Term of Imprisonment is Synonymous with Sentence of Imprisonment under U.S.S.G. §4A1.2

Commonwealth v Hector Rengifo, N. 15-1779, August 5, 2016

   

           This case answers the burning question, “When does a Pennsylvania time served to twelve month sentence equal of sentence of almost two and one-half years for the purposes of the U.S.S.G.?” Mr. Rengifo pled guilty to distributing heroin in violation of 21 U.S.C. §841(a)(1). Prior convictions though subjected him to the possibility of an enhanced sentence as a “career offender” under U.S.G. 4B1.1(a). Key to whether or not one of those convictions actually counted towards making him a career offender was a prior Pennsylvania conviction for possession of marijuana with intent to distribute and for which he received a sentence of time served to twelve months that evolved, by virtue of two parole violations and sentences, into a prior sentence of imprisonment exceeding one year and one month, whenever imposed, that resulted in the defendant being incarcerated during any part of fifteen years within the time the defendant’s instant offense occurred.  U.S.G.G. §§ 4A1.2(e)(1), (e)(2).

            Even though Mr. Rengifo, as the result of his parole violation served only 365 days, i.e., every day of his sentence, the Government contended and the District Court agreed, that U.S.G.G. §4A1.2(k)(1), which states how to measure prior terms of imprisonment, requires adding the time serbed as a result of the violations— 294 days—  not to the original 71 days he served, but to the twelve month sentence he received. Even though “term of imprisonment” is not defined in the guidelines, the Court of appeals that “term of imprisonment” and “sentence of imprisonment” are interchangeable in U.S.G.G. §§ 4A1.2(e)(1), (e)(2) and §4A1.2 (k)(1). The Court of Appeals in fact concluded that as a result of its interpretation of the term of imprison, Mr. Rengifo actually served much more than the government contended, because in the Court’s calculation, just as you counted both the time served and the time left on parole in the original sentence, the District Court was required to do the same with the parole violations, i.e., increase the “term of imprisonment” calculation by adding both the time served after the violation and time left on parole after reparole. In other words, the time from the commencement of a defendants’ sentence until he is ultimately release from supervision and incarceration are lumped together to determine the sentence— 833 days as opposed to the government’s calculation of 659 days. (Perhaps sentences consecutive to a grant of parole grant a reprieve, but I would not count on it.)

Bribery case against Senator Menendez can proceed: advocacy for physician friend is not protected under the Speech and Debate clause of the U.S. Constitution

In United States v. Menendez, 15-3459,
http://www2.ca3.uscourts.gov/opinarch/153459p.pdf, 2016 WL 4056037 (3d Cir. July 29, 2016), the Third Circuit rejected Senator Menendez’s appeal that his indictment should be dismissed. The issue was whether advocacy on behalf of two concerns of Menendez’s physician friend, Dr. Melgen, was protected under the Speech and Debate Clause, U.S. Const. Art. 1, §6, cl. 1. The two issues were (1) allegations that Dr. Melgen overbilled the Center for Medicaid and Medicare Services (CMS) $ 8.9 million from 2007 to 2008 and (2) a contract (x-ray technology) dispute between Dr. Melgen and a company in the Dominican Republic. Menendez narrowed the issue to 5 allegedly legislative acts: meetings, calls, and staff communications with high-ranking Executive officials in the Department of Health and Human Services.

The Court explained that the Speech and Debate clause, which states that "members of Congress shall not be questioned in any other Place for any Speech or Debate in either House," extends to legislative acts. First, a court must determine if an act is clearly legislative (i.e., subpoeanaing records for committee hearings) and so protected, or clearly non-legislative (i.e., legitimate constituent services or illegitimate bribe taking) and so not protected. If an act is ambiguous (i.e., a trip by a legislator), then the Court looks to the particular circumstances to analyze content, purpose and motive. The Court rejected the government’s hardline rule that the Speech and Debate clause does not protect legislative attempts to influence the Executive, which would place legitimate policy-based efforts under the specter of indictment.

