Civil Rights (42 U.S.C. § 1983) - Not a Source of Substantive Rights, Method to Vindicate Federal Rights;
Summary Judgment;
Due Process - Acquitted Defendant, Withhold Exculpatory Evidence
Morgan v. Gertz, 97-1427 (February 8, 1999)
Morgan had been investigated and prosecuted for sexual assault of his minor step daughter. A jury returned a guilty verdict, but the court entered judgment of acquittal after concluding the prosecution had mishandled exculpatory evidence. Morgan then filed this civil rights action seeking damages, pursuant to 42 U.S.C. § 1983. The court granted summary judgment to the defendants, concluding the judgment of acquittal provided Morgan all the remedy to which he was entitled, and that Morgan had not demonstrated any evil intent for purposes of punitive damages.
HELD: (1) The court reviews a grant of summary judgment de novo, using the same legal standard as that by the district court. Summary judgment is appropriate if the pleadings and supporting documents show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. The court examines the factual record and reasonable inferences therefrom, in the light most favorable to the party opposing summary judgment. If there is no genuine issue of material fact in dispute, the court next determines if the substantive law was correctly applied by the district court.
(2) This case does not involve Brady, which focuses on the duty to disclose exculpatory evidence. Rather it involves Arizona v. Youngblood, governing duty to preserve exculpatory evidence. The state court's determination in the criminal trial that the state committed constitutional violations is not binding in this civil action, as there is no privity between the parties. Section 1983 is not a source of substantive rights, but provides a method for vindicating federal rights elsewhere conferred. The first step is to identify the specific constitutional right infringed. The Supreme Court has emphasized its reluctance to broaden the concept of substantive due process. The duties to disclose and preserve exculpatory evidence are grounded in the due process right to a fair trial. Thus, the withholding of exculpatory evidence only violates due process if the defendant is denied a fair trial. In the situation where criminal charges are dismissed prior to trial, the right to fair trial is not implicated. Where convictions are overturned, courts permit the exonerated defendant to pursue § 1983 claims based on denial of fair trial. Morgan's case fits into the first category because, even though the jury rendered a guilty verdict, a judgment of conviction was never entered. Regardless of any misconduct by government agents before or during trial, a defendant who is acquitted cannot be said to have been deprived of his right to a fair trial.
Habeas Corpus (28 U.S.C. § 2254) - AEDPA Not Apply, Review Standard, Exclusion
of Recanted Testimony Rendered Trial Unfair
Gonzales v. Lytle, 97-2247 (February 9, 1999)
Gonzales appeals the denial of his § 2254 habeas petition. He was convicted by jury of first degree murder, shooting into an occupied motor vehicle, and being a felon in possession of a firearm. The circuit reversed and remanded.
HELD: (1) The AEDPA does not apply because the petition was filed prior to the effective date of the act. The court accepts fact findings unless clearly erroneous and reviews the district court's legal conclusions de novo. Because the court found that Gonzales was entitled to habeas relief on one of his arguments, it only addressed that issue. The court granted relief on the claim that exclusion of Ms. Carillo's recantation rendered his trial fundamentally unfair, in violation of the Fourteenth Amendment. This inquiry hinges on materiality of the excluded evidence. The inquiry is limited to whether the court's hearsay determinations deprived the defendant of his constitutional rights to due process and to compel favorable testimony. The recantation was material and favorable. The witness' preliminary hearing testimony was that she saw Gonzales participate in the shooting. This was the only piece of evidence linking him to the shooting. Her recantation under oath would have inevitably caused the jury to reflect critically on her preliminary hearing testimony. The failure to permit the jury to consider the recantation, which undermined the credibility of the singular piece of evidence directly inculpating Gonzales, rendered the trial fundamentally unfair.
Possession of Photographs Depicting Minors Engaged in Sexually Explicit Conduct
(§2G2.4 and 1) - Review Standard, Plain Error, Enhancement for Production, No Exception for Production Outside United States, Statutory Maximum Controls
United States v. Wilkenson, 98-4096 (February 12, 1999)
Wilkenson plead guilty to possession of a number of videotapes and photographs depicting minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(4)(B). The governing guideline is §2G2.4 (1995) with a base offense level of 13. Although Wilkenson was sentenced in May 19, 1998, the guidelines then in effect had a higher base offense level, so the court used those in effect when he committed the crime. Because Wilkenson produced the pornographic visual depictions, the district court cross referenced to §2G2.1 for a higher offense level of 25. Wilkenson produced the videos and photographs while in Thailand.
HELD: (1) The court reviews the district court's legal interpretations of the guidelines de novo. Because Wilkenson failed to raise his claims as to illegal cross reference, ineffective assistance, and insufficient evidence, the court reviews only for plain error. Wilkenson's sexual exploitation of minors is relevant conduct. The guidelines do not carve out an exception for production of child pornography outside of the United States, so the cross-reference was proper. Wilkenson was not sentenced for producing pornography; instead he was punished for the offense as carried out in a way that warranted increased punishment. Section 2G2.4 and §2G2.1 were applied only to conduct within the United States, possession of child pornography, but his sentence was increased for how he committed the crime. The cross reference merely implements the common sense notion that one who manufactures the pornography in his possession is more culpable and dangerous than one who only received it and possessed it.
