Vol. 8, Nos. 32 & 33
Covering Cases Published in the Advance Sheets through August 13, 2001

Highlights of this Issue:

A Judicial Donnybrook over Determining Drugs Intended for Personal Use:

U.S.S.G. Issues:

Apprendi Watch:

The Admissibility of Testimony Refreshed by Hypnosis:

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United States v. Caldwell, 255 F.3d 532 (8th Cir. 2001) (Per Curiam)

Not long after the Supreme Court issued its momentous decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), it began vacating a series of sentences in forty-nine other cases that had been appealed to that Court; and, in each of those 49 cases, it remanded the case back to the respective Circuit Courts "for reconsideration in light of" Apprendi. The Supreme Court has not faired too well on those remanded cases. By our count*, of the sixteen cases that have been reconsidered on remand as of September 1, 2001, the original sentences that were vacated by the Supreme Court have been reaffirmed by the various Circuits in nine cases; and, in the remaining seven cases that have been reconsidered, the Circuit courts have agreed with the Supreme Court that the original sentences that were imposed were erroneous under Apprendi and thus had to be sent back to the district courts for resentencing.

[*Although we are only aware of 16 of these cases that have been reconsidered on remand by the respective Circuit courts, we note that 31 of the 49 cases in which the Supreme Court vacated sentences arose in unpublished decisions. Thus, we may never know the true scorecard because the Circuits may decide to keep their responses to the Supreme Court's remand as secret as their original unpublished decisions were.]

In general, two common themes have emerged in the Circuits as the justification for reaffirming the sentences that were vacated by the Supreme Court. Many of the courts have determined that while the Apprendi error that did occur was "plain" and did affect the substantial rights of the defendant, the error did not meet the Supreme Court's final criteria for reversal: the error also had to affect the fairness, integrity, or public reputation of the sentencing proceeding.

The second justification that has been used (and the one used in this case) is the "consecutive sentencing" or "stacking" or (as we prefer) the "hindsight" theory. Under that theory, the courts have been willing to overlook the Apprendi error on the grounds that the district court "could have" imposed consecutive sentences at the original sentencing hearing under the provisions of U.S.S.G. § 5G1.2(d) to achieve the same sentence that gave rise to the Apprendi claim. As the Eighth Circuit reasoned, in U.S. v. Sturgis, 238 F.3d 956, 960 (8th Cir. 2001), when a defendant is convicted of multiple counts, a sentence assessed in violation of Apprendi does not necessarily constitute plain error because "the Federal Sentencing Guidelines require a district court to run sentences from multiple counts consecutively, rather than concurrently, if the Guideline sentence exceeds the statutory maximum sentence for each count. . . . Because Sturgis's sentence could be reformed to avoid an Apprendi error, we perceive no plain error in his sentence."

The defendant in the instant case was sentenced to three concurrent terms of 160-months in prison after the district court (and not the jury) found he was responsible for 756 kilograms of marijuana for sentencing purposes. After the Supreme Court vacated that sentence in light of Apprendi (120 S.Ct. 651 (2000)), the Eighth Circuit used its "hindsight" theory first set forth in Sturgis to reaffirm the same 160-month sentence. It stated: "In this case, applying [U.S.S.G.] § 5G1.2(d), the district court could have determined that Caldwell's 60-month sentences for each count should run consecutively, thus incarcerating him for 180 months, 20 months longer than he will be incarcerated under his current sentence. . . . Therefore, because Caldwell could have received a lengthier sentence under the guidelines even if he had been sentenced under the statutory minimums for an indeterminate drug quantity, his concurrent 160-month sentences do not amount to plain error." (Id., at 534).

Although Judge Heaney concurred in the panel's decision, he did so only because he was bound by the Court's precedent in Sturgis. However, he made a point of writing a separate concurrence in which he argued that Sturgis had been "incorrectly decided." He stated that "a court of appeals on review cannot justify the sentence retroactively by stating that the district court should have stacked the sentences originally. . . . This is contrary to the spirit of Apprendi and contrary to the very specific views of some of the Supreme Court Justices." (Id.)

