Sentencing Issues:
Issues involving
the Federal Gun Laws:
Sometimes is seems that there is no limit to the creative ingenuity that goes into the relentless assault on once sacrosanct provisions of the Constitution - and this is such a case. The issue here was whether a defendant who pleads guilty retains her Fifth Amendment privilege against self-incrimination with respect to testimony that might negatively affect her sentence; and in answering that question the Third Circuit seemed willing, if not eager, to reject a long line of legal precedent.
The defendant in this case was one of 23 defendants charged with a conspiracy to distribute drugs. She pled guilty to the charged conduct; but she reserved the right to contest the amount of drugs for which she should be held responsible for sentencing purposes. Specifically, she argued that the only documented evidence involving her participation in the conspiracy was limited to three sales, involving a total of two ounces of cocaine; and she claimed that she should only be held responsible for that amount.
When the district court (Judge Cahn) accepted the sentence, it advised the defendant that, by pleading guilty, she would be waiving her Fifth Amendment rights not to testify. At sentencing, the Government put on two witnesses who gave some testimony about the quantity of drugs for which she should be held responsible. The defendant did not testify to rebut that evidence and the district court openly warned her that it would be held against her if she did not come forward and testify. He then concluded that the defendant should be held responsible for almost 13 kilograms of drugs and sentenced her to 120 months in prison.
On appeal, the defendant argued principally that the district court had erred by refusing to recognize her Fifth Amendment right not to testify at her sentencing hearing. The Third Circuit started its analysis by agreeing that the privilege against self-incrimination "precludes the government or the court from penalizing a defendant in any way for the use of the privilege." (Id., at 189). It also acknowledged that in U.S. v. Garcia, 544 F.2d 681 (3rd Cir. 1976) the Court had ruled that the district court "could not condition lenity on a sentence following a guilty plea on the defendants' revealing the source of their supply of cocaine and helping the authorities clean up or stamp out the drug problem"; and that in U.S. v. Heubel, 864 F.2d 1104 (3rd Cir. 1989) the Court held that a sentencing judge "may not use a defendant's ‘failure to waive [the privilege against self-incrimination] as negative evidence to penalize him or her in deciding upon the appropriate sentence'." (Id.). Finally, the Court also acknowledged that it is now the "accepted rule" that a defendant could claim the Fifth Amendment privilege if his or her testimony might be used to enhance a sentence.
Despite those concessions, and the general rule that one panel of a Court of Appeals may not overturn a decision of another panel (except by means of an en banc hearing), the Court still concluded that "nothing in the Fifth Amendment . . . provides any basis for holding that the self-incrimination that is precluded extends to testimony that would have an impact on the appropriate sentence for the crime of conviction." (Id., at 191) (Emphasis added). In broad and sweeping language it rejected the generally accepted rule, and suggested that the rule "does not withstand analysis" and that "one cannot logically fragment the sentencing process." Then it concluded: "Although Mitchell faced the possibility of a harsher sentence for this drug offense because of her failure to testify at the sentencing hearing . . ., in light of the fact that she does not claim that she exposed herself to future federal or state prosecution, the Fifth Amendment privilege was no longer available to her." (Id.)
This is one of the more interesting of the many recent cases that have ruled on the controversial question of whether a district court has the authority to grant a downward departure based on the Sentencing Commission's admission that the existing 100 to 1 crack/cocaine sentencing disparity is unfair.
As the majority decision notes, the courts have rejected virtually every constitutional challenge to the 100:1 ration for crack and cocaine powder (see, id., at 329). In this case, the district court (Judge Edmunds) granted the defendant a downward departure not on the basis of any constitutional grounds, but rather on basis of the Sentencing Commission's own Special Report to the Congress: Cocaine and Federal Sentencing Policy (1995) (the "Report"). Quoting extensively from the Report, Judge Edmunds concluded that the Commission's failure to consider five specific factors set forth in the Report constituted mitigating circumstances "not adequately taken into consideration by the Sentencing Commission in formulating the Guidelines", which gave her authority to grant a downward departure under U.S.S.G. § 5K2.0. (See,18 U.S.C. § 3553(b)).