(2) The court did not decide the sufficiency of the evidence question as to whether the children were older than 12. Calculating the guidelines with or without
that four point enhancement, the low end of the guideline sentence of either 108 months or 70 months is higher than the statutory maximum sentence of 60 months. Therefore the statutory maximum controls and even if Wilkenson were correct, the court could grant no meaningful relief.
Threat (18 U.S.C. § 844) - Threat or Politically Protected Speech, Third Party Threat, Question for Jury;
Admission of Evidence - Discretion Standard, Rule 404(b) Requirements
United States v. Viefhauf, 97-5207 (February 16, 1999)
(Stephen J. Greubel, Tulsa, Oklahoma)
Viefhauf was convicted of conspiracy to use and use of a telephone to transmit a bomb threat. On appeal he claims the message on the answering machine was constitutionally protected speech, the district court erred in submitting this ostensibly pure legal issue to the jury, and the court improperly admitted evidence of previous statements by Viefhauf disparaging minorities and law enforcement officials, as well as inflammatory material seized from his house.
HELD: (1) A threat is a declaration of intention, purpose, design, goal or determination to inflict punishment, loss, or pain on another, or to injure another or his property by commission of some unlawful act. It is not necessary to show that the defendant intended to carry out the threat, nor is it necessary to prove he had the apparent ability to carry out the threat. The question is whether those who hear or read the threat reasonably consider that an actual threat has been made. The fact that a specific threat accompanies pure political speech does not shield a defendant from culpability. A statement may constitute a threat even though it is subject to a possible contingency in the maker's control. If a defendant's repetition of a third party's threat is reasonably interpreted as communicating the defendant's own intent, purpose or goal, the defendant has violated 18 U.S.C. § 844(3).
(2) The district court need not have resolved the First Amendment defense as a matter of law. The decision in Dennis v. United States, 341 U.S. 494, is distinguishable. Viefhauf is not challenging the constitutionality of § 844, but asserts only that his particular speech was political in nature. Whether a defendant's statement is a true threat or mere political speech is a question for the jury.
(3) The district court's decision to admit evidence of a prior bad act under Rule 404(b) is reviewed for abuse of discretion. The evidence must be introduced for a proper purpose, must be relevant, the court must make a Rule 403 determination as to whether the probative value is substantially outweighed by potential for unfair prejudice, and the court, upon request, must instruct the jury that evidence of similar acts is to be considered only for the limited purpose for which it was admitted. The primary defense was that the comments did not constitute a true threat. The test focuses on how a reasonable person would foresee the statement being interpreted by persons hearing it. When the defendant offers lack of intent as a defense, the circumstances surrounding the making of the calls become relevant. The need to demonstrate the context in which Viefhauf uttered his remarks rendered much of the evidence of his racial hostility intrinsic to the crime charged. The probative value outweighed any prejudicial affect. The district court did not abuse its discretion. And, in any event, the introduction of this evidence was harmless in light of overwhelming evidence of Viefhauf's guilt.
Habeas Corpus (28 U.S.C. § 2254) - AEDPA's Requirement of Certificate of Appealibility Depends on Denial of Constitutional Right;
Self-Representation - No Requirement That Court Advise of Right, Distinguished From Right to Counsel and Waiver Thereof
Munkus v. Furlong, 98-1144 (February 16, 1999)
Munkus appeals the denial of his writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. He claims he was not advised of his right to self-representation.
HELD: (1) The circuit may issue a certificate of appealibility only if the applicant has made a substantial showing of the denial of a constitutional right. Neither the Supreme Court nor this court has determined whether trial courts have a constitutional duty to advise criminal defendants of their right to represent themselves. The right to counsel is an essential guarantee to a fair trial. The right to self-representation is implicated only when a defendant decides to waive his right to counsel. Waiver of right to counsel is valid only if it is knowing and intelligent. Such waiver is only knowing and intelligent if the trial court informs the defendant on the record of the nature of the charges against him, the possible punishments and defenses, and the dangers and disadvantages of proceeding pro se. Because the right to self-representation does not implicate constitutional fair trial considerations to the same extent as does an accused's right to counsel, it requires neither notice of the right's existence prior to legal proceedings nor a knowing and intelligent waiver. A defendant must clearly and unequivocally declare his intention to proceed pro se. The right to self-representation is not absolute.
Guilty Plea - Review Standard, Voluntariness, Withdrawal of Plea (Rule 32), Assistance of Counsel
United States v. Kramer, 97-2289 (February 17, 1999)
Kramer appeals the denial of his motion to withdraw guilty plea. He had claimed his plea was involuntary because he was ill and did not understand the ramifications of his plea, and trial counsel was ineffective in failing to investigate.
