Proof Beyond Reasonable Doubt Not Necessary To Apply Sentencing Enhancements That Don't Increase Sentence Beyond Stat Max

[The Third Circuit’s decision in United States v. Grier includes the majority’s opinion, two concurrences and two dissents. The majority opinion, which is fairly straightforward, is summarized below. Summaries of Judge Ambro’s concurrence, Judge Sloviter’s dissent and Judge McKee’s dissent, will follow in a separate post.]

Brief Background: Defendant pled guilty to one count of 18 U.S.C. § 922(g)(1). District Court, employing preponderance standard, applied 4-point enhancement pursuant to U.S.S.G. § 2K2.1(b)(5) (use of firearm in connection with another felony offense), based on finding that defendant committed aggravated assault. Enhancement raised range from 84 to 105 months to 120 to 150 months. Stat max was 10 years. District Court granted 2-level downward departure, lowering advisory range to 100 to 120 months, and imposed sentence of 100 months. Defendant appealed, and initial appellate decision was vacated for rehearing en banc.

The Third Circuit held today in United States v. Grier that facts relevant to sentencing enhancements, even when those facts constitute a separate offense, need not be established beyond a reasonable doubt, so long as the sentence remains within the statutory maximum set by the statute of conviction. The Court reasoned that the jury trial and reasonable doubt guarantees apply only to the facts constituting elements of the charged crime. Once a defendant is convicted by proof beyond a reasonable doubt as to all of the elements, thereby triggering a statutory maximum penalty, "a court may impose any sentence on the individual up to that maximum." That maximum is the one set by Congress in the United States Code. Judicial factfinding for the purpose of setting a sentence within that range does not offend the Constitution. In the course of its decision, the Court distinguished United States v. Jones as involving statutory interpretation rather than a statement of constitutional doctrine and United States v. Cunningham as involving a mandatory sentencing regime.

Turning to the standards of review, the Court held that it will continue to review factual findings for clear error and to exercise plenary review over a district court’s interpretation of the Guidelines.

The Court remanded for more specific findings both as to the District Court’s finding that the conduct constituted an aggravated assault and as to its reasoning for the sentence imposed. It emphasized the need for "thorough explication of sentencing decisions" in the wake of Booker.
The Court declined to address the continued viability of United States v. Kikumura, given that the sentence in the instant case was within the guideline range.

Judge Rendell concurred in the judgment, writing separately to add that "due process concerns regarding the standard of proof at sentencing are minimal, if not non-existent, when the sentence is below the statutory maximum, as it was here." She noted the possibility, however, that due process concerns could be implicated when and if a defendant's sentence is "in fact based predominantly on conduct wholly collateral to his convicted crime."

Judge Ambro concurred in the judgment but only because he considers the matter controlled by Supreme Court precedent, namely, McMillan v. Pennsylvania and Harris v. United States. He wrote that while joining the result, he did not join the opinion "because, among other things, I do not agree with its suggestion that the Due Process Clause has no force in criminal sentencing."

More to come...

Large Upward Variance Rejected in First Substantive Sentencing Reversal, as Third Cir. Clarifies That Rehabilitation Is Not Grounds for Imprisonment

The Third Circuit broke new ground today by reversing, as unreasonably long, a 30-month sentence for counterfeiting checks when the Guidelines range was 2-8 months.

The bulk of the Court's opinion in United States v. Manzella deals with the threshold procedural issue of whether district courts may use imprisonment to promote rehabilitation, in this case drug treatment. The Court says "no," based on 18 U.S.C. 3582(a), which states that "imprisonment is not an appropriate means of promoting correction and rehabilitation." The Court explains that this is perfectly consistent with 18 U.S.C. 3553(a)(2)(D), which directs district courts to consider rehabilitation in determining sentence, because "imprisonment" and "sentence" do not mean the same thing. Thus, defendants "[can]not be sent to prison or held there for a specific length of time for the sole purpose of rehabilitation. Instead, that legitimate goal of sentencing is to be accomplished through other authorized forms of punishment." Manzella, slip op. at 21.

