In Marshall v. Cathel, No. 04-9007 (3d Cir. Nov. 2, 2005), a capital habeas appeal, the Third Circuit affirmed the district court’s grant of sentencing phase relief.
The defendant was convicted of arranging a contract that resulted in the murder of his wife. During trial, defense counsel presented evidence of Marshall’s civic and charitable activities and four character witnesses who testified to the defendant’s reputation for honesty and integrity. Counsel also called his client and his client’s three sons to testify about tapes he left for them that were suicide notes of sorts.
Immediately after the conviction, the defendant’s family left, unaware that the sentencing phase would commence the same day. The defendant fainted and was taken to the hospital, but was back in the courtroom by the early afternoon. While the defendant was at the hospital, defense counsel conferred with the prosecutor. They reached an "agreement." The prosecutor would only pursue one of three aggravating factors, namely, that the defendant had hired someone to kill his wife. The prosecution agreed to stipulate to one mitigating factor, that the defendant had no criminal record. Also, defense counsel would retain the right to argue the "catch-all" mitigating factor. Both parties would waive openings and only make short closing arguments to the jury. After these brief proceedings, the defendant was sentenced to death, the jury finding the one aggravating factor outweighed both mitigating factors.
In the state post-conviction proceedings, the courts did not grant a full evidentiary hearing on all of Marshall’s claims and the issue of preparation for the sentencing phase was not the subject of a hearing. The New Jersey Supreme Court rejected the claim saying the court was unwilling to second guess counsel’s strategic decision because the jury found both mitigators. Also, it said that the issue of whether additional investigation would have unveiled additional mitigating evidence was too speculative to merit an evidentiary hearing.
In a prior appeal, the Third Circuit had remanded for a district court evidentiary hearing to address the preparation or investigation, if any, that counsel performed in anticipation of the penalty phase and his reasons, if any, for his actions or inactions. The district court conducted those proceedings.
The Third Circuit concluded that the New Jersey Supreme Court’s conclusion that counsel had been effective was objectively unreasonable. The Court identified several facets of its decision. One was a total failure of counsel to prepare for the sentencing phase. Next, once the verdict was in, he did not request a continuance. In addition, his closing was inadequate. In his closing, counsel recalled only a few pieces of evidence from the trial, did not even mention the defendant’s sons (whose testimony he had felt had moved the jury), and did not plead for his client’s life. The appeals court agreed with the district court that counsel put on no mitigating evidence because he had none to put on.
It did not make a difference that the defendant was a difficult client who was difficult to control. Nor did it make a difference that the community and perhaps his own sons had turned against him. Counsel still had a duty to investigate mitigating circumstances. The Court found it particularly glaring and egregious that counsel did not interview the defendant’s sons with respect to the sentencing phase specifically. While counsel did not believe the sons would plead for their dad’s life, he had nothing on which to base that belief.
The Court held that it was unreasonable for counsel to put so much stock in the evidence he presented in the guilt phase once the jury rendered its verdict. The Court concluded, "[Counsel] did not so much agree to a non-adversarial penalty phase, as he brought it on himself as a result of his own failure to have prepared for that phase of trial."
Tuesday, November 15, 2005
Section 2254: Counsel Ineffective For Failing to Suppress In-Court Identification
Thomas v. Varner, No. 04-2856 (3d Cir. Nov. 4, 2005). In this § 2254 proceeding, the Third Circuit affirmed the district court decision that counsel was ineffective for failing to object to an in-court identification.
The defendant was convicted of second degree murder during the robbery of a speakeasy. His conviction was based on the testimony of two identification witnesses. One witness (was was named Young) knew the defendant and originally failed to identify him, made several inconsistent statements, testified he was coerced by the police, testified he feared arrest if he did not name someone, had charges pending against him when he testified, but did identify the defendant. The second witness, Fuller, was shown more than 750 pictures of black males and did not make an identification. Later, he was shown 10-12 pictures. The detective pulled two and told him to take a "real good" look at them. Fuller testified he would not have made the identification absent the detective’s suggestions. However, Fuller could not make an identification at a pre-trial hearing. At trial, though, he identified the defendant and defense counsel failed to object.
In post-conviction proceedings, the defendant alleged his counsel was ineffective for failing to suppress the identification Fuller made at trial. The defendant received no hearing on his state post-conviction papers. He filed a habeas petition in U.S. District Court. The District Court held an evidentiary hearing and granted the petition.
Affirming, the Third Circuit held that the defendant was entitled to a hearing. He had requested, but was not given, a hearing in state court to develop the record regarding counsel’s decision not to object to Fuller’s in-court identification. The Third Circuit held that the defendant was not at fault for failing to develop in state court the factual basis for his claim.
On the merits, the Court held that counsel performed deficiently when he failed to object to the identification. Counsel testified he believed he was not permitted to object or move to suppress the trial identification once it had been made. However, Pennsylvania court rules permit a motion to suppress after trial starts if "the opportunity did not previously exist, or the interests of justice otherwise require." The Third Circuit concluded that counsel’s representation was not objectively reasonable.
Addressing prejudice, the Third Circuit analyzed whether such a motion was likely to be granted. It agreed with the district court that the photo lineup procedure was unduly suggestive. The Court further held that the totality of the circumstances showed that the identification was unreliable. While Fuller had the opportunity to see the shooter, he was only facing the shooter for a short time. Fuller was playing chess when the shooter entered the speakeasy and then Fuller tried to flee. While his initial description of the shooter was accurate, he then disavowed his line up identification at the pre-trial hearing. Finally, a significant amount of time had passed between the shooting and the trial identification. The Court found a substantial likelihood of irreparable misidentification.
The Court found the Strickland prejudice standard was met. Absent Fuller’s identification, the prosecution was left with Young’s identification, whose testimony was very questionable. Counsel’s failure undermined the reliability of the verdict.