HELD: (1) The court reviews voluntariness of a guilty plea de novo. The test is whether the plea represents a voluntary and intelligent choice among alternative courses of action open to the defendant. Kramer's conclusory statements regarding his acute illness are insufficient to show his plea was involuntary.
(2) The two prong test for evaluating ineffective assistance claims applies to guilty pleas. The test includes deficient performance and prejudice. To show prejudice in a guilty plea context, the defendant must establish there is a reasonable probability that, but for counsel's errors, the defendant would not have pleaded guilty and would have insisted on going to trial. Because legal arguments Kramer contended his counsel should have made are meritless, counsel's failure to pursue them was neither deficient nor prejudicial.
(3) Rule 32(e) provides that if a defendant moves to withdraw his guilty plea prior to sentencing, the court may permit withdrawal if the defendant shows any fair and just reason. Relevant considerations are whether the defendant asserted his innocence, prejudice to the government if the motion is granted, delay in filing the motion, inconvenience to the court, the assistance of counsel, whether the plea was knowing and voluntary, and waste of judicial resources. Denial of the motion to withdraw is reviewed for abuse of discretion.
Habeas Corpus (28 U.S.C. § 2241) - Challenge Extradition;
Extradition - Review Standard, Statute of Limitations, Tolling for Intent to Avoid Prosecution, Flight From Justice, Dual Criminality Requirement
Ross v. United States Marshal, 98-7083 (February 17, 1999)
The government of Northern Ireland issued warrants for the arrest of Ross for 41 offenses stemming from Ross' alleged involvement in a fraudulent investment scheme. The United States subsequently arrested Ross pursuant to an extradition treaty existing between the United States and the United Kingdom. After a magistrate judge certified his extradition, Ross filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his extradition.
HELD: (1) The scope of review of the magistrate judge's extradition order under a treaty with a foreign country is limited to determining whether the magistrate had jurisdiction, whether the offense charged is within the treaty, and by a somewhat liberal construction, whether there was any evidence warranting the finding that were reasonable grounds to believe the accused guilty.
(2) Article V of the extradition treaty provides extradition shall not be granted if the prosecution has become time barred according to the law of either the requesting or requested country. No Northern Ireland statute of limitations applies to the charges. The applicable United States law is a five year statute of limitations under 18 U.S.C. § 3282, but the statute may be tolled if the accused is a fugitive fleeing from justice under 18 U.S.C. § 3290. In order to toll the statute, the government had to prove by a preponderance of the evidence that Ross had intended to avoid arrest. The record supports the court's finding that Ross knew he was likely to be charged with the crime when he moved to the United States, and therefore acted with intent to avoid an anticipated prosecution. The court reviews the district court's interpretation of this tolling statute de novo, and the court's determination that Ross was fleeing from justice for clear error.
(3) Under Article III of the Extradition Treaty, an offense must meet the dual criminality requirement in order to be extraditable. This doctrine requires that offenses with which the accused is charged be punishable as a serious crime in both the requesting and requested states. The Ireland Theft Act and the United States mail and wire fraud statutes proscribe the same basic conduct -- use of false representations to defraud or obtain property.
Motion to Suppress - Review Standard
Automobile Search - Incident to Arrest, Passenger Compartment, Vinyl Covering Does not Transform Compartment Into Trunk for Which Warrant Would be Required
United States v. Olguin-Rivera and Alvidrez-Terrazas, 98-1164 (February 19, 1999)
The United States appealed the district court's suppression of contraband obtained in an automobile search. This appeal presents the question of whether placing a cover over the luggage or cargo area in a sport utility vehicle creates the functional equivalent of a trunk and renders the covered area beyond the permissible scope of an automobile search incident to arrest under the Fourth Amendment.
HELD: (1) The court reviews the grant of a suppression motion de novo as to the determination of reasonableness, and reviews fact findings for clear error.
(2) The Fourth Amendment prohibits law enforcement from conducting a search without a valid warrant supported by probable cause. Chimel defined the area of a permissible search without a warrant incident to arrest to include the area from within which the arrestee might gain possession of a weapon or destructible evidence. Belton established a bright line rule specific to automobile searches incident to arrest, holding that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may search the passenger compartment and examine the contents of any containers found therein. The passenger compartment does not include the trunk, but includes any area generally reachable without exiting the vehicle, without regard to the likelihood in a particular case that such reaching is possible.
(3) Where the vehicle contains no trunk, the entire inside of the vehicle constitutes a passenger compartment and may be lawfully searched, regardless of imposition of an easily retractable vinyl covering or its ostensible effect on the defendant's ability to reach the area. The built-in vinyl cover does not make it tantamount to a trunk.
