Vol. 6, No. 12 As Published in the Advance Sheets on March 22, 1999
Highlights of this Issue:
Leading Cases:
Miscellaneous Issues:
Mitchell v. United States, Docket No. 97-7541 (U.S. Supreme Court, 4/5/99) (Justice Kennedy)
The Supreme Court addressed two important issues in this case: first, whether a defendant waives the privilege against self-incrimination once she enters a guilty plea; and second, whether a sentencing court may draw an adverse inference from a defendant's silence at her sentencing hearing.
Here the defendant pled guilty to Federal charges of conspiring to distribute five or more kilograms of cocaine, but she reserved the right to contest at sentencing the drug quantity attributable to her. At the plea allocution, the district court (Judge Kahn) advised her that she would face a mandatory minimum sentence to 10 years if the Government could show the required five kilograms; and it specifically advised her that by pleading guilty she would be waiving her Fifth Amendment right not to testify. Indicating that she had done "some of" the proffered conduct, the petitioner confirmed her guilty plea.
At her sentencing hearing, several witnesses testified that they saw the defendant selling certain quantities of cocaine "two to three times a week" over an 18 month period; and that testimony led the court to conclude that she had sold some 13 kilos of cocaine. The defendant argued that the only reliable evidence showed that she had sold only two ounces of cocaine; but she refused to testify in her own defense and her counsel argued that the district court had erred by concluding that she had waived her Fifth Amendment right once she pled guilty. The district court responded that she had no right to remain silent about her crimes details; that her failure to testify was a factor in persuading the court to rely on her codefendants' testimony; and that "I held it against you that you didn't come forward today and tell me that you really only did this a couple of times." The court then sentenced the defendant to a mandatory minimum sentence of 120 months imprisonment.
That sentence was affirmed by the Third Circuit in U.S. v. Mitchell, 122 F.3d 185 (3rd Cir. 1997) (See P&J10/13/97), where that Court held that "By voluntarily and knowingly pleading guilty to the offense [the defendant] waived her Fifth Amendment privilege." (Mitchell, id., at 189). Because at least seven other Circuits which have confronted the same issue have held that a defendant retains the privilege at sentencing, the Supreme Court granted certiorari to resolve the Circuit conflict; and it resolved the conflict by reversing the Third Circuit's decision.
On the first issue, all of the Justices agreed that a guilty plea does not waive the self-incrimination privilege at sentencing. The majority wrote: "We may assume for purposes of this opinion, then, that if petitioner had pleaded not guilty and, having taken the stand at a trial, testified she did ‘some of it,' she could have been cross-examined on the frequency of her drug deliveries and the quantity of cocaine involved. The concerns which justify the cross-examination when the defendant testifies are absent at a plea colloquy, however. The purpose of a plea colloquy is to protect the defendant from an unintelligent or involuntary plea. The Government would turn this constitutional shield into a prosecutorial sword by having the defendant relinquish all rights against compelled self-incrimination upon entry of a guilty plea, including the right to remain silent at sentencing. . . .
"There is no convincing reason why the narrow inquiry at the plea colloquy should entail such an extensive waiver of the privilege. Unlike the defendant taking the stand, who ‘cannot reasonably claim that the Fifth Amendment gives him . . . an immunity from cross-examination on the matters he has himself put in dispute,' . . . the defendant who pleads guilty puts nothing in dispute regarding the essentials of the offense. Rather, the defendant takes those matters out of dispute, often by making a joint statement with the prosecution or confirming the prosecution's version of the facts. Under these circumstances, there is little danger that the court will be misled by selective disclosure. In this respect a guilty plea is more like an offer to stipulate than a decision to take the stand. Here, petitioner's statement that she had done "some of " the proffered conduct did not pose a threat to the integrity of factfinding proceedings, for the purpose of the District Court's inquiry was simply to ensure that petitioner understood the charges and that there was a factual basis for the Government's case. . . .
