Habeas Corpus (28 U.S.C. § 2255);
AEDPA - Second or Successive, Authorization From Court of Appeals, Supreme Court Must Decide Retroactivity
Browning v. United States, 00-7096 (March 1, 2001) (en banc)
(Howard A. Pincus and Vicki Mandell-King, FPD, Denver, Colorado)
Browning sought leave to file a second or successive application for writ of habeas corpus pursuant to 28 U.S.C. § 2255, in order to claim that his sentence was unconstitutional under Apprendi v. New Jersey. The circuit may grant leave to file such application if it relies upon "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable."
HELD: (1) Under 28 U.S.C. § 2244(b)(3)(D), the circuit should grant or deny authorization to proceed with a second or successive habeas motion within 30 days of the request. But this time limit is advisory rather than mandatory.
(2) For prisoners who are filing a second or successive § 2255 motion, under the AEDPA, the courts of appeals play an initial gatekeeping role in granting or denying authorization. Section 2255 requires the courts to await some specific guidance by the Supreme Court, rather than to apply Teague's retroactivity analysis.
(3) Although Apprendi did not explicitly include indictment practices in its rule, it suggested that relevant facts must be included in an indictment as well. Because Apprendi is rooted in jury trial and due process guarantees, it can fairly be called a new rule of constitutional law. To date, the Supreme Court has been silent as to whether Apprendi's rule should be retroactively applied to cases on collateral review.
(4) Because potentially meritorious claims may not be considered unless or until the Supreme Court makes Apprendi applicable to collateral review, Browning's application is currently futile, but is not fatal. The court dismissed his application without prejudice in the event of future action by the Supreme Court.
(5) Judges Murphy and Henry dissented and would hold that a new constitutional rule announced by the Supreme Court is "made retroactive" to cases on collateral review when the new rule satisfies Teague v. Lane.
Search Warrant - Review Standard, Informant, Probable Cause, Good Faith Exception
United States v. Tuter, 00-5086 (March 1, 2001)
The government appeals the district court's suppression of evidence discovered during a search of Tuter's residence executed pursuant to a search warrant. Although the court affirmed the district court's conclusion that the search warrant was not supported by probable cause, the court reversed the district court's determination that the good faith exception does not apply.
HELD: (1) A magistrate's task in determining whether probable cause exists to support a search warrant is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit, including the veracity and basis of knowledge of persons supplying hearsay, there is a fair probability that contraband or evidence of a crime will be found in a particular place. The magistrate's decision is entitled to great deference. The circuit asks whether, under the totality of the circumstances, the magistrate had a substantial basis for determining that probable cause existed. The court reviews de novo the district court's determination of probable cause, while reviewing findings of historical fact for clear error.
(2) The Supreme Court has adopted a "totality of the circumstances" test to determine when information from a confidential informant or an anonymous tip can establish probable cause. Illinois v. Gates. In Alabama v. White, the Supreme Court addressed the standard for determining when an anonymous tip can provide reasonable suspicion to justify an investigatory stop. In this case, after the magistrate issued the search warrant, but before the district court ruled on Tuter's motion to suppress, the Supreme Court decided Florida v. J. L., 529 U.S. 26 (2000). The Court ruled that the anonymous caller's information was inadequate to justify the stop, holding that reasonable suspicion requires that a tip be reliable in its assertion of illegality, and not just in its tendency to identify a determinate person. The Court noted that, if the anonymous tip provided predictive information about future movements that officers could corroborate, then there might be reasonable suspicion as in the close case of White. In Damhauer (10th Cir. 2000), the circuit found an affidavit insufficient to establish probable cause, because the affiant neither established the veracity of the informant, nor obtained sufficient independent corroboration of the informant's information.
(3) In this case, the anonymous tip, standing alone, provided virtually nothing from which one might conclude that the caller was either honest or his information reliable. None of the caller's information was predictive. The district court correctly held the facts in the affidavit fell short of providing probable cause. The minimal corroboration of innocent, readily observable facts was insufficient to establish the veracity or reliability of the caller, or to link Tuter with the allegation that he was making pipe bombs in his garage.
(4) Although the search warrant was not supported by probable cause, the evidence need not be suppressed because of the good faith exception to the exclusionary rule set forth in Leon. The district court had denied the good faith exception, stating that the affidavit was insufficient to justify the issuance of the warrant. Applicability of Leon's good faith exception is a question of law reviewed de novo. At the time the affidavit was prepared and the warrant issued, neither the Supreme Court's J. L. decision nor this court's Danhauer decision had been issued. It was not unreasonable for the officers to rely on the magistrate's authorization of the warrant.
Habeas Corpus (28 U.S.C. § 2254) - Certificate of Appealability;
Ineffective Assistance of Counsel;
Harmless Error
English v. Cody, 00-5115 (March 6, 2001)
English appeals from the denial of his petition for writ of habeas corpus. The matter comes before the court on request for a certificate of appealability. To receive a COA, English must make a substantial showing of the denial of a constitutional right. He must show that the issues are debatable among jurists or that a court could resolve the issues differently, or that the questions deserve further proceedings. In an earlier decision, the circuit had vacated the district court's decision refusing to apply procedural bar to English's claims of ineffective assistance of counsel. The circuit remanded for a determination of whether the IAC claims embraced matters in the trial record, or whether they required enlargement of the record. If the claims were entirely manifest within the record of the state court appeal, the claims would be barred; but if the claims required supplementation of the record, the district court was to consider whether Oklahoma's remand procedure was adequate. If the remand procedure was inadequate, the circuit instructed the district court to refuse to apply procedural bar, and to reach the merits of the IAC claim. In this appeal, English argues the record was insufficient to determine his IAC claim, the district court should have held a hearing, all the evidence presented to the jury was tainted, and he is actually innocent.