Notwithstanding their constitutional relevance, the historical facts found by the District Court were reviewed for clear error with the burden on Menendez. The Third Circuit found clear error was not evident: the disputed acts basically amounted to lobbying on behalf of a particular party and so non-legislative and not protected. The Court rejected the factual challenges based on (1) the actual content of the meetings, (2) the preparation for the meetings, (3) Dr. Melgen’s interest in following up with Menendez after the meetings, and (4) rejecting Menendez’s narrow lens when reciting the facts. Moreover, Menendez’s staff’s request for information from the Executive which would be protected was too bound up in specific advocacy, and so the entire communication was analyzed, and found to be non-legislative.

The Court also rejected a separation-of-powers and speech-and debate-clause challenge that violation of a Senate financial disclosure rule could only be punishable in the Senate, not by the Executive under 18 U.S.C. §1001. The Court addressed the venue issue (D.C., not N.J., was the proper venue) with regard to the financial disclosure under mandamus review and denied it because the allegations were sufficient that material facts were concealed in N.J. before the document was filed in D.C.

Johnson’s holding that ACCA’s residual clause is void for vagueness applies to the residual clause of the career offender guideline, U.S.S.G. § 4B1.2

In United States v. Calabretta,14-3969, http://www2.ca3.uscourts.gov/opinarch/143969p1.pdf, 2016 WL 3997215 (3d Cir. July 26, 2016), the Third Circuit held that the residual clause of the career offender guideline, U.S.S.G. § 4B1.2, was unconstitutionally vague. The Court looked to prior case law that interpreted the crime of violence definition in the Guidelines identically to the violent felony definition in ACCA and applied the Supreme Court’s reasoning in Johnson v. United States (2015) which had invalidated the residual clause of ACCA as unconstitutionally vague.

(The predicate crime of violence here was second-degree eluding contrary to N.J.S.A. 2C:29-2(b), which the parties agreed was only a crime of violence under the residual clause).

The Court applied the vagueness doctrine to the guidelines relying on caselaw that the guidelines are sufficiently law-like to be subject to constitutional limitations. The Court noted that the guidelines are the beginning of all sentencing determinations, calling them a “starting point” and “framework for anchoring sentencing decisions” so that a miscalculation led to due process concerns of fair notice and arbitrary enforcement.

The Court specifically declined to consider two issues: (1) whether its ruling applied to residual clauses other than 4B1.2. It noted that the language in 4B1.2 was identical to ACCA and also included the list of four enumerated offenses like ACCA (burglary, arson, extortion, and crimes involving the use of explosives) that might have contributed to the clause’s arbitrariness and unpredictability; and (2) whether its ruling on 4B1.2 was retroactive.

Next, the Court found the case should be remanded under plain error review.

First, the Court found the error affected Calabretta's substantial rights. The career offender guideline range was 188 to 235 months. The non-career offender guideline range was 108 to 135 months. If the drugs minus two amendment had been applied, the guideline range would have been 87 to 108 months. Even though the sentencing court granted a variance to 120 months, the Third Circuit ruled that the sentence was not made irrespective of the incorrectly calculated guideline range. The Third Circuit heavily quoted a recent Supreme Court case, Molina-Martinez v. United States, 136 S.Ct. 1338 (2016) to state that “when a defendant is sentenced under in incorrect guideline range – whether or not the defendant’s ultimate sentence falls within the correct range – the error can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.” In the ordinary case, a defendant can satisfy his burden on prong three. The Court emphasized the sheer magnitude of the error here (87 or 108 months being the low end of the guidelines without the error, as compared to 188 months), as contributing to its conclusion.

The Court found prong four, an error that seriously affects the fairness, integrity, or public reputation of the judicial proceedings, would be met if it were to affirm a sentenced “imposed against the backdrop of a legally incorrect career offender designation and a significantly higher Guidelines range.” Given that the sentencing court had varied downward from the guideline, it was possible the court would impose a sentence below the guidelines if they were properly calculated, and “uncertainty weighs in favor of resentencing, not affirmance.” (quoting Molina-Martinez, 136 S.Ct. at 1347). A sentencing judge’s statement that it was imposing the “minimum sentence sufficient” could not shield it from plain or harmless error review. Judge Fisher dissented on prong four, finding that evidence in the record overwhelmingly supported the 120-month sentence.

Did the Third Circuit Intend to Severely Narrow the Statement-Against-Penal-Interest Hearsay Exception, and to Encourage New Investigation in Habeas Proceedings?

