Vol. 14, Nos. 36 & 37
Covering Cases Published in the Advance Sheets through Sept. 10, 2007

The Remarkably Unresolved Status of Due Process Rights at Sentencing

Eighth Circuit Rejects Probable Cause Standard for Thermal Image Searches

Eighth Circuit Expands Pinkerton Liability Rule; Holds Indictment Need Not Charge Conspiracy

Eureka!!! An Indictment Actually Dismissed Due to Prosecutorial Vindictiveness

Lying to Probation Officer Held Not to Constitute Making a False Statement Under § 1001

U.S. v. Hamad, 495 F.3d 241 (6th Cir. July 19, 2007) (Judge Sutton)
Stewart v. Erwin, No. 05-4635 (6th Cir. Oct. 9, 2007) (Judge Rosen)

Both of these decisions explore an increasingly important question: what due process protections apply to a defendant at sentencing when the court relies on confidential sentencing evidence. Remarkably, both panels from the Sixth Circuit concluded that that fundamental issue remains largely unresolved.

In fact, the Hamad court stated: “[I]t remains unclear whether the Constitution gives sentencing courts a free hand to rely on undisclosed - or, to be more dramatic, secret - accusations that increase an individual’s sentence.” And the Stewart court added: “[W]hile a defendant may not have the constitutional right to confront the witnesses against him at sentencing, it remains unclear under modern sentencing practices what due process right he has to know who these witnesses are and what they have said, to respond meaningfully to the accusations or otherwise to ensure that the accusations are accurate.”


Hatem Hamad pled guilty to violating the felon-in-possession statute, 18 U.S.C. § 922(g)(1), and failure to register a shotgun with a barrel shorter than 18 inches, 26 U.S.C. § 5861(d). His Guidelines sentencing range was 41 to 51 months in prison; but the district court (Judge Dowd of the N.D.Ohio) advised Hamad before his sentencing hearing that he was considering a sentence above that range based on a number of confidential documents it had received under seal which suggested that Hamad was a “menace and a threat to the lives of many good and law-abiding citizens” and that he had demonstrated an “abusive and violent temperament.” (Id., at 243).

Ultimately, Hamad was sentenced to 48 months (which was within his Guidelines range); but Judge Dowd made clear that he had taken into consideration and relied on the information contained in the sealed documents in fixing Hamad’s sentence. Hamad then appealed, arguing that his sentence violated his rights of due process. In vacating Hamad’s sentence, the Court stated:

“Because the escalation of a sentence based on undisclosed evidence raises serious due process concerns, we construe the rule to require a sentencing court either to disclose sufficient details about the evidence to give the defendant a reasonable opportunity to respond or, failing that, to refrain from relying on the evidence. We vacate Hatem Hamad's sentence and remand for resentencing.” (Id., at 243)

Under Rule 32(d)(3)(B) of the Fed.R.Crim.P., a presentence report “must exclude . . . any sources of information obtained upon a promise of confidentiality.” However, Rule 32(i)(1)(B) also provides that a sentencing court “must give to the defendant and an attorney for the government a written summary of--or summarize in camera--any information excluded from the presentence report under Rule 32(d)(3) on which the court will rely in sentencing, and give them a reasonable opportunity to comment on that information."

As the Sixth Circuit explained in its decision, “the two central policies underlying Rule 32 cut in opposite directions. The rule plainly seeks to maximize the amount of information available to district courts in exercising their sentencing discretion. . . . At the same time, the procedural requirements of this provision and the rest of Rule 32 plainly advance due process concerns.” (Id., at 248-49).

In the instant case, Judge Dowd did give Hamad a written summary of the nature of the confidential documents that had been filed in court which attacked Hamad’s character; and the Sixth Circuit commented that Judge Dowd had technically complied with his obligations under Rule 32(i)(1)(B). It wrote:

“Under one reading of these provisions, the district court did all that Criminal Rule 32 asks of it. . . . Having reviewed the confidential documents ourselves, we can add that the court accurately summarized them and that, had the court been more specific about the contents of the documents, it would have risked exposing the sources of the information.” (Id., at 245).

But the Court also stated that mere technical compliance with the mandates of Rule 32 is not necessarily sufficient. Thus, it went on to explain that there are also overriding due process issues at stake:

“But the district court's interpretation of these rules is not the only plausible reading of them, and it is not the one we adopt. First, as applied to this case, the district court's sentencing procedure raises serious constitutional concerns--even if the required summary was as accurate and as specific as it could be without disclosing its sources and even if the defendant was given as much time as he wished and as many witnesses as he needed to respond to the summary. The fact remains that the court did not--and could not--disclose sufficient information to allow the defendant to counter or test the reliability of this evidence that he was a dangerous person and a blight on the community, and the fact remains that the court relied on this information in increasing his sentence. (Id., at 245-46). . . .

