Guideline Departures - Upward Departure, Review Standard; Supervised Release - Condition to Register as Sex Offender, Presentence Notice
United States v. Bartsma, 98-3305 (November 9, 1999)
(Timothy J. Henry, FPD Wichita, Kansas)
Bartsma pled guilty to felon in possession. The district court departed upward, and imposed a special condition that he register as a sex offender wherever he lives.
HELD: (1) The court has established a framework for reviewing guideline departures. A sentencing court may depart upward if there exists an aggravating circumstance that has not adequately been taken into account. The district court determines whether the factors take the case out of the heartland, and this determination is given substantial deference on review. The guidelines encourage an upward departure when the district court concludes the criminal history category does not adequately reflect the seriousness of past criminal conduct or the likelihood that the defendant will commit other crimes. The district court did not abuse its discretion in departing upward. Because the court failed to articulate sufficient findings, the circuit remanded for resentencing concerning the degree of departure.
(2) The court reviews conditions of supervised release for abuse of discretion. Counsel did not lodge a formal objection, but the circuit found that Bartsma did not waive his objections, relying on Edgin. Bartsma had no notice the district court was considering this condition. Under Rule 32 and the Supreme Court decision in Burns, reasonable presentence notice is required as to a possibility the district court will impose a special condition of supervised release. The record does not contain any findings by the district court that the condition was reasonably related to the current offense. District courts enjoy broad discretion in fashioning conditions of supervised release. These conditions must involve no greater deprivation of liberty than is reasonably necessary to deter criminal conduct, protect the public, and provide the defendant with needed educational or vocational training. The conditions must be reasonably related to the nature and circumstances of the offense, and the history and characteristics of the defendant. An appellate court should not be left to speculate about the nexus between the condition and the nature and circumstances of the offense.
Element of Offense - Distinguished From Sentencing Factor; Amount of Drugs; Statutory Interpretation - § 841 Drug Quantity; Prosecutorial Misconduct; Admission of Evidence - Hearsay, Harmless; Indictment - Specific Statutory Sentencing Provisions; Appellate Review - Bound by Prior Precedent
United States v. Jones, 97-1377 and 97-1463 (November 12, 1999); (Jill M. Wichlens, FPD, Denver, Colorado)
The question presented was whether a sentencing court must adhere to the penalty range set fourth in 21 U.S.C. § 841(b)(1)(C), when an indictment charges a defendant with distributing and possessing with intent to distribute cocaine base. In resolving the question, the circuit addressed whether the Supreme Court decision in Jones changes the circuit's jurisprudence interpreting § 841(b) as setting forth sentencing factors and not elements of the offense. The circuit concluded that Jones does not require the circuit to alter its interpretation of § 841(b)(1).
HELD:
(1) When the defense objects to prosecutorial misconduct, review is de novo, determining whether the conduct was improper and whether it warrants reversal. A prosecutor engages in misconduct when he refers to matters outside the record. But persuasive summation of the facts admitted into evidence is the purpose of closing argument. References to admitted evidence are clearly proper. The prosecutor did not commit misconduct.
(2) The court reviews for abuse of discretion the decision to admit the officer's testimony about the nature of the conversation she monitored during the controlled drug purchase. Erroneous admission of hearsay evidence is harmless, unless it had a substantial influence on the jury's verdict or leaves the court in grave doubt about whether it did. Any error would be harmless.
(3) The indictment charged Jones with distributing, and possessing with intent to distribute, cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Section 841(a)(1) makes it unlawful to possess with intent to distribute a controlled substance. Section 841(b) establishes penalties. The indictment did not specifically allege the amount of cocaine base. The court reviews de novo the legality of the sentence. The statute is a sentencing provision independent of substantive charges. Only elements of the offense need be charged. A sentencing judge may consider quantities of drugs not charged. Any quantity in the indictment does not dictate the mandatory minimum under the circuit's prior decision in Reyes. Appellant argues the reference in the indictment to a specific subsection of the statute dictates the maximum sentence the court could impose, not the mandatory minimum. But the sentencing court's findings on quantity establish both the mandatory minimum and permitted maximum sentence. Jones was given adequate notice of an enhanced sentence. The indictment's reference to subsection (C) states that the penalty range of 0 to 20 years only applies if the penalty ranges in other subsections do not apply. The recent decision in Jones v. United States did not announce any new principle of constitutional law. Unlike the statute at issue in Jones, § 841 unambiguously sets out distinct provisions defining unlawful acts and penalties for such acts, and the quantity is relevant only to the penalty provisions. Congressional intent is evident from the plain language of the statute. Therefore, the doctrine of constitutional doubt articulated in Jones does not apply. This circuit has previously rejected the argument that classification of quantity as a sentencing factor violates the Fifth and Sixth Amendments. The circuit is bound by prior precedent absent en banc reconsideration or a superseding contrary decision by the Supreme Court. Because Jones suggests, rather than establishes, a new principle of constitutional law, the circuit declined to reexamine its previous holdings.