"Treating a guilty plea as a waiver of the privilege at sentencing would be a grave encroachment on the rights of defendants. . . Were we to accept the Government's position, prosecutors could indict without specifying the quantity of drugs involved, obtain a guilty plea, and then put the defendant on the stand at sentencing to fill in the drug quantity. The result would be to enlist the defendant as an instrument in his or her own condemnation, undermining the long tradition and vital principle that criminal proceedings rely on accusations proved by the Government, not on inquisitions conducted to enhance its own prosecutorial power."
On the second issue, the majority also concluded that a sentencing court had erred by drawing an adverse inference from a defendant's silence in determining facts relating to the circumstances and details of her crime. Citing Griffin v. California, 380 U.S. 609 (1965), the majority emphasized that the normal rule in a criminal case is that no negative inference may be drawn from a defendant's failure to testify; and stated "We decline to adopt an exception for the sentencing phase of a criminal case with regard to factual determinations respecting the circumstances and details of the crime." The majority also stated that "there can be little doubt that the rule prohibiting an inference of guilt from a defendant's rightful silence has become an essential feature of our legal tradition."
[Of course, the truth of the matter is that how will any defendant ever know if the sentencing judge did in fact draw an adverse inference from the defendant's silence - something that no judge will now ever admit in light of this decision. In addition, the Court never addressed another issue that relates to the reason why most lawyers advise their clients not to speak at sentencing - namely, the threat of the prosecution seeking a sentence enhancement for obstruction of justice no matter how the defendant testifies!]
The feature of this case that will be discussed for a long time was Justice Scalia's bristling dissent. While he agreed that the petitioner had the right to invoke her Fifth Amendment privilege during the sentencing phase of her criminal case, he flatly stated that "she did not have the right to have the sentencer abstain from making the adverse inferences that reasonably flow from her failure to testify. . . . Such a rule orders the judge to avert his eyes from the elephant in the courtroom when it is the judge's job to size up the elephant." In fact, he continued, "Silence is often evidence of the most persuasive character."
The basis of his dissent was a bold frontal attack on the validity of the Court's holding in Griffin, one of the bedrock decisions of the Supreme Court's criminal justice jurisprudence. In typical Scalia-fashion, he reasoned that Griffin's rationale and pedigree were "dubious" and stated that Griffin does "not even pretend to be rooted in a historical understanding of the Fifth Amendment. Rather, in a breathtaking act of sorcery it simply transformed legislative policy into constitutional command."
Wyoming v. Houghton, Docket No. 98-184 (U.S. Supreme Court, 4/5/99) (Justice Scalia)
This is another case that shows the remaking of the Constitution by Justice Scalia. In its latest decision expanding the authority of the police over motorists and their passengers, Justice Scalia, writing for a majority of the Court, held that police officers who have probable cause to search a car for illegal drugs can search the personal belongings of passengers who are themselves under no suspicion of illegal activity.
In this case, the Wyoming police stopped a car for speeding. When the police noticed that the driver had a hypodermic needle in his shirt pocket, he candidly admitted that he used it to take drugs. The police then proceeded to search the rest of the car, including the purse of one of the two passengers. The purse was found to contain drug paraphernalia and a syringe with 60 ccs of methamphetamine. They also discovered fresh needle-track marks on the owner's arms. She was placed under arrest and charged with felony possession of methamphetamine. After the State court denied her motion to suppress the evidence as a violation of her rights under the Fourth Amendment, she was convicted as charged.
On appeal, the Wyoming Supreme Court reversed, holding that the search of respondent's purse violated the Fourth and Fourteenth Amendments because the officer "knew or should have known that the purse did not belong to the driver, but to one of the passengers," and because "there was no probable cause to search the passengers' personal effects and no reason to believe that contraband had been placed within the purse." It thus adopted the rule that "if the officer knows or should know that a container is the personal effect of a passenger who is not suspected of criminal activity, then the container is outside the scope of the search unless someone had the opportunity to conceal the contraband within the personal effect to avoid detection."
