Vol. 14, Nos. 30 &31
Covering Cases Published in the Advance Sheets through July 30, 2007

Government Can't Use Testimony of Key Witness it Deported

Court Holds Grand Jury Witnesses Can Review Their Testimony

Former Illinois Goivernor Loses Motion for a New Trial - Despite "Dysfunctional Jury Deliberations"

Sentencing and Guidelines Issues

U.S. v. Yida, No. 06-10460 (9th Cir. Aug. 16, 2007) (Judge Gould)

This is an interesting case that emphasizes a defendant’s rights to have a jury hear live testimony from a witness in order to observe his demeanor. The key issue in this case was whether a defendant could preclude the Government from introducing into evidence the prior testimony of a critical witness given at an earlier trial in the same case (which ended in a mistrial), after the Government had secretly consented to his deportation, thereby rendering him unavailable at the retrial.

The Government charged Yacov Yida, David Reziniano, and a number of co-conspirators with various drug crimes arising out of an alleged ecstasy smuggling conspiracy that took place in 1999 and 2000. Ultimately Reziniano pled guilty and he agreed to testify against Yida. Upon completion of his sentence, Reziniano, a native and citizen of Israel, was released into the custody of the Department of Homeland Security (DHS) after for deportation proceedings. However, the Government quickly obtained a material witness warrant for Reziniano, on the grounds that he was scheduled to testify at Yida’s upcoming trial.

At Yida’s trial in April 2006, Reziniano testified at length that he had conspired with Yida to import ecstasy into the United States from Europe on multiple occasions. According to the government, "Reziniano proved to be a critical witness at trial" because he (1) corroborated testimony from other witnesses; (2) "presented substantial first-hand information about Yida's role in the charged conspiracy that no other witness could provide"; and (3) "testified about the origins of the conspiracy and described in detail how he and Yida had smuggled ecstasy into the United States." Reziniano was thoroughly cross-examined at trial by Yida's defense counsel. However, the jury reached an impasse in its deliberations, and the district court declared a mistrial on April 13, 2006. Later the district court set a new trial date of July 24, 2006.

Before the new trial date, Reziniano asked to be deported to Israel, claiming that his medical and dietary needs were not being adequately addressed while in custody. After Reziniano solemnly promised to return to testify, the Government consented to his request - but without informing defense counsel or the court - and Reziniano was deported to Israel. Not surprisingly, when it came time for Yida’s new trial, Reziniano refused to return to testify, allegedly on the grounds of an illness.

Unfazed, the Government filed a motion in limine seeking to admit Reziniano’s testimony from Yida’s first trial, arguing that Reziniano’s prior testimony met two of the “unavailable witness” exceptions to the hearsay bar, namely those contained in Rules 804(a)(4) and 804(a)(5) of the Fed.R.Evid. Rule 804(a)(4) provides that a witness is deemed unavailable where the declarant "is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity." Rule 804(a)(5) provides that a witness is deemed unavailable where the declarant "is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance . . . by process or other reasonable means."

All of the parties agreed that Reziniano’s prior testimony at Yida’s first trial qualified as “hearsay” within the meaning of Rule 801(c). The parties also agreed that Reziniano’s prior testimony had been subjected to a thorough cross-examination by Yida’s counsel; and that it therefore qualified as “former testimony” within the meaning of Rule 804(b)(1) of the Fed.R.Evid. Thus, the issue was whether Reziniano was an unavailable witness within the meaning of Rule 804 so as to allow the admission of his prior testimony under either of the two exceptions claimed by the Government.

Yida opposed the use of Reziniano’s prior testimony, arguing that a witness is not "unavailable" for purposes of the Rule 804 exceptions "unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial" and that here, by permitting Reziniano to be deported, the Government had not shown the requisite good faith. Yida also argued that the admission of Reziniano’s prior testimony would violate his rights under the Confrontation Clause that “the accused shall enjoy the right . . . to be confronted with the witnesses against him."

The district court (Judge Breyer of the N.D.Cal.) refused to allow the Government to use Reziniano’s prior testimony, holding that “unavailability” under Rule 804 means that the government must act “reasonably” in retaining the availability of a witness, not simply in seeking his return. Although Judge Breyer found that the Government had acted in good faith when it allowed Reziniano to be deported, he concluded:

“The dispositive issue here, however, is not whether the Government's efforts to convince a since-deported witness to return to testify were reasonable; rather, the central concern is whether the Government's decision to permit Reziniano to be deported in the first place, while in the custody of the Government, was a 'reasonable means' to 'procure the declarant's testimony'."

