Vol. 11, No. 31
Covering Cases Published in the Advance Sheets through August 2, 2004

Blakely - Backpedaling Furiously and Waiting for the Supremes

Abusing the Grand Jury Process - And Getting Away With It

Conviction Vacated Due to Lack of Proper Venue

Crawford v. Washington - Another Update

 

Notice to Subscribers

The next issue of P&J will be published in two weeks. We had originally planned to stay in New York during the RNC, until we read this snippet in The New York Times: “The backbone of security [during the Convention] is being provided by the 37,000-member New York Police Department, which has a budget larger than all but 19 of the world’s standing armies.” (The New York Times, August 25, 2004, p. A14).


U.S. v. Koch, No. 02-6278 (6th Cir. 08/28/2004) (En banc) (Judge Sutton)

The flow of significant cases stemming from the Supreme Court’s recent ruling in Blakely v. Washington seems to have slowed to a trickle as the courts appear to be reluctant to express their views on the most dramatic sentencing ruling in decades; and many of the decisions that were published have been ineluctably inconsistent.

Perhaps the most noteworthy new Blakely decision was the Sixth Circuit’s en banc review in the instant case. Here, by a vote of 8 to 5, a majority of the active judges from the Sixth Circuit held that Blakely does not compel the conclusion that the Federal Sentencing Guidelines violate the Sixth Amendment.

The majority cited three reasons for its latest ruling on Blakely. First, stressing that the Supreme Court "generally bears responsibility for determining when its own cases have been overruled by later decisions," the majority concluded that "this is the wrong forum" for reversing a long line of Supreme Court authority that has upheld sentencing enhancements such as the ones at issue in this case.

Second, the majority went to great lengths to find distinctions between the Washington guideline system at issue in Blakely and the Federal Sentencing Guidelines, essentially highlighting the structural differences in who created those two guideline systems. Thus, while the majority agreed that sentencing statutes and the Guidelines “both have the force of law and both bind courts,” the majority found it significant that the Federal Sentencing Guidelines are “agency-promulgated rules enacted by the Sentencing Commission - a non-elected body that finds its home within the Judicial Branch, the very branch of government in which sentencing discretion has traditionally been vested." The majority then continued:

“While it may be true that agencies are no less capable of violating the Sixth Amendment than legislatures, the Guidelines come from the very branch of government that all nine Justices of the Court agree has long exercised considerable discretion over sentencing determinations based on the same kinds of factual determinations that the Guidelines ask federal courts to make. If federal judges, in other words, may consider facts that increase sentences in an indeterminate sentencing regime, is it not permissible for this branch of government collectively to channel the consequences of these facts based on their group experience? Maybe the Court will find the distinction consequential; maybe it will not. But the difference is enough to counsel restraint on the part of a lower court asked to invalidate the entire regime.” (Emphasis added) (Internal citations omitted).

In response to that argument, Judge Martin, writing for the five dissenting judges, wryly commented: “I fail to see how the fact that Congress delegated its authority to the Sentencing Commission to set presumptive sentencing ranges saves the federal scheme from constitutional attack.”

It is also worth noting that, Professor Douglas Berman, the noted author of Sentencing Law and Policy, the Internet’s comprehensive Blakely Web site, commented that the distinction the majority was making was not one that “comfortably describes the modern reality of the federal sentencing system.” He explained: “Fundamentally, of course, we start with the curious question of how and why the scope and reach of an individual’s Sixth Amendment and Due Process rights would turn on the way in which criminal sentencing laws are written and enacted. Then we have to consider whether it has ever been accurate to describe the [Sentencing Commission’s] work as an effort by the judiciary to ‘collectively channel . . . their group experience’ in sentencing.”

The third reason presented by the majority was, in actuality, quite similar to its first point. The majority stressed that, "in asking us to invalidate the Guidelines, Koch asks us to embrace a reading of Blakely . . . that not only would extinguish the Guidelines but also would create tension with other court precedents." The majority then continued that "the critical point is that only a master tailor could invalidate the Guidelines without unraveling the fabric of these other rulings."

Somewhat curiously, the majority never offered any defense of its recommendation two weeks earlier that district courts announce alternative sentences in case the Supreme Court decides the Guidelines are unconstitutional. In addition, not once did the majority even refer to Judge Merritt’s earlier far-reaching - but now vacated - decision in U.S. v. Montgomery, which held that Blakely absolutely renders the Guidelines unconstitutional. (Judge Merritt, who is now a senior judge, was unable, under Court rules, even to participate in the en banc rehearing on this case).

