Friday, October 20, 2006
18 U.S.C. § 922(a)(3) conviction does NOT constitute "aggravated felony" for removal purposes
In Joseph v. Attorney General, Nos. 05-1047, 05-2889 (3d Cir. Oct. 2, 2006), the Third Circuit ruled that a conviction under 18 U.S.C. § 922(a)(3), which makes it illegal for any person other than a licensed manufacturer, dealer, or collector to transport into or receive in the State where he resides any firearm purchased or otherwise obtained by such person outside that state, does not constitute an aggravated felony for removal purposes because the offense did not include any trafficking element, i.e., any element of dealing in firearms or any intent to sell or otherwise distribute the firearms.
Sentences for Class B and C misdemeanors must be reviewed under pre-Guidelines standard applicable to those offenses
Grand jury target Jelanie Solomon was convicted of criminal contempt for failing to provide handwriting exemplars ordered by the district court. He was sentenced to 5 months imprisonment on the contempt conviction, thus classifying the conviction as a Class B misdemeanor. On appeal, the parties disagreed over the standard of review to be applied. The government argued that the sentence should be reviewed for an abuse of discretion, while Solomon argued that his sentence must be reviewed for "reasonableness" under United States v. Booker, 543 U.S. 220 (2005). The Third Circuit noted that while the Guidelines were still mandatory, the circuits were divided on the standard of appellate review. In re Solomon, Nos. 06-2819, 06-2820 (3d Cir. Oct. 2, 2006). Upon present consideration, the Court found that the exclusion of Class B and C misdemeanors from the Guidelines provisions was intended to place those offenses entirely outside the statutory scheme, including the appellate review provisions contained in 18 U.S.C. § 3742(e). Accordingly, the Court held that appellate review of sentences imposed for Class B and C misdemeanors must be conducted under the pre-Guidelines standard applicable to those offenses, rather than the reasonableness test set forth in Booker. The standard of review applicable to criminal contempt offenses was abuse of discretion. The Court ultimately found that the five month sentence imposed in Solomon's case was not an abuse of discretion.
By ruling in this fashion, the Third Circuit noted that it need not contend with a question currently dividing the other circuits - namely, the continued viability of the "plainly unreasonable" standard of review.
The Court made two additional rulings in this case. First, it concluded that the government made a sufficient preliminary showing that the handwriting exemplars were relevant to the grand jury's investigation to warrant contempt charges. Second, the Court ruled that the district court's order denying Solomon's motion to quash search warrant for his blood and saliva did not qualify for interlocutory review under the collateral order doctrine.
By ruling in this fashion, the Third Circuit noted that it need not contend with a question currently dividing the other circuits - namely, the continued viability of the "plainly unreasonable" standard of review.
The Court made two additional rulings in this case. First, it concluded that the government made a sufficient preliminary showing that the handwriting exemplars were relevant to the grand jury's investigation to warrant contempt charges. Second, the Court ruled that the district court's order denying Solomon's motion to quash search warrant for his blood and saliva did not qualify for interlocutory review under the collateral order doctrine.
Monday, October 02, 2006
Troubling credibility ruling and Harris still good law
In U.S. v. Williams, No. 04-4268 (9/27/06), the defendant was on trial on drug conspiracy and weapons charges. The government’s central witness, Carter, asserted on cross-examination that he (Carter) had never committed murder. Defense counsel sought to impeach Carter as to this assertion. Counsel advised the court that a confidential witness had told an ATF agent that he had heard from another person that Carter had stabbed an individual to death in Philadelphia. The district court prohibited the cross examination, ruling that under Fed. R. Evid. 608(b) the fact that Carter committed murder was not probative of truthfulness or untruthfulness, and also that the weak evidence that Carter committed murder should be excluded under Rule 403. The Third Circuit (Judge Fuentes) found no abuse of discretion: "Even if the evidence that Carter committed murder had been strong, it was not clearly relevant to Carter’s truthfulness as a witness and had a strong potential to prejudice the jury." If the witness had not asserted on direct examination that he had never committed murder, this logic holds up. However, in light of the witness’s affirmative assertion on direct, the ruling is more troubling. Rule 608(b) concerns confrontation of a witness with a prior act that demonstrates the witness’s character for truthfulness or untruthfulness, and that therefore in and of itself tends to show that the witness lacks or has credibility. But in Williams the defense was not trying to show that because Carter was a murderer, he was also a liar. Rather, the purpose of the cross examination was to contradict Carter’s direct testimony that he had never committed a murder. Perhaps future application of the opinion will turn on the extremely weak evidence showing that Carter committed the murder.
The court also rejected, under a plain error standard of review, the defense challenges to the multiple/single conspiracy instructions and sufficiency of the evidence. As to the sentence, the court remanded the conspiracy sentence because the original sentencing hearing took place prior to Booker. The court upheld the mandatory sentence under 18 U.S.C. § 924(c), which had been enhanced from 5 to 10 years based on the judge’s finding at sentencing by a preponderance that the firearm had been discharged, ruling that Harris is still good law and that therefore the constitution does not prohibit judicial fact-finding at sentencing within the maximum sentence authorized by the jury’s verdict.