HELD: (1) The court reviews the district court's legal conclusions de novo, and fact findings under the clearly erroneous standard. English has never advanced any facts that show the identification procedures used in his case were impermissibly suggestive. Even if there is a controversy about the district court's determination that this issue was procedurally barred, English failed to meet his burden to obtain a COA on this issue. Thus his IAC claim based on the photo lineup also fails. Nor is he entitled to an evidentiary hearing, and his claim of actual innocence is unsupported by the record.
(2) English claims the district court improperly relied on harmless error analysis in deciding his Confrontation Clause claim, because all the evidence against him was tainted. But since the court concluded the claim of suggestive lineup is unsupported, that cannot be used to exclude the eyewitness evidence from consideration. But the court perceived another facet to his claim, that is, that because of the problems with the photo lineup, the eyewitness testimony was not sufficiently reliable to support the harmless error determination. The court then summarized the evidence at trial, found the evidence was overwhelming and held the error was harmless. Therefore, English failed to show that his trial attorney was ineffective in failing to raise the Confrontation Clause issue or that his appellate attorney was ineffective in failing to raise the issue of trial counsel's ineffectiveness. English has not shown entitlement to a COA.
Instructions - Review Standard;
Cross Burning - Elements of 42 U.S.C. § 3631, 18 U.S.C. § 241;
Sufficient Evidence;
Admission of Evidence - Victims' Reaction to Threats, Racist Compact Discs;
Failure to Object - Plain Error Standard;
Witnesses - Expert Testimony on Hate Groups;
Harmless Error - Nonconstitutional Standard, Burden on Defendant
United States v. Magleby, 99-4245 (March 7, 2001)
Magleby was convicted on charges of burning a cross on the property of an interracial couple.
HELD: (1) Because Magleby did not object to the instructions, the court reviews the instructions for plain error, and reviews the instructions as a whole to determine whether the jury may have been misled. Magleby argues that instruction 30 misstated the relevant legal standard under 42 U.S.C. § 3631. To establish a violation of that statute, the government must prove beyond a reasonable doubt that the defendant acted with specific intent to injure, intimidate or interfere with the victims because of their occupation of their home. Another instruction correctly states the third element of a § 3631(a) violation. Magleby urged that instruction 30 permitted conviction if a defendant is motivated by race alone, but the court found his argument unpersuasive.
(2) Instruction 22 instructed the jurors that they could consider the reaction of the victims and other witnesses to the cross burning, in determining the defendant's intent under 18 U.S.C. § 241. That statute prohibits any person from conspiring to injure, oppress, threaten or intimidate any person in the free exercise or enjoyment of any right or privilege secured by the Constitution or laws of the United States. This circuit has adopted an objective test, focusing on whether a reasonable person would find that a threat existed. This court has also stated that a trier of fact may look to the reaction of the recipient of the alleged threat. Victims' reactions to a cross burning may be considered, and thus there was no error in instruction 22.
(3) The court reviews de novo the sufficiency of the evidence and denial of a motion for judgment of acquittal. The circuit applied the familiar sufficiency of the evidence review standard.
(4) In making its determination about a defendant's intent, a jury is permitted to draw inferences of subjective intent from a defendant's objective acts. The evidence was sufficient to prove beyond a reasonable doubt that Magleby targeted the victims because of their race, and was sufficient to support all the convictions under the several statutes.
(5) The court reviews the district court's admission of evidence for abuse of discretion, if an objection is timely made, and otherwise for plain error. Magleby urges that the district court abused its discretion in determining whether the prejudice inherent in otherwise relevant evidence outweighed the probative value. Evidence of the victims' reactions is probative of intent. There was no plain error in admitting testimony of their reactions. Admission of eight photographs, as illustrating the victims' testimony as to security measures taken, was not an abuse of discretion.
(6) The district court allowed a history professor, who specialized in the history of hate groups in America, to testify as an expert on hate groups and the Klu Klux Klan. Admission of this testimony was troubling where there was no evidence Magleby was a member of the KKK, and his testimony came dangerously close to inviting the jury to find Magleby guilty by association. Magleby's trial was before a jury, and the prejudicial impact of such inflammatory evidence may be heightened. A non-constitutional error is considered harmless unless a substantial right of a party is affected. An error affects a substantial right when it has a substantial influence on the outcome, or leaves one in grave doubt as to whether it had such an effect. Kotteakos (S.Ct. 1946). The court reviews the record as a whole de novo to evaluate whether an error is harmless, and the burden of persuasion is on the defendant to show that the error affected the outcome of the district court proceedings. This was reviewed for plain error, because there was no objection.
(7) The court also found troubling the admission of testimony regarding James McBride, a racist and member of a hate group. The court had difficulty seeing how the testimony had any relevance to Magleby's intent on the evening he burned the cross. However, the court concluded that the admission of the testimony did not affect Magleby's substantial rights.
(8) Magleby objected to admission of song lyrics from racist compact discs. Admission of the song lyrics was preceded by testimony that Magleby could sing these word for word. Evidence that he knew the lyrics is probative of his intent.
(9) There was no plain error in admitting testimony that Magleby provided alcohol and pornography to a minor.
Guideline Interpretation - Review Standard;
Robbery - Enhancement for Death Threat, Perspective of Reasonable Teller
United States v. Arevalo, 00-3126 (March 8, 2001)
(Michael L. Harris, FPD, Kansas City, Kansas)
Arevalo pled guilty to two counts of bank robbery in violation of § 2113(a), and appeals the two point enhancement under §2B3.1(b)(2)(F) for making a death threat.
