A Weekly Summary of Snippets of Justice From the Federal Courts

Vol. 8, No. 9              Covering Cases Published in the Advance Sheets through Feb. 26, 2001

Highlights of this Issue:

Supreme Court Cases:

• In Reiner the Supreme Court reversed a decision from the Ohio Supreme Court, holding that it erred when it held that a witness assertion of innocence deprived her of her Fifth Amendment privilege against self-incrimination and emphasizing that one of the Fifth Amendments basic functions is to protect the innocent who might otherwise be ensnared by ambiguous circumstances.
  
  
• In Shafer the Supreme Court reversed a death sentence, holding that a trial courts refusal to clarify to the jurors that a life sentence meant that the defendant was ineligible for parole constituted a denial of the defendants due process rights.
  
  
• In Buford the Supreme Court held 18 U.S.C. § 3742(e) requires appellate courts to give due deference to a district court's application of a Guideline term to undisputed facts, such as whether an offenders prior convictions were consolidated, and thus "related," for sentencing purposes.

Apprendi Watch:

• Last week we reported that the D.C. Circuit held that Apprendi applies to Guideline enhancements. This week we note that the Eleventh Circuit has again taken the opposite view, in Harris, holding that Apprendi does not bar consideration of relevant conduct so long as the resulting sentence does not exceed the statutory maximum for the crime charged.
  

U.S.S.G. and Sentencing Issues:

• Arambula is an interesting case from the Seventh Circuit which reversed an enhancement for obstruction of justice on the grounds that any "holding back" by the cooperating defendant in his testimony against a co-conspirator was not material to the issue under determination; although it did affirm the denial of an acceptance of responsibility sentence reduction based on those same facts.
  
  
• The Garnett case from the Fourth Circuit and the Aquino case from the Ninth Circuit dealt with some of the more esoteric subtleties of the growing mass of sentencing enhancements that can be applied for the use of guns

Dont forget to visit the Apprendi  Watch section of our Web site each week - the most current and comprehensive site on the entire Internet for all the latest developments involving that watershed decision. That section contains summaries of more than 155 Apprendi decisions, links to numerous Apprendi articles and more than 100 Apprendi briefs and motions, and a listing of the 46 cases that the Supreme Court has vacated to date based on Apprendi.

Shafer v. South Carolina, No. 00-5250 (U.S. Sup. Ct. 3/20/2001) (Justice Ginsburg)

Back in 1994 the Supreme Court struck down a South Carolina law that barred jurors from learning whether a defendant in a capital case was eligible for parole. Essentially, the Court held that, where a capital defendants future dangerousness is at issue, and the only sentencing alternative to death available to the jury is life imprisonment without possibility of parole, due process entitles the defendant to inform the jury of his parole ineligibility, either by a jury instruction or in arguments by counsel. (Simmons v. South Carolina, 512 U.S. 154 (1994)).

South Carolina then enacted a new law designed to overcome the Supreme Courts objections; but its efforts obviously fell short of the type of due process disclosure that the Supreme Court called for in Simmons. As Justice Ginsburg wrote in the instant decision, "South Carolina has consistently refused to inform the jury of a capital defendants parole eligibility status."

The petitioner in this case, Wesley Shafer, was convicted of killing a convenience store clerk in 1997. After more than three hours of deliberating on the appropriate sentence, the jury sent a note asking the judge whether there was "any remote chance" that someone sentenced to life without parole might eventually be paroled. The judge told the jurors that "parole eligibility or ineligibility is not for your consideration." Shortly thereafter, the jury recommended a death penalty, and the judge sentenced Shafer to death.

In reversing and remanding the case, the Court commented that even though the law was clear that a life sentence carries no possibility of parole, it was also clear that the jury was confused. It continued that the trial judges instruction "did nothing to ensure that the jury was not misled and may well have been taken to mean that parole was available."

The Court also held that the South Carolina courts had misconstrued the holding in Simmons, explaining that "[w]henever future dangerousness is at issue in a capital sentencing proceeding under South Carolinas new scheme, due process requires that the jury be informed that a life sentence carries no possibility of parole."

Justices Scalia and Thomas (the only dissenters in the Simmons case) dissented again in the instant decision. Justice Scalia concluded that while informing the jury "may well be a good idea," the Constitution does not require it. Justice Thomas concluded that "it is not this courts role to micromanage state sentencing proceedings or to develop model jury instructions."

United States v. Harris, No. 00-14200 (11th Cir. 3/14/2001) (Judge Barkett)

Last week we noted that the D.C. Circuit had held, in U.S. v. Fields, No. 99-3138 (D.C. Cir. 3/13/2001) (See P&J, 2/19/01), that a "leadership" sentencing enhancement under U.S.S.G. § 3B1.1(a) is subject to the Apprendi rule because the fact of a leadership role may increase a defendants sentence beyond the prescribed statutory maximum. Like most of the other Circuits, the Eleventh Circuit held that Apprendi does not apply to Guideline enhancements unless they actually increase a defendants sentence beyond the statutory maximum.

