Discovery - Sanctions

United States v. Golyansky, 01-1499, (March 5, 2002)

(John M. Richilano, Denver, Colorado)

On interlocutory appeal, the government challenges a district court order excluding testimony of a government witness, as a sanction after finding the government violated court discovery orders by failing to timely disclose impeachment evidence.

At a pretrial hearing the court said that, if the defendants have received all the discovery, the Brady/Giglio motion is moot. Subsequently, the defendants moved to suppress the testimony of a key government witness, arguing the government violated Brady/Giglio. After receiving that motion, the government sent the defendant a three-page summary of the witness' mental history. The defendants received this information 19 days before trial. The district court held a hearing; at which the government conceded it had been aware of the witness' serious mental health issues for several years. The government also acknowledged its duty to disclose the information as material impeachment evidence. The district court granted the motion to exclude the witness' testimony.

HELD: District courts have broad discretion to sanction a party who violates discovery orders. The circuit reviews a decision to impose sanctions for abuse of discretion. The district court did not abuse its discretion in choosing to sanction the government. But in selecting a proper sanction, the district court should consider the reasons the government delayed producing requested material, including whether it acted in bad faith, the extent of prejudice to the defendant, and feasibility of curing any prejudice. In the absence of bad faith, the court should impose the least severe sanction that will accomplish prompt and full compliance with the discovery order. In the absence of bad faith, a district court excludes testimony of a witness only when prejudice to the defense cannot be cured by continuance. To support a finding of prejudice, the court must determine that the delay impacted the defendant's ability to prepare or present its case. Nothing in the record suggests that, given time, the defendants cannot adequately incorporate the impeachment evidence into presentation of their case. No jury has yet been enpaneled. The expense of preparing an expert would have been borne even if the government had promptly disclosed the evidence. The concept of prejudice does not encompass the expense of additional trial preparation. A continuance could have cured the prejudice, and therefore, the district court abused its discretion in excluding the government witness as a discovery sanction.

Motion to Suppress - Review Standard, Expectation of Privacy, Dwelling Other Than Home;

Admission of Evidence - Discretion, Rule 404;

Sufficiency of Evidence;

Motion for New Trial - Discretion, New Evidence;

Amount of Drugs - Apprendi

United States v. Higgins, 00-2440; United States v. Caple, 00-2461;

United States v. Jinks, 00-2472 (March 11, 2002)

Caple, Higgins, and Jinks were charged with conspiracy to manufacture methamphetamine, maintaining a place for that manufacture, and possession with intent to distribute methamphetamine. A fourth person, Ortiz, was also indicted, pleaded guilty, and was a key witness at the trial of these three defendants. All defendants were convicted on all counts.

HELD: (1) On review of a denial of a motion to suppress, the court reviews the evidence in the light most favorable to the government, and accepts fact findings unless clearly erroneous. The ultimate determination of reasonableness under the Fourth Amendment is a question of law reviewed de novo.

(2) A defendant may not challenge an allegedly unlawful search or seizure unless he demonstrates that his constitutional rights had been violated. He must show that he had a subjective expectation of privacy in the premises searched, and that society is prepared to recognize that expectation as reasonable. An employee may have an objectively reasonably expectation of privacy in his work space. However, Higgins' work as part of a cleaning crew cannot serve as a basis for an objectively reasonable expectation of privacy in the whole premises. The Supreme Court decision in Carter heightened the burden for a defendant claiming a reasonable expectation of privacy in a dwelling other than his home, when a defendant's presence in the dwelling is for a commercial or business purpose. Higgins' subjective expectation of privacy is not one that society would recognize as reasonable. Therefore, the district court did not err in denying the motion to suppress evidence seized from the premises.

(3) Decisions to admit or exclude evidence under Rule 404(b) are reviewed for abuse of discretion. The court follows the four-part Huddleston test. The evidence was offered for a proper purpose to show intent or knowledge and was relevant. The probative value of the evidence was not substantially outweighed by the potential for unfair prejudice.