The defendant was convicted of second degree murder during the robbery of a speakeasy. His conviction was based on the testimony of two identification witnesses. One witness (was was named Young) knew the defendant and originally failed to identify him, made several inconsistent statements, testified he was coerced by the police, testified he feared arrest if he did not name someone, had charges pending against him when he testified, but did identify the defendant. The second witness, Fuller, was shown more than 750 pictures of black males and did not make an identification. Later, he was shown 10-12 pictures. The detective pulled two and told him to take a "real good" look at them. Fuller testified he would not have made the identification absent the detective’s suggestions. However, Fuller could not make an identification at a pre-trial hearing. At trial, though, he identified the defendant and defense counsel failed to object.
In post-conviction proceedings, the defendant alleged his counsel was ineffective for failing to suppress the identification Fuller made at trial. The defendant received no hearing on his state post-conviction papers. He filed a habeas petition in U.S. District Court. The District Court held an evidentiary hearing and granted the petition.
Affirming, the Third Circuit held that the defendant was entitled to a hearing. He had requested, but was not given, a hearing in state court to develop the record regarding counsel’s decision not to object to Fuller’s in-court identification. The Third Circuit held that the defendant was not at fault for failing to develop in state court the factual basis for his claim.
On the merits, the Court held that counsel performed deficiently when he failed to object to the identification. Counsel testified he believed he was not permitted to object or move to suppress the trial identification once it had been made. However, Pennsylvania court rules permit a motion to suppress after trial starts if "the opportunity did not previously exist, or the interests of justice otherwise require." The Third Circuit concluded that counsel’s representation was not objectively reasonable.
Addressing prejudice, the Third Circuit analyzed whether such a motion was likely to be granted. It agreed with the district court that the photo lineup procedure was unduly suggestive. The Court further held that the totality of the circumstances showed that the identification was unreliable. While Fuller had the opportunity to see the shooter, he was only facing the shooter for a short time. Fuller was playing chess when the shooter entered the speakeasy and then Fuller tried to flee. While his initial description of the shooter was accurate, he then disavowed his line up identification at the pre-trial hearing. Finally, a significant amount of time had passed between the shooting and the trial identification. The Court found a substantial likelihood of irreparable misidentification.
The Court found the Strickland prejudice standard was met. Absent Fuller’s identification, the prosecution was left with Young’s identification, whose testimony was very questionable. Counsel’s failure undermined the reliability of the verdict.
Friday, October 14, 2005
Batson, habeas, and the “McMahon videotape.”
The Circuit Court, in Wilson v. Beard, No. 04-2461 (3d Cir. Oct. 13, 2005), affirmed a lower court’s grant of habeas relief to a petitioner convicted of murder 21 years ago. In doing so, the court touches on a number of intriguing issues concerning both Batson and timeliness under 2244. Most notable is the petitioner’s success under Batson relying largely upon the notorious "McMahon videotape." First however, the court tackles some issues pertaining to timeliness under 2244.
The petitioner, Zachary Wilson, was convicted of first degree murder in 1984, two years before the Supreme Court’s landmark decision in Batson v. Kentucky, 476 U.S. 79 (1986). The prosecutor in Wilson’s case was Jack McMahon, an Assistant District Attorney in Philadelphia. In 1988, Wilson unsuccessfully sought post-conviction relief (PCRA) in PA. The PA Supreme Court denied review of his case in 1996. On about April 1, 1997, a videotape of McMahon was released in which McMahon gave a training session on jury selection to other prosecutors. The tape reveals a highly discriminatory practice of striking African-Americans based on race.
On April 3, 1997, the DA’s office sent Wilson’s counsel at the time a letter regarding the tape. Wilson soon filed a second PCRA petition, but the PCRA court found the Batson issue to be waived. Wilson’s state appeals were unsuccessful.
Wilson next filed for habeas relief in the U.S. District Court. The Commonwealth responded, arguing that the petition was time-barred under AEDPA’s one-year statute of limitations. The parties agreed that the discovery of the McMahon tape constituted the factual predicate for the habeas petition, and therefore the one-year limitations period should run from when that tape was discovered. However, the Commonwealth argued that Wilson’s petition was four days late because he could have discovered the tape on April 1 "through the exercise of due diligence." § 2244(d)(1)(D). Wilson disagreed, arguing that his presence on death row 13 years after his conviction in this case prevented such discovery; therefore the one-year period should not run until his counsel actually received notice from the DA’s office about the tape. After factoring the tolling of the limitations period for his state PCRA proceedings and appeals, if the latter date was used, Wilson’s petition would be timely by one day.
The Third Circuit, using a "reasonable diligence" standard, agreed with the District Court that Wilson did not fail to exercise due diligence in not discovering the tape during the period in which the tape was reported on the local news. Therefore, the limitations period would run from the date on which Wilson’s attorney received notice of the tape via the DA’s letter.
The Third Circuit next agreed with Wilson and the District Court’s application of FRCP 6(a), which excludes the day that an event occurred when calculating the limitations period from that event. Basically, application of the rule would provide Wilson 365 days from the date that he received notice of the tape, rather than 364. The Circuit Court’s decision was consistent with rulings of other Circuit Courts.
Next, the Court agreed with Wilson and the District Court’s application of FRCP 6(e), which provides a 3-day mailbox rule for determining receipt of service on a party. The Court determined that application of the rule was "eminently sensible" because the Court must add some additional time to account for the time it takes for a letter to be received.
Finally, the Court also agreed that Wilson was entitled to an evidentiary hearing regarding his Batson claim. The fact that the state PCRA Court had found that Wilson had waived his Batson claim was not the equivalent of "procedural default," which would bar habeas relief. The Court determined that the PA Courts had erred in failing to apply PA Supreme Court precedent that would have allowed Wilson to seek post-conviction relief.
Upon the Third Circuit’s thorough inspection of the relevant habeas issues, the Court reviewed the merits of Wilson’s Batson claim, which relied primarily upon the McMahon tape to establish that McMahon had engaged in purposeful discrimination in striking black venirepersons. The following summary follows the organization of the Court’s decision:
Batson step one: The Court relied upon the explicit admissions in the McMahon tape to find that Wilson had established a prima facie Batson violation. Of the 16 people struck by McMahon, 9 were black, the race of the remaining 7 is unknown. McMahon's testimony at the evidentiary hearing before the District Court failed to convincingly refute this finding.