HELD: (1) The court reviews the district court's fact findings regarding a sentencing factor for clear error, and its legal interpretation de novo. The guidelines provide for a two point enhancement, when a defendant makes a threat of death during commission of a robbery. To qualify as an express threat, courts require that the threat be directly and distinctly stated or expressed, rather than implied or left to inference. Effective November 1, 1997, the Sentencing Commission deleted the word "expressed" and now only requires "threat of death." The court should not examine the notes grammatically or from the robber's perspective. The proper focus is the perspective of the reasonable teller. Arevalo's note said, "I have a gun and am willing to use it." The circuit held this was a threat of death. A note Arevalo used in another robbery said, "I have a gun, and if you do what I say, you will live." This also is a threat.
Downward Departure - No Substantial Assistance Motion by Government, Review Standard, Egregious Case Exception Eliminated
United States v. Duncan, 00-2013, 00-2014 (March 9, 2001)
In this case, the government refused to file a substantial assistance motion pursuant to §5K1.1. Nonetheless, the district court departed from the statutory mandatory minimum sentence, based on §5K1.1 and the egregious-case exception of United States v. Kuntz, 908 F.2d 655 (10th Cir. 1990). The district court held it was without authority to grant a substantial assistance departure under §5K2.0. The government appealed, and the circuit reversed.
HELD: (1) The court reviews the decision to depart for an abuse of discretion, fact findings are reviewed for clear error, and legal conclusions are reviewed de novo. The district court abuses its discretion when it makes an error of law.
(2) As a general rule, a district court's authority to consider a substantial assistance claim is conditioned upon a prior motion by the government. The government's refusal to file a motion, under § 3553(e) or §5K1.1, is a jurisdictional bar to imposition of a sentence below the statutory mandatory minimum or guideline ranges respectively. The question is whether Kuntz is still good law in light of the Supreme Court decision in Wade. This circuit has repeated the Kuntz rule in numerous opinions after Wade. In Wade, the Supreme Court said a prosecutor's discretion is subject to constitutional limitations. A district court's review is to determine whether the refusal was based on an unconstitutional motive, such as race or religion, or was not rationally related to any legitimate government end. The circuit concluded that Wade eliminated any exception that focuses on the level of the defendant's assistance to law enforcement authorities to establish entitlement to sentencing relief. Wade eliminated the egregious case exception in Kuntz. The correct statement of law is that a district court's authority, to review the government's refusal to file a substantial assistance motion, is limited to determining whether the decision was animated by an unconstitutional motive or not rationally related to a legitimate government end.
(3) Duncan attempts to fit the egregious case exception within the Wade exception of when the government's refusal is not rationally related to any legitimate government end. In this case, the government was aware of Duncan's assistance to state authorities before the plea agreement was entered. The government's refusal to amend the plea offer was rationally related to a legitimate government end. In Wade, the Supreme Court noted that the government's failure to include a cooperation provision in a plea agreement, or file a substantial assistance motion, may have been based on its rational assessment of the cost and benefit that would flow from making such a motion. In this case, the government's refusal to file the motion was rationally related to legitimate law enforcement ends of according finality due to plea negotiations, and reinforcing the principle that the government will reward, with a substantial assistance motion, only cooperation following a defendant's federal arrest, and predicated on the cessation of all further criminal activity by the defendant. Otherwise, every defendant could receive sentencing relief for actions taken prior to the criminal activity, and statutory mandatory minimum sentences would be significantly undermined.
(4) The circuit affirmed on other grounds the court's decision that it lacked authority to grant a substantial assistance departure under §5K2.0.
(5) As a general rule, the circuit does not consider an issue not presented, considered, and decided by the district court. However, in this case, the circuit exercised its discretion to hear and resolve the issue, because it is purely a matter of law and its proper resolution is certain.
Suppression - Review Standard;
Arrest - Probable Cause, Search Incident;
Appeal - Circuit May Affirm on Other Grounds;
Standing - Passenger, Bags in Car;
Search - Exceptions to Warrant Requirement, Scope of, Incident to Arrest, Inventory Search, Car Searches Based on Probable Cause
United States v. Edwards,
(Howard A. Pincus, FPD, Denver, Colorado)
Edwards appeals his conviction and sentence for armed robbery, in violation of 18 U.S.C. § 2113(a) and (d).
At about 3:00 p.m. on June 4, 1999, a dye pack went off inside City National Bank in West Hollywood, California, when a bank employee tripped the bank's silent alarm. When police arrived, they found Edwards and his girlfriend standing outside the bank with the parking lot attendant. An open camera bag was on the ground with about $2,000 in plain view. Red smoke was coming from the bag and the girlfriend had red stains on her face, hands and dress. The two were frisked and deputies did not find any weapons, but discovered a roll of United States currency in Edwards' pocket. Edwards was read his Miranda rights, and told a deputy two different stories without much detail. The deputy handcuffed Edwards, and put him in the back seat of a patrol car and the girlfriend in the back of another car.
While Edwards was being held, but before he was transferred to the police station, the police discovered that the bank had not been robbed. During the period of time when it was unclear who knew the bank had not been robbed, police decided to search the rental car used by Edwards and his girlfriend. The search revealed plastic bags full of dye-covered currency bundled together with Federal Reserve wrappers from the Bank in Boulder, and also found a red and blue mask, as well as a pair of shoes and a shirt. Edwards was booked on an armed robbery charge used when police have probable cause to believe a robbery had taken place, but do not yet know the victim. FBI contacted Denver and learned that the Bank in Boulder had been robbed the previous week, and the mask and sweatshirt found in the rental car matched the description of items worn by the robber in that crime. Edwards' physical description matched at least some of the descriptors provided by eyewitnesses. A warrant was issued for Edwards' arrest on a charge of armed robbery. In the car on the way to an initial appearance to the federal courthouse, Edwards volunteered, "if you'd asked me where the money came from, I would have told you I found it." Because Edwards had invoked his right to counsel, the agents did not follow up on this statement. Edwards was indicted for robbery at the Bank in Boulder. He moved to suppress the evidence. The district court denied the motion, finding the officers had probable cause to arrest him even after they discovered that the City National Bank had not been robbed, and that, because the arrest was valid, the search of the car and the bags contained within it was a search incident to arrest. Edwards was convicted after jury trial.
