One of the greatest novels of the 20th century is Joseph Heller’s Catch-22. The novel is set during World War II. It follows the life of Captain John Yossarian, a U.S. Army Air Force B-25 bombardier.
As most everyone knows, the title Catch-22 has become a figure of speech. The best explanation comes from the omnipotent eye of Heller:
There was only one catch and that was Catch-22, which specified that a concern for one’s safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn’t, but if he were sane he had to fly them. If he flew them he was crazy and didn’t have to, but if he didn’t want to he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.
As Heller wryly informs us, a Catch-22 can arise almost anywhere and at any time. Consider Lt. Mudd. He was: “The Dead Man in Yossarian’s Tent.” Mudd was sent on a mission immediately upon his arrival and died in combat before he could sign into the bomb group’s roster. His belongings could not be officially removed since Mudd never officially arrived.
Indeed, in Yossarian’s world, the military police adopted a Catch-22 with a vengeance. “Catch-22 states that agents enforcing Catch-22 need not prove that Catch-22 actually contains whatever provision the accused violator is accused of violating.” Or more simply, “Catch-22 says they have a right to do anything we can’t stop them from doing.” And that brings me to the point of these musings.
Recently, I sentenced a farmer who fled Vietnam and landed in Canada as a refugee. The farmer ultimately received Canadian citizenship. In 2010, the farmer was arrested for serving as a gardener in an indoor marijuana growing operation in Lincoln, Nebraska. He was released on a state bond and returned to his home and family in Canada before the feds got involved.
A federal indictment was handed up against various individuals, including the farmer turned gardener. Most everyone who was indicted, save the farmer/gardener, pleaded guilty or was tried and convicted. All but one has long since been released from prison. The federal government could have easily found out where the farmer/gardener was living, but apparently made no effort to go after him at the time of the indictment.
Years passed. Once, or at least so I was told by one of the CDLs, the farmer/gardener tried to return to the United States to face the charges but was turned back at the border because, Catch-22, he had been charged with a crime in the U.S. For reasons that are still not clear to me, the feds reawakened in 2016. Our government sought his extradition. In December of 2016, the farmer/gardener was arrested by Canadian police for extradition to the U.S.
When the farmer/gardener appeared before me recently, he was 58 years old. He could not speak English. He was in rough shape. He had not been given his medications because, of course, some jail regulation would not allow it without a physician’s script. Of course, his doc was in Canada and, well, you know, regulations. It turns out that the poor fellow suffers from serious health problems.
No doubt through the efforts of his children, one of whom attended sentencing, the farmer/gardener had two excellent lawyers. The CDLs backed the government into a corner. Given the Speedy Trial Act and the Sixth Amendment, and the fact that the farmer/gardener was in plain sight while living as a citizen of our neighbor to the north, the government agreed to a Rule 11(c)(1)(C) plea agreement for time served. That was fine with me, and I sentenced accordingly.
The U.S. Marshals had “rolled him” up from the jail and were happy to release him that day. The farmer/gardener’s daughter was there with his Canadian passport. She was ready, willing and able to accompany the poor wretch back to Canada on an airplane. But, you guessed it, Catch-22.
ICE had a detainer. I told the prosecutor to call Immigration and tell them to lift the detainer so the farmer/gardener could be released by the USMS and depart on his own. As instructed, the prosecutor did so. No dice. It would take, at the soonest, three weeks for Immigration to act and maybe even then Immigration would insist upon deporting the guy using their own devices.
Now, understand, please, that ICE ultimately wanted the farmer/gardener returned to Canada. The farmer/gardener was hungering to leave that very day and on his daughter’s nickel, but, but, but . . . . Yossarian would not have been surprised. He would have let out a respectful whistle!
I was royally pissed off. So, after talking with the lawyers in chambers, I entered the following order:
IT IS ORDERED that pursuant to the All Writs Act, 28 U.S.C. § 1651, the United States Marshal shall immediately release the defendant despite the ICE detainer and the defendant shall depart the United States via airline using the passport he possesses and with his daughter. ICE is ordered not to interfere and is ordered not to take the defendant into custody.[i]
After a quick telephone call to the General Counsel for the USMS in Washington by the Chief Deputy U.S. Marshal in Omaha, the farmer/gardener was released. A weekend passed, and I thought he had flown back to Canada with the assistance of his daughter.