Batson step two: The Court found that, given that 20 years had elapsed since Wilson’s trial, the explanations offered by McMahon at the evidentiary hearing were sufficient to carry the Commonwealth’s minimal burden in offering some semblance of a race-neutral explanation for each person struck.
Batson step three: The Court again relied upon the tape in affirming the District Court’s decision that McMahon had, in fact, struck jurors based on race. The tape reveals a longstanding practice of McMahon, and the Court found no reason to believe that McMahon was following a different practice during Wilson’s trial. Finally, at step three of the Batson analysis, the Court states that Wilson’s "burden is to show that it is more likely than not that McMahon did so with respect to at least one of the jurors he struck. . . . We agree with the District Court that Wilson has carried this burden."
The Court ultimately affirms the District Court’s grant of habeas relief, stating that the facts of the case coupled with the McMahon tape "give[] rise to an almost unavoidable inference that the prosecutor engaged in prohibited discrimination."
The petitioner, Zachary Wilson, was convicted of first degree murder in 1984, two years before the Supreme Court’s landmark decision in Batson v. Kentucky, 476 U.S. 79 (1986). The prosecutor in Wilson’s case was Jack McMahon, an Assistant District Attorney in Philadelphia. In 1988, Wilson unsuccessfully sought post-conviction relief (PCRA) in PA. The PA Supreme Court denied review of his case in 1996. On about April 1, 1997, a videotape of McMahon was released in which McMahon gave a training session on jury selection to other prosecutors. The tape reveals a highly discriminatory practice of striking African-Americans based on race.
On April 3, 1997, the DA’s office sent Wilson’s counsel at the time a letter regarding the tape. Wilson soon filed a second PCRA petition, but the PCRA court found the Batson issue to be waived. Wilson’s state appeals were unsuccessful.
Wilson next filed for habeas relief in the U.S. District Court. The Commonwealth responded, arguing that the petition was time-barred under AEDPA’s one-year statute of limitations. The parties agreed that the discovery of the McMahon tape constituted the factual predicate for the habeas petition, and therefore the one-year limitations period should run from when that tape was discovered. However, the Commonwealth argued that Wilson’s petition was four days late because he could have discovered the tape on April 1 "through the exercise of due diligence." § 2244(d)(1)(D). Wilson disagreed, arguing that his presence on death row 13 years after his conviction in this case prevented such discovery; therefore the one-year period should not run until his counsel actually received notice from the DA’s office about the tape. After factoring the tolling of the limitations period for his state PCRA proceedings and appeals, if the latter date was used, Wilson’s petition would be timely by one day.
The Third Circuit, using a "reasonable diligence" standard, agreed with the District Court that Wilson did not fail to exercise due diligence in not discovering the tape during the period in which the tape was reported on the local news. Therefore, the limitations period would run from the date on which Wilson’s attorney received notice of the tape via the DA’s letter.
The Third Circuit next agreed with Wilson and the District Court’s application of FRCP 6(a), which excludes the day that an event occurred when calculating the limitations period from that event. Basically, application of the rule would provide Wilson 365 days from the date that he received notice of the tape, rather than 364. The Circuit Court’s decision was consistent with rulings of other Circuit Courts.
Next, the Court agreed with Wilson and the District Court’s application of FRCP 6(e), which provides a 3-day mailbox rule for determining receipt of service on a party. The Court determined that application of the rule was "eminently sensible" because the Court must add some additional time to account for the time it takes for a letter to be received.
Finally, the Court also agreed that Wilson was entitled to an evidentiary hearing regarding his Batson claim. The fact that the state PCRA Court had found that Wilson had waived his Batson claim was not the equivalent of "procedural default," which would bar habeas relief. The Court determined that the PA Courts had erred in failing to apply PA Supreme Court precedent that would have allowed Wilson to seek post-conviction relief.
Upon the Third Circuit’s thorough inspection of the relevant habeas issues, the Court reviewed the merits of Wilson’s Batson claim, which relied primarily upon the McMahon tape to establish that McMahon had engaged in purposeful discrimination in striking black venirepersons. The following summary follows the organization of the Court’s decision:
Batson step one: The Court relied upon the explicit admissions in the McMahon tape to find that Wilson had established a prima facie Batson violation. Of the 16 people struck by McMahon, 9 were black, the race of the remaining 7 is unknown. McMahon's testimony at the evidentiary hearing before the District Court failed to convincingly refute this finding.
Batson step two: The Court found that, given that 20 years had elapsed since Wilson’s trial, the explanations offered by McMahon at the evidentiary hearing were sufficient to carry the Commonwealth’s minimal burden in offering some semblance of a race-neutral explanation for each person struck.
Batson step three: The Court again relied upon the tape in affirming the District Court’s decision that McMahon had, in fact, struck jurors based on race. The tape reveals a longstanding practice of McMahon, and the Court found no reason to believe that McMahon was following a different practice during Wilson’s trial. Finally, at step three of the Batson analysis, the Court states that Wilson’s "burden is to show that it is more likely than not that McMahon did so with respect to at least one of the jurors he struck. . . . We agree with the District Court that Wilson has carried this burden."
The Court ultimately affirms the District Court’s grant of habeas relief, stating that the facts of the case coupled with the McMahon tape "give[] rise to an almost unavoidable inference that the prosecutor engaged in prohibited discrimination."