HELD: (1) In reviewing the denial of a motion to suppress, the court accepts fact findings unless clearly erroneous, and views the evidence in the light most favorable to the prevailing party. The court reviews de novo the legal issue of whether the police had probable cause to arrest the defendant, and the ultimate determination of reasonableness is reviewed de novo.
(2) To be lawful, a warrantless arrest must be supported by probable cause. Edwards was arrested when the deputy handcuffed him and placed him in the back of the car. An arrest occurs when police use a show of official authority, such that a reasonable person would have believed he was not free to leave. The arrest occurred at 3:15 p.m. Without a warrant, there was probable cause to believe Edwards had committed bank robbery at the time he was placed in back of the police vehicle. Shortly after the arrest, but before the search of a rental vehicle, the police discovered that the City National Bank had not been robbed. If police learn information that destroys their probable cause to arrest, the arrest may become illegal. The circuit held the police still had probable cause to keep Edwards under arrest, given the dye packs. The fact that police did not, at the time of arrest, know exactly what crime had occurred is not relevant, so long as they had probable cause to believe an offense had been committed.
(3) However, the district court erred in holding that the search of the rental car was a valid search incident to arrest. The circuit may affirm the district court on any grounds for which the record is sufficient to permit conclusions of law that are not relied on by the district court. Edwards does not have standing to challenge the search of the car, because it was rented in his girlfriend's name and he was not an authorized driver. However, police did not just search the car, they searched bags found in the trunk, several of which belonged to Edwards. Because the standing issue remains invariably intertwined with substantive Fourth Amendment privacy rights, logic dictates that the court should determine whether the challenged search or seizure violated the Fourth Amendment rights of the criminal defendant who seeks to exclude the evidence. In deciding this question, the court considers whether the defendant manifested a subjective expectation of privacy in the area searched, and whether society would recognize that expectation as objectively reasonable. Passengers often have little or no privacy rights in a motor vehicle. A non-owner passenger does not have standing to challenge the search of the trunk of a car in which he is traveling, but may have standing to challenge the search of his bags. Edwards' bags were closed and stored in the trunk of the rental car. They contained personal items, in addition to contraband. Based upon these facts, the court found that Edwards manifested a subjective expectation of privacy in the bags, and his expectation was one that society has recognized as reasonable. Therefore, he had standing to challenge the search of his personal luggage contained within the trunk of the rental vehicle.
(4) It is well established that warrantless searches violate the Fourth Amendment, unless they fall within a specific exception to the warrant requirement. One such exception is search incident to arrest. The scope of a search must be strictly tied to, and justified by, the circumstances which rendered its initiation permissible. Once the immediate rational for conducting a search incident to arrest has passed, police may not engage in a search absent probable cause to do so. Edwards was not arrested in or near the car. He was handcuffed in the back of the police vehicle at the time of the search. There was no reason to fear he could retrieve a weapon or destroy evidence. Any justification to conduct a search incident to arrest had dissipated.
(5) The search cannot be justified as an inventory search conducted as part of regular procedures, and for administrative rather than investigatory purposes. The search cannot be investigatory in nature, but must instead be used only as a tool to record the defendant's belongings to protect the police from potential liability. It is clear here that the rental vehicle was searched for investigatory rather than administrative purposes.
(6) Under the Fourth Amendment, the police may conduct a warrantless search where they have probable cause to search the area in question. A warrantless search of a car is permissible if there is probable cause to believe the vehicle contains contraband. If there is probable cause to search the vehicle, police may search any package within the vehicle that is capable of concealing the object of this search. Although this is a much closer issue, the circuit could not affirm the district court's ruling. There was no testimony that would support a belief by police that additional contraband or evidence could be found in the vehicle. In addition, by the time police decided to search the rental car, they were aware that the City National Bank had not been robbed.
Vindictive Prosecution - Resentencing After Appeal, Upward Departure
United States v. Fortier, 99-6381 (March 16, 2001)
Fortier pled guilty to several offenses stemming from his involvement with McVeigh and Nichols prior to the Oklahoma bombing. Fortier appealed his original sentence, and the circuit vacated and remanded for resentencing. On remand, Fortier was resentenced to an identical prison term, and now appeals.
In the first appeal, the circuit had held the district court erred in applying the first degree murder guideline, and concluded that the involuntary manslaughter guideline, although not a perfect fit, was most analogous to Fortier's situation. On remand, counsel for Fortier inquired whether he would have the option of calling witnesses. The judge said he did not anticipate that there would be evidence or further allocution by either Fortier or the victims. Two of the victims filed a brief asking for an upward departure, which the district court permitted to be filed as an amicus brief. At resentencing, the district judge permitted victims' counsel to participate and argue. The court allowed defense counsel to present witnesses. Counsel said that, given the court's earlier indication, one of the witnesses was out of town. The district judge asked for a proffer, but defense counsel never made one and did not call his other potential witness, Fortier's wife, although she was in the courtroom. Fortier was sentenced to 144 months and a $75,000 fine. In doing so the court applied §2K2.1(c)(1). The court began with offense level 24, applicable to firearms offenses, and departed upward by 13 levels based on multiple deaths, significant physical injury, extreme psychological injury, property damage, disruption of governmental functions, and endangerment of public health or safety. Taking the case out of the 1994 guideline heartland was the absence of the current terrorism guideline. Fortier's offense level was then reduced by three levels for acceptance of responsibility and two levels for substantial assistance. His offense level was 32, a one level decrease compared to his initial sentencing.
