Vol. 13, No. 32
Covering Cases Published in the Advance Sheets through Aug. 7, 2006

Taking the "Confrontation" Out of the Confrontation Clause

More on the Continuing Retreat Back to a Mandatory Guidelines Sentencing System

Breaching a Plea Agreement by Supporting Enhancements the District Court Suggested

The Dark Side of Habeas Corpus Relief

 

The Thompson Memorandum and the KPMG Lawsuit - Continued


U.S. v. Larson, No. 05-30076 (9th Cir. Aug. 28, 2006) (Judge O’Scannlain)

The two defendants in this drug case were convicted at trial of various drug charges arising out of their participation in a conspiracy to distribute methamphetamine. One defendant was sentenced to 97 months in prison and the other to 188 months in prison. A critical element of the evidence against them was the testimony of two co-conspirators, who agreed to testify against the defendants in exchange for reduced sentences.

On appeal, the defendants challenged a trial ruling of Judge Sam Haddon (D.Mont.) which prevented them from cross-examining the two snitches about the minimum terms of imprisonment that would have faced but for their agreement to testify against the defendants. One of the snitches faced a mandatory minimum sentence of five years (and a statutory minimum of 40 years) and the other faced a mandatory minimum sentence of life imprisonment. The defendants argued that Judge Haddon had violated their rights under the Confrontation Clause by preventing them from cross-examining the snitches on such a critical issue.

The Ninth Circuit held that there was no Confrontation Clause violation, principally because the jury had “otherwise received sufficient information from which to evaluate the cooperating witness’s biases and motivations.” But the sweep of the Court’s ruling was particularly broad; and it provoked some immediate criticism. (See, e.g., “Taking the ‘Confrontation’ out of the Confrontation Clause,” by Steven Kalar, as posted on the Ninth Circuit Blog on Sept. 4, 2006).

Of particular note, the panel concluded that the five-year minimum sentence applicable to one of the snitches “is not particularly lengthy” and was of “slight probative value.” With respect to the other snitch’s exposure to a statutory life sentence, the panel reluctantly concluded that such a sentence “has greater probative value” - but it then concluded, without a single citation in support of that unrealistic conclusion, that “[a] cooperating witness's motivation to give biased or false testimony is therefore not necessarily captured by the length of the potential sentence - the witness knows that his sentencing remains subject to the court's discretion notwithstanding the government's motion.”

But the pièce-de-résistance of the Court’s counter-intuitive reasoning was the following sweeping (and unsupported) statement:

“Where the court allows extensive examination as to the existence of an agreement by which a witness has traded adverse testimony for the government’s motion for a reduced sentence, the defense has provided the jury with sufficient information upon which to judge the witness’s motivation for testifying and his or her corresponding credibility. The length of the sentence the cooperating witness would otherwise face—even where certain because of an applicable statutory minimum – is marginally relevant in light of testimony about the existence of an agreement generally. Such evidence may be excluded at least where, as here, the jury may have improperly inferred that the defendants faced sentences of similar duration.” (Emphasis added).

As Mr. Kalar noted in his commentary on the Ninth Circuit Blog, not only is the decision “fundamentally unfair” and “divorced from the realities of criminal practice,” any experienced criminal defense counsel knows that, far from being “marginally relevant,” escaping from a life in prison is “the most motive to lie imaginable.”

Before his death in 1995, Judge Irving Loeb Goldberg of the Fifth Circuit condemned “the virtual purchase of perjury” with these words:

"One of the basics of our jurisprudence is the search for truth, and by this is meant not the purchased truth, the bartered-for truth, but the unvarnished truth that comes from the lips of a man who is known for his integrity. . . .The government in its prosecutorial efforts should be like Caesar's wife, above or beyond reproach. . . . It may be that we must live with informers. It may be that we must live with bargained-for pleas of guilty. But we do not have to give a receipt stamped 'paid in full for your damaging testimony" or 'you will be paid according to how well you can convince the jury even though it may be in the face of lies'. . . . Trustworthiness is a keystone and a hallmark of any judicial system that seeks recognition for its role in a civilized society. The time has come to announce boldly and firmly that our juridical search for truth cannot be reconciled with the virtual purchase of perjury." (U.S. v. Cervantes-Pacheco, 800 F.2d 452, 460-61(5th Cir. 1986)).


