U.S. v. Reid

• Citation: 369 F.3d 619
• Decision Date: 27 May 2004
• Docket Number: No. 03-1159.,03-1159.
• Parties: UNITED STATES of America, Appellee, v. Richard C. REID, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

369 F.3d 619

UNITED STATES of America, Appellee, v. Richard C. REID, Defendant, Appellant.

No. 03-1159.

United States Court of Appeals, First Circuit.

Heard March 4, 2004.

Decided May 27, 2004.

Owen S. Walker, with whom Elizabeth L. Prevett and the Federal Defender Office were on brief, for appellant.

Gary S. Katzmann, Assistant U.S. Attorney, with whom Michael J. Sullivan, U.S. Attorney, Gerard T. Leone, Jr., First Assistant U.S. Attorney, and Timothy Q. Feeley and Colin Owyang, Assistant U.S. Attorneys, were on brief, for appellee.

Before BOUDIN, Chief Judge, LYNCH and HOWARD, Circuit Judges.

LYNCH, Circuit Judge.

On December 22, 2001, Richard Reid tried unsuccessfully to destroy American Airlines Flight 63 over the Atlantic Ocean by detonating explosives hidden in his shoes. The plane was diverted to Boston, where Reid was arrested. On October 4, 2002, Reid pleaded guilty to eight terrorism-related offenses,¹ and on January 30, 2003, he was sentenced to serve the remainder of his life in prison. At the sentencing hearing, Reid declared his continuing allegiance to the terrorist Osama bin Laden, adding: "I think I ought not apologize for my actions. I am at war with your country...." A few days later, Reid was transferred from Massachusetts to a maximum security federal prison in Florence, Colorado (ADX Florence), where he remains today.

This interlocutory appeal² concerns the conditions of Reid's pre-sentence confinement. Reid contends that the government violated his First Amendment rights by restricting his access to news media while he was detained in Massachusetts. As a federal prisoner housed at the Massachusetts Correctional Institute at Cedar Junction, Reid was permitted to use funds from his prison account to purchase a subscription to Time magazine. Under a set of "special administrative measures" imposed on Reid by the U.S. Marshals Service (USMS) at the direction of the Attorney General, an FBI special agent removed the "letters to the editor" section from each issue of Time (the Time letters) before giving the magazine to Reid. The special agent also clipped two articles about terrorism from the magazine and withheld them from Reid. Reid petitioned the district court for access to the withheld material on First Amendment grounds. After a hearing on January 21, 2003, the district court denied Reid's request.

We conclude this appeal has been overtaken by changes in the factual and legal circumstances of Reid's confinement. Although there remains a substantial dispute between the parties concerning Reid's access to Time, we nonetheless dismiss the appeal under the branch of the mootness doctrine barring courts from deciding a case when no practical consequences would flow from the decision.

I.

A. Special Administrative Measures

Reid challenges the "special administrative measures" (SAMs) that governed his confinement while in Massachusetts. The Attorney General's power to promulgate SAMs for individual prisoners derives from 28 C.F.R. § 501.3 ("Prevention of acts of violence and terrorism"). See Yousef v. Reno, 254 F.3d 1214, 1219 (10th Cir.2001). That regulation permits the Attorney General, who has plenary power over the management of federal prisons, see 18 U.S.C. § 4001(b), to impose on any individual prisoner "special administrative measures that are reasonably necessary to protect persons against the risk of death or serious bodily injury." § 501.3(a). To impose such SAMs, the Attorney General or the head of any federal law enforcement or intelligence agency must certify that, with respect to the prisoner in question,

there is a substantial risk that [the] prisoner's communications or contacts with persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons.

Id. Once authorized, SAMs may impose restrictions on the inmate's housing or privileges, including

correspondence, visiting, interviews with representatives of the news media, and use of the telephone, as is reasonably necessary to protect persons against the risk of acts of violence or terrorism.

Id. The affected prisoner must be notified of the SAMs and the basis for their imposition. § 501.3(b).