HELD: (1) Constitutional due process guarantees prohibit judges from vindictively imposing harsher sentences following a successful appeal. North Carolina v. Pearce. The presumption of vindictiveness does not arise when a sentence after appeal is less than or equal to the original sentence. In that situation, a defendant must present evidence of actual vindictiveness. Review is for plain error. The standard of review is less rigidly applied when a claim alleges constitutional error. As evidence of actual vindictiveness, Fortier claims the resentencing hearing was originally scheduled for a day on which his counsel had a scheduling conflict, the judge gave interviews to a newspaper, the judge allowed victims' counsel to participate in the resentencing process, and the district judge told counsel he would not permit witnesses and then reversed himself. The circuit held that the scheduling claim borders on being frivolous, and the judge's statements in the newspaper were benign. In the absence of any authority permitting participation of victims' counsel, the circuit had concerns about the propriety of the district court's ruling. Allowing third parties to argue for harsher sentences, when the government is not permitted to do so by the terms of a plea agreement, presents an opportunity for the government to achieve indirectly what it is prohibited from doing directly. However, the dearth of law on this subject precludes the conclusion that the error was plain, because it was neither clear and obvious nor contrary to well-settled law.
(2) Where the court's decision to depart upward rests on fact findings, the decision is entitled to substantial deference. The fact the district court departed upward on resentencing for the first time does not itself warrant reversal. A district court may resentence a defendant on different grounds not foreclosed by the scope of the appellate decision. The horror of death and destruction in the Oklahoma bombing takes the case outside the heartland and can support an upward departure. The court had previously rejected Fortier's argument that there was an insufficient nexus between his admitted wrongdoing and the bombing. The prior opinion in this case held that Fortier bears sufficient legal responsibility for the bombing to support an upward departure. In the absence of plain error to show actual vindictiveness, and because the 13 level upward departure was supported by Fortier's knowledge of the possible consequences of his actions, the court affirmed.
Failure to Object - Plain Error Review;
Restitution - General Statute (18 U.S.C. § 3663), Mandatory Restitution for Sex Crimes Involving Children (§ 2259), Victims Future Counseling Costs, Sufficient Specificity
United States v. Julian, 00-5103 (March 20, 2001)
(Jenine Jensen, FPD, Denver, Colorado)
Julian committed multiple acts of child sexual abuse and exploitation over a period of many years. Part of the judgment imposed liability for future counseling or treatment costs required by one of victims.
HELD: (1) The court reviews de novo the legality of the sentence. Because the defendant did not object to an award of future counseling costs, review is for plain error.
(2) Federal courts possess no inherent authority to order restitution and may only do as explicitly empowered by statute. Section 2259, 18 U.S.C., is the mandatory restitution statute for sex crimes involving children. Even if the district court erroneously used the general statute, § 3663(A), rather than the specific restitution statute as a basis for judgment, it is the language of § 2259 with which the court was concerned. That statute provides for mandatory restitution of the full amount of the victims' losses, which includes any costs incurred by the victim for medical services related to physical, psychiatric or psychological care. The statute does not restrict restitution to those costs incurred up to the time of sentencing. The district court was authorized under § 2259 to order defendant to pay for his victim's future counseling costs, in light of the language of § 2259, other statutes passed at the same time, and the legislative history.
(3) However, restitution orders pertaining to costs associated with medical and related services must be specific, and contain details as to dollar amounts and not generalities. The district court must support its restitution order with findings of fact in the record. Therefore, the judgment was vacated only as to requiring restitution for unspecified future costs, and remanded for further proceedings.
Failure to Object - Plain Error Review
Guideline Interpretation - Review Standard, Tax Offenses Guidelines, One Book Rule, Ex Post Facto Clause, Amendments to Guidelines;
Amount of Loss - Tax Offenses;
Apprendi - Increase in Guideline Range Rather Than Statutory Maximum
United States v. Sullivan, 00-8012 (March 20, 2001)
(Jill M. Wichlens, FPD, Denver, Colorado)
Sullivan was convicted after jury trial of three counts of willful failure to file a tax return, in violation of 26 U.S.C. § 7203. He was sentenced pursuant to guidelines in effect at the time of sentencing, although the applicable tax offense guidelines had been amended after he committed two of the three counts of willful failure to file.
HELD: (1) Review is for plain error due to lack of an objection below. The court reviews de novo questions of law regarding application of the guidelines, and reviews for clear error fact findings by the district court.
(2) The sentencing guidelines applicable to tax offenses were amended effective November 1, 1993. Sullivan was convicted of failing to file tax returns on April 15, 1992, 1993 and 1994. Two of the counts related to conduct occurring before the guidelines amendment, and one count related to conduct occurring afterward. His total offense level under pre-amendment guidelines was 15. Under post-amendment guidelines, it was 19.
(3) The guidelines contain the "one book rule," which states that the guideline manual in effect on a particular date shall be applied in its entirety. In 1993, the Sentencing Commission issued a policy statement making explicit that the one book rule applies to situations involving multiple counts, and stating that the revised edition should be applied to both offenses.
(4) Ordinarily the sentencing court must apply the guidelines in effect at the time of sentencing, unless such application would violate the Ex Post Facto Clause. The Ex Post Facto Clause is violated if the court applies a guideline to an event occurring before its enactment, and the application of that guideline disadvantages the defendant by altering the definition of criminal conduct or increasing the punishment for the crime. Courts are divided as to whether §1B1.11(b)(3) violates the Ex Post Facto Clause.
(5) The circuit concluded that application of the guidelines policy statement §1B1.11(b)(3) to the first two of Sullivan's willful failure to file tax counts violates the Ex Post Facto Clause and is plain error. Grouping rules cannot override Ex Post Facto concerns. The court remanded for resentencing, and directed the district court to apply the pre-amendment guideline to the two pre-amendment failure to file convictions, and the post-amendment guideline to the post-amendment conviction. The one book rule may not trump the Ex Post Facto Clause.