Navigating through some murky jurisprudential waters, the Third Circuit may have steered a bit off course, and unnecessarily so. In a precedential opinion issued without oral argument, Staruh v. Superintendent Cambridge SpringsSCI, No. 15-1650 (3d Cir.  June 30,2016), the Third Circuit seems to have ruled that a third-party’s extra-judicial exculpatory confession is admissible only when the declarant is available to testify, even though the statement-against-penal-interest hearsay exception, by its terms, applies when the declarant is not available to testify. See, e.g., Fed. R. Evid. 804(b)(3). Before discussing the specifics of the case, a nutshell discussion of relevant law may prove useful.

The Supreme Court has recognized that state evidentiary rules that categorically exclude hearsay evidence—when critical to the defense and with persuasive assurances of trustworthiness—can violate due process. In Chambers v. Mississippi, 410 U.S. 284 (1973), a state hearsay rule precluded defendant from introducing testimony of witnesses to whom a third person had confessed to committing the murder for which Chambers was on trial. The court noted that the hearsay statements bore substantial assurances of trustworthiness having been made spontaneously to a close acquaintance shortly after the murder, the confessions were corroborated by other evidence (including their sheer number), and each confession was self-incriminating and against self-interest. Id. at 300-01. The Court concluded that "where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice." Id. at 302. But Chambers does not go so far as to hold that a defendant is denied a fair opportunity to defend himself whenever a state rule  excludes favorable evidence, see United States v. Scheffer, 523 U.S. 303, 316 (1998); nor does Chambers undermine a state’s “broad latitude . . . to establish rules excluding evidence from criminal trials." Holmes v. South Carolina, 547 U.S. 319, 324 (2006). Those cases do not require that a trial court must allow the admission of untrustworthy hearsay statements as evidence of third party guilt to satisfy the Constitution. It is categorically excluding evidence under evidentiary rules that "infring[e] upon a weighty interest of the accused" or "that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote" that violates due process. Holmes, Holmes v. South Carolina, 547 U.S. 319, 324, 326 (2006).

In Staruh, Defendant Mom was charged with first and third degree murder in the blunt-force-trauma death of her three-year old child. About two years after the child’s death, Defendant’s mother (Grandmom), with whom Defendant’s family lived, pleaded guilty to endangering the welfare of a child based upon the conditions of her home, and specifically denied abusing the child. But about one year later, just before Mom’s trial, Grandmom confessed to Mom’s investigator on more than one occasion that she had abused the child, killing him, and that Mom did not abuse him. When served with a subpoena to testify at Mom’s trial, Grandmom told the investigator that Mom “is innocent but my Attorney said I could get in trouble if I say this in court so I can’t.” 

At trial, the defense focused on Grandmom as the perpetrator. Outside the jury’s presence, defense counsel called her as a witness, but she stated that she would assert her Fifth Amendment privilege not to testify. Defense counsel requested permission to force Grandmom to assert her Fifth Amendment privilege in front of the jury, which the trial court denied. Defense counsel then requested permission to call the investigator as a witness to testify to Grandmom’s exculpatory hearsay confessions as a statement against penal interest, because, as the evidentiary rule required, Grandmom was now unavailable to testify. The trial court denied this request, finding that the statement was “blatant hearsay” and that it was not “trustworthy.”  The jury acquitted Mom of first-degree murder, but found her guilty of, among other things, third-degree murder, and she was sentenced to a prison term of 18 to 40 years. 

On appeal to the Pennsylvania Superior Court, Mom argued that the trial court erred in excluding the investigator’s testimony as to Grandmom’s hearsay confession, since her invocation of the Fifth Amendment made her unavailable to testify. The Superior Court affirmed, holding that the circumstances of Grandmom’s confession did not provide sufficient assurance of reliability, because she confessed for the first time just days before Mom’s trial, she did not sign a confession, she never intended to be held accountable for her statements, and she would benefit from confessing by her daughter’s acquittal. Mom’s PCRA Petition, raising the same issue, was dismissed.