(4) Sufficiency of the evidence to support a criminal conviction is a question of law to be reviewed de novo. The court views the evidence and all reasonable inferences therefrom in the light most favorable to the jury verdict. Notwithstanding impeachment evidence against the witness Ortiz, the jury was free to accept her account and disbelieve Caple's protestations of innocence. The court also upheld as sufficient the convictions against Jinks.

(5) A denial of a motion for new trial is reviewed for abuse of discretion. The motion was filed far outside the seven days of Rule 33, and so the trial court had no jurisdiction to consider such motion, except one claiming newly discovered evidence. The court uses a five-part test in determining whether newly discovered evidence warrants a new trial: the evidence was discovered after trial, the failure to learn of the evidence was not due to lack of diligence, the new evidence is not merely impeaching, it is material to the principal issues, and it is of such a nature that a new trial would probably produce an acquittal.

(6) All defendants contend the trial court erred in calculating the amount of methamphetamine to be attributed to them. The government relied on samples of two quantities of pseudoephedrine hydrochloride, a precursor chemical. The government had preserved samples, as the remainder had been destroyed by a contractor which cleans up such sites for the DEA. The government expert concluded that the pseudoephedrine was capable of yielding 153.9 grams of methamphetamine. The district court's determination of drug quantity is reviewed for clear error. The determination may be an approximation, and the government's burden is by a preponderance of the evidence. Nonetheless, the estimate must have some support in the facts of the case and have a sufficient indicia of reliability. The government failed to carry its burden, and the case was remanded for further sentencing proceedings.

(7) Drug quantity is an element of the crime that must be alleged and proved beyond a reasonable doubt if that factor exposes the defendant to heightened maximum sentence. None of the defendants' original sentences was in excess of the statutory maximum applicable to a quantity of methamphetamine either of or less than 5 grams. Therefore, there was no violation of Apprendi, or in any event, no prejudice.

Habeas Corpus (28 U.S.C. § 2254) - Death Penalty;

Effective Assistance of Counsel - Lack of Preparation, Failure to Investigate, Duty of Loyalty, Performance and Prejudice

Fisher v. Gibson, 99-6433, 99-6444 (March 12)

(Patrick J. Ehleis, Jr., FPD Oklahoma City, Oklahoma)

Fisher was convicted of first degree murder in Oklahoma and sentenced to death. He filed a habeas corpus petition pursuant to 28 U.S.C. § 2254. The federal district court granted the petition as to the sentencing phase. Both Fisher and the State of Oklahoma appealed. The Circuit reversed and granted conditional habeas relief as to the guilt phase, mooting the appeal of the state as to the reversal of the sentence.

Fisher had raised ineffective assistance on direct appeal. The OCCA indicated it was deeply disturbed by counsel's lack of participation during the sentencing stage, but nonetheless held that Fisher had failed to establish prejudice. No evidentiary hearing was held on post-conviction relief.

HELD: (1) This case was filed before the AEDPA, so pre-AEDPA law applies. Ineffective assistance of counsel claims present mixed questions of law and fact and are subject to de novo review.

(2) The Sixth Amendment right to counsel is the right to effective assistance of counsel. The question is whether the defendant's counsel subjected the prosecution's case to meaningful adversarial testing. Counsel has a duty to investigate all reasonable lines of defense. Effective assistance also requires that an attorney adhere to his duty of undivided loyalty. Strickland sets forth a two-part test of deficient performance and prejudice. Counsel failed to view the crime scene and failed to file any discovery motions. Counsel had no idea what answers he would receive to questions, elicited detrimental testimony from witnesses, and was otherwise unfamiliar with the case. The lack of preparation indicates an objectively unreasonable failure to investigate. Counsel failed to investigate the claim of alibi. The most egregious errors can only be explained by a failure to act as a loyal advocate. Counsel exhibited doubt and hostility toward his client's case, particularly in the defendant's direct examination. He implied his client's guilt by repeatedly lending support to the State's version of events. He failed to present a closing argument and failed to generally advance any defense theory, even of reasonable doubt. Counsel acted as an active adversary to the defendant.