“While many of the protections, constitutional or otherwise, that guard a criminal defendant's procedural rights at trial have not historically applied at sentencing or to this type of case, that does not end the inquiry. . . . Under today's system, it remains unclear whether the Constitution gives sentencing courts a free hand to rely on undisclosed--or, to be more dramatic, secret--accusations that increase an individual's sentence.

“The upshot is this: while a defendant may not have the constitutional right to confront the witnesses against him at sentencing, it remains unclear under modern sentencing practices what due process right he has to know who these witnesses are and what they have said, to respond meaningfully to the accusations or otherwise to ensure that the accusations are accurate. Although ‘[t]he district court may consider hearsay evidence in determining a sentence, . . . the accused must be given an opportunity to refute it, and the evidence must bear some minimal indicia of reliability in respect of defendant's right to due process’." (Citing U.S. v. Silverman, 976 F.2d 1502, 1511 (6th Cir. 1992) (en banc)). (Id., at 247).

Ultimately, the Court concluded that, under the facts of this case, the district court’s summary of the confidential documents did not give Hamad sufficient information so he had a “reasonable opportunity to comment” on those documents. The summary provided only a “general sense” of the charges made by confidential witnesses. Thus, Hamad’s sentence violated Rule 32(i)(1)(B) because:

“The district court's inability to provide Hamad with information regarding the ‘precise nature of any behavioral characteristics or instances of illegal conduct’, not only handicapped his ability to contest those accusations, but also undercut Rule 32's purpose of promoting ‘focused, adversarial resolution of the legal and factual issues relevant to fixing Guidelines sentences’." (Id., at 250).


Dale Stewart pled guilty in 2002 to two counts of sexual battery; and he was sentenced by an Ohio state court to two consecutive four-year terms of imprisonment. Before his sentencing, Stewart subpoenaed the Probation Department to provide him with a number of materials, including the victim impact statements that the trial court had reviewed and considered when it imposed his sentence. The trial court, however, granted the State's motion to quash the subpoena; and neither Stewart nor his counsel was ever allowed to review the victim impact statements.

After exhausting his state remedies, Stewart filed a habeas petition in Federal district court pursuant to 28 U.S.C. § 2254, alleging, inter alia, that he was denied due process of law because he was not given the opportunity to review, rebut, and explain the entire body of information that the sentencing court relied upon to justify its imposition of an eight-year prison term. The district court denied Stewart’s habeas petition, but it did grant a certificate of appealability as to Stewart's due process challenge.

On appeal, the Sixth Circuit reversed and granted Stewart habeas relief on the ground that he was denied access to certain information used at his sentencing. In rendering that ruling, the Court focused on one specific part of Stewart’s claim - namely that the state trial court's sentencing decision “was impermissibly influenced by materially false or misleading information contained in the victim impact statements that were withheld from him and his counsel.”

Addressing that narrow claim, the Sixth Circuit agreed that “the record provides some support for this claim”; and, for that reason, it ultimately reversed the district court’s order denying Stewart’s petition for a writ of habeas corpus and remanded for additional proceedings, with further instructions that the writ should be granted if the State fails to supplement the record within 45 days of the date of this opinion.

Thus, the holding in this case is quite narrow, in part because the Court was unable to determine whether a due process violation had actually occurred in this case, since it was unable to review some of the documents its deemed relevant to a “meaningful review” of that issue. Nevertheless, the Court cited Townsend v. Burke, 334 U.S. 736 (1948), and its progeny, for the firm proposition that a defendant must be afforded the opportunity to rebut “derogatory information demonstrably relied upon by the sentencing judge, when such information can in fact be shown to have been materially false.”

The holding was also at least partially impacted by a turf battle between the state and Federal courts. The district court had ordered the state courts to turn over to it both Stewart’s presentence report and the victim impact statements in this case for review; but the state court refused to comply with that order. The Sixth Circuit made clear its displeasure with the state court’s defiance of an order from a Federal judge, pointedly noting that it was unable to ascertain whether a due process violation had occurred in this case “where a portion of the materials used in determining Stewart’s sentence has been withheld from federal court review, and where the limited record before us suggests a reasonable possibility that at least some of this sentencing information might have been erroneous.”