[Editor's Note: There is also a later Report of the Sentencing Commission to Congress dealing with the Commission's latest recommendations on the crack/cocaine sentencing disparities. That Report, dated April 29, 1997, can be accessed by clicking here.]
The Government appealed, arguing principally that the court had no authority to grant a departure because Congress had made a clear policy choice in rejecting the Commission's proposed elimination of the sentencing disparity. The majority agreed, stating that "the courts may not disregard Congress's will in this matter." (Id.).
In a strong dissent, Judge Jones roundly criticized the majority's decision as one founded on "an inherent lack of equity, rationality, and fairness" (id., at 331); and he accused the majority of speaking with a "forked tongue." (Id, at 332). In a detailed review of the origins of the Guidelines, he essentially argued that Congress had created an "expert body" to administer, review and revise the Guidelines; and that the "expert body's" construction of its own regulations is entitled to "substantial deference". After observing that the Commission "has never before made such an extraordinary mea culpa acknowledging the enormous unfairness of one of its guidelines", he concluded with an analysis that is so compelling that we have set it forth separately in the Quote of the Week below.
This week, our Hard-Nosed Judge of the Week Award goes to Judge George W. Lindberg of the Northern District of Illinois. In sentencing the two defendants in this case for conspiring to distribute a single load of marijuana, he included in his quantity calculations for sentencing purposes (a) a shipment of 500 pounds of marijuana, supplied by the Government, which the defendants rejected because of its poor quality; and (b) some 800 pounds of marijuana alleged to have been purchased by the defendants more than five years prior to the charged conspiracy, on the grounds that the earlier purchase was applicable under the "relevant conduct" provisions of the Guidelines. He also concluded that each defendant was a leader or organizer of the transactions for purposes of the sentencing enhancement contained in U.S.S.G. § 3B1.1(c). As a result of those rulings, he sentenced both defendants to 87 months in prison.
On appeal, the Seventh Circuit rejected all three sentencing enhancements. It held that using the bad grass that the Government attempted to pawn off on the defendants was improper for two reasons. First, the defendants were charged with and pled guilty to a charge of purchasing a single load of marijuana and even the Government admitted that no other quantity was foreseeable to them. Second, the court noted that the problem with using bad, rejected grass as a basis for increasing a sentence was fraught with obvious peril. "It would have been possible for the [Government's] confidential informant to supply low-grade marijuana in the expectation of its being rejected and in that way to increase the amount received, but never retained for distribution, by the defendants." (Id., at 402).
Next, the Seventh Circuit rejected the use of the uncharged marijuana transactions that allegedly occurred in the years 1986 and 1989 on the grounds that they constituted relevant conduct within the meaning of U.S.S.G. § 1B1.3(a). It observed that in determining whether uncharged conduct should be classified as "relevant conduct", courts must consider "the similarity, regularity and temporal proximity of the uncharged acts." (Id., at 403). The defendants argued that there was no similarity in the transactions because of significant differences in the amounts involved; there was no regularity because the time gap between the incidents was too great and the acts did not repeat at fixed intervals; and there was no temporal proximity between the charged acts and the earlier transactions that allegedly occurred more than five years previously.
The Seventh Circuit agreed. It noted that Judge Lindberg made his determination "in summary fashion" and he "never addressed or made a specific determination as to whether the earlier conduct constituted ‘relevant conduct' within the meaning of the Guidelines"; and it warned that: "We must be cautious and exacting in permitting such relatively stale dealings to be included in the same course of conduct as the offense of conviction." (Id., at 404-05). Thus, it concluded that "this record . . . does not permit us to conclude, even inferentially" that the district court gave the matter the appropriate consideration.