The dissenting judges did however pick up on some of Judge Merritt’s arguments from Montgomery; and they expressed his view that “the Guidelines are invalid under Blakely to the extent that they compel a trial judge to impose a sentence that exceeds the maximum sentence that is authorized ‘solely on the basis of the facts reflected in the jury verdict or admitted by the defendant’."


U.S. v. Kennedy, 373 F.3d 686 (4th Cir. 2004) (Judge Wilkinson)

This case shows some of the unheralded abuses of the Grand Jury process that at times appear to be so out of control; and the “helpless piety” of the courts in responding with little more than the type of “ritualistic verbal spankings” once strongly condemned by Judge Jerome Frank. (See the Quote of the Week, below).

The defendant, Robert Kennedy, was convicted in 2001 of various drug trafficking crimes. He was sentenced to 420 months (35 years) in prison. Kennedy appealed; and, while his appeal was pending, AUSA Joseph Mott twice had Kennedy brought before a grand jury sitting in Roanoke, VA that was probing drug trafficking and money laundering activities in the Danville, VA area.

In calling Kennedy before the grand jury, all of the judges in this case agreed that AUSA Mott violated a number of Kennedy’s constitutional rights. First and foremost, AUSA Mott “had an affirmative obligation not to bring Kennedy before the grand jury at all for questioning about his unaffirmed convictions.” (Id., at 701). But, in addition, Kennedy was lied to about his self-incrimination rights - he was told that he had no right to refuse to testify about events charged in his indictment; he was not given any Miranda warnings; he was denied his right to counsel (even though AUSA Mott was fully aware that Kennedy was represented by counsel); and he was forced to testify against himself, in derogation of his rights in his pending appeal.

In his dissent, Judge Michael described, with uncommon bluntness, why he considered the prosecutorial misdeeds in this case had become a “debacle”:

“The AUSA's abusive tactics and procedures violated Kennedy's Fifth Amendment due process rights. After misusing the government's subpoena power to bring Kennedy to the courthouse while his appeal was pending, the AUSA proceeded to commit or orchestrate Fifth and Sixth Amendment violations in the process of requiring Kennedy to answer questions about his offenses. What is more, the AUSA misused the grand jury, which had no authority to question Kennedy about his case while it was still on appeal. These overbearing tactics were pervasive and shocking, and they must be recognized for what they amount to - a violation of the Due Process Clause of the Fifth Amendment.” (Id., at 703)

Ultimately, Kennedy was charged with perjury based on his testimony before the grand jury; and he was tried, convicted and sentenced to an additional 30 months in prison. Kennedy then appealed his perjury conviction, arguing that his perjurious testimony should have been suppressed because it was obtained in violation of his Fifth Amendment right of self incrimination and his Sixth Amendment right to counsel. Alternatively, Kennedy argued that those violations constituted prosecutorial misconduct amounting to a denial of due process. (Id., at 691).

The majority rejected Kennedy’s appeal. While it “recogniz[ed] six violations of Kennedy’s constitutional rights and assume[d] that two others occurred,” . . . [it also concluded] that there was no due process violation, in part because the AUSA says he was not aiming to gather evidence against Kennedy.” (Id., at 704). The majority stressed that perjury is never excusable since “it strikes at the core of our system of justice”; and, while it voiced concern about the actions of ASUA Mott, it suggested that Kennedy’s remedy was “to protest the infringement of his rights.” (Id., at 695).

In a forceful dissent, Judge Michael argued that Kennedy’s perjured testimony should have been suppressed “in light of the magnitude of the violations of his rights.” (Id., at 705). While in no way condoning or excusing Kennedy’s perjury, Judge Michael complained that the AUSA’s tactics, “especially his misuse of the grand jury, were so abusive and unfair that Kennedy was denied due process.” He wrote:

“The AUSA repeatedly violated Kennedy's most basic rights as an accused in a criminal case, and that must be condemned. Kennedy committed perjury, and that must also be condemned. If we leave things as they are, Kennedy stands convicted of perjury, and the AUSA stands excused. That result, I believe, does not take sufficient account of the prosecutorial abuse. . . . The AUSA used his dominant position to mislead Kennedy about his rights, and he forced Kennedy to testify against himself. The majority suggests that Kennedy's remedy is ‘to protest the infringement of his rights.’ But protest is an inadequate remedy in this instance. Protest, for example, cannot undo the tangible detriment to Kennedy that stems from the AUSA's misconduct: a two and one-half year sentence for perjury added to a thoroughly deserved thirty-five year sentence for drug dealing, all to be served by a man who is nearly sixty years old.” (Id.)