U.S. v. McDonald, No. 05-1617 (8th Cir. Sept. 5, 2006) (Judge Gruender)

This decision is far more than just another routine appellate decision following the now well-established pattern of rejecting - almost automatically - sentences that fall below the sentencing range recommended by the now-advisory Guidelines; it also represents a recognition by at least one Judge that, in the space of less than two years, the courts have effectively converted the Federal sentencing system back into the de facto mandatory Guideline system that existed prior to U.S. v. Booker, 543 U.S. 220 (Jan. 12, 2005).

In this case, the defendant pled guilty to two counts of attempting to manufacture methamphetamine. His Guidelines sentencing range was 262-327 months in prison. However, citing a number of factors including the defendant’s work history and its estimation of a low-likelihood of recidivism, the district court granted a downward variance and imposed a sentence of 132 months as the appropriate sentence, which was 12 months longer than the applicable mandatory minimum.

The Government appealed; and a divided panel from the Eighth Circuit reversed. In a decision that was suffuse with palaver about why downward variances are unacceptable in the post-Booker era, the majority ultimately concluded that the record in this case did not support such an “extraordinary sentence reduction.”

The most interesting part of the decision was Judge Bye's biting dissent in which he sharply criticized the Circuit for affording “too little deference to the broad discretion visited upon sentencing courts under the now-advisory guideline system.“ He stated in part:

“I believe today's decision is symptomatic of the growing pains our courts are experiencing as we move away from a constitutionally infirm system of mandatory sentencing to the advisory system commanded by Booker. If we fail to implement the promise of Booker and do not relinquish greater discretion to experienced district court judges whose proximity to sentencing renders them eminently more qualified to appreciate the subtleties of each case, we will find ourselves the architects of a new -- and equally unconstitutional -- de facto mandatory sentencing system crafted from the ashes of the last.

“I also wish to lend my voice to the concerns expressed by Judge Heaney in United States v. Meyer, 452 F.3d 998, 1000 n.3 (8th Cir. 2006). I too have noticed our court routinely affirms sentences above the Guidelines range, while reversing most sentences imposed below the Guidelines range. . . .

"’If we are to be deferential when the Government persuades a district judge to render a non-Guidelines sentence somewhat above the Guidelines range, we must be similarly deferential when a defendant persuades a district judge to render a non-Guidelines sentence somewhat below the Guidelines range. Obviously, the discretion that Booker accords sentencing judges to impose non-Guidelines sentences cannot be an escalator that only goes up’." (Internal citations omitted).


U.S. v. Collington, No. 05-4054 (6th Cir. Aug. 31, 2006) (Judge Martin)

In his dissent in this case, Judge Gilman bitterly complained that this decision “marks the first time in a published opinion that [the Sixth Circuit] has sustained as reasonable a district court’s decision to vary downward from the applicable Sentencing Guidelines range.” (Emphasis added).

Apparently, despite paying lip service to “the generally deferential nature of reasonableness review,” Judge Gilman wanted to make sure that the Court kept alive its unblemished streak of rejecting downward variances from the range suggested by the co-called advisory Guidelines; and he didn’t seem to be at all concerned about creating a de facto mandatory sentencing system that, for all practical purposes, is the mirror image of the system that the Supreme Court held was unconstitutional in U.S. v. Booker.

Here, Samuel Collington pled guilty to both drug and gun charges; and his “advisory” Guidelines range was 188 to 235 months in prison. However, at sentencing, Judge O’Malley (N.D.Ohio) concluded that a sentence of 132 months (12 months longer than the applicable mandatory minimum) was the appropriate punishment. She explained that such a variance was justified for a number of reasons, including the fact that Collington’s criminal history was overstated because he “as never been in custody for any substantial period if time,” having been imprisoned for only seven months before the instant crime.