Finally, the Court rejected the use of a "leadership role" enhancement that was imposed on one of the defendants pursuant to the provisions of U.S.S.G. § 3B1.1(c). The Probation Department recommended the use of that enhancement, based principally on the fact that the defendant in question had asked his father to help him stack the bales of marijuana. The Court wrote: "We do not believe that this relationship is the sort of ‘real and direct influence, aimed at furthering the criminal activity' that the enhancement was intended to punish." (Id., at 406). Noting that there was no evidence that the father shared in any profits or had any discretion with respect to the storing of the marijuana, the Court firmly concluded that "it was error for the district court to rely on the probation officer's recommendation in the absence of record support"; and it directed the district court not to use that enhancement on resentencing. (Id.)
This decision raises an important restitution issue that is often overlooked, in part because of the erroneous belief that objections about restitution should be deferred until the defendant is released from prison and in part because trial counsel is often unprepared to deal with the ever-changing intricacies of the restitution law. Simply put, the issue is whether a court can order restitution for tax crimes specified in Title 26 of the U.S. Code.
In this case the defendant was charged with and pled guilty to making a false Application for Automatic Extension of Time to File a United States Individual Tax Return, for the years 1988 through 1991, in violation of 26 U.S.C. § 7206(1). The probation office recommended that the sentencing court also consider, as relevant conduct, tax evasion for the years 1986 and 1987, which was not charged; and concluded that the total tax revenues lost by the government for all of those years totaled $249,442. At sentencing, the district court (Judge Sotomayor) sentenced the defendant to 12 month's imprisonment, to be followed by one year of supervised release. She also required that, at the end of his supervised release, the defendant sign a confession of judgment and make full restitution to the Government of the entire sum recommended by the Probation Department, namely $249,442.
The defendant appealed only that portion of the sentence ordering him to make restitution. He argued that the district court had no statutory power to order restitution for the tax crimes for which he was convicted. The Government countered that the defendant had waived his right to challenge the restitution order because the plea agreement which he signed contained a provision which stated that the defendant "will pay past taxes due and owing to the IRS . . . on such terms as will be agreed upon between . . . [the defendant] and the IRS." It further argued that 18 U.S.C. § 3663(a)(3) authorizes a sentencing court to order restitution "in any criminal case to the extent agreed to by the parties in a plea agreement." (Emphasis added).
The Second Circuit firmly ruled that (a) a sentencing court may not, on its own, order restitution payments for crimes that are not listed in the restitution statute; (b) the tax crimes of Title 26 are not so listed; and (c) despite what the Government may have contemplated, the plea agreement contained no consent to the imposition of a restitution order by the sentencing court. "The agreement, in no uncertain terms, reserved for [the defendant] the right to negotiate a method of payment with the IRS. Court-ordered restitution, with a court devised payment plan, was not part of the bargain." (Id., at 152). The Court also observed that: "As with any contract in which the drafting party has an overwhelmingly superior bargaining position, plea agreements are strictly construed against the government." (Id.) Thus, it remanded the case back to the district court with instructions to withdraw its direction to make restitution.
We can now expect the Government to revise the standard form of plea agreements to require all defendants to "voluntarily" agree to make restitution payments to the Government..
This case, which involved an appeal of a gun conviction under 18 U.S.C. § 924(c), raises another variant of one of the Government's most important goals in plea agreements - making sure that the defendant never appeals his conviction or his sentence. Here, after four days of trial, the defendants agreed to accept an unusual, oral plea agreement in which they each agreed to plead guilty to two gun charges and they agreed not to challenge the imposition of a ten year sentence. The Government in turn agreed to dismiss the related drug charges. After the Supreme Court's decision Bailey v. U.S., 133 L.Ed.2d 472 (1995), the defendants filed an appeal pursuant to 28 U.S.C. § 2255, arguing that their conviction was no longer valid. When they won that appeal, there were no other pending convictions which the courts could adjust under the so-called sentencing package theory; and the Government's sole remedy was to argue that, by appealing, the defendants had repudiated their plea agreements. Thus, the sole issue on the appeal was a ruling by the district court (Judge McDonald) that the defendants had breached their plea agreements by challenging their gun convictions; and therefore the Government was no longer bound by its promise not to prosecute for the dismissed drug trafficking charges.