Habeas Corpus (28 U.S.C. § 2254) - Pre-AEDPA Certificate of Probable Cause;
Competency to Stand Trial - Substantive and Procedural Due Process Claims, Cooper;
Procedural Default - Independent and Adequate State Ground;
Court-Appointed Psychiatrist - Ake Claim, Harmless Error;
Instructions - Lesser Included Offense;
Aggravator - Continuing Threat
Walker v. Attorney General, 97-5244 (February 22, 1999)
(Gloyd L. McCoy, Oklahoma City, Oklahoma)
Walker was convicted of first degree murder and sentenced to death. After exhausting state remedies, he filed a § 2254 petition. The district court denied relief. The circuit granted a certificate for probable cause, as distinguished from a certificate of appealibility, because the AEDPA does not apply.
Issues as to competency to stand trial and failure to hold a pretrial competency hearing were not raised on direct appeal. Walker raised these issues in a state post conviction proceedings. A hearing was held in 1988 at which the court found Walker was competent at the time of trial in 1984, and Walker had failed to overcome the presumption of competency by clear and convincing evidence. Walker claims the state court used an unconstitutional burden of proof. In 1996, in Cooper v. Oklahoma, the Supreme Court struck down the clear and convincing evidence standard applied by the state courts here. Before Cooper, Walker filed the present petition for writ of habeas corpus. After Cooper was decided, he supplemented his habeas petition to add a claim based on Cooper. The federal district court stayed action on the petition to permit Walker to exhaust his state remedies, by filing an application for post conviction relief with the Oklahoma Court of Criminal Appeals. The state court ruled the claim procedurally barred, under amendments to state statutory post conviction procedures, for failure to raise it on direct appeal or in the first post conviction proceeding. The federal court ruled the claim was procedurally barred, finding the issue involved a matter of procedural due process and was waivable.
HELD: (1) A defendant is competent to stand trial if he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and if he has a rational as well as factual understanding of the proceedings against him. Competency claims raise substantive and procedural due process issues. The distinction between substantive and procedural claims is significant because of different evidentiary standards. A procedural competency claim is subject to waiver, while a substantive competency claim is not. To the extent Walker's argument is error in the state courts' use of the clear and convincing evidence standard, it is a denial of procedural due process subject to waiver. When a petitioner has defaulted his federal claims in state court pursuant to an adequate and independent state procedural rule, habeas review is barred, absent a showing of cause and prejudice or fundamental miscarriage of justice. A state's procedural rule to bar consideration of a claim must be firmly established and regularly followed by the time of the procedural default. A defendant can not be expected to comply with a procedural rule that does not exist at the time. Even though Walker had not raised this claim on direct appeal, the court of criminal appeals had considered the claim of no competency hearing on the merits. Therefore Walker is not barred by his failure to challenge the clear and convincing evidence standard on direct appeal.
(2) The Oklahoma Court of Criminal Appeals alternately held the claim procedurally barred by failure to raise it in his first petition for post conviction relief when he challenged the failure to hold a competency hearing. Prior to the 1995 amendment to state post conviction procedures, however, it was settled law in Oklahoma that an intervening change in law constituted sufficient reason for a petitioner's failure to raise an issue either on direct appeal or in a prior application. Oklahoma held a decision qualified as an intervening change in law, even if based on previously announced principles, so long as it constituted the Supreme Court's definitive resolution of the matter. Therefore Walker is not procedurally barred.
(3) On the merits, a habeas petitioner who claims state procedures were inadequate to insure competency to stand trial is entitled to habeas relief if the state court ignored evidence that, viewed objectively, raised a bonafide doubt as to competency to stand trial. At the hearing, Walker's competency was determined under a constitutionally impermissible standard of proof, and the determination is therefore not entitled to a presumption of correctness. Walker is entitled to relief if the evidence is sufficient to raise a bonafide doubt as to competency at the time of trial. Evidence of a defendant's irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant. It is undisputed Walker was brutalized physically, emotionally and sexually by his parents. His medical records reveal a history of serious mental disease that was difficult to diagnose and treat effectively. The evidence, deplorable as it is, does not raise a bonafide doubt as to competency to stand trial and he cannot prevail on procedural competency claims. Walker's failure to establish his procedural competency claim is dispositive of his substantive claim. Walker's claim of failure to provide a contemporaneous competency hearing is no basis for habeas relief.
(4) Walker also claims he was denied due process and equal protection by the state courts' failure to provide funds for neurological testing. The lack of such testing is relevant to his competency claims and his insanity defense. In Ake v. Oklahoma, the Supreme Court held that due process requires a defendant to be provided with court appointed psychiatric assistance at trial and during sentencing, if he demonstrates his mental state will be a significant factor in the proceedings. Although Ake was decided in 1985 after Walker's trial, it applies to cases pending on direct appeal at the time. The evidence presented through mental health experts was sufficient to trigger application of Ake, and the state should have provided Walker with an opportunity for neurological testing. The denial of psychiatric assistance in violation of Ake is trial error subject to harmless error analysis under Kotteakos. The question is whether the error had a substantial and injurious effect or influence in determining a jury's verdict. Lack of additional recommended testing had no substantial injurious impact.