The Supreme Court reversed, holding that the Wyoming Supreme Court had incorrectly drawn a distinction, on the basis of ownership, between items that could be the subject of a warrantless automobile search and those that could not. The majority held that "police officers with probable cause to search a car may inspect passengers' belongings found in the car that are capable of concealing the object of the search."
The rationale for Justice Scalia's decision was twofold: First, citing often the "Framers" of the Constitution (although clearly without intending that the term be taken as an oxymoron), he decreed that "Passengers, no less than drivers, possess a reduced expectation of privacy with regard to the property that they transport in cars, which ‘trave[l] public thoroughfares'."
He then followed that scary proposition with his newly minted "Government necessity" principle which went like this: "[T]he governmental interests at stake are substantial. Effective law enforcement would be appreciably impaired without the ability to search a passenger's personal belongings when there is reason to believe contraband or evidence of criminal wrongdoing is hidden in the car. . . . To require that the investigating officer have positive reason to believe that the passenger and driver were engaged in a common enterprise, or positive reason to believe that the driver had time and occasion to conceal the item in the passenger's belongings, surreptitiously or with friendly permission, is to impose requirements so seldom met that a "passenger's property" rule would dramatically reduce the ability to find and seize contraband and evidence of crime. . . .
"When balancing the competing interests, our determinations of ‘reasonableness' under the Fourth Amendment must take account of these practical realities. We think they militate in favor of the needs of law enforcement, and against a personal-privacy interest that is ordinarily weak."
Justice Breyer, who concurred, recognized that the majority's ruling was so broad that he felt constrained to emphasize that "Obviously, the rule [adopted by the Court today] applies only to automobile searches. . . . Equally obviously, the rule applies only to containers found within automobiles. And it does not extend to the search of a person found in that automobile."
Justice Stevens, joined by Justices Souter and Ginsberg, dissented. He wrote: "Today, instead of adhering to the settled distinction between drivers and passengers, the Court fashions a new rule that is based on a distinction between property contained in clothing worn by a passenger and property contained in a passenger's briefcase or purse. In cases on both sides of the Court's newly minted test, the property is in a ‘container' (whether a pocket or a pouch) located in the vehicle. . . . [T]he Court's rights-restrictive approach is not dictated by precedent. . . .Finally, in my view, the State's legitimate interest in effective law enforcement does not outweigh the privacy concerns at issue." Justice Stevens relied heavily on the Court ruling in U.S. v. Di Re, 332 U.S. 581 (1948) - "the only automobile case confronting the search of a passenger defendant." For more on that case, see the Quote of the Week below.
United States v. Rodriguez-Moreno, Docket No. 97-1139 (U.S. Supreme Court, 3/30/99) (Justice Thomas)
In this case the Supreme Court substantially broadened the power of prosecutors to prosecute gun crimes in any jurisdiction where the underlying crime was committed, even if the firearm was involved at only one location. In reversing U.S. v. Palma-Ruedas, 121 F.3d 841 (3rd Cir. 1997)(See P&J10/6/97), the Court eschewed rigid reliance on the two separate provisions of the Constitution which, at least until now, appeared to require that crimes may only be prosecuted in the State and district where they occurred.
Article III, Section II of the Constitution provides, in pertinent part, that "the Trial of all Crimes . . . shall be . . . held in the State where the said crimes have been committed"; and the Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed."
This case involved the kidnapping of a drug dealer who allegedly stole cocaine. During his kidnapping, the perpetrators transported the victim from Texas, to New Jersey, to New York, and, finally, to Maryland. While in Maryland, the defendant produced a firearm and pressed it to the neck of the victim. The defendant was tried in New Jersey and convicted of violating 18 U.S.C. § 924(c)(1). The Third Circuit reversed, holding that, for purposes of § 924(c)(1), venue could lie only in the district of Maryland, where the firearm had been used.