The government took an expedited appeal pursuant to 18 U.S.C. § 3731; and the Ninth Circuit affirmed Judge Breyer’s ruling. The Court rejected the Government’s “cramped and constricted” theory of Rule 804. While the Court agreed that the Government had not acted in bad faith when it permitted Reziniano’s deportation, it also concluded that the Government had not done all that was reasonably necessary to assure Reziniano’s presence at the retrial. Thus, the Court stated:

“We agree with the district court and conclude that the government’s decision to deport Reziniano without informing either the court or Yida’s counsel, without taking a video deposition, and without having any means of compelling his return, was not reasonable, particularly when contrasted with the alternatives available to the government.”

Apart from the Court’s discussion of the standards that apply when determining whether a witness is “unavailable” for purposes of Rule 804, the Court’s decision is particularly significant for its emphasis on the Confrontation Clause’s preference for live testimony - to give the jury the opportunity to evaluate the what is commonly referred to as the “demeanor evidence” at issue in the case. In that vein, the Court wrote:

“The constitutional requirement that a witness be ‘unavailable’ before his prior testimony is admissible stands on separate footing that is independent of and in addition to the requirement of a prior opportunity for cross-examination. See Barber v. Page, 390 U.S. 719, 724-25 (1968) (holding that the admission of prior testimony that had been subjected to cross-examination violated the Confrontation Clause because the state did not prove that the witness was unavailable) . . . .

“Underlying both the constitutional principles and the rules of evidence is a preference for live testimony. Live testimony gives the jury (or other trier of fact) the opportunity to observe the demeanor of the witness while testifying. William Blackstone long ago recognized this virtue of the right to confrontation, stressing that through live testimony, ‘and this [procedure] only, the persons who are to decide upon the evidence have an opportunity of observing the quality, age, education, understanding, behavior, and inclinations of the witness.’ Transcripts of a witness's prior testimony, even when subject to prior cross-examination, do not offer any such advantage, because ‘all persons must appear alike, when their [testimony] is reduced to writing’." (Internal citations omitted).

As a matter of interest, Judge Gould (who wrote both the main opinion and a separate concurring opinion) commented that the Court’s main opinion was “grounded solely on the panel's interpretation of Federal Rules of Evidence 804.” However, he stressed that there was an important “constitutional dimension” to the concept of unavailability; and he warned “if we were to interpret Federal Rule of Evidence 804 to give carte blanche to the government to send a witness who has already testified to a location beyond the court's process, we would have to assess whether that witness was ‘unavailable’ within the meaning of the bounds set by the Sixth Amendment.”

In Re: Grand Jury, No. 06-3078 (D.C. Cir. June 22, 2007) (Per Curiam)

This in an important decision regarding the secrecy of grand jury proceedings. As everyone knows, defense attorneys are barred from grand jury proceedings; and grand jurors are instructed not to discuss the investigation. (See, e.g., Fed.R.Crim.P. 6(e)(2)(B)) In addition, under Rule 6(e)(3)(E), Government attorneys now keep the transcripts and tapes of grand jury proceedings, and the Government cannot disclose those transcripts or tapes absent a court order or except in the circumstances expressly specified by that Rule.

In the instant case, during a criminal investigation of a company and its employees, the Government issued multiple grand jury subpoenas for the testimony of two corporate employees. The first employee testified on three occasions. Approximately two months after the employee's third grand jury appearance, the employee was subpoenaed to testify a fourth time. The employee sought to review his prior grand jury testimony -- in particular asking for copies of the transcripts of the prior three grand jury appearances. The Government, which keeps copies of grand jury transcripts and tapes, denied that request. The employee then filed a motion in the district court to compel disclosure of the transcripts. The district court denied the motion, and the employee appealed.

The second employee testified once and then was subpoenaed to testify again. The employee sought to review her prior grand jury testimony and asked for a copy of the transcript of the first grand jury appearance. The Government denied that request. Following the Government's denial, the employee filed a motion in the district court to compel disclosure of the transcript of her prior grand jury testimony. The district court denied that motion, and the employee appealed.