(5) Walker argues his constitutional right to fair trial was violated by the court's refusal to instruct the jury on lesser included offenses of second degree murder and first degree manslaughter. A capital defendant is constitutionally entitled to instructions on offenses that state law recognizes as lesser included offenses but only when such instructions are supported by the evidence. The state court's conclusion is a construction of state law to which this court must defer. And there was no evidence to support manslaughter.
(6) The continuing threat aggravator circumstances is not unconstitutional on its face.
Motion to Suppress - Review Standard;
Standing - No Expectation of Privacy in Motel Rooms Leased by Another for Business Purpose;
Seizure - Prison Mail
United States v. Gordon, 98-3122 (February 23, 1999)
HELD: (1) When reviewing a denial of a motion to suppress, the court reviews the evidence in the light most favorable to the government, accepts fact findings unless clearly erroneous, and the ultimate determination of reasonableness is a question of law reviewed de novo. An expectation of privacy is reasonable if it arises from a source outside of the Fourth Amendment. The Fourth Amendment protection is a personal right and the extent of the protection sometimes depends upon the location of the person.
(2) An individual may have a reasonable expectation of privacy in a motel room. In Minnesota v. Carter, the Supreme Court heightened the burden when a defendant's presence in the dwelling is for a commercial or business purpose. The motel was not registered to the defendant. While the presence of his belongings in the motel room would be relevant, nothing in the record establishes that the items were his. He was there for a business purpose, i.e., distributing illegal drugs. He was only briefly in the motel room. Because the defendant had no reasonable expectation of privacy, the court did not decide whether the search was unconstitutional.
(3) The district court refused to suppress letters intercepted by Lieutenant Barnes at the El Dorado Correctional Facility. In the case of unprivileged incoming and outgoing prison mail, regulation by prison officials is an administrative matter. The defendant sent letters and photos to an inmate in a correctional facility. He was aware that under prison regulations all non-legal mail may be inspected. Any mail that is a threat to institutional safety or order or is being used in furtherance of illegal activities may be censored. The treatment of letters and photographs depicting the defendant with large amounts of currency comported with prison regulations.
Guilty Plea - Withdrawal (Rule 32), Discretion Standard;
Sentencing - Factual Inaccuracies, Duty to Resolve, Written Record
United States v. Jones, 98-3109 (February 23, 1999)
HELD: (1) Under Rule 32, a district court may allow defendant to withdraw a plea of guilty before sentence is imposed if the defendant provides the court with a fair and just reason for doing so. Denial of such motion is reviewed for abuse of discretion. Factors the court considers are whether the defendant has asserted his innocence, prejudice to the government, delay in filing the motion, inconvenience to the court, assistance of counsel, whether the plea was knowing and voluntary, and waste of judicial resources. The district court did not abuse its discretion.
(2) Rule 32 provides that, when a defendant objects to the factual accuracy of a presentence report, the district court must either make specific findings as to the allegation, or make a determination that such finding is not necessary because the court is not considering the controverted matter. The district court erred by not making specific findings regarding each objection to the presentence report. The Rule requires a written record of these findings to be appended to the presentence report. If a district court fails to comply with Rule 32(c)(1), the court remands.
Habeas Corpus (28 U.S.C. § 2254) - Pre-AEDPA, Certificate of Probable Cause, Evidentiary Hearing;
Court-Appointed Psychiatrist - Ake, Retroactivity, Harmless Error
Other Expert Assistance - Review Standard, Unfair Trial
Jury - Batson Claim, State Court Fact Findings;
Procedural Bar - Independent and Adequate State Ground;
Prosecutorial Misconduct - Comments, Suppress Evidence;
Felony Murder - No Instruction on Intent to Kill;
Instructions - Lesser Included Offense, Option of Life Sentence;
State Law Questions;
Aggravators - Not Duplicative (Future Dangerousness and Prior Felony Conviction), Continuing Threat;
Preindictment Delay;
Substitute Counsel
Johnson v. Gibson, 96-6336 (February 26, 1999)
(amending opinion of December 28, 1998)
(Vicki Ruth Adams Werneke, Death Penalty Habeas Corpus Division, FPD Oklahoma City, Oklahoma)
This is a § 2255 action involving a conviction and death sentence.
HELD: (1) Johnson filed his amended petition for federal habeas relief in February 1994 so the pre-AEDPA version of the Act applies. The circuit granted a certificate of probable cause.
(2) In reviewing the district court's denial of the Ake claim, the court reviews fact findings under the clearly erroneous standard and legal conclusions de novo. Because the Supreme Court decided Ake after the trial but while the case was pending on direct appeal, application of Ake to the case presents no retroactivity problem.