The court also rejected, under a plain error standard of review, the defense challenges to the multiple/single conspiracy instructions and sufficiency of the evidence. As to the sentence, the court remanded the conspiracy sentence because the original sentencing hearing took place prior to Booker. The court upheld the mandatory sentence under 18 U.S.C. § 924(c), which had been enhanced from 5 to 10 years based on the judge’s finding at sentencing by a preponderance that the firearm had been discharged, ruling that Harris is still good law and that therefore the constitution does not prohibit judicial fact-finding at sentencing within the maximum sentence authorized by the jury’s verdict.
Win one and lose one in capital cases in Delaware
In a pair of Delaware capital habeas appeals, on September 28, 2006, the panel of Judges Rendell, Ambro and Fuentes addressed the death penalties imposed on two codefendants convicted in the 1992 murder of Wilson Mannon. Another codefendant did not appeal his death sentence and was executed in 1995. Time will tell which of these two opinions, the one granting penalty phase relief or the one denying it, has more far-reaching impact.
The panel granted penalty phase relief in Outten v. Kearney, No. 04-9003 (9/28/06). In opening statement during the penalty phase, counsel stated that they were there "to beg for the life" of their client. They called six witnesses, including the defendant’s mother, three siblings, a friend and a former girlfriend. Counsel did not undertake any mitigation investigation other than talking to family. The witnesses testified about the defendant’s care for his father during his final illness, how his father had taken out his frustrations on the defendant, the defendant’s criminal history and history of assaultive behavior, and the traumatic death of the defendant’s infant son. The defendant also allocuted on similar topics. The jury recommended death by a vote of 7-5. Post-conviction counsel uncovered extensive mitigating evidence that had not been discovered by trial counsel, including extensive physical abuse of the defendant by his father, that the defendant’s mother drank heavily during her pregnancy with him, that the defendant suffered two head traumas as a child, that he was placed in learning disabled classes at the age of ten, that he was placed with foster families and shelters and that a foster mother sexually abused him, and that the defendant had abused alcohol and drugs since adolescence. Writing for the panel, Judge Ambro concluded that the state courts’ ruling that trial counsel’s performance was adequate was an objectively unreasonable application of Strickland. Citing the ABA standards applicable to capital counsel, the court refused to accept trial counsel’s explanation that they did not investigate further based on their discussions with the defendant’s mother, because counsel had insufficient evidence from which to conclude that further investigation would prove futile. Also, the court rejected trial counsel’s asserted strategy to argue innocence to the jury during the penalty phase rather than mitigation. They had abandoned that approach at the time by admitting the defendant’s guilt, prompting the court to observe that their strategic decision "resembles more of a post-hoc rationalization . . . than an accurate" account of their conduct at the time. The panel further found the inadequate representation prejudicial, particularly in light of the fact that there were critical facts such as neurological damage the jury never heard, and the close jury vote (7-5).
In contrast, the panel denied sentencing phase relief in Shelton v. Carroll, No. 04-9004 (9/28/06). During the penalty phase the defendant first asked to proceed pro se and insisted that no mitigation evidence be presented. Following lengthy colloquies with both the defendant and his counsel in which they advanced the defendant's strategic decision to demonstrate to the jury that the defendant would not "beg for my life," defense counsel proceeded based upon the defendant’s specific instructions as to which mitigation witnesses to call and what questions to ask them. Counsel called three siblings who testified about the alcohol abuse, anger and violence in the household growing up, the defendant’s difficulties in school and in their neighborhood, and that he was a loving brother. In the state post-conviction proceeding, the defense called a clinical social worker who interviewed several family members and others who knew the defendant and reviewed court, juvenile court and psychiatric records, and who opined that the defense presentation in mitigation was "seriously deficient." Writing for the panel, Judge Fuentes concluded that counsel’s representation was not ineffective. Despite the same ABA guidelines cited in Outten, the court concluded that it was the defendant himself whose "deliberate and strategic determination that he ought not present mitigating evidence" that led to counsel’s performance. Further, because much of the information that was contained in the reports was presented through the siblings’ testimony, the defendant was unable to show prejudice (despite the fact that the jury had recommended death by a vote of 8 to 4). The defendant also claimed that he was denied his constitutional right to allocution in the sentencing phase. The trial judge had not permitted him to allocute as to the facts of the case (he maintained his innocence), and he had not testified at trial. The Third Circuit observed that the Supreme Court has never held that there is a constitutional right to allocution. The defense argued that Lockett v. Ohio, 438 U.S. 586 (1986), and Eddings v. Oklahoma, 455 U.S. 104 (1982), required that he be permitted to allocute with respect to the offense. The court instead concluded that under Oregon v. Guzek, 126 S. Ct. 1226 (2006), a defendant has a right to present evidence as to how, not whether, the crime was committed, and because he had not testified at trial, the defendant did not have a right to present new evidence inconsistent with guilt during the penalty phase.
