Friday, September 30, 2005

2254 relief granted for Sixth Amendment violation -- trial court denied counsel's request for continuance and defendant proceeded to trial pro se

Defendant was charged in New Jersey state court on multiple counts of theft by deception involving prospective buyers whose investments in a failed condominium development were not refunded. Counsel was appointed, but a few months before trial was scheduled to begin new counsel was appointed and requested a continuance in view of the lengthy witness list counsel just received, the need to conduct extensive interviews and the late production of discovery. The trial court denied the continuance request, and the defendant then elected to represent himself at trial because he was more familiar with the facts and witnesses than was his new counsel. The trial court granted the request to proceed pro se, and counsel remained as back-up. After losing at trial and on direct appeal, defendant filed under 2254. The Third Circuit reversed the district court's denial of relief, concluding that the denial of the request for continuance rendered the defendant's waiver of his Sixth Amendment right to counsel involuntary and that the state courts' decision was contrary to and an unreasonable application of established Supreme Court law. Pazden v. Maurer, http://www.ca3.uscourts.gov/opinarch/034236p.pdf

Thursday, September 29, 2005

Third Circuit Remands to Decide if Officer Deliberately Violated Miranda Before Getting Mirandized Statement

In United States v. Naranjo, http://www.ca3.uscourts.gov/opinarch/034759p.pdf, the Third Circuit held that if officers deliberately used a two-step strategy to obtain a confession in violation of Miranda, first interrogating a custodial defendant without warnings and then obtaining a postwarning statement, both statements must be exluded unless curative measures were taken before the postwarning statement was made. This was the Court's first application of the recent plurality decision in Missouri v. Seibert, 542 U.S. 600. In Naranjo's case, the suppression hearing took place prior to the Seibert decision. The evidentiary hearing revealed that the entire interrogation session was custodial, but that the warnings were only given toward the end of the session. The government conceded that the statements given in the first part of the interrogation session should be suppressed, but contended that the postwarning statements should be admitted because they were voluntarily given under Oregon v. Elstad, 470 U.S. 298. Because the hearing took place prior to Seibert, the district court made no finding whether the officers' decision to interrogate without giving warnings was deliberate, and the Court therefore remanded. The Court stated the test in these cases as follows: "Accordingly, unless the agents deliberately withheld warnings, Elstad controls [and] the relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct . . . . If the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made."

Monday, September 19, 2005

3rd Cir. expounds on definition of “testimonial” in ruling that admission of out-of-court statement was harmless error

United States v. Hinton, No. 03-3803 (3d Cir. Sept. 14, 2005), deals with a challenge to out-of court testimony under the Confrontation Clause, most recently addressed by the Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004). Favoring application of Crawford’s third formulation of "testimonial" ("statements made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial") as ensuring compliance with the Confrontation Clause, the Third Circuit concluded that, while the witness’s 911 call here was non-testimonial, his statement to police that Hinton had threatened him with a gun was testimonial. While its admission was error because there was no showing that the witness was unavailable or that Hinton had an opportunity to cross-examine him, such error was harmless because the statement did not affect the jury’s decision. The Third Circuit affirmed the conviction, but vacated the sentence and remanded for resentencing in accordance with Booker.

District court’s failure to include final forfeiture order was clerical error

In United States v. Bennett, No. 04-3650 (3d Cir. Sept. 12, 2005), the Third Circuit affirmed the district court’s amended judgment to include a final order of forfeiture three years after sentencing. Though Bennett was sentenced in August 2001, the district court did not amend the judgment to include a final forfeiture order, as required by Fed. R. Crim. P. 32.2(b)(3), until August 2004, relying on Fed. R. Crim. P. 36, which allows the court to correct clerical errors in the judgment. The Third Circuit concluded that the district court’s failure to make forfeiture a part of the sentence was clerical in nature, rather than substantive, because the parties had stipulated to the forfeiture, a preliminary order of forfeiture had been issued, and the omission of a final order resulted from organizational failure, not legal error.

Friday, September 16, 2005

3rd Cir to consider en banc whether Booker applies to restitution and forfeiture

The 3rd Cir has sua sponte voted to rehear en banc three appeals previously argued before two different panels in which the issue is whether the rule of Blakely and Booker applies to orders of restitution and forfeiture. See US v. Kennard Gregg, No 04-2912 (9/16/05); US v. James Fallon No. 03-4184 (both addressing restitution); and US v. Paul Leahy, No. 03-4490 (addressing forfeiture.) In the Gregg and Fallon, the Court has stated that the following issue is to be addressed:

Whether orders of restitution are a criminal penalty and whether the
decision of the Supreme Court of the United States in Booker applies to such
orders under the MVRA (the mandatory restitution Act).


The issue in Leahy is whether Booker applies to forfeiture, and also "whether orders of restitution are a criminal penalty and whether Booker applies to such orders under the VWPA" (the discretionary restitution Act in effect prior to the MVRA).
The en banc argument is scheduled for Nov. 1, 2005. The granting of en banc review in these cases indicates that the 3d Circuit judges are split or undecided on the question of whether a jury finding or admission by defendant regarding loss amount is required under the reasoning of Blakely and Booker in order for a judge to be able to impose restitution or forfeiture.

