Vol. 8, Nos. 53
Covering Cases Published in the Advance Sheets through December 31, 2001

Highlights of this Issue:

Supreme Court Case :

Apprendi Watch:

At What Point Does Extensive Questioning By a Judge Violate a Defendant's Rights to a Fair Trial?:

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

Don't forget to visit the "Apprendi Watch" section of our Web site for the most current and comprehensive coverage of that watershed decision on the entire Internet. It now includes links to and summaries of more than 400 published lower-court Apprendi decisions.

United States v. Buckland, No. 99-30285 (9th Cir. 01/18/2002) (En banc) (Judge Trott)

Last summer, a panel from the Ninth Circuit infuriated threw Federal prosecutors into a state of panic when it ruled that two key provisions of the main Federal drug statute were facially unconstitutional. (U.S. v. Buckland, 259 F.3d 1157 (9th Cir. 2001) (Buckland I) (P&J, 7/16/01)). The panel held that 21 U.S.C. § 841(b)(1)(A) and (B) were unconstitutional under the rule established in Apprendi v. New Jersey, 530 U.S. 466 (2000) because they permit the judge "to find a fact, the quantity of drugs, that increases the maximum sentence beyond the 20-year maximum in § 841(b)(1)(C) that may be imposed for an unspecified amount of drugs" and thus they "remove[ ] the jury from the determination of a fact that, if found, exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone."

The decision in Buckland I infuriated prosecutors who argued that it would undermine thousands of plea bargains and severely disrupt drug prosecutions. Those arguments had an immediate impact on a majority of the judges from the Ninth Circuit who quickly vacated Buckland I and agreed to rehear the case en banc. Now, by a vote of 8 to 3, a divided en banc court has reversed the panel's decision. In a novel decision that seemed bent on achieving "felicitous unanimity" with the other Circuits, the majority not only concluded that the provisions of § 841 were not facially unconstitutional under Apprendi, it also concluded that, even though the district court did commit two Apprendi errors, Buckland's 27 years sentence would remain unchanged because the errors "did not affect [Buckland's] substantial rights."

Writing for the majority, Judge Trott stated that the Court's new decision "results in felicitous unanimity among the United States Courts of Appeal." In a pointed dissent, Judge Tashima stated that while "felicitous unanimity" among the courts of appeal may be a "laudable goal," "conformity for its own sake is neither necessary nor desirable for the courts of appeal."

The indictment in this case charged Calvin Wayne Buckland with conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 846 and 841(b)(1)(A), specifying that the conspiracy involved more than 1,000 grams of methamphetamine. He was also charged with three counts pf possession with intent to distribute methamphetamine. The jury was not instructed to find the quantity of the drugs involved; and Buckland did not request such an instruction. Using the preponderance of the evidence standard, the trial court determined that Buckland was responsible for almost 8 kilograms of methamphetamine, and Buckland was originally sentenced to 834 months (some 69 years) in prison. After two prior remands, that sentence was ultimately reduced to 324 months (27 years) in prison.

In this current appeal, filed after Apprendi was decided, Buckland argued that his sentence was invalid under Apprendi in at least two respects: "first, by failing to submit the drug quantity determination to the jury for a finding beyond reasonable doubt and, then, by imposing a unitary sentence - 27 years - in excess of § 841(b)(1)(C)'s 20-year maximum for any unspecified amount of methamphetamine." The Government conceded that the sentencing judge had violated Apprendi in both respects, but argued that the sentence should be affirmed both because it did not affect Buckland's substantial rights and because, under the "stacking" provisions of U.S.S.G. § 5G1.2(d), the sentencing judge could have imposed consecutive sentences under each count of conviction to achieve the same "total punishment. The majority agreed and affirmed the sentence of 324 months.

In its main holding, the majority disavowed the panel's ruling that § 841 was facially unconstitutional in large part by rejecting the premise that Congress improperly gave the sentencing court the power to determine the quantity of drugs for which a defendant may be held accountable. In fact, the majority concluded, "the statute does not specify who shall determine drug quantity or identify the appropriate burden of proof for these determinations." It then continued that "it has been the judiciary, not Congress, which allocated the responsibility for determining drug quantity under § 841 to the courts." Therefore, the majority reasoned, the statute itself cannot be deemed to be unconstitutional on its face.

Everyone expected Buckland I to be reversed; but few expected the route the majority would choose to effect that reversal. In his dissent, Judge Tashima called the majority's decision "mysterious" and one that "strains credulity." Judge Tashima wrote the majority decision in Buckland I and he was joined in this dissent by Judges Reinhardt and Paez. He wrote: "Contrary to the majority's conclusion, it is untrue that "it has been the judiciary, not Congress, which allocated the responsibility for determining drug quantity under §§ 841 to the courts." . . . The legislative history is clear. . . . [and even the Government] conceded at oral argument that Congress intended drug quantity to be a sentencing factor to be determined by the judge by a preponderance of the evidence. And we, like all of the other circuits, had no difficulty in concluding that Congress intended that judges make the drug quantity finding. . . .

"The majority gives us no clue on why it now concludes sub silentio that the prior reading of congressional intent (that judges were intended to make the drug quantity determination) by all courts was mistaken. . . . Why does Apprendi strip our prior holdings of precedential value? . . . . Apprendi does not change the principles of statutory construction, nor does it change the congressional intent that is undeniable from the structure and legislative history of the statute. Now, because application of long-standing principles of statutory construction will invalidate an important federal statute, the majority conveniently jettisons those principles and fashions its own makeshift solution, even though that solution clearly is contrary to congressional intent."

