludable aliens than to deportable aliens.


556 F.2d 566
Jacobyv.Security Connecticut Life Ins. Co.
No. 76-1878
United States Court of Appeals, Third Circuit
3/4/77

1
E.D.Pa.

AFFIRMED