But, Catch-22 reared its pitiless head once again–his passport had expired and the farmer/gardener was not allowed to board a plane in Minneapolis for a flight into the wilds of the Great North. ICE evidently had been tracking him and demanded that I retract my order.
I consulted counsel. Turns out the Canadian consulate in the Twin Cities was happy to reissue the passport, but suggested it would be easier and quicker if his daughter simply drove him across the border in Minnesota as the consulate doubted that the expired passport would be a problem. It wasn’t.
Subsequently, in another telephone conference with the lawyers, the prosecutor confirmed that he was satisfied that the farmer/gardener was in Canada. At the government’s request, and with the agreement of defense counsel, I then withdrew my order as it was no longer necessary.
At long last, I like to think that Yossarian finally got revenge.
Richard G. Kopf
Senior United States District Judge (Nebraska)
[i] The prosecutor came late to the party. The original prosecutor had retired and this monstrosity of a case fell into the lap of a very good and extremely decent lawyer for the government. While the young prosecutor could not and did not agree to my release order, he faithfully did what I told him to do and he brought the intransigence of ICE to my attention and the attention of defense counsel. At least to me, if not ICE, the prosecutor made himself and DOJ proud by cutting laser square corners.
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One of these days, I’m wondering if a federal judge will get so mad at ICE, politicians, beauracracy or Catch-22 that s/he swears the immigrant in as a citizen on the spot and tells everyone to go piss off.
For those of us who see federal judges as omnipotent, stories like this make us wonder what the “least dangerous branch” can do when the executive branch of the govt says “nah.”
Thanks for putting my day in perspective, judge.
You’ve been judging for awhile; does it always come naturally by now, or do you still sometimes think to yourself “Someone oughtta…. Wait! I can do this!”
Patrick,
No, even now, it doesn’t come naturally even though I started this judging business in 1987 when I carried my stuff into the federal building to become a magistrate judge or even thereafter when I got my personal gold Article III toilet in 1992 as a district judge. There is not one day that goes by that I don’t doubt myself.
All the best.
RGK
RGK-
Nice call, Judge. It has happened, not with any frequency, but a few times in my court, that my Judge has done something very similar. It never came down to a written order, simply a call to our local USMS to request the lifting of a detainer for self-deportation – a cost saving measure (bureaucracies rarely care for the humanitarian aspect). I now have, on even rarer occasions, other judicial officers calling for guidance on how to obtain similar results. One can only hope.
PMS
And deny ICE the satisfaction of their deportation? Whatever happened to comity?
I’d LOL, but sadly I think that’s true. On the bright side, no where in my oath of office (yes, we all have to take it) did I swear to make things easy for ICE. Fuck ’em.
One of the engineers that worked for me claimed that the worst thing that happen would be for the government to work perfectly. All contradictory rules would be enforced and nobody could do anything.
I think you have proved he was right.
Judge Kopf,
Your post shows how the folks at ICE can be an intransigent, funky bunch. And they can be lazy too. There are many, many BOP inmates who are willing to sign off on their deportation and ICE is made aware of it, but ICE rarely makes the brief trip to the federal prison so that those papers are signed.
This means that those inmates are denied benefits that save the BOP space and $, and they are then put through the ICE ringer post-sentence, which takes months before a deportation order (which in these cases is a foregone conclusion since day uno) is entered. More waste for the BOP, more waste for ICE, and everyone, which could be avoided with a brief visit to the inmate.
The fact that you were royally pissed off at them makes great company to my ICE misery.
The best to you, Judge.
Mario
Mario,
Thanks for your nice note. Take care, my friend and keep on doing your good work.
All the best.
Rich Kopf
OK. I’m just an offensive non-lawyer enjoying a swim in a defense lawyer blog, trying to keep my head above water. But I know a lot about law enforcement, a lot of stories and it’s a very messy business. Not for a long time have I heard a story like Judge Kopf’s. With people like him on duty, things can’t be all bad. I was moved.
Thank you Judge Kopf.
Frank,
Your welcome Frank.
Truly, your comment warmed my mean ass old and cold heart. All the best.
RGK
“An offensive non-lawyer enjoying a swim in a defense blog,” sounds like an oxymoron, Frank. I thought we got rid of you last week. Back for more punishment, tough guy?
“A lot about law enforcement,… and it’s a very messy business.” That is a scary thought, and I would not tell that to too many people. Did you see the video posted here this morning showing the Turkish thugs beating up [legal] protesters on Amerikan soil? And our law enforcement officers unable to do much about! Watch it. Methinks you may have a lot to learn,… about law enforcement (or lack thereof). You are a glutton for punishment yourself, Frank.