SAMs are not indefinite in duration. Before the September 11, 2001 terrorist attacks, the risk assessment underlying a set of SAMs was deemed valid for 120 days; when that period expired, a new risk assessment had to be conducted before the SAMs could be reimposed. Yousef, 254 F.3d at 1219; United States v. Johnson, 223 F.3d 665, 672 (7th Cir.2000). After the September 11 attacks, the Bureau of Prisons amended § 501.3 to permit SAMs to remain in force for up to a full year with the approval of the Attorney General. § 501.3(c); see 66 Fed.Reg. 55062, 55062 (Oct. 31, 2001). The agency justified the extension by stating that the September 11 attacks had demonstrated "beyond question" that some terrorist conspiracies "are carried out over a long period — far in excess of 120 days." 66 Fed.Reg. at 55063. Though a prisoner might have limited ability to assist such efforts, the agency found, that fact "do[es] not diminish the urgent need for law enforcement authorities to curb the inmate's ability to participate in planning or facilitating those acts through communications with others within or outside the detention facility." Id.

B. SAMs Imposed on Reid

In February 2002, approximately two months after Flight 63 landed in Boston, the Attorney General authorized the USMS to issue SAMs regulating Reid's pre-trial confinement. Cf. 28 C.F.R. § 501.3(f) (allowing branches of the Justice Department other than the Bureau of Prisons to issue SAMs for persons in their custody). After the district court objected to the initial version of Reid's SAMs, see United States v. Reid, 214 F.Supp.2d 84, 92 (D.Mass.2002), a new version was issued on June 19, 2002. It was under the June 2002 SAMs that the USMS restricted Reid's access to Time magazine.

The June 2002 SAMs purported to control all of Reid's written and recorded communications, including his receipt of written materials. Under the caption "Inmate Communications Prohibitions," the document provided:

The inmate is prohibited from passing or receiving any written or recorded communications to or from any other inmate, visitor, or anyone else except as outlined and allowed by this document.

The SAMs then set forth detailed rules governing Reid's access to visitors, telephone calls, and legal, consular, and non-legal mail. Reid's Time subscription qualified as incoming non-legal mail:

(Non-legal/Non-consular) Mail — Any mail not clearly and properly addressed to/from the inmate's attorney and marked privileged, or consular mail (incoming or outgoing):

i. Copied — Shall be copied (including the surface of the envelope) by the warden, or his/her designee, of the facility in which the inmate is housed ii. Forwarded — Shall be forwarded, in copy form, to the location designated by the FBI.

. . .

iv. Mail Seizure — If outgoing/incoming mail is determined by USMS or FBI to contain overt or covert discussions of or requests for illegal activities, the soliciting or encouraging of acts of violence or terrorism, or actual or attempted circumvention of SAM, the mail shall not be delivered/forwarded. The inmate shall be notified in writing of the seizure of any mail.

These were the only provisions in the June 2002 SAMs pertaining to Reid's Time subscription.

C. Reid's Motions for Access to Time

Reid initially challenged these restrictions in June 2002, when he indicated his intent to subscribe to Time and filed a motion to prevent the government from interfering with the magazine's delivery. Because Reid had not yet subscribed to Time, however, the district court denied the motion as not ripe.

Reid actually began subscribing to Time in September 2002. Initially, it appears, the magazine was delivered to him complete and without undue delay. Then, on October 30, the government informed defense counsel that it had removed an article about terrorism from Reid's October 21, 2002 issue of Time under the "Mail Seizure" provision of the SAMs. Reid tried to challenge that decision through administrative channels, cf. 28 C.F.R. § 501.3(e) (providing that inmates subjected to SAMs may seek review through an administrative process), but the government successfully took the position that administrative remedies were unavailable to Reid, apparently because he had not yet been sentenced.

Reid responded by filing a renewed motion in the district court to enjoin the government from interfering with his Time subscription. He argued that government's censorship of his subscription violated his First Amendment rights. Reid also sought permission to purchase a radio, which was prohibited by the SAMs.

The government defended the SAMs and their application to Reid's Time subscription and radio request as reasonably necessary for valid penological and national security purposes. The government justified this argument in part by reference to materials filed under seal. Certain outbound correspondence from Reid had been seized during his confinement in Massachusetts. The substance of that correspondence is not at issue in this case; the government submitted it simply to substantiate its claim (articulated in public) that Reid had indeed attempted to communicate with others while in custody.³ The government also emphasized that Reid is an admitted member of al Qaeda, a terrorist organization that, according to the government, trains its members to exploit "innocent-looking" communications to relay coded messages to and from prison in the event of capture.

On January 2, 2003, the district court held a hearing on Reid's motion. As to the radio, the motion was denied, and Reid has not appealed that decision. As to Time magazine, the court denied Reid's motion as moot after the government offered to ...