Instructions - Review, Theory of Defense, Fleeting Possession; Admission of Evidence - Demonstrative Evidence, Similar Rifle, Discretion Standard; Sufficient Evidence - Review Standard, Felon-in-Possession; Felon In Possession (§ 922(g)) - Elements; Armed Career Criminal Act - De Novo Review, Violent Felony, Escape; Appellate Review - Bound by Circuit Precedent
United States v. Adkins, 98-3322 (November 12, 1999); (Steven Gradert, FPD, Wichita, Kansas)
Adkins was convicted of felon in possession of a firearm. On appeal he raises claims as to admission of evidence, sufficiency, and the Armed Career Criminal enhancement.
HELD:
(1) The court reviews a decision on whether to give a particular jury instruction for abuse of discretion, and views the instructions as a whole de novo. Defendant is entitled to a theory of defense instruction when that instruction articulates a correct statement of the law, and sufficient evidence has been presented to support the jury's finding in defendant's favor on that theory. Although Adkins' fleeting possession instruction may constitute a correct statement of the law, no possible interpretation of the evidence at trial could support an acquittal under that theory. The theory requires that the defendant merely momentarily possessed the weapon, and that he either lacked knowledge of that possession or had a legally justifiable reason to possess it temporarily.
(2) The court will reverse a trial court's receipt of demonstrative evidence only for abuse of discretion. The government introduced into evidence a rifle similar to the one charged in the indictment, because it never recovered the actual rifle. The demonstrative rifle was relevant to the credibility of a witness who claimed to have seen Adkins holding a rifle. Rule 403 provides that, although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. The trial court did not abuse its discretion.
(3) To determine whether the evidence is sufficient to support the verdict, the court reviews the record de novo, taking the evidence in the light most favorable to the government. To prove a § 922(g) conviction, the government must prove the defendant previously was convicted of a felony, he knowingly possessed a firearm, and the possession was in or affecting interstate commerce. The only knowledge required is that the instrument possessed is a firearm. The government may prove either actual or constructive possession.
(4) The court reviews de novo a sentencing enhancement under the ACCA. A violent felony is defined as a crime involving conduct that presents a serious potential risk of physical injury to another. An escape always presents a serious potential risk of injury. This panel can not overturn the decision of another panel.
Habeas Corpus (28 U.S.C. § 2254) - AEDPA Does Not Apply Competency to Stand Trial - Retrospective Hearing, Preponderance Standard of Proof; Exhaustion of State Remedies - Non-Jurisdictional, Waiver, Futility; Procedural Bar - Default in State Court, Adequate State Ground, Ineffective Assistance as Cause, Actual Innocence; Confession - Voluntariness, Waive Right to Counsel; Prosecutorial Misconduct; Access to Psychiatrist - Ake, Sanity and Time of Offense; HAC Aggravator- Sufficient Evidence, Definition; Ineffective Assistance of Counsel - Deficient Performance and Prejudice, Alternate Perpetrator, Opening Statement, Mitigating Evidence
Clayton v. Gibson, 98-5154 (November 15, 1999)
This is a capital habeas case.
HELD:
(1) This petition is not subject to the AEDPA, where the petition was filed March 5, 1996, prior to the Act's enactment.
(2) Clayton urges his due process rights were violated when his competency was retrospectively determined six years after his trial, and under a burden of proof later found unconstitutional in Cooper. Retrospective competency hearings are disfavored, but are permissible whenever a court can conduct a meaningful hearing. A meaningful determination is possible when the record, together with additional evidence, permits an accurate assessment of the defendant's condition at the time. A court should consider the passage of time, availability of contemporaneous medical evidence, statements by the defendant and availability of witnesses. The court found no constitutional error in the determination that a retrospective competency hearing was feasible.