Despite the existence of that turf battle, this ruling is significant in the context of Federal habeas litigation, as evidenced by the following portion of the Court’s opinion:

“[W]hile the state court's factual findings are cloaked with a presumption of correctness, see 28 U.S.C. § 2254(e)(1), our deference to the state court on this score does not demand that we rubber-stamp its findings without any independent examination of the record. Rather, Stewart is entitled to habeas relief under the AEDPA standards if the state court's decision was ‘based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’ 28 U.S.C. § 2254(d)(2). Because the federal court record does not contain any of the pertinent materials reviewed by the Ohio Court of Appeals in making its findings -- i.e., the victim impact statements, the psychological evaluations, and the PSI -- neither we nor the court below can possibly determine whether the state court's findings were ‘unreasonable’ in light of a missing evidentiary record. Instead, we are left with only the parties' competing assertions that the trial court's sentencing determination was or was not based in part on information that was uniquely culled from the victim impact statements. . . .

”Thus, while federal habeas review of a state court's factual findings presumably is not triggered by bare speculation that these findings might be open to question in some respect, cf. 28 U.S.C. § 2254(e)(1) (providing that the ‘presumption of correctness’ of a state court's factual findings may be rebutted only by ‘clear and convincing evidence’), we are confident that Stewart has made a threshold showing of the need for such an inquiry here.”

U.S. v. Kattaria, No. 06-3903 (8th Cir. Oct. 5, 2007) (Judge Loken)

In 2004, Minnesota law enforcement officials applied for and received a warrant to use a thermal imaging device “to investigate a suspected indoor marijuana grow operation” which they believed was being conducted at the home of Mohammed Kattaria. When the thermal imaging results confirmed the probable presence of an indoor grow operation, the officials applied for three additional warrants to conduct far more intrusive physical searches of Kattaria's properties. After those searches confirmed the existence of a significant marijuana grow operation, Kattaria and some confederates were charged with a conspiracy to manufacture and distribute fifty or more marijuana plants in violation of 21 U.S.C. §§ 841 and 846.

Kattaria then moved to suppress all the evidence derived from all the searches on the grounds that they were not supported by probable cause, arguing in part that they were based on stale and inaccurate information, and information from an unreliable informant. After the district court denied his motion to suppress, Kattaria pled guilty conditionally to the charges against him, reserving the right to appeal. In this ruling, the Eighth Circuit affirmed the denial of Kattaria’s motion to suppress, holding that a thermal imaging warrant requires only reasonable suspicion and not probable cause.

In Kyllo v. U.S., 533 U.S. 27 (2001), the Supreme Court first held that, when the police use a thermal imaging device to detect patterns of heat coming from a home, a warrant is required. By a vote of 5 to 4, the Kyllo majority concluded that, when "the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant." (Id. at 40). While the majority did not formally state that the issuance of such a warrant requires probable cause, the Fourth Amendment does unequivocally state that "no Warrants shall issue, but upon probable cause."

In the instant case, a panel from the Eighth Circuit held that, notwithstanding the plain language of the Fourth Amendment, the police should be able to obtain a warrant to use a thermal imaging device based on the same level of suspicion necessary to justify a Terry stop, i.e. reasonable suspicion that criminal activity is afoot. (See, Terry v. Ohio, 392 U.S. 1 (1968)). The panel reasoned that, like an investigatory stop, checking the heat emissions of private property is a brief investigatory step that does not merit the full Fourth Amendment protection of probable cause.

The Court's rationale was based on the policy argument that:

“If the same probable cause is required to obtain both [warrants to search homes and warrants to use imaging devices], law enforcement will have little incentive to incur the expense of a minimally intrusive thermal imaging search before conducting a highly intrusive physical search. For these reasons, we are inclined to believe that the same Fourth Amendment reasonable suspicion standard that applies to Terry investigative stops should apply to the issuance of a purely investigative warrant to conduct a limited thermal imaging search from well outside the home.”

Whatever the merits of that policy argument, the legal underpinning of the Eighth Circuit’s ruling appears to be both weak; and the panel’s decision represents a dramatic expansion of well-established Supreme Court Fourth Amendment jurisprudence.

Writing for the panel, Judge Loken attempted to justify his decision by citing the dissenting Justices in Kyllo for the proposition that using a thermal imaging device to monitor heat emissions from a private residence "is an entirely reasonable public service.” (Kyllo, id., at 45).