After reviewing the language of the oral plea agreements, the Ninth Circuit concluded that the defendants neither breached nor repudiated the plea agreements themselves. They only attacked the validity of their convictions on the gun counts; and, quoting from Menna v. New York, 423 U.S. 61 (1975), the Court observed that "a plea of guilty does not bar a claim that the defendant's conviction is unconstitutional ‘no matter how validly his factual guilt is established' if the facts he pled guilty to are subsequently determined not to be criminal." Thus, the Court determined that the Government was attempting to claim benefits "that it never contracted for and therefore is not now entitled to receive." (Id., at 800). Therefore, it dismissed the drug charges with prejudice.
As growing hordes of ex-cons are released from prison each year upon completion of their sentences, the Government's messianic zeal of putting them back in by using of the "felon in possession of a gun" charge (18 U.S.C. § 922(g)(1)) is rising to near epidemic proportions. That statute prohibits any ex-felon (regardless of the nature of the crime for which he was convicted) from ever again possessing a gun. As we have often noted, more than 15 million people are arrested each year on criminal charges (exclusive of traffic offenses). Conversely, virtually every bill that Congress passes lately seems to authorize some new category of the growing horde of law enforcement agents to carry guns. (Already, there are more than 22,000 different government agencies whose personnel are authorized to carry weapons and make arrests.) We guess the Government doesn't have to fear any revolution because it won't be long before half the nation consists of people prohibited from using guns and the other half consists of people, armed to the teeth, who are on the Government's payroll!
Both of these cases raise issues of interest that defense counsel will face as the onslaught of felon-in-possession charges increases. In Taylor, one of the issues raised was the Government's use of details of the defendant's prior conviction (a voluntary manslaughter). The defendant had attempted to stipulate to the prior conviction so the jury would not hear prejudicial evidence that would tend to lure it into a sequence of bad character reasoning; but the Government refused to accept the stipulation. The defendant appealed, arguing that, under the Supreme Court's recent ruling in Old Chief v. U.S., 136 L.Ed.2d 574, 591 (1997), the use of "evidence of the name or nature of the prior offense generally carries a risk of unfair prejudice to the defendant."
The Eighth Circuit agreed that "exposing the jury to the name and nature of his earlier manslaughter offense was arguably (sic!) ‘likely to support conviction on some improper ground'." Yet, it further concluded that such a determination "does not compel reversal." (Id., at 688). Reverting to the old reliable "harmless error" analysis, it concluded that any error was harmless. It wrote: "In sum, though Old Chief now makes it probable that the district court abused its discretion when it spurned Taylor's offer to stipulate his status as a felon, we are convinced that the jury could not have been ‘substantially swayed by [the] improperly admitted evidence." (Id., at 689).
In Wofford, the Ninth Circuit slightly amended its earlier decision reported at 113 F.3d 977 in which it considered another aspect of the felon in possession crime - the availability of a justification defense. The defendant in that case was convicted in 1976 for robbery, in 1979 for grand theft, and in 1982 for assault. In 1995 he was arrested and charged with violating § 922(g)(1) for possession of a gun that was found in an attic storage space. In his defense, he argued that he had purchased the gun because he had received continuing death threats from members of the "Hells Angels" gang. The district court (Judge Ware) ruled that the defendant could not satisfy the elements of a justification defense as a matter of law; and it instructed the jury to disregard his testimony on justification.
Citing a number of Ninth Circuit decisions, the Court held that there are four elements to a justification defense. The defendant must demonstrate that: (1) he was under unlawful and present threat of death or serious bodily injury; (2) he did not recklessly place himself in a situation where he would be forced to engage in criminal conduct; (3) he had no reasonable legal alternative; and (4) there was a direct causal relationship between the criminal action and the avoidance of the threatened harm. Using those criteria, the Court ruled that the defendant had failed to prove the existence of the first, third and fourth elements; and it affirmed his conviction.