Mom’s Section 2254 habeas petition raised again the trial court’s error in excluding the investigator’s testimony concerning Grandmom’s confession. The Magistrate Judge determined that the Superior Court reasonably concluded that Grandmom’s exculpatory statements were not sufficiently reliable, noting that her refusal to testify rendered her unavailable for cross-examination, thus distinguishing this case from Chambers v. Mississippi, 410 U.S. 284 (1973), in which the Court emphasized the availability of the declarant for purposes of cross-examination. The District Court adopted the Magistrate’s Report, reasoning that, unlike Chambers, Grandmom was unavailable for cross-examination, her extrajudicial exculpatory statement was uttered on the eve of trial, and it could not be confirmed by other evidence.

Having granted a certificate of appealability respecting the Chambers issue, the Third Circuit affirmed, denying habeas relief. The Court, noting that that Grandmom maintained her innocence for more than two years after the murder,  determined that Grandmom’s confessions had “no indicia of credibility” because she asserted her Fifth Amendment privilege “hoping to prevent her daughter from being convicted of murder by confessing to the crime, while at the same time avoiding criminal liability herself. . . . This appears to be a ‘justice-subverting ploy’ that provides the justification for requiring indicia of truthfulness.”

Rather than re-invent the wheel, I will include here commentary on this case by habeas/appellate star Matthew Stiegler (www.StieglerLaw.com) in his always perceptive CA3Blog (http://thirdcircuitblog.com), who proffered this astute analysis of the Court’s opinion:

I question the court’s reasoning. Maybe the grandmom was lying to protect the mom. It’s possible. But it’s also possible that grandmom was the real murderer, her repeated and detailed and never-repudiated confession was the truth, and her refusal to affirm it was choosing her own freedom over the mom’s. The court’s certainty about which possibility is the truth, seemingly arrived at with no subsequent evidence or fact-finding about grandmom’s actual motivations, seems unwarranted. That seems like a choice for juries allowed to hear all the facts, not appellate courts.

 

In the opinion’s most dangerous passage, the court stated in a footnote that the grandmother’s unwillingness to testify “is extremely probative of the truth of her statements.” Read broadly, this language is nothing less than a repudiation of the penal-interest hearsay exception. The whole reason defendants like the mother seek to get in hearsay statements against penal interest is that the alternate perpetrator isn’t willing to repeat the confession in court. If the hearsay is never reliable enough when the declarant won’t testify at trial, then the penal-interest rule is an umbrella you can use only when it’s not raining. I hope that the court clarifies this critical point on rehearing or in a future case.

 

Curiously, in a footnote, the Court noted as significant that Mom’s counsel, in the habeas proceeding, did not “obtain an affidavit from [Grandmom] reaffirming her confession at any point during the federal habeas proceeding, casting further doubt on its truthfulness.” But wouldn’t such an affidavit would violate the Court’s admonition that “the evidence against which a federal court measures the reasonableness of the state court's factual findings is the record evidence at the time of the state court's adjudication.” Rountree v. Balicki, 640 F.3d 530, 538 (3d Cir. 2011). In any event, this opinion strongly suggests that practitioners should consider undertaking new investigation in habeas proceedings.

 

 

 

 

 

 

 

D

 

A defendant cannot make a collateral challenge of a state sentence by challenging the reasonableness of his federal sentence.

            Appellant Raymond Anthony Napolitan challenged his federal sentence arguing that it was unreasonable to run the federal sentence consecutive to an invalid state sentence.  Napolitan was sentenced under a Pennsylvania state law that increased the mandatory minimum for sexual and simple assault, if committed with a firearm.  Under state sentencing procedure, the judge had to determine by a preponderance of the evidence if the defendant possessed a firearm and used it to frighten the victim.   That sentencing procedure was later determined to be unconstitutional following the Supreme Court decision in Alleyne v. United States, 133 S. Ct. 2151 (2013), which requires that a fact that may increase a statutory minimum sentence be proven beyond a reasonable doubt.