Writing for the majority, Justice Thomas emphasized that a kidnapping begins with the taking of a victim and does not end until the victim has been released. If the victim is transported across jurisdictions, the locus delicti of the kidnapping lies within all of those jurisdictions. Thus he wrote that where a crime consists of distinct parts which have different localities, venue is proper for the whole charge where any part can be proved to have been committed. The inscrutable Justice Scalia dissented, arguing that venue for a violation of § 924(c)(1) lies only in the district where a defendant both engages in the underlying crime and "uses or carries" the firearm.
Conn v. Gabbert, Docket No. 97-1802 (U.S. Supreme Court, 4/5/99) (Justice Rehnquist)
This civil rights case for damages involved a claim by a criminal defense attorney against two prosecutors who executed a search warrant of his attorneys' papers at the same time that they called the attorney's client to testify before a grand jury. The attorney claimed, inter alia, that the search interfered with his Fourteenth Amendment rights to practice his profession without unreasonable governmental interference.
The Ninth Circuit held, in Gabbert v. Conn, 131 F.3d 793 (9th Cir. 1997) (See P&J1/26/98), that the prosecutors were not entitled to absolute immunity under either the Fourth or the Fourteenth Amendments because no reasonable prosecutor could have believed at the time that it was lawful to orchestrate the search in a way that would prevent the attorney from assisting his client. The Ninth Circuit also held that "The plain and intended result [of the prosecutors' actions] was to prevent Gabbert from consulting with [his client] during her grand jury appearance. These actions were not objectively reasonable, and thus the prosecutors are not protected by qualified immunity from answering Gabbert's Fourteenth Amendment claim." (Gabbert, id., at 802- 03).
In part, the Ninth Circuit relied on a series of cases which held that a witness has the right to consult with her attorney outside the grand jury room; and concluded that, by interfering with that right, the prosecutors had deprived the attorney of his liberty interest in practicing law.
The Supreme Court reversed the portions of the Ninth Circuit's decision that related to liability under the Fourteenth Amendment. Emphasizing that grand jury witnesses have no constitutional rights to have counsel present during the proceeding, Justice Rehnquist commented that "no decision of this Court has held that a grand jury witness has a right to have her attorney present outside the jury room. We need not decide today whether such a right exists, because Gabbert clearly had no standing to raise the alleged infringement of the rights of his client. . . . ‘[T]he plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.' Warth v. Seldin, 422 U. S. 490, 499 (1975)."
While the Court agreed that Gabbert did have standing to complain of the allegedly unreasonable timing of the execution of the search warrant to prevent him from advising his client, it held that "challenges to the reasonableness of a search by government agents clearly fall under the Fourth Amendment, and not the Fourteenth."
Morgan v. Gertz, 166 F.3d 1307 (10th Cir. 1999) (Judge Briscoe)
This case is another example of how the courts protect the criminal justice system - even when law enforcement officials maliciously abuse their power. In this civil rights suit for damages, the plaintiff was acquitted of charges of sexual assault of his stepdaughter. After his acquittal, he sought damages against the social worker and the detectives who instigated the charges, claiming that they had intentionally destroyed exculpatory evidence prior to trial.
The Tenth Circuit dismissed the lawsuit with the broad holding that "Regardless of any misconduct by government agents before or during trial, a defendant who is acquitted cannot be said to have been deprived of the right to a fair trial." (Id., at 1310). The Court did not comment on the damages to the defendant's reputation, or the financial burdens he suffered in the course of proving his innocence.
United States v. Hayes, Docket No. 97-1522 (6th Cir. 3/23/99) (Judge Moore)
In this case the Sixth Circuit held that a sentencing court's consideration of victim impact letters, without disclosing their contents to the defendant, violated Fed.R.Crim.P. 32. The majority wrote that "Though Rule 32(b)(6) only expressly deals with the right to review the presentence investigation report, the right to review other information relied on by a court at sentencing is implicit in the adversarial scheme created by Rule 32 and in the requirement of Rule 32(c)(1) that both counsel for the defendant and the government must be provided ‘an opportunity to comment on the probation officer's determination and on other matters related to the appropriate sentence'."