The Government appealed the 132 month sentence; but a divided panel affirmed the sentence as reasonable. With his typical clarity, Judge Martin concluded that the sentence imposed met the Circuit’s standards for both procedural reasonableness and substantive reasonableness. Among his noteworthy comments were the following:

“The dissent notes that this variance is 36% below the low end of the guidelines range. Such analysis has no place in a review for reasonableness. There is no mathematical percentage or formula that defines what reasonableness is. Appellate review simply can not be reduced to such cold calculations. It is those very calculations that Booker and its progeny attempted to remove from the federal sentencing process. (Footnote 2) . . . ..

“The dissent, in arguing that Collington's sentence was unreasonable, quotes repeatedly from the district court's oral and written decision in order to show why Collington should not have received such a lenient sentence. . . . While the dissent finds these selective quotations to weaken the reasonableness of district court's final sentence, we feel these statements in fact bolster the reasonableness of the sentence. It is the district court's very consideration of both the reasons for leniency and for a harsh penalty that makes its explanation a reasonable one and the sentence itself reasonable. The district court did not ignore these facts, but plainly had them in the front of its mind when it chose the sentence for Collington. . . .

“While the dissent criticizes the district court for giving Collington ‘a gift,’ this is no reason for this Court to find Collington's sentence unreasonable. What may be overlooked in appellate review is the fact that the district court does not issue its sentencing remarks in a vacuum or exclusively with this Court's review in mind. These comments are delivered directly to the defendant, often times with family members present. We should not begin persecuting the district courts for any niceties they may state in communicating its sentence to the defendant. Such a practice would only lead to depersonalizing an already difficult situation.” (Footnote 3).


U.S. v. Sanders, 452 F.3d 572 (6th Cir. June 29, 2006) (Judge Gibbons)

This case originated in 1993, when Lummie Sanders was sentenced to 37 months in prison for the crime of being a felon in possession of a firearm. Seven years later, following two direct appeals and one appeal of a motion under 28 U.S.C. § 2255, the Sixth Circuit determined that Sanders should have been sentenced to the 180-month minimum mandated by the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1).

However, by that time, Sanders had already been released from custody because he had served in full the mandated sentence of 37 months. Four more years then passed before the district court issued a warrant for Sanders' arrest and imposed the longer sentence. During that time, Sanders found productive employment; he became active in his church, where he met a woman whom, after three years of dating, he married; and he ministered weekly to inner city youth. As Judge Martin (who dissented) remarked, “Sanders, it appears, made quite a life for himself. He exemplified rehabilitation at its best.”

In the midst of all of this, the U.S. Probation Office sent Sanders an official notice stating that he had successfully completed his period of “supervised release” and had no further obligations to fulfill on his sentence. Finally, more than six years after his initial release from prison, Sanders was resentenced and ordered to serve the remaining eleven years of his corrected sentence.

Sanders filed for habeas relief, claiming that the long delays violated his constitutional right to due process. By a vote of 2-1, the Sixth Circuit held that this series of events did not violate Sanders’ constitutional rights, despite his expectations of continuing liberty and despite the extraordinary delay in re-sentencing him. In reaching that conclusion, the majority appeared to rely on two central premises: (a) Sanders had presented no evidence of malice or bad faith on the part of the Government; and (b) Sanders had failed to make any showing of prejudice that would give rise to a due process violation.

Judge Martin, who dissented, was flabbergasted at both the gross injustice of the majority’s ruling and its pious impotence. He started his incredibly bitter and lengthy dissent by stating: "This case . . . will forever be etched on my mind as one of the most fundamentally unfair results that I have ever witnessed in thirty-plus years as a judge." Then, after reviewing the facts and the law, he concluded:

“When I think about this case, as I have done so often as of late, it makes me sick to my stomach. To imagine the emotional and psychological turmoil Mr. Sanders has been forced to endure as a result of the government's action and inaction in this case shocks and angers me to no end. Sanders woke up every day for six years believing that he was a free man. That's 2,190 mornings. And, in this case, it appears that Lummie Sanders used each of those days to make something out of his life. I cannot imagine any more settled expectations than those. I would order Sanders released from prison immediately. If we as a federal court cannot remedy the truly fundamentally unfair result that exists here, I don't know what good we are. And the law, well, if the law truly requires Lummie Sanders to go back to prison - the law is a ass.”

 


Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court
This Week
Year to Date
Since 1996
Courts of Appeal
58
1,681
25,519
District Courts
28
869
14,311

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