Friday, September 30, 2005
2254 relief granted for Sixth Amendment violation -- trial court denied counsel's request for continuance and defendant proceeded to trial pro se
Defendant was charged in New Jersey state court on multiple counts of theft by deception involving prospective buyers whose investments in a failed condominium development were not refunded. Counsel was appointed, but a few months before trial was scheduled to begin new counsel was appointed and requested a continuance in view of the lengthy witness list counsel just received, the need to conduct extensive interviews and the late production of discovery. The trial court denied the continuance request, and the defendant then elected to represent himself at trial because he was more familiar with the facts and witnesses than was his new counsel. The trial court granted the request to proceed pro se, and counsel remained as back-up. After losing at trial and on direct appeal, defendant filed under 2254. The Third Circuit reversed the district court's denial of relief, concluding that the denial of the request for continuance rendered the defendant's waiver of his Sixth Amendment right to counsel involuntary and that the state courts' decision was contrary to and an unreasonable application of established Supreme Court law. Pazden v. Maurer, http://www.ca3.uscourts.gov/opinarch/034236p.pdf
Thursday, September 29, 2005
Third Circuit Remands to Decide if Officer Deliberately Violated Miranda Before Getting Mirandized Statement
In United States v. Naranjo, http://www.ca3.uscourts.gov/opinarch/034759p.pdf, the Third Circuit held that if officers deliberately used a two-step strategy to obtain a confession in violation of Miranda, first interrogating a custodial defendant without warnings and then obtaining a postwarning statement, both statements must be exluded unless curative measures were taken before the postwarning statement was made. This was the Court's first application of the recent plurality decision in Missouri v. Seibert, 542 U.S. 600. In Naranjo's case, the suppression hearing took place prior to the Seibert decision. The evidentiary hearing revealed that the entire interrogation session was custodial, but that the warnings were only given toward the end of the session. The government conceded that the statements given in the first part of the interrogation session should be suppressed, but contended that the postwarning statements should be admitted because they were voluntarily given under Oregon v. Elstad, 470 U.S. 298. Because the hearing took place prior to Seibert, the district court made no finding whether the officers' decision to interrogate without giving warnings was deliberate, and the Court therefore remanded. The Court stated the test in these cases as follows: "Accordingly, unless the agents deliberately withheld warnings, Elstad controls [and] the relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct . . . . If the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made."
Monday, September 19, 2005
3rd Cir. expounds on definition of “testimonial” in ruling that admission of out-of-court statement was harmless error
United States v. Hinton, No. 03-3803 (3d Cir. Sept. 14, 2005), deals with a challenge to out-of court testimony under the Confrontation Clause, most recently addressed by the Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004). Favoring application of Crawford’s third formulation of "testimonial" ("statements made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial") as ensuring compliance with the Confrontation Clause, the Third Circuit concluded that, while the witness’s 911 call here was non-testimonial, his statement to police that Hinton had threatened him with a gun was testimonial. While its admission was error because there was no showing that the witness was unavailable or that Hinton had an opportunity to cross-examine him, such error was harmless because the statement did not affect the jury’s decision. The Third Circuit affirmed the conviction, but vacated the sentence and remanded for resentencing in accordance with Booker.
District court’s failure to include final forfeiture order was clerical error
In United States v. Bennett, No. 04-3650 (3d Cir. Sept. 12, 2005), the Third Circuit affirmed the district court’s amended judgment to include a final order of forfeiture three years after sentencing. Though Bennett was sentenced in August 2001, the district court did not amend the judgment to include a final forfeiture order, as required by Fed. R. Crim. P. 32.2(b)(3), until August 2004, relying on Fed. R. Crim. P. 36, which allows the court to correct clerical errors in the judgment. The Third Circuit concluded that the district court’s failure to make forfeiture a part of the sentence was clerical in nature, rather than substantive, because the parties had stipulated to the forfeiture, a preliminary order of forfeiture had been issued, and the omission of a final order resulted from organizational failure, not legal error.
Friday, September 16, 2005
3rd Cir to consider en banc whether Booker applies to restitution and forfeiture
The 3rd Cir has sua sponte voted to rehear en banc three appeals previously argued before two different panels in which the issue is whether the rule of Blakely and Booker applies to orders of restitution and forfeiture. See US v. Kennard Gregg, No 04-2912 (9/16/05); US v. James Fallon No. 03-4184 (both addressing restitution); and US v. Paul Leahy, No. 03-4490 (addressing forfeiture.) In the Gregg and Fallon, the Court has stated that the following issue is to be addressed:
The issue in Leahy is whether Booker applies to forfeiture, and also "whether orders of restitution are a criminal penalty and whether Booker applies to such orders under the VWPA" (the discretionary restitution Act in effect prior to the MVRA).
The en banc argument is scheduled for Nov. 1, 2005. The granting of en banc review in these cases indicates that the 3d Circuit judges are split or undecided on the question of whether a jury finding or admission by defendant regarding loss amount is required under the reasoning of Blakely and Booker in order for a judge to be able to impose restitution or forfeiture.
The granting of en banc consideration makes all the more clear the importance of objecting on Blakely/Booker grounds to any sentence that includes an order of restitution (or forfeiture) where the amount of loss (or ill-gotten gain) is not admitted or proven to the jury beyond a reasonable doubt. The 3rd Cir rejected this argument pre-Blakely in US v. Syme, 276 F.3d 131 (2002) in the context of the old version of the restitution act -- the VWPA -- which made the amount of restitution discretionary with the judge. The Court in Syme ruled, following a long line of precedent within the Circuit (and in most other circuits), that restitution is a "criminal penalty" and thus that it must be analyzed as such under the rule of Apprendi. (The issue statement in Gregg and Fallon indicates the Court will be reconsidering this part of Syme too.) But the Court, without the benefit of Blakely, ruled that since the VWPA did not specify a maximum amount of restitution, the rule of Apprendi regarding increases in the statutory maximum did not apply.
At least two things have changed since Syme, requiring the Circuit to reconsider that holding. First, under the new restitution act -- the MVRA -- restitution in the full amount of the loss is no longer discretionary, but mandatory. Second, Blakely and Booker have clarified what the Supreme Court meant by "statutory maximum." The statutory maximum for Sixth Amendment and Apprendi purposes is not just a number specified in a statute, but rather, the "maximum sentence a judge may imposed solely on the basis of facts reflected in the jury verdict or admitted by the defendant." Blakely, 124 S. Ct. at 2537. Thus, for Apprendi purposes, the maximum restitution a judge may impose is the amount of loss "reflected in the jury verdict or admitted by the defendant." If the jury does not find a loss amount beyond a reasonable doubt, and the defendant does not admit to an amount, then the statutory maximum restitution is zero. Restitution based only on judge-found facts would violate Apprendi, Blakely and Booker.