Both appeals were consolidated; and the Court framed the issue before it as “whether federal grand jury witnesses, after they have testified, are entitled to examine the transcripts of their own testimony.” In response to that question, the Court held:

“Applying Federal Rule of Criminal Procedure 6(e)(3)(E)(I), we hold that grand jury witnesses are entitled to review the transcripts of their own testimony in private at the U.S. Attorney's Office or a place agreed to by the parties or designated by the district court.”

The Court then explained:

“Here, for example, the employees have expressed concern that their prior testimony may have included inadvertent inaccuracies or inconsistencies, and they want to review the transcripts to correct those inaccuracies or inconsistencies. Correcting the record is not a pointless gesture. The Government otherwise could use a witness's inaccurate or inconsistent testimony as a basis, at least in part, for a criminal prosecution of that witness or someone else. In addition, federal law explicitly provides a mechanism for a witness to timely recant prior grand jury testimony. Yet witnesses would have difficulty taking full advantage of this statutory recantation right without access to transcripts of their own grand jury testimony. Contrary to the Government's theory, moreover, a witness's interest in reviewing transcripts of past testimony could well increase after any subsequent testimony; that's because the possibility of inaccurate or inconsistent testimony tends to increase the more a witness testifies.” (Internal citations omitted).

Of particular interest, the Court dismissed some of the Government’s concerns about grand jury secrecy by stating:

“To be sure, the Government is concerned about grand jury witnesses (or their attorneys) who disclose information to other grand jury witnesses (or their attorneys) with the purpose of obstructing the criminal investigation. The Government identifies joint defense agreements among attorneys as a threat to the integrity of the grand jury process. But denying witnesses access to their own transcripts to help prevent witnesses from talking to others makes little sense to begin with -- and makes even less sense given that grand jury witnesses are under no legal obligation of secrecy. A grand jury witness is legally free to tell, for example, his or her attorney, family, friends, associates, reporters, or bloggers what happened in the grand jury. For that matter, the witness can stand on the courthouse steps and tell the public everything the witness was asked and answered. . . . The secrecy rules therefore are no justification for denying witnesses access to their own transcripts”.

This ruling is particularly significant because, to date, only one other Circuit court has held that grand jury witnesses have a right to review or obtain copies of their testimony. In Bursey v. U.S., 466 F.2d 1059 (9th Cir. 1972), the Ninth Circuit held that witnesses and their attorneys could obtain copies of their testimony transcripts if they could show a compelling need that outweighed the grand jury’s interest of secrecy. In contrast, the opinion in this case identifies four other Circuit courts (the 1st, 4th, 5th and 7th) which have ruled that grand jury witness have no right to request copies of their grand jury transcripts; and several other Circuits have implied, in dicta, that they would reach the same result.

U.S. v. Tomko, No. 05-4997 (3rd Cir. Aug. 20, 2007) (Judge D. Michael Fisher)

In this lengthy (66-page) decision, a divided panel from the Third Circuit vacated a probation-only sentence for tax evasion as substantively unreasonable. The majority and dissenting opinions represent the most detailed analysis we have seen to date of the Supreme Court’s decision in U.S. v. Rita, 127 S.Ct. 2456 (2007), but those two decisions combined not only fail to clarify the meaning of Rita, they forcefully point out that the Supreme Court has created a quagmire that has generated more - not less - confusion in the minds of both the district courts and the appellate courts about how much deference a district court retains over sentencing.

In fact, in a strong dissent, Judge Smith described his impressions of the majority’s decision with these words:

“[T]he majority's position provides no guidance for district courts. The effect of the majority opinion will necessarily be to confuse district courts as to what circumstances would ever justify a substantial variance, regardless of the validity of the reasons for the variance given by the sentencing court. This effect runs contrary to both the deference formerly granted to sentencing courts as well as our appellate role of examining the legitimacy of the reasons given by the sentencing court for exercising its decisionmaking discretion.”

The defendant, William Tomko, who owned a construction company, pled guilty to a scheme to evade personal income taxes by having numerous subcontractors falsify their billing invoices to hide substantial improvements made on his own luxury personal residence in Pennsylvania. As a result, Tomko failed to report the value of those improvements as income on his personal tax returns, which led to a stipulated tax deficiency of $228,557.