Although the defendant failed to make a contemporaneous objection to the district court's failure to disclose the substance of the letters in question, Judge Moore concluded that the error was plain. In its ruling, the majority disagreed with the approach taken by the First Circuit in U.S. v. Curran, 926 F.2d 59 (1991), where that court interpreted Rule 32 as not applying to information outside the presentence report. Judge Batchelder disagreed, stating that neither Rule 32 nor principles of due process required disclosure of the letters.
United States v. Izydore, 167 F.3d 213 (5th Cir. 1999) (Judge DeMoss)
This case deals with the murky concept of "losses" under the Sentencing Guidelines and it shows how judges will often routinely, but incorrectly, use "consequential losses" to increase a defendant's sentence under U.S.S.G. § 2F1.1. Here, the defendants were convicted of bankruptcy and wire fraud; and, at sentencing, the district court (Judge Nowlin) included in the defendants' loss calculations some $210,000 in fees paid to the bankruptcy trustee. The defendants objected, arguing that those expenses were consequential losses that cannot be considered in loss calculations under § 2F1.1.
The Fifth Circuit agreed and remanded the case back to the district court for resentencing. Citing the commentary to § 2F1.1 it noted that "loss" was described as "the value of the money, property, or services unlawfully taken" and thus it concluded that "on its face the definition of loss is centered on the value of the thing taken, without reference to consequential or incidental losses." (Id., at 223). It also noted that commentary note 7(c) specifically provides that "in contrast to other types of cases, loss in a procurement fraud or product substitution case includes not only direct damages, but also consequential damages that were reasonably foreseeable. . . . [T]he fact that the Sentencing Commission prescribed consequential losses in only these specific cases, and not others, is strong evidence that consequential damages were omitted from the general loss definition by design rather than mistake." (Id.)
The Court continued that "while it is true that the trustee's fees were a consequence of the appellants' unlawful conduct, mere ‘but for' causation is not the litmus test for loss determinations under U.S.S.G. § 2F1.1." (Id., at 224).
QUOTE OF THE WEEK - Some thoughts on the "necessity" argument used by Justice Scalia to support of the expansion of the Fourth Amendment to cover searches of the property of passengers in a car who are not suspected to criminal wrong-doing.
"The Government says it would not contend that, armed with a search warrant for a residence only, it could search all persons found in it. But an occupant of a house could be used to conceal this contraband on his person quite as readily as can an occupant of a car. Necessity, an argument advanced in support of this search, would seem as strong a reason for searching guests of a house for which a search warrant had issued as for search of guests in a car for which none had been issued. By a parity of reasoning with that on which the Government disclaims the right to search occupants of a house, we suppose the Government would not contend that if it had a valid search warrant for the car only it could search the occupants as an incident to its execution. How then could we say that the right to search a car without a warrant confers greater latitude to search occupants than a search by warrant would permit?
"We see no ground for expanding the ruling in the Carroll case to justify this arrest and search as incident to the search of a car. We are not convinced that a person, by mere presence in a suspected car, loses immunities from search of his person to which he would otherwise be entitled. . . . We meet in this case, as in many, the appeal to necessity. It is said that if such arrests and searches cannot be made, law enforcement will be more difficult and uncertain. But the forefathers, after consulting the lessons of history, designed our Constitution to place obstacles in the way of a too permeating police surveillance, which they seemed to think was a greater danger to a free people than the escape of some criminals from punishment." Justice Jackson, in U.S. v. Di Re, 332 U.S. 581, 587 and 595 (1948).
Scorecard of published criminal cases reviewed by our staff this year:
Cases in the Federal Reporter:
This week: 36 Year to
date: 428
Cases in the Federal Supplement:
This week: 26 Year to
date: 298
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