(To the extent that forfeiture can be viewed now, in light of Blakely and Booker, as a criminal penalty also subject to the Sixth Amendment right to jury trial, this same argument applies there. The only difficulty is that the in Libretti, 516 US 29 (1995), the Supreme Court held that there is no Sixth Amendment right to jury trial on forfeiture. But the reasoning of Libretti, which depends on the distinction between conviction and sentence, has been substantially undercut by Blakelyy and Booker, which "have made clear that distinguishing between a conviction and a sentence obscures what matters for constitutional purposes -- namely, facts that increase a defendant's punishment." US v. Lloyd, 407 F.3d 608, 615 (3rd Cir. 2005).)
An interesting question that may arise is whether, assuming Blakely and Booker do apply to restitution under the MVRA, could the Court impose a Booker style cure -- making the restitution discretionary as it was under the VWPA, and then permit restitution based on judge-found facts? The answer is clearly no. It simply makes no difference to the Apprendi analysis whether the amount of restitution is mandatory as under the MVRA, or whether judge has the discretion to impose less than the total amount of loss as under the VWPA. The Booker remedy of advisory guidelines cures the Sixth Amendment error inherent in mandatory guidelines only because the guidelines operate against the backdrop of statutes which set maximum sentences for each offense. Thus, if, as under Booker, the guidelines are made advisory, or even if the guidelines were entirely eliminated, the courts would retain statutory authority to impose up to the maximum allowed by the statute for the offense of conviction.
The same is not true for restitution. The court's only authority for imposing restitution is the restitution statute, and whether that statute is the MVRA or the VWPA, the maximum amount of restitution that can be imposed is determined by the amount of loss. That is true regardless of whether the court, as under the VWPA, has discretion to impose less than the maximum. Under Blakely and Booker, any fact which controls the maximum sentence that can be imposed must be admitted or proven to the jury. Thus, whether under the MVRA or under the VWPA, the amount of loss, since it controls the maximum restitution that can be imposed, must be subject to this Sixth Amendment jury requirement.
Whether orders of restitution are a criminal penalty and whether the
decision of the Supreme Court of the United States in Booker applies to such
orders under the MVRA (the mandatory restitution Act).
The issue in Leahy is whether Booker applies to forfeiture, and also "whether orders of restitution are a criminal penalty and whether Booker applies to such orders under the VWPA" (the discretionary restitution Act in effect prior to the MVRA).
The en banc argument is scheduled for Nov. 1, 2005. The granting of en banc review in these cases indicates that the 3d Circuit judges are split or undecided on the question of whether a jury finding or admission by defendant regarding loss amount is required under the reasoning of Blakely and Booker in order for a judge to be able to impose restitution or forfeiture.
The granting of en banc consideration makes all the more clear the importance of objecting on Blakely/Booker grounds to any sentence that includes an order of restitution (or forfeiture) where the amount of loss (or ill-gotten gain) is not admitted or proven to the jury beyond a reasonable doubt. The 3rd Cir rejected this argument pre-Blakely in US v. Syme, 276 F.3d 131 (2002) in the context of the old version of the restitution act -- the VWPA -- which made the amount of restitution discretionary with the judge. The Court in Syme ruled, following a long line of precedent within the Circuit (and in most other circuits), that restitution is a "criminal penalty" and thus that it must be analyzed as such under the rule of Apprendi. (The issue statement in Gregg and Fallon indicates the Court will be reconsidering this part of Syme too.) But the Court, without the benefit of Blakely, ruled that since the VWPA did not specify a maximum amount of restitution, the rule of Apprendi regarding increases in the statutory maximum did not apply.
At least two things have changed since Syme, requiring the Circuit to reconsider that holding. First, under the new restitution act -- the MVRA -- restitution in the full amount of the loss is no longer discretionary, but mandatory. Second, Blakely and Booker have clarified what the Supreme Court meant by "statutory maximum." The statutory maximum for Sixth Amendment and Apprendi purposes is not just a number specified in a statute, but rather, the "maximum sentence a judge may imposed solely on the basis of facts reflected in the jury verdict or admitted by the defendant." Blakely, 124 S. Ct. at 2537. Thus, for Apprendi purposes, the maximum restitution a judge may impose is the amount of loss "reflected in the jury verdict or admitted by the defendant." If the jury does not find a loss amount beyond a reasonable doubt, and the defendant does not admit to an amount, then the statutory maximum restitution is zero. Restitution based only on judge-found facts would violate Apprendi, Blakely and Booker.
(To the extent that forfeiture can be viewed now, in light of Blakely and Booker, as a criminal penalty also subject to the Sixth Amendment right to jury trial, this same argument applies there. The only difficulty is that the in Libretti, 516 US 29 (1995), the Supreme Court held that there is no Sixth Amendment right to jury trial on forfeiture. But the reasoning of Libretti, which depends on the distinction between conviction and sentence, has been substantially undercut by Blakelyy and Booker, which "have made clear that distinguishing between a conviction and a sentence obscures what matters for constitutional purposes -- namely, facts that increase a defendant's punishment." US v. Lloyd, 407 F.3d 608, 615 (3rd Cir. 2005).)
An interesting question that may arise is whether, assuming Blakely and Booker do apply to restitution under the MVRA, could the Court impose a Booker style cure -- making the restitution discretionary as it was under the VWPA, and then permit restitution based on judge-found facts? The answer is clearly no. It simply makes no difference to the Apprendi analysis whether the amount of restitution is mandatory as under the MVRA, or whether judge has the discretion to impose less than the total amount of loss as under the VWPA. The Booker remedy of advisory guidelines cures the Sixth Amendment error inherent in mandatory guidelines only because the guidelines operate against the backdrop of statutes which set maximum sentences for each offense. Thus, if, as under Booker, the guidelines are made advisory, or even if the guidelines were entirely eliminated, the courts would retain statutory authority to impose up to the maximum allowed by the statute for the offense of conviction.