(6) As to the calculation of loss under §2T1.2(a), prior to the 1993 amendments, tax loss was defined as the total amount of tax that the taxpayer owed and did not pay, but in the event of failure to file, not less than ten percent of the amount by which the taxpayers' gross income for that year exceeded $20,000. This alternative measure was provided because of the potential difficulty in determining the amount of tax owed, and it was expected that this alternative measure would generally understate the amount of tax owed. Following the 1993 amendments, the tax loss is the amount of tax the taxpayer owed and did not pay, and if the offense involved failure to file a tax return, the tax loss should be treated as equal to twenty percent of the gross income. This presumption is to be used unless the government or defense provides sufficient information of a more accurate assessment. There may be situations where tax loss may not be reasonably ascertainable. Although the government bears the burden of proving the amount of tax loss, neither the government nor the court has an obligation to calculate tax loss with certainty or precision. The district court found it could not determine a more accurate tax loss figure than the presumptive twenty percent. The court perceived no clear error. Of course, on remand, the district court will have to calculate tax loss under both the pre- and-post amendment guidelines.
(7) Apprendi does not apply to sentencing factors that increase the guideline range, but do not increase the statutory maximum.
Lacey Act (16 U.S.C. § 3372) - Non-Indian Status of Defendant Not an Essential Element of Jurisdiction, Not Governed by 18 U.S.C. § 1152, Interstate Commerce Nexus;
Exculpatory Evidence - Destruction (Trombetta; Youngblood);
Instructions - Accomplice Testimony
United States v. Gardner, 00-4113 (March 22, 2001)
Gardner was convicted of violating 16 U.S.C. §§ 3372(a)(1) and § 3373(d)(2), illegally transporting and receiving and acquiring an elk taken in violation of Ute Tribe regulations, and attempted witness tampering. After jury trial, Gardner was convicted of violating the Lacey Act.
HELD: (1) Because the Lacey Act is not a general law of the United States as to punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, and because 16 U.S.C. § 3372 applies to actions on state and Indian land, 18 U.S.C. § 1152 is not applicable to Lacey Act violations. Accordingly, the non-Indian status of the defendant is not an essential element of jurisdiction for a § 3372 violation.
(2) Gardner's argument that effect on interstate commerce is an essential element is contrary to the plain language of § 3372, which applies when wildlife taken in violation of tribal law is transported, received or acquired. It is only necessary to plead and prove interstate commerce nexus where § 3372(a)(2) is implicated.
(3) Because the tape of the conservation officer and an investigator's interview was lost and no longer in the government's possession, California v. Trombetta and Arizona v. Youngblood control. Brady addresses only evidence still in possession of the government. The court reviews the district court's denial of the motion to dismiss for clear error. The court could not say the district court's denial was clearly erroneous. Gardner failed to demonstrate the tape was material or that the government acted in bad faith.
(4) If the testimony of an accomplice is uncorroborated, the court must instruct the jury that testimony of accomplices must be carefully scrutinized, weighed with great care and received with caution. Accomplice testimony is uncorroborated when the testimony is the only testimony directly tying the defendant to a criminal transaction. Because Gardner's conviction was based solely on uncorroborated accomplice testimony, a cautionary jury instruction was required. The instruction given was insufficient. Therefore, the conviction had to be reversed.
Supervised Release - Special Conditions, Internet Access, Psychological Testing, Probationary Searches;
Ripeness - Case or Controversy, Special Conditions of Supervised Release
United v. White, 00-2318 (March 27, 2001)
(Judith A. Rosenstein, FPD, Albuquerque, New Mexico)
White was convicted of receiving child pornography. After a second violation of a special condition of his supervised release, he was sentenced to six months followed by another two year term of supervised release. The appeal challenges three of the five special conditions imposed: prohibition of internet access, psychological testing, and probationary searches.
HELD: (1) The district court has discretion under 18 U.S.C. § 3583(a) in imposing a term of supervised release, and in balancing the factors mandated for consideration by § 3553(a).
(2) Even in a criminal case, a ripeness challenge goes to the court's power to resolve the case. The court must be convinced the questions presented satisfy the "case or controversy" jurisdiction. Courts should not entangle themselves in abstract disagreements, until the effects of a final order are felt in a concrete way by the challenging party. Hardship is established in that White can only learn of the prohibition's reach in facing a revocation proceeding. This would be after a second revocation of supervised release. The issues he has raised are legal questions capable of judicial resolution. Even though the government has assured it would not later raise a waiver argument, judicial efficiency requires that the court reach the issues at this time.
(3) Because there is no applicable sentencing guideline for the sentence to be imposed after violation of supervised release, the standard for review is "plainly unreasonable" under 18 U.S.C. § 3742(e)(4). The Commission has passed several guidelines and policy statements that mirror the statutes. The court's discretion is guided by factors in § 3553(a) and enumerated in § 3583(d). The district court shall consider a multitude of factors, but no single factor necessarily predominates. White argues that the factual predicate is his plea to a single count of receiving child pornography ordered over the internet, and that this predicate is not reasonably related to prohibiting him from all access to the internet. He is presently writing a book and the internet is an essential tool for his research. The circuit noted that White was ordered not to possess a computer with internet access through the period of supervised release. Therefore the prohibition does not bar his access to the internet-- only his possession of a computer with internet access, and thus he may visit a library or other places and log on to the internet. If the district court intended to deny White any access whatsoever to the internet, the special condition overreaches because it would bar him from using a computer at a library, and under such circumstances, the special condition is greater than necessary and fails to balance the competing interests the sentencing court must consider. Therefore, because the special condition may be potentially either too narrow or overly broad, the court remanded for the district court to articulate the contours of its conditions. Filtering software is available to interpose a barrier between the computer's web browser and internet connection. However, none of the software presently available is completely effective. Given the openness of cyberspace, if the district court chose to prohibit White's use of any computer, the court had to caution against such a broad sweep. Therefore, any condition limiting White's use of a computer or access to the internet must reflect the realities of the technology, and permit reasonable monitoring by a probation officer.