(3) Due process requires that when a defendant demonstrates that his sanity at the time of the offense is to be a significant factor at trial, the state must assure access to a competent psychiatrist. When Ake was decided after trial but while the direct appeal was pending, the question is whether, based upon review of the record, the petitioner could have made a threshold showing that his sanity at the time of the offense was to be a significant factor. Johnson did not meet that threshold with respect to the guilt phase. In the penalty phase, the state did not present psychiatric evidence on the continuing threat aggravator. Nonetheless, an expert must be appointed if the state presents evidence, psychiatric or otherwise, of future dangerousness or continuing threat to society, and the defendant establishes likelihood his mental condition is a significant mitigating factor. Johnson met the threshold showing. Denial of entitlement to mental health expert assistance leads to harmless error analysis. Against the weight of all the evidence, the mental health evidence Johnson presents fails to raise a significant doubt that it would have persuaded even one juror to choose an alternative sentence.
(4) At trial counsel for Johnson sought funds for a forensic expert to rebut the testimony of a forensic chemist called by the prosecution. In denying this claim, the district court found that defense counsel effectively cross examined the forensic witnesses and in light of the entire record, Johnson failed to establish the denial of expert assistance in developing affirmative evidence. These are legal conclusions that the court reviews de novo. The court agreed with the district court that denial of expert assistance did not result in a fundamentally unfair trial. In assessing due process challenges to denial of funds for non-psychiatric experts, the court considers the effect on the petitioner's private interest in accuracy of the trial if the requested service is not provided, the burden on the government's interest if the service is provided, and the probable value of the additional service, and risk of error in the proceeding if such assistance is not offered. The privacy interest in the accuracy of a criminal proceeding that places an individual's life or liberty at risk is almost uniquely compelling, and the state's interest in financial economy is necessarily tempered by its interest in the fair and accurate adjudication of criminal cases. Therefore the third factor is critical. The letters the petitioner presents go beyond the level of mere speculation, but other than undermining aspects of the prosecution's forensic evidence, the proffered expert rebuttal evidence does not show he could not have committed the crime. Therefore, the circuit concluded the petitioner failed to show denial of his request for expert assistance substantially prejudiced his case at the guilt phase.
(5) The circuit agreed with the district court that petitioner failed to show how denial of request for funds to travel to gather mitigating evidence substantially prejudiced his defense.
(6) The prosecution used preemptory challenges to strike all three black jurors, resulting in a selection of an all white jury. The prosecution exercised its preemptory challenges in a manner that gives rise to the inference that it excluded black members from the petit jury on account of their race. Therefore the defendant made a prima facie case. The burden then shifted to the prosecutor. After the prosecutor's explanation, the trial court concluded the state met its burden of proving that there was no purposeful discrimination. On habeas review the circuit presumes state court fact findings to be correct unless not fairly supported. Johnson now offers troubling evidence of the pretextual character of the prosecutor's ostensibly neutral reasons. But he did not raise his pretext argument at the evidentiary hearing in state court on the Batson claim. Therefore, although it appears the record may provide support for the pretext argument, the circuit could not reverse the state court's fact findings at this stage.
(7) Johnson raised a due process claim based on allegations of prosecutorial misconduct. The district court found the petitioner procedurally defaulted his challenge to all of the prosecutor's remarks except one. On habeas review, the circuit will not address issues defaulted in state court on an independent and adequate state procedural ground, unless cause and prejudice or a fundamental miscarriage of justice is shown. Johnson's claims regarding comments about the state's forensic evidence and Johnson's failure to put on medical testimony in support of mitigation are not procedurally barred. As to the other claims, Johnson urges that the Oklahoma Court of Criminal Appeals (OCCA) did not apply the contemporaneous objection rule, but instead actually reviewed all of the allegedly erroneous comments under a fundamental error standard of review. The fundamental error exception does not apply to claims raised for the first time in post -conviction proceedings. If Oklahoma does not consistently apply a contemporaneous objection rule to claims of prosecutorial misconduct, this can not be an adequate state ground. All Johnson's cases as to fundamental error are on direct appeal and not in post conviction. Johnson accurately states that he did not fail to raise the numerous allegation of prosecutorial misconduct, but rather the OCCA simply did not address them. Therefore the application of the contemporaneous objection rule was not an adequate and independent ground. The court concluded the allegedly improper remarks do not individually or collectively rise to the level of a due process violation.
(8) Johnson urges the state's failure to prove and the trial court's failure to instruct on intent to kill violated his rights under the Eighth Amendment. But the Supreme Court in Tyson v. Arizona, rejected the claim that felony murder statutes must incorporate a specific intent to kill requirement.
(9) Johnson claims his death sentence violated Beck v. Alabama, due to failure to give instructions on lesser included offenses. The district court found this claim procedurally barred, but Johnson argues his appellate counsel's failure to raise this issue was ineffective assistance of counsel. However, the jury had the opportunity to reject the death penalty during the sentencing phase of this case, and therefore the Beck argument is not the dead bang winner sufficient to show cause and prejudice to overcome procedural bar.
(10) Johnson also claims the trial court lacked subject matter jurisdiction to try him because he was charged by an information that did not set forth all the elements of the underlying felony of rape. The district court found this to be procedurally barred. Even if the claim is not barred, it fails to state a claim upon which habeas relief can be granted. This is a question of state law.