U.S. v. Wilmore, No. 03-10297 (9th Cir. 08/25/2004) (Judge Lay)
U.S. v. Gonzalez-Marichal, 317 F.Supp.2d 1200 (S.D.Cal. 2004) (Judge Miller)
U.S. v. Massino, 319 F.Supp.2d 295 (E.D.N.Y. 2004) (Judge Garaufis)

As expected, the number of lower court decisions dealing with the Supreme Court’s recent Confrontation Clause decision, Crawford v. Washington, 124 S.Ct. 1354 (2004), is now beginning to increase dramatically. As of the end of August, there were more than 90 such decisions listed on LEXIS addressing Crawford.

In Crawford, the Supreme Court overruled a long line of Confrontation Clause jurisprudence that had focused primarily on the reliability of the hearsay evidence being presented; and stated instead that “where testimonial evidence is at issue, . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” (Crawford, id., at 1373). Although Crawford identified grand jury testimony, police interrogations and plea allocutions as examples of “testimonial” statements, it did not provide a comprehensive definition of what it meant by “testimonial” - and for that reason the subsequent development of the scope and meaning of “testimonial” statements is important. These three cases are examples of the continuing development of Crawford; and all three show the marked impact of Crawford in the criminal arena.

In Wilmore, the Ninth Circuit vacated a drug conviction after finding that the district court had violated Crawford by improperly restricting the defendant’s cross-examination of the Government’s key witness - his wife- who had testified against him before a grand jury and then recanted that testimony and pled the Fifth Amendment at the defendant’s trial. The defendant was convicted of being a felon in possession of a gun; and the wife’s testimony grand jury testimony was critical to establish that the defendant possessed the gun. At trial, after the wife pled the Fifth Amendment, the district court restricted the defendant’s ability to question his wife about her grand jury testimony - stating that “what I don’t want to do is hammer the Fifth Amendment business. In other words, where you ask a question that you know she is going to take the Fifth Amendment on.”

The Ninth Circuit held that the restriction imposed on the defendant violated the rule in Crawford because it left him “with no opportunity to ‘confront’ [his wife] about why she testified the way she did before the grand jury or about whether that testimony was true. . . . We believe that cross-examination as to the veracity of, and the motivations behind, [the wife’s] grand jury testimony was vital to the question of whether Wilmore possessed the gun, which was a substantive element of the crime charged. No other witness testified that they saw Wilmore with a gun.”

In Gonzalez-Marichal, the defendant was charged with transporting illegal aliens into the United States in violation of 18 U.S.C. § 1324(a)(1)(A). One of the material witnesses against him was a Mexican woman who, during her custodial interrogation, allegedly stated that she was a citizen and national of Mexico and that she had paid $1,500 to be smuggled into the United States. Because that witness was unavailable to testify at his upcoming trial, the defendant moved in limine to exclude her statements on the ground that they violated the Crawford rule. The Government countered that statements of the witness were not “testimonial” within the meaning of Crawford because they were statements concerning her citizenship and personal and family history, and thus were admissible under the personal history exception of Rule 804(b)(4) of the Fed.R.Evid. Judge Miller rejected the Government’s argument, stating that “Crawford conditions admissibility of the statements on cross examination to test the reliability of the statements.” (Id., at 1203). He also concluded that statements regarding the alienage of the witness were material and went to the heart of the Government’s case under § 1324(a)(1)(A). Accordingly, he granted the defendant’s motion to exclude the statements of the missing witness.

In Massino, the defendant was one of 31 members and associates of the Bonano crime family who were charged with a broad RICO conspiracy, and the only one to stand trial (all 30 of the other co-defendants pled guilty). The Government moved in limine “to admit evidence pertaining to the witnesses' cooperation against persons other than the defendant if defense counsel suggests that the [cooperating] witnesses have falsely testified about Massino in order to receive a sentence reduction." (Id., at 295). The defendant, citing Crawford, only opposed the Government’s motion to the extent that the government seeks to introduce evidence of co-defendants' guilty pleas.” The Government argued that, in U.S. v. Martinez, 775 F.2d 31 (2nd Cir. 1895), the Second Circuit held that the fact that other individuals against whom a cooperating witness testified had pleaded guilty was admissible for the purpose of rehabilitation.