The same is not true for restitution. The court's only authority for imposing restitution is the restitution statute, and whether that statute is the MVRA or the VWPA, the maximum amount of restitution that can be imposed is determined by the amount of loss. That is true regardless of whether the court, as under the VWPA, has discretion to impose less than the maximum. Under Blakely and Booker, any fact which controls the maximum sentence that can be imposed must be admitted or proven to the jury. Thus, whether under the MVRA or under the VWPA, the amount of loss, since it controls the maximum restitution that can be imposed, must be subject to this Sixth Amendment jury requirement.
Tuesday, September 13, 2005
Federal courts lack authority to review state court retroactivity decisions
In Warren v. Kyler, No. 03-2190 (Sept. 7, 2005), the Third Circuit concluded that it lacked the authority to apply a new state court decision retroactively in a federal habeas proceeding where the state court had already declined to give retroactive effect to the case. The Court noted that nothing in the United States constitution requires retroactive application of state court decisions on criminal matters and, thus, the state courts are free to determine the retroactivity of their own jurisprudence.
Thursday, September 08, 2005
Pro se litigant's fourth collateral motion not considered "second or successive"
In In Re Wagner, No. 03-4254 (3d Cir. Sept. 6, 2005), the Third Circuit ruled that a pro se petitioner's fourth collateral motion could not be classified as a "second or successive" petition under 28 U.S.C. § 2255 which would require permission of the Court for filing. The Court reasoned that petitioner's first three motions did not constitute § 2255 petitions because petitioner's first collateral motion never invoked § 2255, his second motion was recharacterized as a § 2255 without notice and an opportunity to amend or withdraw, and his third motion was denied as a second or successive petition without reaching the merits. Accordingly, the Court concluded that it was bound to construe petitioner's fourth motion as his first motion for relief under § 2255 and no permission to file the petition was required.
Tuesday, August 30, 2005
Counsel Not Ineffective for Advising Against Appeal.
In Fountain v. Kyler, No. 03-4777 (August 25, 2005), the Circuit held that counsel was not ineffective, when, out of fear the client might face death penalty again, counsel advised not to appeal adverse trial court ruling on ineffectiveness claim.
Fountain was capitally prosecuted and sentenced to death under a capital statute that the Pa. Supreme Court found unconstitutional. He was then resentenced to life. After that, he pursued an ineffectiveness claim against his trial counsel in the Court of Common Pleas which dismissed his claim. By that time Pennsylvania had a new death penalty statute. His attorney advised him, however, not to appeal the adverse Common Pleas Court ruling and Fountain acceded to her advice. Later, over three dissents, the Pa. Supreme Court ruled that the new death penalty statute could not be applied retroactively to people, like Fountain, prosecuted under the earlier statute.
Fountain then pursued ineffectiveness claims against his second lawyer for the advice not to appeal the ineffectiveness ruling. The state courts ruled against him. The Circuit held that the ruling of the Pa. Superior Court denying the claim was not contrary to or an unreasonable application of clearly established federal law. While Pennsylvania caselaw suggested that Fountain could not be capitally retried, a U.S. Supreme Court opinion suggested he could be.
Fountain was capitally prosecuted and sentenced to death under a capital statute that the Pa. Supreme Court found unconstitutional. He was then resentenced to life. After that, he pursued an ineffectiveness claim against his trial counsel in the Court of Common Pleas which dismissed his claim. By that time Pennsylvania had a new death penalty statute. His attorney advised him, however, not to appeal the adverse Common Pleas Court ruling and Fountain acceded to her advice. Later, over three dissents, the Pa. Supreme Court ruled that the new death penalty statute could not be applied retroactively to people, like Fountain, prosecuted under the earlier statute.
Fountain then pursued ineffectiveness claims against his second lawyer for the advice not to appeal the ineffectiveness ruling. The state courts ruled against him. The Circuit held that the ruling of the Pa. Superior Court denying the claim was not contrary to or an unreasonable application of clearly established federal law. While Pennsylvania caselaw suggested that Fountain could not be capitally retried, a U.S. Supreme Court opinion suggested he could be.
Upholding Random Car Searches at Prisons
The Third Circuit has upheld the Pa Department of Correction's policy of subjecting prison visitors' cars to random searches against a constitutional attack made by the parents of a prisoner at SCI-Huntingdon. See Neumeyer v. Beard, No. 04-1499 (3d Cir. 8/25/05) (precedential opinion on website).
Convention Against Torture -- Standard to Apply
In Kamara v. Attorney General of the United States, No. 04-2647 (August 29, 2005), the Third Circuit set out the standard to be applied when an individual seeks asylum under the Convention Against Torture (CAT) from removal to a country occupied in part by a government power and in part by rebels. In Kamara's case, the INS sought to remove him to Sierra Leone. The Immigration Judge granted asylum holding that it was nearly certain that Kamara would be tortured by the rebels and there was a reasonable chance that he would be subject to abusive treatment from the Sierra Leone government. The Board of Immigration Appeals (BIA) reversed. Kamara filed a petition for writ of habeas corpus which the district court granted. The 3d Circuit vacated the district court's opinion and remanded to the BIA holding that the BIA should apply the proper standard for CAT asylum claims, namely that Kamara was entitled to CAT protection if he could show that the cumulative probability of torture by the government and the rebels exceeded 50%.
Friday, August 19, 2005
Brady violation - dismissal with prejudice
In US v. Jareem Fahie (No. 04-1567 8/16/05), the 3rd Cir explains when dismissal with prejudice is appropriate for a violation of the government's obligation under Brady v. Maryland to disclosed exculpatory information to the defense. The court concludes that dismissal with prejudice for a Brady violation is appropriate only in cases of deliberate or willful misconduct, since this remedy is needed in such cases for deterrence. In the absence of such misconduct, the retrial will cure any prejudice resulting from the Brady violation.