(11) Aggravating circumstances of future dangerousness and of prior felony conviction are not duplicative. The former is supported by evidence of potential for future dangerous acts and the latter by evidence of past acts. This is not a situation where a single aggravator has been counted twice.
(12) The circuit previously rejected the claim of use of an unadjudicated offense to support the continuing threat aggravator.
(13) Preindictment delay rises to the level of a constitutional violation when it results in prejudice to the defense, and upon a showing that the reasons for the prosecutor's delay were improper.
(14) The court reviews the district court's denial of an evidentiary hearing for abuse of discretion.
(15) Although habeas petitioners have no independent Fifth Amendment right to counsel, they are afforded by 21 U.S.C. § 848(q) a mandatory right to qualified legal counsel in any federal post conviction proceeding. That statute implicates the same substitution of counsel standard as the Sixth Amendment. To warrant substitution of counsel, the defendant must show good cause, such as a conflict of interest, a complete breakdown of communication or an irreconcilable conflict. Although the district court failed to make the required inquiry, the claim is moot since Johnson is now represented by the substitute counsel he requested.
(16) A trial court does not violate the Eighth and Fourteenth Amendments by failing to inform the jury it has the option of returning a life sentence, even upon a finding of an aggravating circumstance.
(17) To establish a Brady violation, petitioner must show the evidence was suppressed by the prosecution, and was favorable to petitioner and material. Materiality requires a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Petitioner failed to establish materiality.
Weapon of Mass Destruction (18 U.S.C. § 2332) - No Specific Intent to Kill Element;
Instructions - Lesser Included Offense;
Appellate Review - Not Overrule Another Panel;
Admission of Evidence - Pretrial Motion Not Preserve Objection, Necessity to Renew, Expert Testimony (Rule 702), Hearing to Determine Admissibility;
Discovery - Sanctions, Discretion;
Cumulative Error;
Guidelines - Most Analogous Offense Guidelines, Clarifying Amendment;
Felony Murder - Malice Implied as Matter of Law, Intent to Commit Underlying Felony, Definition of Malice;
Downward Departure - From Level in §2A1.1, Findings Not Necessary
Restitution - Ex Post Facto, Not Punishment, Amendment for Violent Crimes;
Ex Post Facto - Laws That Inflict Criminal Punishment
Clerical Errors
United States v. Nichols, 98-1231 (February 26, 1999)
(Michael E. Tigar, Susan L. Foreman, Adam Thurschwell, and Jane B. Tigar, Boulder, Colorado)
Nichols appealed his conviction and sentence involving the Oklahoma bombing. He was found guilty of conspiring to use a weapon of mass destruction and eight counts of involuntary manslaughter. He was acquitted of using a weapon of mass destruction, destruction by explosives and eight counts of first and second degree murder. He was sentenced to life imprisonment on the conspiracy count, and six years on each of the manslaughter counts all to run concurrently. He was ordered to pay $14.5 million in restitution.
HELD: (1) The penalty provision of 18 U.S.C. § 2332a provides that whoever violates that section shall be imprisoned for any term of years or for life, and if death results, shall be punished by death or imprisoned for any term of years or for life. The question is whether there is a specific intent to kill as an element of the offense. This was rejected in McVeigh. The court cannot overrule the judgment of another panel.
(2) The claim that the district court should have instructed on lesser included offenses of § 2332a was rejected in McVeigh.
(3) In connection with scientific foundation for expert testimony under Rule 702, Daubert does not mandate an evidentiary hearing, and for appeal purposes, the court requires a sufficiently developed record to determine whether the district court properly applied the relevant law. The trial court did not abuse its discretion when it declined to hold a preliminary evidentiary hearing for purposes of expert testimony on the type and size of the bomb that destroyed the Murrah Building. The district court's actions in determining in the presence of the jury whether scientific protocol was followed was correct.
(4) Generally a pre-trial motion in limine will not preserve an objection if the objection is not renewed at the time the evidence was introduced. There is an exception to this rule which applies where the issue is fairly presented to the district court, is the type of issue that can be finally decided in a pretrial hearing, and is ruled upon without equivocation by the trial judge. Applying these principles, Nichols' contentions, as to whether the expert's opinions exceeded her expertise and whether the probative value of that testimony was outweighed by unfair prejudice, were not adequately preserved. Therefore, review is for plain error. Admission of expert testimony is governed by Rule 702. District courts have broad discretion in determining competency of expert witnesses. The expert testimony must assist the trier of fact, and not be unfairly prejudicial.
(5) The district court did not permit a defense expert to appear because the defense had not given the government adequate notice of intent to call him. The circuit reviewed the decision to exclude a defense witness as a discovery sanction for abuse of discretion. If there is no abuse of discretion, there is no violation of the Sixth Amendment right to compulsory process. Allegations of a due process violation are reviewed de novo. When there is a Rule 16 violation, the factors the court considers in determining an appropriate sanction include reasons for delay, bad faith, extensive prejudice, and feasibility of curing the prejudice. The district court did not abuse its discretion.