The granting of en banc consideration makes all the more clear the importance of objecting on Blakely/Booker grounds to any sentence that includes an order of restitution (or forfeiture) where the amount of loss (or ill-gotten gain) is not admitted or proven to the jury beyond a reasonable doubt. The 3rd Cir rejected this argument pre-Blakely in US v. Syme, 276 F.3d 131 (2002) in the context of the old version of the restitution act -- the VWPA -- which made the amount of restitution discretionary with the judge. The Court in Syme ruled, following a long line of precedent within the Circuit (and in most other circuits), that restitution is a "criminal penalty" and thus that it must be analyzed as such under the rule of Apprendi. (The issue statement in Gregg and Fallon indicates the Court will be reconsidering this part of Syme too.) But the Court, without the benefit of Blakely, ruled that since the VWPA did not specify a maximum amount of restitution, the rule of Apprendi regarding increases in the statutory maximum did not apply.

At least two things have changed since Syme, requiring the Circuit to reconsider that holding. First, under the new restitution act -- the MVRA -- restitution in the full amount of the loss is no longer discretionary, but mandatory. Second, Blakely and Booker have clarified what the Supreme Court meant by "statutory maximum." The statutory maximum for Sixth Amendment and Apprendi purposes is not just a number specified in a statute, but rather, the "maximum sentence a judge may imposed solely on the basis of facts reflected in the jury verdict or admitted by the defendant." Blakely, 124 S. Ct. at 2537. Thus, for Apprendi purposes, the maximum restitution a judge may impose is the amount of loss "reflected in the jury verdict or admitted by the defendant." If the jury does not find a loss amount beyond a reasonable doubt, and the defendant does not admit to an amount, then the statutory maximum restitution is zero. Restitution based only on judge-found facts would violate Apprendi, Blakely and Booker.

(To the extent that forfeiture can be viewed now, in light of Blakely and Booker, as a criminal penalty also subject to the Sixth Amendment right to jury trial, this same argument applies there. The only difficulty is that the in Libretti, 516 US 29 (1995), the Supreme Court held that there is no Sixth Amendment right to jury trial on forfeiture. But the reasoning of Libretti, which depends on the distinction between conviction and sentence, has been substantially undercut by Blakelyy and Booker, which "have made clear that distinguishing between a conviction and a sentence obscures what matters for constitutional purposes -- namely, facts that increase a defendant's punishment." US v. Lloyd, 407 F.3d 608, 615 (3rd Cir. 2005).)

An interesting question that may arise is whether, assuming Blakely and Booker do apply to restitution under the MVRA, could the Court impose a Booker style cure -- making the restitution discretionary as it was under the VWPA, and then permit restitution based on judge-found facts? The answer is clearly no. It simply makes no difference to the Apprendi analysis whether the amount of restitution is mandatory as under the MVRA, or whether judge has the discretion to impose less than the total amount of loss as under the VWPA. The Booker remedy of advisory guidelines cures the Sixth Amendment error inherent in mandatory guidelines only because the guidelines operate against the backdrop of statutes which set maximum sentences for each offense. Thus, if, as under Booker, the guidelines are made advisory, or even if the guidelines were entirely eliminated, the courts would retain statutory authority to impose up to the maximum allowed by the statute for the offense of conviction.

The same is not true for restitution. The court's only authority for imposing restitution is the restitution statute, and whether that statute is the MVRA or the VWPA, the maximum amount of restitution that can be imposed is determined by the amount of loss. That is true regardless of whether the court, as under the VWPA, has discretion to impose less than the maximum. Under Blakely and Booker, any fact which controls the maximum sentence that can be imposed must be admitted or proven to the jury. Thus, whether under the MVRA or under the VWPA, the amount of loss, since it controls the maximum restitution that can be imposed, must be subject to this Sixth Amendment jury requirement.

Tuesday, September 13, 2005

Federal courts lack authority to review state court retroactivity decisions

In Warren v. Kyler, No. 03-2190 (Sept. 7, 2005), the Third Circuit concluded that it lacked the authority to apply a new state court decision retroactively in a federal habeas proceeding where the state court had already declined to give retroactive effect to the case. The Court noted that nothing in the United States constitution requires retroactive application of state court decisions on criminal matters and, thus, the state courts are free to determine the retroactivity of their own jurisprudence.

Thursday, September 08, 2005

Pro se litigant's fourth collateral motion not considered "second or successive"

In In Re Wagner, No. 03-4254 (3d Cir. Sept. 6, 2005), the Third Circuit ruled that a pro se petitioner's fourth collateral motion could not be classified as a "second or successive" petition under 28 U.S.C. § 2255 which would require permission of the Court for filing. The Court reasoned that petitioner's first three motions did not constitute § 2255 petitions because petitioner's first collateral motion never invoked § 2255, his second motion was recharacterized as a § 2255 without notice and an opportunity to amend or withdraw, and his third motion was denied as a second or successive petition without reaching the merits. Accordingly, the Court concluded that it was bound to construe petitioner's fourth motion as his first motion for relief under § 2255 and no permission to file the petition was required.