                In United States v. Napolitan, the Third Circuit held that an defendant cannot collaterally challenge a state court sentence as part of a federal sentencing challenge unless (1) he is raising a Gideon violation or (2) the applicable federal statute or sentencing guideline directly permits the collateral attack.  In reaching this decision the appellate court looked at the precedent established in Custis v. United States, 511 U.S. 485 (1994), where the Supreme Court held that a defendant cannot collaterally attack a state conviction through an appeal of a federal sentence.  The circuit court explained that it was illogical to allow a collateral attack on a state sentence via an appeal of a federal sentence, when similar collateral attacks on state convictions are prohibited.  Additionally, the Third Circuit noted that all other circuit courts to address this issue have reached the same conclusion, barring collateral attacks of a prior state sentence in a federal sentencing appeal, including the Second, Sixth and Ninth Circuits.  Finally, the appellate court reasoned that there were other ways for the appellant to challenge the state sentence including filing a habeas petition. 

 

Defendants can be civilly liable for damages to victims even after criminal restitution ordered.

            While Doe v. Hesketh, et al., No. 15-1381 (July5, 2016), is a civil matter, it could impact many who have been convicted of child sex offenses.  Defendant Mancuso pleaded guilty to a manufacturing child pornography charge.  At sentencing, the judge ordered $200,000 to be placed into a trust as restitution for the victim.  The victim later filed a civil lawsuit against Mancuso (along with other defendants who were dismissed for lack of personal jurisdiction) under 18 U.S.C. § 2255 – which provides a civil cause of action for minor victims of human trafficking, sexual assault and pornography offenses.  Victims can recover personal injury damages and the cost of the suit, including attorney fees.  Statutorily, damages are automatically deemed to be no less than $150,000.

            Third Circuit found that the criminal restitution order did not bar the later filing of the civil law suit under § 2255 and that collateral estoppel did not apply so that a new damages amount, higher than the $200,000 restitution, could be determined in the civil lawsuit.  There are statutory provisions allowing for criminal restitution to be reduced by the amount of civil recovery in order to prevent double recovery.   

No vindictiveness in one-month reduction on Johnson remand.

     In U.S. v. Nerius, 15-3688, 2016 WL 3003781 (3d Cir. May 25, 2016), Nerius was sentenced to a bottom-of-the-range 37 months as a career offender following conviction for impeding correctional employees and damaging property within prison.  On Johnson remand, Nerius was resentenced to 36 months, the top of the non-career offender range.  The Third Circuit rejected Nerius’s claim that the new sentence triggered a presumption of judicial vindictiveness and violated due process under North Carolina v. Pearce, 395 U.S. 711 (1969), because the Pearce presumption does not apply when the new sentence is less than that originally imposed.   The Court found the fact that the two sentences fell in different -in this case opposite- relative positions within the original and revised Guideline ranges to be irrelevant.

     Absent the presumption, an appellant must demonstrate “proof of actual vindictiveness” to support a claim of judicial vindictiveness.   Nerius did not raise a claim of actual vindictiveness.

Prostitute has Common and Apparent Authority to Consent to Search Room in Which She is Working

In United States v. Murray, No. 15-2054, 2016 WL 1697082 (3d Cir., April 28, 2016), Defendant challenged his conviction for distribution of crack cocaine and related offenses. In Murray, Bensalem police were investigating alleged prostitution in the area. Police had been informed by the owner of the at the Sunrise Motel that a suspected prostitute had been picked up at the motel by someone driving a green Cadillac. Police also received a tip on that same day from a woman named “Jessica Brown” that a man named “Mills” drove a green Cadillac. Ms. Brown informed police that “Mills” was currently residing at the Knights Inn, and he had drugs in his possession. During the evening on the same day that they had received these two tips, police observed a green Cadillac at a third motel, the Neshaminy Motor Inn. Police learned that the owner of the green Cadillac was Defendant, and he had rented one room at the motor inn. By this time, police also had learned that Defendant had rented two rooms at the Knights Inn, for which he paid cash and provided a copy of his driver’s license. As they continued their investigation, police observed the green Cadillac at the Knights Inn parked in front of one of the two rooms rented by Defendant. Officers also made contact with a woman, identified as “Jessica Burns,” inside the room rented by Defendant at the Neshaminy Motor Inn. Initially, Ms. Burns had asked an officer if he wanted a date. During the officers’ subsequent attempt to talk to Ms. Burns, she refused to do. However, Ms. Burns ultimately acquiesced, and informed the officers that she was in fact a prostitute, and she worked for the man who had rented the room. She also informed the officers that this man was a drug dealer who supplied her with drugs.