Judge Garaufis held that the guilty pleas in question were “testimonial” within the meaning of Crawford; and he denied the Government’s motion. He rejected the Government’s contention that a guilty plea “is merely a fact that contains absolutely no statement that could be deemed ‘testimonial’," stating:

“After Crawford, the right to confrontation does not depend on whether a particular statement is being admitted for the truth of the matter asserted; the right to confrontation depends solely upon the nature of the statement sought to be admitted. As a result, after Crawford the law does not distinguish the fact that a guilty plea was made from the confessional or testimonial statement embodied in the guilty plea. A guilty plea cannot and does not exist apart from the statement ‘I plead guilty’ or the associated allocution to all of the elements of the crime to which the co-defendant is pleading guilty. The fact that a co-defendant pleaded guilty is only significant because of its confessional nature. In this context, to the extent that the guilty plea resulted from the information provided by the cooperating witness, the fact that a co-defendant pleaded guilty is significant because it indicates the co-defendant believed that a judge and a jury would find the testimony of the cooperating witness credible. This belief on the part of the co-defendant is an insight into the co-defendant's mind that only became possible because the co-defendant uttered the words ‘I plead guilty’ and provided a corresponding allocution. As a result, the fact that an individual pleaded guilty necessarily embodies the testimonial statement made by an individual at the time he made the plea.” (Id., at 299).


In Brief

Searches of Parolees: U.S. v. Crawford, 372 F.3d 1048 (9th Cir. 2004) - Here, sitting en banc, the Ninth Circuit overruled a three-judge panel decision previously reported at 323 F.3d 700 (9th Cir. 2003) (See P&J, 02/17/03) and held, by a vote of 8-to-3, that a suspicionless and warrantless search of the defendant’s residence for evidence of a pre-parole crime did not violate the Fourth Amendment, even though there was no condition of parole that authorized such searches.

Supervised Release Revocation Hearings: U.S. v. Taveras, No. 03-2140 (1st Cir. 08/17/2004) - Overturning a revocation of supervised release is exceptionally rare, but the defendant accomplished that feat in this case. Here, the defendant successfully challenged the revocation of his supervised release on the grounds that the district court did not provide him with the opportunity to confront the complaining witness, his probation officer, Carmen Wallace, whose account of his alleged violations of the conditions of his supervised release was the basis of the revocation decision. The Court stated: “Given the unreliable nature of Wallace's hearsay testimony, we conclude that the interest of justice did not justify the district court's decision to override Taveras' qualified right to confrontation and that the court abused its discretion by admitting the hearsay testimony. Wallace's testimony was the only evidence presented in support of the Government's case, and the prejudice to Taveras from the absence of confrontation is unmistakable. Rule 32.1(b)(2)(C) mandates the exclusion of such unsupported hearsay under these circumstances. Without the hearsay testimony, there was no case: therefore, we must vacate the district court's judgment."


Quote of the Week

"This court has several times used vigorous language in denouncing government counsel for such conduct as that of the [prosecutor] here. But, each time, it has said that, nevertheless, it would not reverse. Such an attitude of helpless piety is, I think, undesirable. It means actual condonation of counsel's alleged offense, coupled with verbal disapprobation. If we continue to do nothing practical to prevent such conduct, we should cease to disapprove it. For otherwise it will be as if we had declared in effect 'Government attorneys, without fear of reversal, may say just about what they please in addressing juries, for our rules on the subject are pretend-rules. If the prosecutors win verdicts as a result of "disapproved" remarks, we will not deprive them of their victories; we will merely go through a form of expressing displeasure. The deprecatory words we use in our opinions on such occasions are purely ceremonial.' Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking. The practice of this court -- recalling the bitter tear shed by the Walrus as he ate the oysters -- breeds a deplorably cynical attitude towards the judiciary." Judge Jerome Frank, dissenting in U.S. v. Antonelli Fireworks Co., 155 F.2d 631, 661 (2nd Cir., 1946).


Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court

This Week

Year to Date

Since 1996

Courts of Appeal

34

1,371

20,298

District Courts

23

835

 11,237


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