(4) The special condition, including the possibility of psychological testing approved by the probation officer, raises another concern. The district court's written order states that the defendant must participate in a mental health program for sex offenders that may include psychological testing. In the briefs and oral argument, the parties explain that the district court meant to say psychological testing, but misspoke at sentencing. The record shows that White's alcohol problem triggers sexually deviant behavior. Given the ambiguity in the record, the court remanded as to this portion of the sentence, as well for the district court to clarify the type of sentencing it ordered.
(5) As to the searches by a probation officer, without the officer having a reasonable belief that White violated the terms of supervised release, the district court clearly considered the nature and circumstances of the offense, and the history and characteristics of White in imposing this condition. Therefore, the searches fall within the "special needs" exception. Key to the exception here is for the probation officer to be able to proceed on the basis of his entire experience with the probationer. Probationary searches are not uncommon.
Forfeiture - Gross Profits;
Ripeness - Case or Controversy, Forfeiture Order (21 U.S.C. § 853);
Apprendi - Applicable Pending Appeals, Drug Quantity, Indictment, Instructions, Stipulation, Sentence Beyond Statutory Maximum, Enhancement for Prior Conviction;
Stipulation - Not Control as to Drug Quantity and Apprendi;
Witnesses - Impeachment (Rule 609), Arrests Distinguished From , Harmless Error, Testimony That Defendant Was in Jail;
Mistrial - Discretion, Prosecutorial Misconduct, Mention by Witness of Defendant in Jail;
Harmless Error - Cannot Constitute Plain Error
Sufficient Evidence - Review Standard;
Amount of Drugs - Relevant Conduct, Reliable Estimates
United States v. Wilson, Burley, and Hishaw, 99-6348, 6358, 6383 (March 29, 2001)
(Vicki Mandell-King, FPD, Denver, Colorado on Wilson)
The three defendants were among thirteen persons indicted as part of an extensive drug distribution conspiracy in Oklahoma City.
WILSON APPEAL:
HELD: (1) In the recent Keeling Tenth Circuit decision, the court held that 18 U.S.C. § 853 contemplates forfeiture of gross proceeds and not merely profits.
(2) Whether a claim is ripe for adjudication, and presents a case or controversy, bears directly on a court's jurisdiction. The court must consider the fitness of the issue for judicial resolution and hardship to the parties of withholding judicial consideration. Since the question of ripeness relates to subject matter jurisdiction, the court considered the question sua sponte. The court has not previously considered the ripeness of an appeal of a forfeiture order under 21 U.S.C. § 853. The criminal forfeiture statute is limited on its face to property obtained from or used in the underlying crime. At the forfeiture hearing, no property was taken from Wilson, and Wilson claims no interest in any of the seized property. In theory, Wilson is responsible for turning over $4.25 million. The final order of forfeiture did not expressly limit the forfeitable property to that already seized. Additional possibilities remain purely hypothetical and speculative, and the issue is not fit for judicial resolution at this time.
(3) Although Apprendi was decided after Wilson's trial and sentencing, its holding is applicable to his pending appeal on direct review. Drug quantity is one fact which must be proven to the jury beyond a reasonable doubt. The logic of Apprendi requires drug quantity to be included in an indictment. The indictment charged Wilson with specific quantities. In addition, the government filed a § 851 information charging Wilson with an enhanced penalty due to a prior drug felony conviction. Wilson stipulated to the two 18 ounce amounts at trial, but then requested a jury instruction that the government must prove the approximate quantities. The district court did not so instruct the jury. At sentencing, the issue of drug quantity arose again and Wilson objected. The probation officer calculated the amount of drugs attributable to Wilson, and said 19.4 kilograms was the correct amount. Wilson's guideline range was 262 to 327 months and he received a 262 month sentence. When drug quantity is used to enhance a sentence beyond the statutory maximum, it must be charged in an indictment and proven to the jury beyond a reasonable doubt.
(4) The court held it was not inclined to consider the stipulation as controlling, considering the lack of incentive to contest drug quantity before Apprendi, and the fact that Wilson did request a jury instruction requiring the jury to consider approximate quantity.
(5) As long as the defendant's sentence falls within the maximum established by statute, Apprendi does not foreclose consideration of drug quantities beyond the offense of conviction. The court noted two lines of cases in this circuit: one that simply looks to see if the sentencing falls within the statutory maximum, the other evaluating the evidence for a showing of prejudice.
(6) Courts will most likely submit drug quantity to the jury in order to preserve the entire range of enhanced sentencing options, but by Apprendi's specific terms, the jury need only determine specific quantity if it leads to sentences beyond the maximum for mere possession.
(7) Under § 841(b)(1)(C), the statutory maximum is 20 years. This is the lowest statutory range to be applied in a situation where the jury has not found the drug quantity beyond a reasonable doubt. However, because Wilson was previously convicted of a drug felony, his range was increased, and the maximum becomes not more than 30 years under subsection (C) with a minimum of six years supervised release. Wilson's 262 months sentence fell within this heightened maximum.
Whether or not Apprendi foreshadows the overruling of Almendarez-Torres, that holding remains controlling law. Apprendi carved out the recidivism issue as an exception to its ruling.