Judge Tashima did agree that the majority's decision had ended the Ninth Circuit's status as an "outlier," but, he concluded, it did so "at the price of ignoring congressional intent that every other circuit has acknowledged to be clear and [by] ignoring the basic tenets of statutory construction."

United States v. Godwin, 272 F.3d 659 (4th Cir. 2001) (Judge King)

This case is noted for its extensive discussion of an important question: when does a trial judge's extensive involvement in the questioning of witnesses cross the boundaries of propriety and deprive a defendant of his right to a fair trial before an impartial judge?

Here, two defendants were convicted on multiple charges relating to a pyramid scheme to defraud investors in a purported oil-trading venture. Among the many issues raised on appeal was their contention that the trial judge (Judge Rebecca Beach Smith of the E.D.Va.) had assumed an improper prosecutorial role, which denied them a fair trial before an impartial judge. To support their contention that Judge Smith became overly involved in questioning the defendants and defense witnesses, they pointed to more than a dozen examples of what they claimed were improper interchanges, where she openly revealed skepticism of the defendants' evidence, or their treated testimony with obvious cynicism, or plainly rehabilitated prosecution witnesses - thereby adding credibility to the Government's case.

For example, when one of the defendants took the stand for her direct testimony, opening questions from her own lawyer took up a total of four pages of transcript. As Judge Michael noted in his dissent: "The judge then weighed in and asked questions that cover the next eight pages of transcript. . . . Over the course of [her] direct testimony, which fills almost 100 pages of transcript, the judge asked roughly one-third (over 100) of the questions . . . . During [her] cross-examination by the prosecution, the judge again asked roughly one-third of the questions, about 25, compared to about 55 questions asked by the prosecutor." (Id., at 682).

Even the majority had to acknowledge that "[i]t is apparent . . . that the court became overly involved in the questioning of witnesses in this case. Indeed, it would not be difficult to conclude that the court's interruptions and interventions abused its discretion and . . . seemed to be on, or tending to be on, the side of the Government'." (Id., 679). It also acknowledged that Judge Smith had "repeatedly" questioned one of the defendants "in a forceful manner" that was "unfavorable to the defense"; and the judge's questions "may have impaired" defense counsel's efforts to present his client's testimony. (Id., at 675). Despite all those findings, the majority decided that no relief was warranted - principally for three reasons.

First, the majority noted that, under Fed.R.Evid. 614(b) and (c), trial judges possess broad authority to interrogate witnesses; and, if a party perceives such questions to be improper, an objection may be made "at the time or at the next available opportunity when the jury is not present." In this case, the majority concluded, the position of both defendants was "seriously flawed by their failure to raise an objection to the judge's participation at trial." (Id., at 672). Due to the failure to object in a timely manner, any review of the judicial interference claim would be reviewed for plain error only, under the standards established in U.S. v. Olano, 507 U.S. 725 (1993). Using the Olano analysis, the majority then concluded that "[b]ecause of the compelling and overwhelming evidence against [the defendants], we are unable to conclude that the jury convicted either [of them] because of the judge's actions during the trial." The message from that ruling is clear: no matter how awkward it may be to do so, and no matter how infuriated the judge may become, defense counsel must raise timely objections to excessive judicial involvement in a case - or risk forfeiting that issue on appeal.

Second, the majority cited a number of cases which show how this "protect-the-judges" attitude has created an extremely difficult burden of proof that a defendant must satisfy before he has any chance of establishing reversible error based on improper judicial interference - even when timely objections have been made at trial. For example, the court cited U.S. v. Head, 697 F.2d 1200 (4th Cir. 1982), where the defendant was denied relief even though trial judge had interjected itself over 2,400 times in a four-day trial. In that case, the Court concluded that the defendant had not suffered any prejudice because the trial court's "patent over-involvement" and criticisms "were directed at both sides, not affecting one more than the other." (Id., at 678).

Finally, the majority stated: "In the final analysis, the Government needed no assistance from the court. The well-prepared and able Government prosecutors would have cross-examined [the defendants] in much the same manner as did the judge." (Id., at 680).

Judge Michael dissented. He stated that the majority's own opinion "makes a convincing case that the trial judge's hostile and extensive questioning of defense witnesses made it clear that she was on the side of the government." (Id., at 681.) He also argued that when the trial judge "unmistakably adopts the role of prosecutor," such a situation creates "a special category error" that takes it out of the normal Olano analysis because the error "affects substantial rights regardless of whether the defendant can show actual prejudice." (Id.)

What particularly troubled Judge Michael was the majority's final argument, namely that there was no harm because the able Government would have done the same things that Judge Smith did. That argument, he wrote, "misses the point." (Id., at 682). He explained: "The judge's cross-examination was more effective than the prosecutor's for several reasons. The judge was not constrained by normal trial procedures. The judge interrupted defense counsel throughout his direct examination of [one of the defendants], effectively undertaking a point-by-point impeachment of her story. The judge repeated questions that had been asked and answered, driving home damaging points. What is most critical, the judge's questions and comments had the imposing weight of the judge's office behind them. Because the judge occupies a position of "special persuasiveness in the eyes of the jury," (internal quotation omitted), the jury could well have concluded that the judge believed that the defendants were guilty. This, I believe, deprived the defendants of a fair and impartial trial." (Id., at 682).

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