But another potentially far-reaching ruling in Manzella is the reasonableness holding. While the primary rationale the district court gave for the 30-month sentence was its belief that this was the minimum to qualify the defendant for BOP's 500-hour drug treatment program, the court also cited the defendant's many violations of her pre-trial release conditions. These were substantial: failure to report to drug treatment, breaking home confinement, and testing positive for cocaine. Manzella, slip op. at 4-5. Additionally, the court made a rote recitation of the other Section 3553(a) factors.

Despite the seriousness of these violations, the Third Circuit held that they "cannot alone justify in this case a sentence nearly four times the advisory Guidelines range." Manzella, slip op. at 24. Nor did it matter that the district court recited the other sentencing factors.

In a final twist, the Court seems to raise the bar regarding the level of explanation of sentence district courts must put on the record. The Third Circuit has always required post-Booker that the record reflect the district court's consideration of all non-frivolous arguments advanced by the parties, but Manzella goes a step further by faulting the district court for failing to state "why [it] disagreed with defense counsel's argument that an alternative sentence [of halfway house detention coupled with intensive drug treatment] would have accomplished the district court's rehabilitative goals." Manzella, slip op. at 24. This is a significantly heightened explanation requirement.

It bears remembering that Manzella presents a quite sympathetic defendant. As the Court's affirmance in Colon earlier this week shows, dramatic upward variances are sometimes approved. So far, it is difficult to tell when the seemingly-tougher review afforded in Manzella will apply.

Third Circuit Upholds Large Upward Variance, Explaining that Ratcheting Procedure Not Required

The Third Circuit clarified yesterday, in United States v. Colon, that the ratcheting procedure district courts must employ when departing upward under the Guidelines for criminal history -- i.e., individually and sequentially considering each next-higher criminal history category -- does not apply to upward variances in consideration of the Section 3553(a) factors. The Court has previously held that ratcheting is still required post-Booker when district courts are departing under the Guidelines, United States v. King, 454 F.3d 187, 193 (3d Cir. 2006), but to require a similarly Guidelines-centric methodology for variances impermissibly "tie[s] the courts hands" by giving the Guidelines undue primacy in the Section 3553(a) calculus. Colon, slip op. at 7. Booker "doubly diminished" the Guidelines, the Court says, first by rendering them advisory and second by putting them on an even plane with the other Section 3553(a) factors. Colon, slip op. at 4.

Here, the demotion of the Guidelines worked to the defendant's detriment. The Third Circuit affirmed a 180-month sentence on a Guidelines range of 70-87 months (offense level 25, criminal history category III). The variance was far in excess of even the Guidelines range for a level 25 offender assuming a category VI criminal history (110-137 months), but was reasonable, the Court held, given the circumstances of the defendant's prior crimes. It remains to be seen whether the Third Circuit will take such a broad view of reasonableness when considering a similarly drastic variance below the Guidelines range.

Third Circuit Blog

Third Circuit Blog
In United States v. Korey, 2007 WL 14686, No. 05-3840, filed 1/4/07, the 3d Circuit vacated the defendant's conviction because the conspiracy instruction given to the jury contained an impermissible mandatory presumption that was not harmless. The instruction foreclosed the jury's consideration of an essential element of conspiracy: that the defendant shared a common goal, which in this case was to advance the cocaine distribution scheme.

65-year sentence affirmed for first offender convicted of 924(c) in triplicate.

Nope, not a typo . . . In United States v. Walker, No. 04-4405 (1/16/07), the Third Circuit affirmed a 65-year sentence for two armed robberies a jury said Mr. Walker committed in late 2004, as well as his possession of a firearm in connection with three crack-related offenses. The sentence consisted of a 10-year concurrent sentence for the drug offenses, and consecutive sentences, totaling 55 years, for three violations of 18 U.S.C. § 924(c).