Eventually, Defendant arrived at the room at the Neshaminy Motor Inn in which police were interrogating Ms. Burns. The officers recognized Defendant from his driver’s license, and promptly frisked him. The search yielded keys to the two rooms Defendant had rented at the Knights Inn, as well as a cell phone and a large wad of cash. Based upon the statements elicited from Ms. Burns and the items recovered from Defendant’s person, police obtained search warrants for the two rooms at the Knights Inn and the green Cadillac. In one of the rooms at the Knights Inn, police recovered 192.4 grams of crack cocaine.

At the suppression hearing, Defendant argued that Ms. Burns possessed neither common nor apparent authority to consent to a search of the room at the Neshaminy Motor Inn. He also argued that the frisk of his person was illegal. The lower court found Ms. Burns’ testimony credible regarding her voluntary consent to search the room at the Neshaminy Motor Inn. The lower court also determined that Ms. Burns had common authority, or in the alternative apparent authority, to give consent to search the room. The lower court further ruled that the frisk of Defendant was lawful because police possessed the requisite reasonable suspicion to believe he was armed and dangerous. The lower court also determined that Defendant consented to the search of his person. The lower court ultimately concluded that the search warrants were lawfully issued.

Defendant entered a guilty plea, but preserved his right to appeal the lower court’s denial of his suppression motion. The Third Circuit upheld the lower court’s denial of Defendant’s suppression motion.  Specifically, the Third Circuit concluded that, based upon the facts as known to police at the time of the encounter, i.e., that Ms. Burns was a prostitute employed by Defendant, the officers reasonably believed that Ms. Burns had common authority, or at the very least apparent authority, over the room.  The Third Circuit also ruled that, based on the information police had obtained to that point, i.e, that Defendant was a drug dealer who ran a prostitution operation, the officers reasonably believed that Defendant would be armed and dangerous. Distinguishing United States v. Myers, 308 F.3d 251, 258 (3d Cir. 2002), the court concluded that a frisk inside one’s home is permissible if limited to the extent necessary to protect police and secure the situation. The court also ruled that, based upon the testimony of the arresting officer, Defendant had in fact given consent for police to search him.

Supreme Court Holds Johnson Retroactive to Cases on Collateral Review

Justice Kennedy authored the 7-1 opinion for the Court in Welch v. United States, holding that Johnson applies retroactively to cases on collateral review:

Under this [Teague] framework, the rule announced in Johnson is substantive.  By striking down the residual clause as void for vagueness, Johnson changed the substantive reach of the Armed Career Criminal Act, altering “the range of conduct or the class of persons that the [Act] punishes.” Schriro, supra, at 353.  Before Johnson, the Act applied to any person who possessed a firearm after three violent felony convictions, even if one or more of those convictions fell under only the residual clause.  An offender in that situation faced 15 years to life in prison.  After Johnson, the same person engaging in the same conduct is no longer subject to the Act and faces at most 10 years in prison.  The residual clause is invalid under Johnson, so it can no longer mandate or authorize any sentence.  Johnson establishes, in other words, that “even the use of impeccable factfinding procedures could not legitimate” a sentence based on that clause.  United States v. United States Coin & Currency, 401 U. S. 715, 724 (1971).  It follows that Johnson is a substantive decision [and therefore retroactive].

Three petitions for certiorari are pending, asking the next logical question:  whether Johnson is retroactive as applied to the Guidelines.  See, e.g., Alfrederick Jones v. United States, No. 15-8629, in which the National Association of Federal Defenders recently filed an amicus brief in support of the petition.