In this case, District Judge Vining of Georgia held that Apprendi precluded him from considering the defendants relevant conduct under U.S.S.G. § 1B1.3 for purposes of determining the quantity of drugs for which they should be held responsible for sentencing purposes. The Government appealed; and the Eleventh Circuit reversed. The Court stated: "The maximum sentence authorized for a non-quantity conviction pursuant to 21 U.S.C. § 841(a) is twenty years imprisonment. 21 U.S.C. § 841(a)(1)(C). Based on the amount of drugs that was attributable to the Harrises, it would not be possible for the district court to sentence either of them to a sentence exceeding 20 years under the Sentencing Guidelines. Thus, while considering the relevant conduct in this case would have increased the [defendants] sentencing ranges under the Sentencing Guidelines, those ranges would not exceed the statutory maximum, and therefore we find that Apprendi does not require the district court to disregard relevant conduct in this case."

The Court also noted that its ruling was consistent with its decision in U.S. v. Sanchez, No. 00-13347 (11th Cir. 2/26/2001), as well as with decisions from the Second, Third, Fourth, Fifth, Seventh and Tenth Circuits.

United States v. Arambula, 238 F.3d 865 (7th Cir. 2001) (Judge Bauer)

This case is noted as a graphic example of what has become a fairly common double whammy at sentencing: a five level swing consisting of a two level sentence enhancement for obstruction of justice and a denial of the three level enhancement for acceptance of responsibility. The case is also noted as a classic example of what can happen when the judge discards his judicial robes and becomes more prosecutorial than the prosecutor.

The defendant, Jose Arambula, and his co-conspirator, Frederick Hand, were caught red-handed attempting to effect a drug transaction in a hotel room. As soon as he was arrested, the defendant not only admitted his involvement in that crime, he also confessed that he had made some prior sales of drugs that he had received from one Juan Medina Gonzalez. After the defendant, Hand, and "other persons unknown" were indicted, the defendant pled guilty and agreed to provide "complete and truthful information regarding his involvement and the involvement of others in distributing controlled substances." He then testified against Hand at Hands trial (which was presided over by Judge Hamilton), and Hand was convicted.

When Arambula came up for sentencing, Judge Hamilton concluded that Arambula had committed perjury at Hands trial by "holding back and protecting" other drug traffickers - even though the Government "conveyed its satisfaction with Arambulas testimony and considered it credible and complete" (id., at 867). The Judge was convinced that if Arambula had been more forthcoming "perhaps it would have been possible to make cases against" other players (id., at 867); although the Seventh Circuit described that belief as a mere "hunch." (Id., at 871). In any event, Judge Hamilton decided to punish Arambula by imposing a two-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1(A) and to deny him a three level sentence reduction for acceptance of responsibility under U.S.S.G. § 3E1.1.

On appeal, the Seventh Circuit reversed the obstruction enhancement (stating that "not every instance of false testimony under oath warrants the enhancement" (id., at 868-69)); although it affirmed the denial of the acceptance of responsibility sentence reduction.

Essentially the Court held that "[a] defendant who attempts to or does obstruct or impede the administration of justice faces a two-point base offense level sentence increase for obstruction of justice. Obstruction of justice includes committing perjury. . . . A sentence may be adjusted if the defendant provides perjurious testimony in either the defendant's own case or a co-defendant's case. Perjury for sentencing purposes has been defined as perjury under 18 U.S.C. § 1621. Thus, perjury is providing false testimony under oath or affirmation concerning a material matter with the willful intent to provide such false testimony, rather than as a result of confusion, mistake, or faulty memory." (Id., at 868). In other words, to find perjury, the Court must find three elements: false testimony, willfulness and materiality.

Beyond Judge Hamilton acting on the basis of a "hunch", there were two flaws in this case. First, "the sentencing transcript is barren as to precisely why the sentencing judge found that Arambulas false testimony was material for the purposes of the obstruction of justice enhancement." (Id.). Second, the proper inquiry for an obstruction enhancement is "whether the falsity impeded or obstructed the investigation, sentencing, of prosecution of the offense"; and here it concluded that any false testimony by Arambula "was not material to the issue under determination" (id., at 870). For those reasons it vacated as erroneous the obstruction enhancement.

The Court then gave short shrift to the argument that the district court had also erred by denying any sentence reduction for acceptance of responsibility. It simply stated: " It was proper that the district court found that although Arambula implicated himself and Hand, he diminished his role in and the true scope of the conspiracy, and thus did not accept responsibility." (Id., at 871).

Copyright © 2001 Punch and Jurists, Ltd.