(3) To show prejudice, a defendant must show a reasonable probability, that but for counsel's unprofessional errors, the result of the proceeding would have been different. The court examined the totality of the evidence. Counsel destroyed his own client's credibility. Questions submitted by the jury during deliberations indicate credibility was key. A verdict only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.

Habeas Corpus (28 U.S.C. § 2254) - Death Penalty, AEDPA;

Death Penalty - Felony Murder, Eligibility;

Exhaustion of State Remedies - Decide Merits;

Evidentiary Errors;

Ineffective Assistance of Counsel - Procedural Bar, Mental Health Expert, Prejudice Prong;

Heinous and Cruel - Conscious Physical Suffering

Orvilla v. Gibson, 00-6244 (March 13, 2002)

Orvilla was found guilty of first degree child abuse murder. The jury found the heinous and cruel and continuing threat aggravators, and imposed a death sentence. The federal district court denied habeas relief, and the circuit affirmed.

HELD: (1) The AEDPA applies and its standard of review.

(2) The Eighth Amendment prohibits imposition of the death penalty on one who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill or intend to kill. Edmond. However, a death penalty may be imposed on a felony murder defendant who was not the actual killer and who had no specific intent to kill, if the evidence shows major participation in the felony committed combined with reckless indifference to human life. Tison.

(3) It is not clear whether this issue was exhausted or procedurally defaulted, and the court chose to reach the merits as easier to resolve.

(4) Evidentiary errors are not cognizable in habeas unless they affect the defendant's right to a fair trial.

(5) A capital sentencing scheme must generally limit the class of persons eligible for the death penalty.

(6) A claim of ineffective assistance, asserted to excuse default, must not itself be procedurally barred.

(7) Aggravating circumstances must narrow the class of death-eligible persons. The court rejected Orvilla's argument that child abuse murder is so reprehensible that it always includes the heinous and cruel aggravator.

(8) Whether the evidence is sufficient to prove an aggravating factor is determined by whether any rational trier of fact could find the aggravator beyond a reasonable doubt. The evidence showed that the victim's death was preceded by serious physical abuse. The only question is the requirement of conscious physical suffering during some part of the abuse. There was a month long period of torture and physical abuse preceding the fatal incident. This evidence was admissible and satisfies the conscious suffering requirement. Consideration of conduct not contemporaneous with the murder is not generally prohibited under the Eighth Amendment.

(9) The court rejected Orvilla's argument of insufficient proof of continuing threat.

(10) Where a psychiatric report and affidavit which were not part of the record on direct appeal are the basis of Orvilla's ineffectiveness claim, the circuit held that the state's procedural bar is inadequate to preclude federal review. Orvilla does not claim he was not denied an expert, but rather that counsel was ineffective for failing to request one.

(11) The OCCA misread Lockhart v. Frettwell to add a new element to Strickland's prejudice test, so that a reasonable likelihood of a different outcome was not enough to warrant relief unless the original outcome was in some additional sense fundamentally unfair. The Supreme Court has repudiated this view in Williams, 529 U.S. at 391-92. The question is whether counsel acted below professional standards in failing to request an expert on the basis of law and facts available in 1987. Ake held that an indigent capital defendant must, upon request, be provided an expert for the penalty phase when the state presents psychiatric evidence of the defendant's future dangerousness. In 1987, the Oklahoma courts recognized an Ake right only when the state presented its own penalty phase expert. The circuit broadened this to include any evidence as to future dangerousness, and Oklahoma agreed in 1998. Therefore, counsel's failure to request an expert in 1987 cannot be said to be unreasonable.

Armed Career Criminal Act - Mandatory;

Appellate Review - Circuit Notice Error Not Raised on Appeal;

Concurrent or Consecutive Sentence (§5B1.3);

Career Offender - Crimes of Violence;

Guilty Plea - Withdrawal

United States v. Moyer, 01-8005 (March 13, 2002)

(James H. Barrett, FPD, Cheyenne, Wyoming)

Moyer was convicted of felon in possession and sentenced to 10 years incarceration as a career offender. Believing it was bound by the mandatory provisions of §5G1.3(a), the district court ordered Moyer's federal sentence to run consecutively to his Wyoming sentence.