At issue on appeal was "whether the 55-year consecutive mandatory minimum portion of [Mr. Walker's] sentence . . . violate[d] the Fifth and Eighth Amendments. op. at *1. Mr. Walker argued that 924(c)'s sentencing scheme violated due process and the separation of powers by limiting a court's sentencing discretion and preventing individualized sentencing. Reaffirming its decision in United States v. MacEwan, 445 F.3d 237 (3d Cir. 2006), the Court dismissed this claim, noting again that "Congress has the power to define criminal punishments without giving the courts any sentencing discretion." op. at *3. The Court also reaffirmed that "there is no due process right to individualized sentencing." Id.

Mr. Walker also argued his sentence violated equal protection in that it was irrational when compared with the punishments for other more serious federal crimes. Specifically, he noted that his sentence for offenses involving only the potential for violence was more severe than some sentences for offenses involving actual violence. The court dismissed this argument noting that the potential sentences for the referenced violent offenses could also be longer than the one Mr. Walker received.

Mr. Walker also argued that his sentence was irrational because 924(c)'s scheme of escalating sentences for subsequent convictions failed to differentiate between a true "recidivist" and a first time offender who is convicted all at once of more than one 924(c) offense. The Court dismissed this claim, noting that the Supreme Court's decision in Deal v. United States, 508 U.S. 129 (1993), held that 924(c)'s consecutive sentencing provision need not be limited to "recidivists."

Mr. Walker next argued that his sentence constituted cruel and unusual punishment. Applying the three part test set out in Solem v. Helm, 463 U.S. 277 (1983), for determining Eighth Amendment violations, the Court explained that the first step - a disproportion between "the gravity of the offense and the harshness of the penalty" - acts as a gateway, and if the first step does not exist there can be no Eighth Amendment violation. op. at ** 7-8. Noting that it must "grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishment for crimes," the Court found that the relationship between the harsh penalties under 924(c) and Congress' purpose for the penalties (to protect society "from violent criminals who repeatedly demonstrate a willingness to employ deadly weapons") was reasonable. op. at *9. Thus, the Court found that Mr. Walker's sentence was not grossly disproportionate from the gravity of his crimes, and accordingly found no Eighth Amendment violation.

Finally, Mr. Walker argued that 924(c)'s mandate of consecutive 25-year sentences conflicts with the parsimony clause in 18 U.S.C. § 3553(a) that courts "impose a sentence sufficient, but not greater than necessary." Based on this conflict, Mr. Walker argued that the rule of lenity mandated a lower sentence. The Court dismissed this claim, explaining that the rule lenity only applies where there is doubt about a statute's scope and that there was no doubt about the scope of 924(c).

Third Circuit Blog

Third Circuit Blog
In US v. Williams, 2007 WL 14684 (C.A.3(Pa.)), No. 05-4292, filed 1/4/07, the 3d Circuit reiterated the standard for when double jeopardy bars a retrial following a government-provoked mistrial. The district court had granted a mistrial for prosecutorial misconduct (after the prosecutor questioned the defendant about prior convictions despite the court's order not to do so) and then granted the defendant's motion to dismiss the indictment on double jeopardy grounds after finding that the prosecutor intended to provoke the mistrial. The 3d Circuit disagreed, finding that the record evidence did not sufficiently establish that the government intended to goad the defendant into requesting a mistrial. It reversed and remanded for a new trial.

Cross Examination: Prosec can't ask Def if police are lying

In US v. William Harris, No. 05-2016 (3d Cir. 12/29/06), the 3rd Circuit held as a matter of first impression in the Circuit that "asking one witness whether another is lying is inappropriate." But since there was no objection in this case to the prosecutor's questions of defendant regarding whether the police witnesses were lying, the issue was reviewed for plain error. Since the Circuit had not yet ruled until this case, the error was not "plain." Nearly all other circuits have ruled that such questions are improper and may constitute reversible error if a timely objection is made.