BURLEY APPEAL:
(8) Rule 609 provides that for purposes of attacking the credibility of a witness, evidence that an accused has been convicted of a felony shall be admitted, if the court determines the probative value of admitting this evidence outweighs its prejudicial effect to the accused. Questions based upon past arrests are not properly within the scope of this rule. An arrest does not impeach or impair the credibility of a witness that happens to the innocent as well as the guilty. Arrest evidence was also not admissible under Rule 404, 405 or 608. Rule 404 allows facts to rebut evidence of a pertinent trade of character offered by an accused. Past arrests for drug possession are admissible under Rule 404, if certain clearly defined conditions are met, but requires more than simply testimony that records indicate an arrest took place. Rule 405(b) is inapposite. There is no trait of character essential to convictions for drug crimes. Rule 608 is relevant only if the conduct relates to truthfulness or untruthfulness. It was error for the district court to allow mention of Burley's past arrests. But where the evidence against the defendant is overwhelming, any such error is harmless.
HISHAW APPEAL:
(9) Hishaw moved for mistrial based on possibly prejudicial witness testimony that gave the impression Hishaw had been in jail. The court reviews the denial of a mistrial motion for abuse of discretion. Only if the prosecutor's conduct is flagrant enough to influence the jury to convict on grounds other than evidence presented would a conviction be overturned. The prosecutor was careful to avoid mention of the jail sentence. The witness tried to reply in the same way but did mention "when he got out. . ." The trial court reasoned that, while it would offer a limiting instruction, the court was afraid that such instruction would highlight the partial comment. Any error was harmless.
(10) Harmless errors cannot meet the standard for plain error. The result is the same under either the harmless error or plain error standard.
(11) In reviewing a sufficiency of the evidence claim, the court reviews the record de novo, draws all reasonable inferences in the light most favorable to the government, and will not consider the credibility of the witnesses or reweigh the trial evidence.
(12) As to drug quantifies, the court will review the legal basis for sentencing de novo but reviews fact findings under the clearly erroneous standard. The amount of drugs attributable to Hishaw was based on trial testimony, and included relevant conduct, attributing to him reasonably foreseeable amounts possessed in furtherance of jointly undertaken criminal activity. The court may rely on estimates it deems sufficiently reliable. Estimates were based upon testimony of two co-conspirators. It is the sentencing court's job to weigh their credibility.
Habeas (28 U.S.C. § 2254) - AEDPA Applies, Death Sentence, Review Standard;
Instructions - Jury Prevented From Consider Constitutionally Relevant Mitigating Evidence;
Evidentiary Hearing;
Funds for Expert;
Sufficient Evidence;
Procedural Bar - Miscarriage of Justice, State's Failure to Assert;
Procedural Misconduct - Withhold Exculpatory Evidence, Comments in Opening and Closing
Rojem v. Gibson, 00-6056 and 00-6460 (March 30, 2001)
Rojem was convicted of first degree rape, kidnapping and murder of his seven year old former step-daughter, and received the death penalty. On federal habeas corpus review his convictions were upheld, but the district court conditionally granted relief from the death sentence because the trial court failed to instruct the jury to weigh aggravating and mitigating evidence. Both parties appeal, and the circuit affirmed.
HELD: (1) The AEDPA applies and its standard of review.
(2) The trial court failed to give the Oklahoma jury instruction directing the jury to weigh aggravating and mitigating circumstances. The district court found there was an Eighth Amendment violation, because of a reasonable likelihood that the jury applied the instructions in a way that it was prevented from considering mitigating evidence. The Eighth Amendment requires the jury to be able to consider and give effect to all relevant mitigating evidence. The standard for determining whether the jury instructions satisfy these principles is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents consideration of constitutionally relevant evidence. In this case, no instructions required the jury to consider mitigating evidence. Nor did the entire context of instructions inform the jury. There is a reasonable likelihood the jury applied the instructions in a way that prevented it from considering mitigating evidence, and the Eighth Amendment was violated. The Oklahoma court's decision was contrary to, or an unreasonable application of, Supreme Court precedent, and the federal district court correctly held that Rojem's constitutional rights were violated.
(3) Rojem was not entitled to an evidentiary hearing. A state must provide an indigent defendant with the basic tools to an adequate defense or appeal. Rojem's request for experts and an investigator were speculative. The Oklahoma court's determinations were not unreasonable. In federal district court, Rojem was entitled to experts and an investigator only upon a showing of reasonable necessity, and the district court did not abuse its discretion in denying such funds.
(4) Rojem urged the state withheld exculpatory evidence, and interfered with his right to effective assistance of counsel, by failing to disclose evidence of alleged suspects and an expert witness. To prove a Brady violation, a petitioner must establish that the state suppressed exculpatory, material evidence. Evidence is material if there is a reasonable probability that the result of the trial would have been different. Reviewing the state court's materiality determination under § 2254(d)(1), the circuit found it was not an unreasonable application of Supreme Court precedent. The remainder of Rojem's claim is procedurally barred. Regardless of whether the claim is barred, the circuit, as did the district court, found that the state did not withhold exculpatory, material evidence.
(5) In assessing the sufficiency of the evidence, the question is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The claim is barred. Rojem argues for the first time on appeal that procedural default would result in a fundamental miscarriage of justice, and the circuit refused to consider that argument. Even if not barred, the circuit agreed with the federal district court that there was sufficient evidence to support the murder conviction. In addition, the state court's determination of sufficient evidence as to rape was reasonable.
(6) Rojem argues prosecutorial misconduct in opening and closing statements denied him a fair trial. The OCCA deemed the challenges waived. The federal district court reviewed each remark on its merits, because the state did not assert procedural bar. The state now asked the court to sua sponte apply procedural bar, but the circuit refused to do so, and reviewed de novo the district court's conclusion that the remarks did not render the trial fundamentally unfair. When, as here, prosecutorial misconduct does not implicate a constitutional right, such misconduct does not warrant habeas relief unless it rendered the trial fundamentally unfair.