Further pondering will reveal additional distinguishing features between these two cases, but two come to mind at first glance. First, post-conviction counsel in Outten was able to point to specific mitigating facts (such as head injuries) that were apparent in the defendant’s easily accessible records and that were not touched upon by the witnesses who testified in the penalty phase. Second, in Shelton the defendant and his counsel were extensively colloquied on the record about their decision, which they characterized at the time (rather than post-hoc) as strategic, not to present mitigating evidence.
The panel granted penalty phase relief in Outten v. Kearney, No. 04-9003 (9/28/06). In opening statement during the penalty phase, counsel stated that they were there "to beg for the life" of their client. They called six witnesses, including the defendant’s mother, three siblings, a friend and a former girlfriend. Counsel did not undertake any mitigation investigation other than talking to family. The witnesses testified about the defendant’s care for his father during his final illness, how his father had taken out his frustrations on the defendant, the defendant’s criminal history and history of assaultive behavior, and the traumatic death of the defendant’s infant son. The defendant also allocuted on similar topics. The jury recommended death by a vote of 7-5. Post-conviction counsel uncovered extensive mitigating evidence that had not been discovered by trial counsel, including extensive physical abuse of the defendant by his father, that the defendant’s mother drank heavily during her pregnancy with him, that the defendant suffered two head traumas as a child, that he was placed in learning disabled classes at the age of ten, that he was placed with foster families and shelters and that a foster mother sexually abused him, and that the defendant had abused alcohol and drugs since adolescence. Writing for the panel, Judge Ambro concluded that the state courts’ ruling that trial counsel’s performance was adequate was an objectively unreasonable application of Strickland. Citing the ABA standards applicable to capital counsel, the court refused to accept trial counsel’s explanation that they did not investigate further based on their discussions with the defendant’s mother, because counsel had insufficient evidence from which to conclude that further investigation would prove futile. Also, the court rejected trial counsel’s asserted strategy to argue innocence to the jury during the penalty phase rather than mitigation. They had abandoned that approach at the time by admitting the defendant’s guilt, prompting the court to observe that their strategic decision "resembles more of a post-hoc rationalization . . . than an accurate" account of their conduct at the time. The panel further found the inadequate representation prejudicial, particularly in light of the fact that there were critical facts such as neurological damage the jury never heard, and the close jury vote (7-5).
In contrast, the panel denied sentencing phase relief in Shelton v. Carroll, No. 04-9004 (9/28/06). During the penalty phase the defendant first asked to proceed pro se and insisted that no mitigation evidence be presented. Following lengthy colloquies with both the defendant and his counsel in which they advanced the defendant's strategic decision to demonstrate to the jury that the defendant would not "beg for my life," defense counsel proceeded based upon the defendant’s specific instructions as to which mitigation witnesses to call and what questions to ask them. Counsel called three siblings who testified about the alcohol abuse, anger and violence in the household growing up, the defendant’s difficulties in school and in their neighborhood, and that he was a loving brother. In the state post-conviction proceeding, the defense called a clinical social worker who interviewed several family members and others who knew the defendant and reviewed court, juvenile court and psychiatric records, and who opined that the defense presentation in mitigation was "seriously deficient." Writing for the panel, Judge Fuentes concluded that counsel’s representation was not ineffective. Despite the same ABA guidelines cited in Outten, the court concluded that it was the defendant himself whose "deliberate and strategic determination that he ought not present mitigating evidence" that led to counsel’s performance. Further, because much of the information that was contained in the reports was presented through the siblings’ testimony, the defendant was unable to show prejudice (despite the fact that the jury had recommended death by a vote of 8 to 4). The defendant also claimed that he was denied his constitutional right to allocution in the sentencing phase. The trial judge had not permitted him to allocute as to the facts of the case (he maintained his innocence), and he had not testified at trial. The Third Circuit observed that the Supreme Court has never held that there is a constitutional right to allocution. The defense argued that Lockett v. Ohio, 438 U.S. 586 (1986), and Eddings v. Oklahoma, 455 U.S. 104 (1982), required that he be permitted to allocute with respect to the offense. The court instead concluded that under Oregon v. Guzek, 126 S. Ct. 1226 (2006), a defendant has a right to present evidence as to how, not whether, the crime was committed, and because he had not testified at trial, the defendant did not have a right to present new evidence inconsistent with guilt during the penalty phase.
Further pondering will reveal additional distinguishing features between these two cases, but two come to mind at first glance. First, post-conviction counsel in Outten was able to point to specific mitigating facts (such as head injuries) that were apparent in the defendant’s easily accessible records and that were not touched upon by the witnesses who testified in the penalty phase. Second, in Shelton the defendant and his counsel were extensively colloquied on the record about their decision, which they characterized at the time (rather than post-hoc) as strategic, not to present mitigating evidence.
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