These sorts of cross-examinantion questions are particularly common whenever a defendant testifies. Thus, in light of Harris, it is now especially important to object anytime the prosecutor asks the defendant (or any other defense witness) if the police witnesses must be lying.

Sentencing and the Parsimony Provision

In US v. Shalon Dragon, No. 05-4906 (12/29/06), the 3rd Circuit ruled that district courts need not expressly apply the "parsimony provision" when sentencing.

Dragon pleaded guilty to identity theft and faced a guideline range of 37 to 46 months in prison. The judge imposed 44 months, and Dragon appealed arguing that the judge failed to articulate why a lower sentence within the guideline range would not have been sufficient. Dragon argued that this omission violated the "parsimony provision" in 18 usc 3553(a), which states:

The court shall impose a sentence sufficient, but not greater than
necessary, to comply with the purposes set forth in paragraph (2) of this
subsection [which lists the four basic purposes of sentencing].

The Circuit ruled that "district judges are not required by the parsimony provision to routinely state that the sentence imposed is the minimum sentence necessary to achieve the purposes set forth in section 3553(a)(2)." Instead, the judges need only state adequate reasons for the sentence, give due consideration to the 3553(a) factors, and consider any arguments properly presented by the parties which have legal merit and a factual basis.

As Prof. Berman aptly sums it up in his blog (click here): "So, to review, after Booker district courts must still precisely and accurately calculate advisory guideline ranges, but they need not explain how their sentences comply with the one mandatory directive that Congress set forth in § 3553(a). Might one suggest this is another example of activist judges putting their policy preferences over the express text enacted by Congress?"

On the other hand, note that this issue was not expressly raised before the sentencing court, and thus the review before the Circuit was for plain error. The parsimony provision argument may fare better if expressly raised legally and factually before the sentencing court, since then it is an argument "properly presented by the part[y] which [has] legal merit and a factual basis in the record." For this reason, defense counsel should certainly continue to press this argument in the district courts.

Fraud - Insufficiency of Evidence

In US v. Aimee Jones, No. 05-4898 (12/28/06), the 3d Circuit reversed the defendant's conviction for health care fraud (18 usc 1347(2)), finding that the evidence was insufficient. The Court ruled that although the government may well have established that defendant stole money from the federally funded methadone clinic where she worked, the government did not establish that defendant used false or fraudulent representations to get the money.

Defendant's role as a clerk in the clinic was to collect fees for services provided. Evidently she kept some of the fees instead of depositing them. But these acts did not involve any misrepresentation, and nothing defendant did affected the delivery of or payment for the health care services. In the absence of any such evidence, the elements of health care fraud were not established. To read the health care fraud statute any more broadly than this would be to allow it to cover simple theft, which is already covered by a separate statute. Statutes should not be read in a manner that would render other statutes superfluous.

Ineffective Assistance of Appellate Counsel

In Wright v. Vaughn, No 04-3457 (3d Cir. 12/26/06), involving a 2254 petition challenging a state court conviction, the 3rd Circuit addressed a "layered" ineffectiveness claim: whether appellate counsel was ineffective for failing to raise trial counsel's ineffectiveness in not calling defendant's girlfriend as an alibi witness.

The Court ruled that appellate counsel was not ineffective since appellate counsel may have concluded that trial counsel had strategic reasons for not calling the witness. These reasons could have included the fact that as defendant's girlfriend, the witness was not unbiased, that she had a long history of crimen falsi offenses, and that after defendant's arrest, she never went to the police to tell them defendant could not have committed the murder.

The Court also rejected Wright's claim that he was denied his 6th Amendment right to confront witnesses because the district court disallowed cross-examination tending to show that others besides Wright had an interest in killing the deceased. The Court found that although the exclusion of the evidence was error, it was harmless since much of this evidence came in through other means. The Court thus affirmed the denial of the habeas petition.