These two gun conviction cases raise a variety of issues that keep recurring on the heels of the Supreme Court's decision in Bailey v. U.S., 133 L.Ed.2d 472 (1995). In Bailey, the Supreme Court held that a gun conviction under 18 U.S.C. § 924(c)(1) requires the Government to prove some "active employment of the firearm" - and that holding led to a huge number of appeals where convictions were based on some hidden gun, stored in some far-away place.
In Thompson, the Fifth Circuit addressed - and quickly dismissed - a Government contention that even if the gun conviction could not be sustained under the new "active use" standard, the Court should nevertheless affirm the conviction under the Pinkerton doctrine of co-conspirator liability, which was enunciated by the Supreme Court in Pinkerton v. U.S., 328 U.S. 640 (1946). The Court rejected that theory, stating that there was no factual basis in the record to support such a theory.
In Handa, the Ninth Circuit joined the great majority of Circuits in holding that if a defendant appeals a gun conviction in a collateral appeal under 28 U.S.C. § 2255, the district court has the authority to resentence the defendant and apply the "gun bump" enhancement contained in U.S.S.G. § 2D1.1(b). (The use of that enhancement was not permissible at the initial sentencing because the Guidelines prohibit the use of both the § 2D1.1 enhancement and a separate mandatory minimum sentence for a gun charge. (See, U.S.S.G. § 2K2.4 (backg'd)). The Ninth Circuit accepted the so-called "packaging" theory that most of the courts have used to justify the resentencing of the defendant; and held that any such resentencing did not violate the Double Jeopardy Clause.
The debate over the scope and impact of the Supreme Court's decision in U.S. v. Lopez, 514 U.S. 549 (1995) continues. In Lopez, the Court ruled that Congress exceeded its powers under the Commerce Clause when it enacted the Gun-Free School Zones Act (18 U.S.C. § 922(g)) because the Act neither regulates a commercial activity nor a requirement that the possession of a gun in a school zone be connected in any way to interstate commerce. The Court warned that Congress' authority under the Commerce Clause is not unlimited; and twice it expressly pointed out that it has never said that "Congress may use a relatively trivial impact on commerce as an excuse for broad general regulation of state or private activities." (Lopez, id., at 558-59).
Lopez set into motion a broad range of challenges to a variety of Federal statutes; and both of these cases involved Lopez-style attacks on the Hobbs Act (18 U.S.C. § 1951(a)). The Hobbs Act was enacted in 1946, more than 50 years ago; and as such it is one of the earliest of the modern breed of catch-all Federal statutes. By its terms, it applies to any person who "in any way or degree obstructs, delays, or affects commerce . . . by robbery or extortion."
In these cases, the defendants claimed that Lopez requires a heightened showing of an effect on interstate commerce before a Federal conviction can stand; and they argued that their convictions were constitutionally invalid because there was insufficient evidence to support any finding that their criminal activities had any "substantial effect" on commerce. Both the Second and the Fifth Circuits rejected that analysis. Joining every other Circuit to have ruled on this issue, they concluded that the Hobbs Act contains an express jurisdictional element that permits Hobb Act prosecutions based on a minimal nexus to interstate commerce.
The only surprising part of these decisions was the strong and prescient dissent of Judge DeMoss in the Miles case. (He actually concurred in the decision because he recognized that he was bound by Fifth Circuit precedent; but he otherwise attacked the validity of the Hobbs Act in light of his analysis of Lopez.) He started with a review of the history and language of that Act, noting that the text of the Hobbs Act itself does not contain any statutory findings and the report of the House Judiciary Committee does not contain any legislative findings. He continued with a detailed analysis of Lopez; and from those vantage points he concluded that the Hobbs Act can no longer be applied to robberies which produce only a de minimis effect on interstate commerce.