(6) The en banc decision in Singleton deprives Nichols of the argument concerning Michael Fortier's testimony in exchange for promises of leniency.
(7) Because the circuit noticed no errors, there can be no cumulative error.
(8) The district court sentenced Nichols based on §2A1.1, the guideline for first degree murder, instead of §2K1.4, the guideline for arson and property damage by use of explosives. The 1994 guidelines manual does not specify the guidelines applicable to violation of 18 U.S.C. § 2332a. Therefore the district court was required to apply the most analogous offense guideline. The court compared the elements of the defendant's crime of conviction to the elements of federal offenses already covered by a specific guideline. The district court was correct in concluding that §2A1.1 is sufficiently analogous to the offense of conviction. The index to the guidelines since November 1, 1995 specified that a violation of § 2332a may be handled under §2A1.1. This clarifying amendment may be properly considered.
(9) Given the indictment's allegation of premeditation and malice, the conduct described in count one is more like first degree murder than property damage. Even if the indictment had omitted these allegations, the doctrine of felony murder would imply malice as a matter of law and obviate the need for premeditation. The felony murder rule provides that an unintended death resulting from the commission or attempted commission of certain felonies is murder in the first degree. The doctrine circumvents the normal mens rea requirement of first degree murder and requires only intent to commit the underlying felony. Courts are not bound by the constraints of 18 U.S.C. § 1111(a) at sentencing. The doctrine of felony murder expresses a highly artificial concept, so the decision in the context of sentencing is made within the § 1111(a) parameters. Nichol's offense of conviction as charged in count one could serve as a predicate felony under § 1111(a). Using an explosive weapon of mass destruction is equivalent to arson listed in §1111(a). Congress made no different punishment for conspiracy or the underlying substantive offense. Section 1111(a) provides that attempt to commit the crime would be sufficient. In Bedonie, this court held, in prosecuting a defendant for first degree murder under felony murder of § 1111(a), the predicate for the crime shall be defined by reference to the appropriate federal statute. In Bedonie, the circuit was asked to decide whether a state statute could define a predicate arson felony and not whether other federal statutes would suffice.
(10) The relevant conduct for which Nichols must be held accountable also supports the district court's conclusion to select §2A1.1 over §2K1.4.
(11) The evidence presented established the malicious nature of Nichols' conduct. Malice does not require a subjective intent to kill, but may be established by evidence of conduct which is reckless and wanton, a gross deviation from a reasonable standard of care, of such a nature that one is warranted in inferring that the defendant was aware of serious risk of death or serious bodily harm. Furthermore, the totality of the evidence in this case preponderates toward a finding of premeditation.
(12) The district court did not make findings explaining why it chose not to depart downward under 1994 U.S.S.G. §2A1.1, note 1. Nothing in the guideline requires the district court to make any findings when deciding whether to depart. If a district court chooses to depart, the extent of that departure shall be based on a number of enumerated factors. The initial determination of whether to depart is wholly discretionary and the court lacks jurisdiction to review it. There is no dispute that the trial court was aware of its authority to depart under §2A1.1, note 1.
(13) The circuit rejected the claim that the district court failed to consider Nichols' personal characteristics during sentencing.
(14) The court reviews the legality of a restitution order de novo. Fact findings are reviewed for clear error, and the amount of restitution is reviewed for abuse of discretion. Under the VWPA, a court may order restitution to any victim of the crime. Federal courts possess no inherent authority to order restitution, and may do so only as explicitly empowered by statute. Because Nichols was convicted of conspiring to use a weapon of mass destruction against the Murrah Building and persons inside, the order of restitution to the building was correct. Nothing in the plain language of the amended statute or its legislative history usurps the settled principle that a criminal defendant who participates in a conspiracy is liable for all losses flowing from that conspiracy.
(15) The court must not only consider the amount of loss, but also the ability to pay restitution. The VWPA was amended in 1996 to require that restitution be ordered for crimes of violence without consideration of the economic circumstances of the defendant. The district court did not apply the amended version of the act because it would be a violation of the ex post facto clause to do so. The VWPA's purpose is not to punish a defendant or create a windfall for crime victims, but to insure that victims are made whole for their losses. The prohibition against ex post facto laws applies only to those laws that inflict criminal punishment. The restitution order does not implicate the ex post facto clause. Therefore the district court was not required to consider Nichols' financial condition, thus mooting the issue raised by Nichols on appeal.
(16) The judgment entered in this case states that the defendant has been found not guilty of counts two and three and is discharged on such counts, but fails to state the jury acquitted on the offenses of first and second degree murder in counts four through eleven. This is no more than a clerical error and the judgment need not be vacated. Rule 36 provides that the district court may at any time correct clerical mistakes. The preferred remedy would have been a motion brought before the district court. Because counsel failed to take advantage of this simple remedy, the circuit would call the error to the attention of the district court, which could perform the purely ministerial task of correcting the judgment sua sponte.