We enjoyed this entry, RGK. Catch-22 was a seminal book in our “liberal arts” education. Latched onto v. early in the game, and memorably so. (Each and every time we enter a courtroom! We are reminded of Yossarian and Catch-22.)
Frank is welcome here, Bill, even if he views it as the enemy’s den because we don’t blindly accept the cop narrative. But learn from Frank as well, Bill. As for “gluttons for punishment,” well, you might want to be circumspect about going there, Bill.
Three cups of coffee puts us in the mood. Perhaps we stepped over the line? Sorry, but I got my “reasons.” Ha. I’m upfront about my dislike for cops: Reasons, it’s a mentality thing. I like them in parade formation, however. Brings back memories of military “service,” if that’s what you want to call it?
You erased my “Cs in high school” remark. You, you, you! That was the best part. I know my rights (famous last words!)
Not erased. Deleted. I keep an eye on you, Bill, so as not to chase away the nice people. You can be a bit mean at times, and as we both know, that’s my job.
Have at it Billy boy. I’ve deflected much worse. But on a positive note I see your usual yammering cum cutesy diction has been much less in evidence since our last exchange. Must be disorienting, not engaging in your usual efforts to push back the frontiers of banality.
You are amazing, almost as much as our Fearless Leader of the Free World, the Orange Man who keeps putting his shoe in the mouth. “Push back the frontiers of banality.” We luv it; reminds us of the one and only Spiro Agnew: “Effete corps of impudent snobs!” Agnew was the Pied Piper of banality, you will remember?
P.S., Some of our cutesyest diction gets routinely “deleted” by the Host in the interests of civil, unprejudiced discourse. It comes with the territory. Tell your friends about us and this blawg site,… if you have any. Keep on carryin’ on. You’re doing a heck of a job there, Frankie. Keeping the citizenry safe and the laws of the land “enforced.” Ha.
We envy your knowledge, not to mention your resume of experience in the Western District. God knows how many lives you’ve saved and crimes you’ve solved! Delivered any babys lately. That is the Cat’s Meow.
You know of course that Safire wrote what Spiro spoke. A good man. “Nattering nabobs of negativism.”
Where are you when we need you, Wm.?
Now to the matter at hand. When someone kicks me in the shin I’m not likely to say “thank you.” But the exact reason why you want to mud wrestle escapes me. My mother taught me to be civil and if she’s looking on from somewhere I hate to disappoint her. So I extend the peace pipe. Your call. Mr. Bob.
Okay, sounds like you had a good mother. Not everybody can say they had a great family or good upbringing. But I still don’t trust you if you wear the blue. Road detail anyone? Puhleeeze! Boring!
Will try to be more respectful in the future, just as respectful as the City and State were when they tried to put me away for a very looong time. They were not kidding around. They had all the handcuffs and the guns. What did we have? A kitchen knife? I was not born or raised this way. Eyes wide-closed had to be opened to the reality of what is: Not a pretty picture, as documented here 100s of times since inception.
Nattering nabobs,… very good. William Safire, we presume? Not bad. There’s some news out on CIA operative June Cobb, from the Kennedy era. Very interesting revelations about to be released, if you’re in a law-enforcement frame of mind. What’s your opinion of the “lone assassin” theory? True, or a cover-up of massive proportions? Inquiring Minds! (Since you are well-versed in law enforcement matters.)
Conspiracy theories we will always have with us. Whether it’s “no lone assassin,” “fluoridation,” “HIV a plot against blacks,” “New World Order,” ” Federal Reserve,” “vaccination”…there’s no end to it. At lunch recently with a mainland Chinese acquaintance I was told, directly and emphatically, that the moon landing was a “sinister hoax.” Never mind that I worked for NASA then and that I was in what was then called the Houston Manned Spacecraft Center observation room, right behind the control room, for the 1969 landing. “They fooled you too,” my Chinese frirnd said.
As long as people can dine out on conspiracy theories, we’ll have them. We should stamp them UNPROVEN and move on.
And now we’d better get back to blog business before Scott drops the hammer on us.
.
I was out last night, so I figured I would try something I rarely do: let Bill’s comments post without regard to what he’s written. How back could it get?
Well, I see that went well. And now, back to our regularly scheduled programming and oversight of Bill’s unique view of the world and means of expressing it.