Two of his statements are noteworthy. First, he wrote: "If an effect on commerce need only be hypothetical or conjectural or speculative or assumable, then for all practical purposes, the requirement of an effect on commerce is unlimited - it extends to the broadest reach of the human imagination." (Id., at 249). And later he concluded: "In reality, what the de minimis concept does is permit the Hobbs Act to be read as if it said ‘whoever robs a business engaged in interstate commerce shall be fined hereunder or imprisoned for twenty years or both.' . . . Obviously, that is not what the Hobbs Act states." (Id, at 250).
[Editor's Note:
For additional recent decisions from other Circuits affirming the constitutionality
of the Hobbs Act, see U.S.
v. Woodruff, 122 F.3d 1185 (9th Cir. 1997) and U.S.
v. Valenzeno, 123 F.3d 365 (6th Cir. 1997)]
This is one of those rare search warrant cases (although typical for Judge Reinhardt) in which the Court reversed a drug conviction because the district court (Judge Unpingo) erroneously refused to suppress evidence that derived from an invalid search.
As stated by the Court, "On the strength of an affidavit by [a] DEA agent . . . stating that he believed McGrew was involved in drug trafficking, a magistrate approved a warrant to search McGrew's residence. The warrant failed to specify any type of criminal activity suspected or any type of evidence sought. In the space provided for that information, the warrant referred the reader to the ‘attached affidavit which is incorporated herein'." (Id., at 848).
On the day the warrant was issued, it was executed by a team of agents; and they seized, inter alia, "notepads, cash, jewelry, plastic bags, and an apartment lease." The trouble was that the alleged affidavit was not attached to the warrant and the defendant was never shown any affidavit. In its brief to the district court, the Government freely conceded that they did not give the defendant a copy of the affidavit. In fact, it said it has never done so, it is not required to do so, and for the safety of its cooperating witness would never do so." (Id.).
After the defendant was convicted, she appealed to the Ninth Circuit, which found the Government's arrogant attitude a bit much. It held that the district court's somewhat automatic refusal to suppress the evidence seized "contradicts a long line of this circuit's clearly established Fourth Amendment precedent. The Court firmly stated that: "The rule requiring affidavits to accompany warrants lacking particularity serves not one, but two aims: ‘The purpose of the accompanying affidavit clarifying a warrant is both the limit the officer's discretion and to inform the person subject to the search what items the officers executing the warrant can seize'." (Id., at 850). The Court further held that if the Government wishes to keep an affidavit under seal it must list the items it seeks with particularity in the warrant itself.
The Court also rejected the Government's claim that the "good faith" exception to the exclusionary rule was available in this case. "In order to avoid the effect of the exclusionary rule, there must be an ‘objective reasonable basis for the mistaken belief that the warrant was valid.' If the ‘incorporated' affidavit does not accompany the warrant, agents cannot claim good faith reliance on the affidavit's contents." (Id.).
The Court acknowledged that the Rule 24 of the Fed.R.Crim.P. gives "no guidance" as to the manner in which peremptory challenges should be exercised in a criminal trial - leaving that and most other jury selection procedures to the discretion of the trial judge. But it strongly affirmed the principle that "The denial or impairment of the right [to peremptory challenge] is reversible error without a showing of prejudice." (Id. at 392).
"Blind adherence to rules that have been
proven ineffective, meaningless, and unjust serves no purpose. Not
only does such adherence unjustly deprive an individual defendant of his
or her liberty, it also deprives the federal courts of their inherent justice.
Our current crack cocaine sentencing scheme is unjust. The Sentencing
Commission has so acknowledged and now it is time for the federal courts
to do the same. . . . I am not calling for a reduction in the stiffness
of our drug sentences, but am only seeking equality in sentencing. ‘It
may profit us very little to win the war on drugs if in the process we
lose our soul.' . . . [O]nce again, courts are forced to engage in a ‘wink
and a nod', particularly, as the statistics show, the defendants are racial
minorities or otherwise socially disfavored. I dissent." U.S.
v. Gaines, 122 F.3d 324, 336 (6th Cir. 1997) (Jones, J., dissenting).