He also argued that there are some kinds of searches, such as administrative searches, that have been upheld by the courts “where a careful balancing of governmental and private interests suggests that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause.” In support of that proposition, Judge Lucas cited not a Supreme Court ruling, but rather a recent Eighth Circuit decision, U.S. v. Lucas, No. 05-2165, (8th Cir. Aug. 23, 2007) (en banc).

in response to that line of argument, Professor Orin Kerr, one of the most renowned Forth Amendment scholars in the country, noted that, while the Supreme Court has approved the use of some kinds of warrants that are not based on probably cause to believe that a crime has been committed, “they are all in the context of ‘special needs’ cases arising outside the context of criminal investigations. This case is not a special needs case, it’s a straightforward drug case.” (See, http://volokh.com/posts/1191613043.shtml/).

Prof. Kerr then cited a “very relevant passage” from the Supreme Court’s decision in Griffin v. Wisconsin, 483 U.S. 868 (1987), where the Court stated:

“While it is possible to say that Fourth Amendment reasonableness demands probable cause without a judicial warrant, the reverse runs up against the constitutional provision that ‘no Warrants shall issue, but upon probable cause.’ Amdt. 4. The Constitution prescribes, in other words, that where the matter is of such a nature as to require a judicial warrant, it is also of such a nature as to require probable cause. Although we have arguably come to permit an exception to that prescription for administrative search warrants, which may but do not necessarily have to be issued by courts, we have never done so for constitutionally mandated judicial warrants. There it remains true that ‘[i]f a search warrant be constitutionally required, the requirement cannot be flexibly interpreted to dispense with the rigorous constitutional restrictions for its issue’." (Griffin, id., at 877-78).

U.S. v. Horvath, 492 F.3d 1075 (9th Cir. July 10, 2007) (Judge Graber)

Under 18 U.S.C. § 1001(a), any person who knowingly and willfully makes a materially false statement to the federal government is subject to criminal liability. Congress, however, chose to exempt from criminal liability false statements submitted to a judge by a party to a judicial proceeding. (18 U.S.C. § 1001(b)). In this case, the Court considered whether lying in a presentence report (PSR) constitutes a false statement under § 1001. In response to that issue, the Ninth Circuit said “no.”

In this case, the defendant, William Horvath, pled guilty to a charge of possession of a gun by a felon, in violation of 18 U.S.C. § 922(g)(2). During his change of plea hearing, Horvath first claimed that he had served in the U.S. Marine Corps when, in fact, he never so served. Later, during his PSR interview, Horvath repeated that claim to a probation officer; and a reference to Horvath’s service in the Marine Corps appeared in his PSR.

Then, during Horvath’s sentencing hearing, the district court again questioned Horvath about his military service (although not under oath); and, once again, Horvath claimed that he had served in the Marines. In the end, citing several mitigating factors, including Horvath’s military service, the district court advised him that it was “going . . . out on a limb” and it sentenced Horvath to a term of probation.

More than four years later, the Government determined that Horvath had lied about serving in the Marine Corps; and it indicted him for making false statements in violation of § 1001(a). Horvath moved to dismiss the indictment, arguing that § 1001(b) barred his prosecution as a matter of law. After the district court denied that motion, Horvath entered a conditional guilty plea to the charges against him and he then appealed to the Ninth Circuit.

On appeal, Horvath did not contest that he lied. Rather, he argued that his conduct fell under the exception in § 1001(b) which provides:

“Subsection (a) does not apply to a party to a judicial proceeding, or that party's counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding.”

The Court explained that § 1001(b) contains three requirements: the defendant must show that (1) he was a party to a judicial proceeding, (2) his statements were submitted to a judge or magistrate, and (3) his statements were made “in that proceeding.” (Id., at 1077). The parties (and the Court) agreed that the only issue in dispute was whether Horvath met the second requirement, i.e., whether Horvath’s false statement to his probation officer, which was submitted to the judge in the PSR, qualifies as having been “submitted by [a] party . . . to a judge.”

Ultimately, the majority concluded that because the probation officer was “required by law to submit this particular false statement to the judge,” it was protected by § 1001(b). Thus, the Court held:

“when, but only when, the probation officer is required by law to include such a statement in the PSR and to submit the PSR to the judge, the statement falls within the exception in § 1001(b). We therefore reverse the district court's denial of Defendant's motion to dismiss the indictment.” (Id., at 1076).

Judge Rymer dissented. She acknowledged that this was a “tough case,” but she argued that the majority had parsed the statute too narrowly. In her view, the statute should be read literally, and statements made to a probation officer are not statements made to a judge.

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