On appeal, Moyer argued he did not qualify as a career offender because his three prior state felony convictions were not crimes of violence. He also argued the district court was required to order his federal sentence to run concurrently with the undischarged Wyoming sentence under §5G1.3(b).

HELD: (1) The question of whether Moyer's state felony convictions were crimes of violence is reviewed de novo. Non-forcible sex offenses involving a child victim and an adult offender are crimes of violence under §4B1.2(a).

(2) Section 5G1.3(a) provides that if the instant offense was committed while a defendant was serving a term of imprisonment or after sentencing for, but before commencing service of such term, the sentence for the instant offense shall be imposed to run consecutively. The government conceded on appeal that §5G1.3(a) does not apply where the defendant commits the federal offense while serving a state term of probation. An undischarged term of probation is not an undischarged term of imprisonment.

(3) Interpretation and application of the guidelines is reviewed de novo. Section 5G1.3(b) provides that, where subsection (a) does not apply, and the undischarged term of imprisonment resulted from offenses that had been fully taken into account in determining the offense level, the sentence for the instant offense shall be imposed concurrently. Section 5G1.3(b)'s purpose is to insure that no defendant is punished twice for the same crime. Subsection (b) applies only if Moyer's state and federal convictions involved the same course of conduct. Moyer's federal conviction was a firearms violation. The state conviction arose from sexual abuse of minors. Therefore, Moyer's state offenses were not fully taken into account. When neither §5G1.3(a) nor §5G1.3(b) applies, and the defendant is subject to an undischarged state sentence, the sentencing court has discretion to sentence concurrently or consecutively. The sentencing court mistakenly believed it was required to impose a consecutive sentence under §5G1.3(a), so the case must be remanded.

(4) During oral argument the court raised sua sponte an issue not raised by the parties as to whether Moyer's sentence is unlawful because he was not sentenced pursuant to 18 U.S.C. § 924(e)(1), the Armed Career Criminal Act, which mandates a minimum 15 year sentence. Section 924(e) does not require government action to trigger its application, nor does it vest discretion in the sentencing court. Application of § 924(e) is not subject to governmental waiver or prosecutorial discretion. Imposition of an illegal sentence constitutes plain error even if the sentence favors the defendant. Two courts have considered whether a sentencing error favorable to the defendant affects substantial rights. The illegal sentence seriously affects the fairness, integrity or public reputation of judicial proceedings.

(5) Because Moyer was never made fully aware of the genuine consequences of his plea, as to the effect of the ACCA, he must be given the opportunity to withdraw the plea on remand.

Upward Departure - Review, Criminal History

United States v. Walker, 01-5115 (March 27, 2002)

Walker pleaded guilty to possession of a firearm and ammunition after former conviction in violation of 18 U.S.C. § 922(g). The PSR documented an extensive criminal record and recommended an upward departure based on the similarity of the present offense with past crimes and high likelihood of recidivism. The district court explained that criminal history category VI inaccurately reflected the defendant's criminal history, warranting an upward departure.

HELD: (1) The court reviews a departure under a unitary abuse of discretion standard. The court considers four factors in reviewing an upward departure. On appeal, the defendant concedes the district court used permissible factors and that the record supports the factual basis underlying the departure factors, but challenges the finding that his prior criminal history removes him from the heartland, and contests the reasonableness of the departure. The district court's finding that defendant's extensive criminal history removes him from the heartland is entitled to substantial deference. Articulation of the factual basis does not automatically suffice to explain the degree of departure. The circuit has repeatedly required the district courts to explain their reasoning. The court found the district court's explanation was insufficient. A decision to depart from category VI requires a more stringent analysis than simply counting the number of convictions in excess of those required to reach criminal history category VI.