Mail Fraud - "Culpable participation" requirement
In US v. Marsha Dobson (No. 04-2169, 8/16/05), the 3rd Cir has written a very helpful decision regarding the "cuplable participation" requirement in the mail fraud statute. This decision is also very helpful on the issue of plain error in jury instructions. The court ruled, following its prior decision in US v. Pearlstein, that it is not enough for the government to show that defendant participated in a fraudulent scheme; "rather, it must show that the defendant did so knowingly and 'in furtherance of the illicit enterprise.'" Thus, "the relevant inquiry is not whether the defendant acted knowingly in making any misstatement, but whether she did so with respect to the overarching fraudulent scheme -- that is, the particular 'illicit scheme' charged in the indictment."
As the court explained, this case involved two layers of potential fraud or misrepresentation -- the defendant's misrepresentations as a salesperson for a fraudulent enterprise, and the fraudulent enterprise itself. The court found the district court's instruction on this issue constituted plain error because it did not convey the culpable participation aspect of the knowledge element. The instruction allowed the jury to convict based on the defendant's own misrepresentations, without proof that she knew about the the enterprise's broader illicit purpose.
As the court explained, this case involved two layers of potential fraud or misrepresentation -- the defendant's misrepresentations as a salesperson for a fraudulent enterprise, and the fraudulent enterprise itself. The court found the district court's instruction on this issue constituted plain error because it did not convey the culpable participation aspect of the knowledge element. The instruction allowed the jury to convict based on the defendant's own misrepresentations, without proof that she knew about the the enterprise's broader illicit purpose.
Friday, July 29, 2005
‘Use of a minor’ enhancement and footnote about Feeney Amendment
In United States v. Pojilenko, No. 03-4446 (3d Cir. 7/27/05), the Third Circuit determined that, in order to apply the ‘use of a minor’ enhancement under U.S.S.G. § 3B1.4, the district court must find an affirmative act, rather than just mere participation in a crime with a minor.
Also, the Court disagreed with the Eleventh Circuit, and ruled that where a defendant participates in a conspiracy, and a member of that conspiracy "used a minor" as described in § 3B1.4, such use could not be attributed to the defendant, even if the co-conspirator's ‘use of a minor’ was foreseeable. This holding may have greater ramifications upon the government's ability to assign relevant conduct where the justification is simply vicarious liability under conspiracy law.
Interestingly, as noted on www.sentencing.typepad.com, the Court also dropped the following footnote:
Relying on United States v. Detweiler, 338 F.Supp.2d 1166 (D.Or., 2004), Pojilenko also challenges on separation of powers grounds the constitutionality of the Sentencing Reform Act as amended by the "Feeney Amendment," Pub.L. No. 10821, § 401, 117 Stat. 650 (2003). He asks us to direct that only the Sentencing Guidelines in effect before the Feeney Amendment be applied on remand in an advisory capacity. We decline to do so. This argument was not advanced in the District Court, and our review is confined to plain error. The Supreme Court rejected a separation of powers challenge to the Act in Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). While the Feeney Amendment's change in the composition of the Sentencing Commission may provide an arguable basis for distinguishing Mistretta, the District Court clearly did not commit plain error in applying the post-Feeney Amendment guidelines in this case. Even if an argument is "plausible," any error is not "plain" when it was not "clear under current law." United States v. Clark, 237 F.3d 293, 298-99 (3d Cir.2001) (quoting United States v. Olano, 507 U.S. 725, 734 (1993).
Because the Court seems to only reject the defendant's argument due to its plain error posture, it appears that the Court may find some merit to the very valid argument that the Feeney Amendment so changed the Sentencing Reform Act (SRA) and the Sentencing Commission that the resulting sentencing scheme is wholly unconstitutional, or that the SRA is only constitutional as in effect prior to the Feeney Amendment. Perhaps, if the Supreme Court or the Third Circuit were presented with a Mistretta argument, post-Feeney, the outcome would be different.
Also, the Court disagreed with the Eleventh Circuit, and ruled that where a defendant participates in a conspiracy, and a member of that conspiracy "used a minor" as described in § 3B1.4, such use could not be attributed to the defendant, even if the co-conspirator's ‘use of a minor’ was foreseeable. This holding may have greater ramifications upon the government's ability to assign relevant conduct where the justification is simply vicarious liability under conspiracy law.
Interestingly, as noted on www.sentencing.typepad.com, the Court also dropped the following footnote:
Relying on United States v. Detweiler, 338 F.Supp.2d 1166 (D.Or., 2004), Pojilenko also challenges on separation of powers grounds the constitutionality of the Sentencing Reform Act as amended by the "Feeney Amendment," Pub.L. No. 10821, § 401, 117 Stat. 650 (2003). He asks us to direct that only the Sentencing Guidelines in effect before the Feeney Amendment be applied on remand in an advisory capacity. We decline to do so. This argument was not advanced in the District Court, and our review is confined to plain error. The Supreme Court rejected a separation of powers challenge to the Act in Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). While the Feeney Amendment's change in the composition of the Sentencing Commission may provide an arguable basis for distinguishing Mistretta, the District Court clearly did not commit plain error in applying the post-Feeney Amendment guidelines in this case. Even if an argument is "plausible," any error is not "plain" when it was not "clear under current law." United States v. Clark, 237 F.3d 293, 298-99 (3d Cir.2001) (quoting United States v. Olano, 507 U.S. 725, 734 (1993).
Because the Court seems to only reject the defendant's argument due to its plain error posture, it appears that the Court may find some merit to the very valid argument that the Feeney Amendment so changed the Sentencing Reform Act (SRA) and the Sentencing Commission that the resulting sentencing scheme is wholly unconstitutional, or that the SRA is only constitutional as in effect prior to the Feeney Amendment. Perhaps, if the Supreme Court or the Third Circuit were presented with a Mistretta argument, post-Feeney, the outcome would be different.
Tuesday, June 21, 2005
Rodriguez and Gov c.a.v. letters in Booker remand cases
In a number of 3rd Cir. appeals pending likely remand for resentencing in light of Booker, the government over the last month has filed letters requesting that the Circuit hold the cases under advisement ("curia advisari vult" or "c.a.v.") pending a decision from the Supreme Court in Rodriguez v. US, No. 04-1148.