Supreme Court Holds Guidelines Error Alone Should Suffice to Show Prejudice

The Supreme Court reversed the Fifth Circuit in Molina-Martinez v. United States, No. 14-8913, maintaining the approach taken by the Third Circuit in reviewing Guidelines error.  In an opinion by Kennedy (joined by Roberts, Ginsburg, Breyer, Sotomayor and Kagan), the Court held:  "courts reviewing sentencing errors cannot apply a categorical rule requiring additional evidence in cases, like this one, where the district court applied an incorrect range but nevertheless sentenced the defendant within the correct range.... [A] defendant can rely on the application of an incorrect Guidelines range to show an effect on his substantial rights."  The Court reasoned:  "From the centrality of the Guidelines in the sentencing process it must follow that, when a defendant shows that the district court used an incorrect range, he should not be barred from relief on appeal simply because there is no other evidence that the sentencing outcome would have been different had the correct range been used.  In most cases a defendant who has shown that the district court mistakenly deemed applicable an incorrect, higher Guidelines range has demonstrated a reasonable probability of a different outcome."  In other words:  "When a defendant is sentenced under an incorrect Guidelines range -- whether or not the defendant's ultimate sentence falls within the correct range -- the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error." 

Alito, concurring (joined by Thomas), agreed with the result and that the Fifth Circuit's "rigid approach" is incorrect, but took issue with the majority's "speculat[ion]" about "how often the reasonable probability test will be satisfied in future cases."  He explained:  "The Court's predictions... are predicated on the view that sentencing judges will continue to rely very heavily on the Guidelines in the future, but that prediction may not turn out to be accurate." 

 

Thanks to Laura Mate, Sentencing Resource Counsel, for this summary.

Police Officer Acted as Mere "Listening Post" in Hospital

Dellavecchia v. Secretary, PA DOC, No. 15-1833, decides a 6th Amendment right to counsel issue, which may come up in non-habeas contexts.  Judge Greenberg writes for a unanimous panel (joined by Jordan and Scirica). From the opinion:

On this appeal from an order denying a petition for a writ of habeas corpus we consider the Sixth Amendment right to counsel in an unusual set of circumstances. In September 2012, a state-court jury convicted appellant, James Dellavecchia, of first-degree murder, criminal attempt (homicide), three counts of recklessly endangering another person, and weapons-related offenses. At the trial, Lieutenant Scott Willoughby of the Ridley Township, Pennsylvania, Police Department, the lead officer investigating the crimes, gave testimony that is at the center of this opinion. In particular, Willoughby testified that Dellavecchia made an incriminating statement immediately following a bedside arraignment conducted while he was hospitalized for a self-inflicted head injury on the day following his arrest for the commission of the offenses.

It is undisputed that when Dellavecchia made his statement without counsel present and without having been given Miranda warnings, he had not waived the right to counsel. Thus, as the case law we discuss below demonstrates, the dispute concerns whether Willoughby deliberately elicited Dellavecchia’s statement or was a mere “listening post” when Dellavecchia, spontaneously and without prompting, volunteered incriminating information.

We conclude that Willoughby did not deliberately elicit Dellavecchia’s statement and consequently did not violate Dellavecchia’s Sixth Amendment right to counsel. We also conclude that the evidence at the trial, even disregarding Dellavecchia’s statement, overwhelmingly supported his convictions and thus, even if his Sixth Amendment rights had been violated when he gave the statement, the ensuing error when Willoughby recounted the statement at trial was harmless. Therefore, we will affirm the District Court order denying Dellavecchia’s petition for habeas corpus.

This is what Det. Willoughby testified happened:

[A]s soon as District Justice Gallagher arraigned the Defendant he turned and started to walk out of the room. Mr. Dellavecchia asked me who are you. I introduced myself as Lieutenant Scott Willoughby from the Ridley Township Police Department. I told him I was in charge of the investigation, at which time he asked me to sit. I sat. He put out his hand. I shook his hand. And he stated this. I really fucked up. He asked me to sit down. And he says Scotty, I want to tell you what happened. I sat in the chair and Mr. Dellavecchia began to talk freely and openly.

 

Willoughby said he'd not planned to interrogate defendant and so forgot to bring his Miranda form. He said he did tell Dellavecchia that anything he said could be used against him. He claimed he sat and listened, taking notes, while Dellavecchia gave an uninterruped narrative. He knew that Dellavecchia's son had retained counsel for him.

 Dellavecchia testified at trial that Robins was the aggressor in an encounter in which he acted in self defense. His statement to the police did not include the self-defense aspects.