Supervised Release - Consecutive sentences allowed upon revocation

In US v. Joseph Dees, No 05-4949 (Nov. 8, 2006), the Circuit joined with six other circuits in ruling that under 18 usc sect 3584(a), a district court may "impose consecutive terms of imprisonment upon revocation of supervised release -- even when the sentences for the underlying crimes ran concurrently."

Dees had pleaded guilty on three separate dates to three separate offenses. He was sentenced, however, for all 3 cases at the same time by one judge. The sentence was 51 months in prison and 3 years supervised release on each of three separate convictions to run concurrently. Dees served his sentence and upon release accumulated multiple violations of his release conditions. At a violation hearing, the judge revoked supervised release and imposed 24 months in prison on each of the three supervised release terms, to run consecutively, for a total of 72 months. The Circuit found that nothing in the statute precludes such consecutive sentences upon violation, even though the original terms of supervised release ran concurrently.

Third Circuit finds unlimited "but for" theory of restitution calculation erroneous; reiterates admissibility of custom & practice testimony

On December 12, 2006, the Third Circuit ruled in United States v. Fallon, Case No. 03-4184, that awarding restitution owed under the Mandatory Victims Resolution Act ("MVRA") pursuant to a theory of unlimited "but for" causation is error requiring a new restitution hearing. The Third Circuit also held that the exclusion of testimony about industry custom and practice was error as a matter of law, but that such error was harmless in this case.

At the restitution hearing, the district court found by a preponderance that American Business Leasing ("ABL"), which had purchased microdermabraders from Mr. Fallon’s company and then leased the devices to doctors, would not have purchased the devices but for Mr. Fallon’s forgery of the FDA approval letter that Mr. Fallon provided to ABL during their negotiations. The district court consequently found that all of ABL’s losses from unpaid lease payments were caused by Mr. Fallon’s misrepresentation. It assessed restitution of over $55,000 ($125,000 in unpaid lease payments, minus about $30,000 for paid lease payments and $40,000 for the value of the devices owned by ABL).

On appeal, the Third Circuit vacated this award as erroneous and remanded the case for a new restitution hearing. The Third Circuit ruled that while "a . . . rebuttable inference arises that subsequent losses suffered by the victim are sufficiently linked to the underlying fraud to support an award of restitution" where a "transaction was consummated due to [the defendant’s] fraud," the argument that no loss would have occurred but for the fraud is insufficient to bear the government's burden of showing direct causation of the harm where, as here, the defendant rebuts the presumption with evidence that the loss occurred for reasons unrelated to the fraud. Mr. Fallon showed that at least $34,000 of ABL’s loss arose when two doctors defaulted on their lease payments for reasons unrelated to the fraud. One doctor filed for bankruptcy. The other passed away.

The Third Circuit also reiterated in this opinion that "[t]his court has consistently allowed ‘testimony concerning business customs and practices,'" and that "a witness need not represent an entire industry in order to have sufficient knowledge of that industry’s customs and practices so as to render substantial assistance to the jury." The Court consequently found the district court's exclusion of Mr. Fallon's proffered custom and practice testimony to be erroneous. However, it went on to hold that such error was harmless in this case because Mr. Fallon was able to impeach the testimony of the government witness who testified that the FDA approval letter was a required part of the negotiations, and because another witness testified that he had never required such approval letters from device manufacturers during his fifteen years in the leasing industry.

Another guideline sentence affirmed, more specific reasons for sentence not required

On November 28, 2006, the Third Circuit issued another precedential decision affirming a within-guideline sentence. In United States v. Lloyd, No. 05-4241, the defendant pled guilty to a drug conspiracy and faced a range of 168-210 months. The district court imposed 168 months and, after a Booker remand, imposed the same sentence. The court reaffirmed its practice of applying plain error review to an unpreserved argument that the district court failed in its procedural approach to sentencing. While counsel may have strategic reasons for not making certain objections, any hope of meaningful review on these questions requires an objection in the district court. The court found no plain error in the failure to give more specific reasons, stating that "a court can provide concrete reasons for its sentence without speaking at great length." Also, the court found no plain error in failure to give greater weight to the defendant's post-sentencing rehabilitation efforts, concluding that such efforts will only be relevant in unusual circumstances given the unfair disadvantage of defendants who have no opportunity to come back for resentencing. The court also concluded that the sentence was reasonable.