The recommended Guidelines sentencing range for Tomko’s offense was 12 to 18 months in prison, but his defense counsel proposed that, in lieu of imprisonment, Tomko be allowed to do volunteer work with Habitat for Humanity and assist in its efforts to provide housing for victims of Hurricane Katrina. Counsel also moved for a downward departure on a number of grounds, including: (1) the effect Tomko’s incarceration would have on his business, causing a job loss to more than 300 innocent employees; (2) Tomko's exceptional charitable and community activities; and (3) extraordinary acceptance of responsibility. The motion included as exhibits over fifty letters from friends, family, and community leaders attesting to Tomko's generosity and compassion.

Ultimately, the district court (Judge Lancaster of the W.D.Pa.) sentenced Tomko to 250 hours of community service, three years of probation with one year of home confinement, and ordered him to pay a fine of $250,000. Tomko was also ordered to undergo twenty-eight days of in-house alcohol treatment. In imposing that sentence, Judge Lancaster created an exemplary and remarkably detailed record which contained the reasons for the sentence that was imposed and numerous references to all of the sentencing factors set forth in 18 U.S.C. § 3553(a).

None of that was good enough for the majority, which concluded that the sentence was substantively unreasonable and therefore an abuse of Judge Lancaster’s sentencing discretion. No matter how one reads the majority’s decision, it comes down to putting a different weight on the same sentencing factors that Judge Lancaster considered - which is far from the review for reasonableness mandated by Rita. Effectively, the majority’s opinion follows the stereotype that has become standard in virtually every Circuit sentencing decision since Rita: (a) fill the opinion with lots of glorious platitudes about the district court’s unlimited sentencing discretion, but (b) make clear that any deviations from the Guidelines range are both perilous and unwelcome.

Judge Smith, who dissented, was clearly perplexed. He argued in part that, to achieve its goal of reversing a sentence of probation, the majority had actually engaged in a de novo review of Tomko’s sentence - rather than a reasonableness review as required by Rita. Thus, he wrote:

“[T]he majority departs from our post-Booker jurisprudence by conducting what amounts to de novo review of the sentencing court. In no post-Booker case has this Court ever asked a sentencing court to do more than the District Court did here. The majority opinion curtails the deference we accord sentencing courts to impose a reasonable sentence, regardless of whether that sentence substantially varies either up or down from the Guidelines range.”

But mostly, Judge Smith criticized his colleagues for making a confused mess of the applicable sentencing law. He wrote:

“[T]he majority's position provides no guidance for district courts. The effect of the majority opinion will necessarily be to confuse district courts as to what circumstances would ever justify a substantial variance, regardless of the validity of the reasons for the variance given by the sentencing court. This effect runs contrary to both the deference formerly granted to sentencing courts as well as our appellate role of examining the legitimacy of the reasons given by the sentencing court for exercising its decisionmaking discretion. See Rita, 127 S. Ct. at 2468 ("The sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decisionmaking authority.")

We can only hope that the Supreme Court will finally bring some clarity to this morass when it decides the two sentencing cases that it has agreed to review in October, namely Gall v. U.S., No. 06-7049 and Kimbrough v. U.S., No. 06-6330 (see, P&J, 05/07/07).

In Brief

We have posted on our Website a copy of a noteworthy, 127-page Report on the impact of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) on habeas corpus litigation in the United States. The Report, entitled “Habeas Litigation in U.S. District Courts,” was published by Vanderbilt University School of Law and the National Center for State Courts, and was authored by a team of people led by Prof. Nancy J. King.

The two-year study was the first to examine empirically the effects of 1996 amendments to the habeas corpus law that apply when state prisoners challenge their convictions and sentences in federal court. The authors examined nearly 2,400 non-capital cases, randomly selected from among the more than 36,000 habeas cases filed in federal district courts nationwide by state prisoners during 2003 and 2004, and more than 360 death penalty cases filed in 13 federal districts between 2000 and 2002.

Among other things, the Report (which was partially funded by the National Institute of Justice) made the not-surprising finding that, since the enactment of the AEDPA, the rate at which Federal district courts have granted writs of habeas corpus has declined from approximately one in every one-hundred habeas cases filed to one in every three-hundred cases.

Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

This Week
Year to Date
Since 1996
Courts of Appeal
District Courts

Copyright 2007 Punch and Jurists, Ltd.