Rodriguez is a case in which the 11th Circuit applied a very difficult plain error test to Booker pipeline cases, holding that remand would be granted for Booker plain error only if the defendant showed a reasonable probability that the judge would have granted a lower sentence under the an advisory guideline system. (The 3d Cir. plain error test is the most reasonable of all the circuits -- see Davis post on blog below.) The defendant petitioned for cert in Rodriguez, and the government in response basically agreed cert should be granted, since the circuits are split on the plain error standard.
These government c.a.v. request letters should now come to a quiet end, and the ones that were filed should be denied, since the Supreme Court yesterday (6/20/05) denied cert in Rodriguez. This denial of cert completely undercuts the government's argument for delaying the remands.
Rodriguez is a case in which the 11th Circuit applied a very difficult plain error test to Booker pipeline cases, holding that remand would be granted for Booker plain error only if the defendant showed a reasonable probability that the judge would have granted a lower sentence under the an advisory guideline system. (The 3d Cir. plain error test is the most reasonable of all the circuits -- see Davis post on blog below.) The defendant petitioned for cert in Rodriguez, and the government in response basically agreed cert should be granted, since the circuits are split on the plain error standard.
These government c.a.v. request letters should now come to a quiet end, and the ones that were filed should be denied, since the Supreme Court yesterday (6/20/05) denied cert in Rodriguez. This denial of cert completely undercuts the government's argument for delaying the remands.
Thursday, June 16, 2005
Alternative Sentences Constitute Harmless Error Under Booker
In United States v. Jaheed Hill, No. 04-3904 (3d Cir. 6/14/05), (click to open), the Third Circuit joined several sister circuits in holding that where a district court clearly indicates that an alternative sentence would be identical to the sentence imposed under the Guidelines, any error that may attach to a defendant's sentence under Booker is harmless.
Tuesday, May 17, 2005
Recent 3rd Cir decisions on Booker
The 3rd Circuit has issued two decisions recently regarding US v. Booker, one relating to retroactivity for 2255 purposes, and the other relating to waivers of appeal:
In US v. Garry D. Lloyd, No. 04-3549 (3d Cir. 5/17/05), (click to open) the Circuit followed other circuits in holding that Booker is not retroactive for purposes of collateral attack under section 2255. The Court ruled that although Booker states a new rule, it is not a "watershed" rule for Teague purposes, and therefore is not retroactively applicable to cases which became final before Booker was issued.
In US v. Rogers Lockett, III, No. 04-2244 (3d Cir. 5/5/05), (click to open), the Circuit affirmed the denial of a motion to suppress evidence. The Circuit also refused to remand for resentencing in light of Booker because appellant had waived the right to raise sentencing issues on appeal, having reserved only the right to appeal the motion to suppress. The Court reasoned that the waiver of appeal was not rendered unknowing or involuntary by the unanticipated ruling in Booker, since a defendant pleading guilty and waiving the right to appeal always takes the risk that there will be future developments in the law that he or she will not be able to take advantage of.
In US v. Garry D. Lloyd, No. 04-3549 (3d Cir. 5/17/05), (click to open) the Circuit followed other circuits in holding that Booker is not retroactive for purposes of collateral attack under section 2255. The Court ruled that although Booker states a new rule, it is not a "watershed" rule for Teague purposes, and therefore is not retroactively applicable to cases which became final before Booker was issued.
In US v. Rogers Lockett, III, No. 04-2244 (3d Cir. 5/5/05), (click to open), the Circuit affirmed the denial of a motion to suppress evidence. The Circuit also refused to remand for resentencing in light of Booker because appellant had waived the right to raise sentencing issues on appeal, having reserved only the right to appeal the motion to suppress. The Court reasoned that the waiver of appeal was not rendered unknowing or involuntary by the unanticipated ruling in Booker, since a defendant pleading guilty and waiving the right to appeal always takes the risk that there will be future developments in the law that he or she will not be able to take advantage of.
Saturday, April 30, 2005
3rd Cir Decision on Booker Remands
In US v. Kevin Davis (No. 02-4521, 4/28/05), the 3rd Circuit has finally issued a published opinion articulating its position regarding remands for resentencing in light of Booker. The Court held that in cases now on appeal that were sentenced before Booker in which there was no objection made to sentencing under the guidelines, for purposes of review for plain error, prejudice will be presumed and the cases will be remanded for resentencing. Thus, the test for plain error is met in any case in which the court followed the mandatory guidelines in imposing sentence. As the Circuit explained,
The Court also concluded (quite reasonably) that from the standpoint of judicial economy, it makes much more sense to remand such cases for resentencing rather than to spend judicial resources endlessly litigating plain error issues, as other circuits are doing. The Court stated,
[W]e cannot ascertain whether the District Court would have imposed a greater
or lesser sentence under an advisory framework. But the mandatory nature
of the Guidelines controlled the District Court’s analysis. Because the
sentencing calculus was governed by a guidelines framework erroneously believed
to be mandatory, the outcome of each sentencing hearing conducted under this
framework was necessarily affected. Although plain error jurisprudence generally
places the burden on an appellant to demonstrate specific prejudice flowing from
the District Court’s error, in this context– where mandatory sentencing was
governed by an erroneous scheme– prejudice can be presumed.
The Court also concluded (quite reasonably) that from the standpoint of judicial economy, it makes much more sense to remand such cases for resentencing rather than to spend judicial resources endlessly litigating plain error issues, as other circuits are doing. The Court stated,
This approach results in uniform treatment of post-Booker defendants on direct appeal, fostering certainty in the administration of justice and efficient use of judicial resources. Moreover, as the Court of Appeals for the Second Circuit has noted, “correction of error in the context of sentencing does not precipitate . . . burdensome and often lengthy consequence[s]” on remand. United States v. Crosby, 397 F.3d 103, 117 (2d Cir. 2005).
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