3d Cir emphasized adherence to Gunter in finding sentence reasonable

The Third Circuit in United States v. Charles, No. 05-5326, emphasized reliance on the three-step sentencing procedure articulated in United States v. Gunter, No. 05-2592. In rejecting appellant's arguments that his sentence was unreasonable, the Court held that the district court complied with steps one and three by determining the applicable guideline range and discussing the parties' arguments regarding his background and personal circumstances. Analogizing to United States v. King, No. 05-1728, the Court determined that the record supported a maximum guideline sentence of 46 months. The Court rejected Charles's parsimony argument that the district court was required to note why a low-end guideline sentence was insufficient to meet section 3553(a)(2)'s penological goals, and his argument regarding unwarranted disparities, stating that any alleged disparities here were non-statutory and resulted from the district court's reasonable exercise of discretion after considering the requisite three steps for calculating sentences.

Letter classification of offense under § 3559(a) does not require reference to guidelines

The Third Circuit in United States v. Lovett, No. 05-4171 (3d Cir. Nov. 6, 2006), rejected the contention that under § 3559(a), the "maximum term of imprisonment authorized" is based on the maximum term of imprisonment authorized by the Guidelines, rather than the statute of conviction. Lovett received a 16-month sentence for his conviction of making a false statement to a federally licensed firearms dealer in violation of 18 U.S.C. § 922(a)(6), and, on appeal, challenged only the imposition of his three-year term of supervised release. Since his range would have been 12-18 months, he argued, he would have thus been classified as a Class E felony, for which the term of supervised release would not have exceeded one year. The Third Circuit rejected the argument, reasoning that the classification process in § 3559 requires, first, identifying the offense of conviction, then, if a letter grade has not been assigned, looking to the "maximum term of imprisonment authorized." Because § 3559(a) refers to the "section defining" the criminal offense, the Court concluded that this can only refer to the Federal Crimes Code, not the sentencing guidelines.

Mummert Survives Booker, but Sentences Require Minimal Explanation

The Third Circuit has carried its rule requiring remand of ambiguous departure rulings forward into the post-Booker world. The doctrine, originating in United States v. Mummert, 34 F.3d 201 (3d Cir. 1994), stemmed from the need to determine whether the appellate court had jurisdiction to hear an appeal challenging a Guidelines sentence--legal departure denials were reviewable while discretionary denials were not. Since sentencing courts must still rule on departure motions in the Third Circuit, and since reviewability of such rulings still turns on their legal or discretionary nature, Mummert continues to serve a purpose, the Court held in United States v. Jackson, No. 05-4091 (3d Cir. Nov. 9, 2006).

Unfortunately, Jackson continues the Court's trend of watering down Mummert. In this case, although the district court never addressed the departure motion at all, the Third Circuit infers that the "implicit denial" of the motion was discretionary, since it viewed the government's opposition to the motion below as appealing to the district court's discretion. That is a controversial conclusion, as the government below and on appeal argued that the facts presented by Mr. Jackson do not "rise to the level" needed for a departure---seemingly a legal argument.

Jackson likewise seems to confirm that the Third Circuit will approve very "bare bones" explanations of sentences by district courts. Here, the sentencing court cited Mr. Jackson's criminal history and expressly rejected one of his mitigation arguments in imposing a Guidelines sentence, but was silent as to many other mitigating factors presented as well as to the departure motion. That explanation was upheld as sufficient.

A rehearing petition is pending in Jackson, asking the Court, among other things, to establish a supervisory rule requiring express and clear departure rulings, and to require district courts, as part of the explanation of sentence, to state why they reject any non-frivolous sentencing arguments made by the parties.

UPDATE: Rehearing has been denied.

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.

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.

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.