Perhaps even more persuasive was his argument that "[c]onsecutive sentences in drug cases are extremely rare. . . . U.S.S.G. § 5G1.2(d) was used only once in 2000. We had 187 authored opinions with sentencing issues in the Eighth Circuit in 2000. Of these authored opinions, only seven cases dealt with consecutive sentences. Only one, U.S. v. Ervasti, 201 F.3d 1029 (8th Cir. 2000), a tax evasion case, involved the application of U.S.S.G. § 5G1.2(d). . . . In my view, when the district court has imposed a sentence that exceeds the statutory maximum because no drug quantities were stated in the indictment, this court should not affirm the sentence on the theory that the district court could have given consecutive sentences. This practice will encourage some prosecutors to continue their current practice of refusing to charge a defendant with the quantity of drugs they seek to hold a defendant responsible for, particularly when the prosecutor is seeking a sentence in excess of the twenty-year maximum provided by § 841(b)(1)(C). . . . There is absolutely no reason why defendants who agree to plead guilty should not know at the time they plead what the government's intentions are with respect to the amount of drugs." (Id., at 534-35).

Moore v. Morton, 255 F.3d 95 (3rd Cir. 2001) (Judge Sirica)

In this case, the Third Circuit reversed the district court's denial of a writ of habeas corpus, and held that the appellant's 1987 trial for rape and robbery "was so infected with unfairness that he was denied due process." It thus directed the State of New Jersey to either retry Clarence Moore within 180 days or release him from prison.

The Court concluded that Moore's trial was unfair due to a series of improper and "highly prejudicial" comments made by the state prosecutor. While the substance of the improper remarks are not relevant to the issue discussed below, suffice it to say that the prosecutor's offensive comments fell within the offensive and stereotyped "black-man-rapes-white-woman" category. Two of the three judges concluded that the prosecutor's closing arguments to the jury were "irrelevant, illogical and offensive" (id., at 113) and even "outrageous" and "inflammatory." (Id., at 120). Judge Greenberg, who dissented, agreed that the comments in question may have been "improper," but he voted to affirm Moore's conviction and life sentence because, in his mind, the prosecutor's racial comments and innuendos probably prejudiced the State more than the defendant. (Id., at 121).

Judge Sirica's opinion contains a good analysis of the prevailing law on when a prosecutor's comments are so prejudicial as to constitute due process violations that warrant reversal; and it reviewed some of the leading cases on that topic, particularly Donnelly v. DeChristoforo, 416 U.S. 637 (1974) and Darden v. Wainwright, 477 U.S. 168 (1986).

The principal reason why we have noted this case, however, is because of its discussion of the admissibility of hypnotically refreshed testimony at criminal trials. In this case, "the principal evidence [against Moore] was the victim's post-hypnotic identification" (id., at 97); and the Court noted that there was an "insufficient amount" of DNA evidence to enable the police to connect him to the crime. (Id., at 111). When the victim first called the police, her identity of her attacker was extremely "vague." She not only admitted that it was dark, and that she had kept her eyes closed throughout most of her ordeal, she was unable to provide sufficient details to enable a police artist to draw a composite sketch of her attacker. (Id., at 109). Some three weeks after the rape, the victim underwent hypnosis; and, suddenly, she was able to remember many details about her attacker. Not only was she then able to provide the police artist with enough details to draw a composite sketch of her attacker, she was also able to identify Moore "clearly," both in a lineup and at trial.

In seeking his habeas relief, Moore never challenged the State's use of the victim's hypnotically induced testimony - probably because of two factors. First, the New Jersey courts that reviewed this case found nothing in the evidence to suggest that the police had suggested what the assailant looked like. (Id., at 112). Second, under New Jersey law, "testimony enhanced through hypnosis is admissible in a criminal trial if the trial court finds that the use of hypnosis in the particular case was reasonably likely to result in recall comparable in accuracy to normal human memory . . . . The trier of fact must then decide how much weight to accord the hypnotically refreshed testimony." (Id., at 98, n. 1). In addition, the Court noted that "as recently as 1996, the New Jersey Supreme Court declined to adopt a per se rule prohibiting hypnotically induced testimony." (Id., at 112, n. 13).

Citing the latest New Jersey decisions on the topic, the Court also noted that "twenty-six courts have found hypnotically refreshed testimony per se inadmissible while only four states, North Dakota, Oregon, Tennessee and Wyoming, find it generally admissible. . . . [In addition,] many federal courts, including the Courts of Appeals for the Fourth, Fifth, Seventh, Eighth and Eleventh Circuits, and several state courts, including courts in Alabama, Colorado, Florida, Mississippi, New Mexico, South Dakota and Wisconsin, determine on a case-by-case basis whether hypnotically refreshed testimony is sufficiently reliable to be admissible." (Id.)

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