Greenberg, applying Massiah v. United States, Brewer v. Williams, US v. Henry, and Kuhlmann v. Wilson, asks whether Willoughby "deliberately elicited" Dellavecchia's statement in contravention of his right to counsel, which had attached after he was arraigned in the hospital. Willoughby, he finds, did nothing but listen to Dellavecchia's "spontaneous and unsolicited" statement. In contrast to Brewer, the state courts found that he did not go to the hospital intending to question the defendant. Without employing a specific AEDPA presumption of correctness analysis, Greenberg indicates that the federal court has no basis to reject that finding. Furthermore, Willoughby told Dellavechhia that anything he said could be used against him. Greenberg sees this as an indication that W. did not elicit D's statement but in fact encouraged him to keep silent.

Because of the lower court's "unassailable" findings on the motion to suppress, the Superior Court's ruling rejecting the claim was not an unreasonable application of the Massiah line of cases. He says in a footnote that even if the case was in a direct review posture the court would reach the same result. And he indicates that the admission of the statement was harmless error.

In a footnote, Greenberg does stress that police can only use a represented defendant's statement only if there is no elicitation.

Thank you to Claudia Van Wyk, EDPA, for this summary.

Plain Error Doyle Reversal

In US v. Victor Lopez, No. 14-4610, the Third Circuit vacates Lopez’s conviction due to a Doyle violation: the prosecution’s repeated references at trial to the defendant’s post-Miranda silence. Doyle v. Ohio, 426 U.S. 610 (1976) prohibits the prosecution from impeaching a defendant with post-Miranda silence. The opinion is the latest in a string of Doyle violations found by the Third Circuit (United States v. Shannon, 766 F.3d 346 (3d Cir. 2014); Gov’t of Virgin Islands v. Davis, 561 F.3d 159 (3d Cir. 2009); Hassine v. Zimmerman, 160 F.3d 941 (3d Cir. 1998)). It is significant principally because trial counsel failed to object, therefore the appeal was on plain-error review. This is the first Third Circuit precedent for unpreserved Doyle error.

Mr. Lopez was tried in the District of New Jersey on a single felon-in-possession count under 18 U.S.C. 922(g). The trial was a credibility contest between Mr. Lopez and the two arresting officers. The officers testified that they stopped and frisked Mr. Lopez and a second man. The other man fled and has not been identified. The officers testified that Mr. Lopez had a gun in his pocket, and they arrested him on that basis. Mr. Lopez testified that he did not have a gun, and that the officers asked him to identify the other man and then framed him for the gun, which the other man must have left at the scene. As the Third Circuit held, “The jurors were faced with the decision of whether to believe the officers’ testimony that they found a gun in Lopez’s pocket or to believe Lopez’s testimony that the police framed him.”

On cross examination, the prosecutor repeatedly asked Mr. Lopez whether, before his trial testimony, he had given this exculpatory account. E.g.: “At any point, from the next day until just before this trial, did you tell anybody, ‘I was framed by police’?” In closing argument, the prosecutor made seven statements that violate the Doyle rule by inviting the inference that Lopez’s prior silence impeaches the credibility of his trial testimony.

The jury posed several factual questions. The court notes: “It appears that the jurors struggled with their assessment of the credibility of the witnesses, sending six questions to the district court during deliberations.”

The Third Circuit (Vanaskie, J., for himself, McKee, and Jordan) holds that all of the prosecution's questions and statements at issue violated Doyle, even those that regarded Lopez’s failure to file a police misconduct report. In a footnote, the court reasona that those questions also raise the impermissible inference that a defendant’s assertion of his right to silence undermines his credibility.

On plain error review, the appellant must make a prejudice showing of a reasonable probability that the error affected the outcome. The Third Circuit finds prejudice for three reasons: (1) “the case hinged entirely on the relative credibility of Lopez and the officers, with no corroborating evidence for either side’s account”; (2) “the Doyle violation was blatant”; (3) “the government’s repeated emphasis of the error in closing argument exacerbated the prejudice from the violation.”

In a footnote, the court describes the prosecution’s misconduct as “particularly egregious” given the previous Doyle precedent in the circuit. In the next footnote, the court thanks the appellate AUSA for candor. At oral argument, he conceded the Doyle error (although not prejudice), and promised to implement improved training to prevent such errors in the future. 

Thanks to Maria Pulzetti, EDPA (who litigated Lopez), for her assistance with this post.