(3) In Cooper, the Supreme Court ruled that the use of the clear and convincing evidence standard in a competency hearing violates due process. Cooper was decided after Clayton's direct and post conviction appeals, so the claim was presented first in his federal habeas petition. Ordinarily, exhaustion of state remedies is required, but it is not jurisdictional, and the requirement may be waived by the state or avoided if exhaustion would be futile. The state waived the exhaustion requirement. In addition the OCCA has ruled that a Cooper claim is barred under these circumstances, so that further presentation of the claims to the Oklahoma courts would be futile. A claim that has been defaulted in state court on an adequate and independent state ground will be considered on federal habeas only if the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice. The circuit has held that when considering Cooper claims, the 1995 amendments do not constitute an adequate state law ground. Therefore the circuit reached the merits. A defendant is competent to stand trial if, at the time, he had sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and a rational as well as factual understanding of the proceedings against him. The record does not raise a bonafide doubt as to competency.
(4) Clayton gave two statements to authorities. One was ruled inadmissible because Clayton did not understand his rights. He urges that the other statement also should not have been admitted at trial. Clayton claims counsel was ineffective for failing to challenge the voluntariness of his confession based on mental capacity. But counsel did challenge voluntariness. Interrogation of an accused must cease once he invokes the right to counsel. But further questioning may begin if the accused voluntarily initiates further communication. Routine booking questions do not constitute interrogation. The circuit had to separately determine if the statement was the product of free and deliberate choice, and considers the totality of the circumstances. Clayton's waiver was effective. He knowingly, voluntarily and intelligently waived his right to counsel.
(5) Prosecutorial misconduct warrants federal habeas relief only if the conduct so infected the trial as to result in a denial of due process.
(6) Clayton is procedurally barred from raising his Brady claim.
(7) Under Ake, when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that the state provide access to psychiatric assistance. The OCCA ruled Clayton had waived the issue by failing to raise it on direct appeal. In concluding that Clayton could not establish prejudice, the federal district court ruled Clayton sought to excuse his default by alleging ineffective assistance of counsel. This, if proven, would constitute sufficient cause, but the circuit reviewed the habeas petition and found it did not contain such an allegation. In any event, any error would be harmless.
(8) The especially heinous, atrocious or cruel aggravating circumstance is found if death was preceded by torture or serious physical abuse, as evidenced by conscious physical suffering. The evidence was sufficient for a rational jury to find the victim's death was preceded by serious physical abuse as evidenced by conscious physical suffering.
(9) To establish ineffective assistance of counsel, Clayton must show deficient performance and prejudice. In preparing for trial, counsel determined that there was no evidence to present an alternate perpetrator defense. Failure to make an opening statement does not alone constitute ineffective assistance of counsel. Evidence of guilt was overwhelming in the guilt phase. Trial counsel has a duty to investigate potential mitigating evidence. Even if counsel were deficient in not contacting family members, Clayton must still show prejudice. But there is no reasonable probability that testimony of Clayton's family and friends would have altered the outcome of the case. Clayton did not argue to the state court that newly discovered evidence constitutes either an independent claim of actual innocence so as to bypass procedural bar, or evidence to support ineffective assistance of counsel. In Herrera, the Supreme Court ruled that evidence of actual innocence is not sufficient to warrant habeas relief absent an independent constitutional violation.
Threat (18 U.S.C. § 875) - Interstate Commerce, Local Calls Routed Out of State, Jurisdictional Nexus
United States v. Kammersell, 98-4177 (November 15, 1999)
Kammersell entered a conditional guilty plea to the charge of transmitting a threatening communication in interstate commerce, in violation of 18 U.S.C. § 875(c). Kammersell claimed federal jurisdiction did not exist because he and the recipient were in the same state when the transmission occurred.
HELD:
(1) Refusal to dismiss based on jurisdictional grounds is reviewed de novo. Local calls are routed out of state so that federal jurisdiction would exist to cover almost any communication. The threat was transmitted over interstate telephone lines, and it falls within the scope of the statute. It is not necessary that the transmission have been seen by people in more than one state. Lopez is distinguishable, where that statute did not contain an interstate jurisdictional nexus.
Habeas Corpus (28 U.S.C. § 2254) - AEDPA Applies, Summary Decision by State, Violations of State Law as Denial of Due Process
Aycox v. Lytle, 98-2298 (November 16, 1999); (Rita LaLumia and Phillip Medrano, FPD, Albuquerque, New Mexico)
HELD:
(1) This is an appeal from dismissal of a habeas petition filed pursuant to 28 U.S.C. § 2254. The AEDPA applies. The deferential post-AEDPA standard does not apply though, where the state court did not decide a claim on the merits. Here, there is no evidence the state court did not consider the merits. The circuit concluded it owes deference to the state court's result even if its reasoning is not expressly stated, referring to the language of § 2254(d). The circuit would uphold the state court's summary decision, unless an independent review of the record and pertinent federal law persuades it that the result contravenes or unreasonably applies clearly established federal law.
(2) The constitutional dimension of extradition exists only when a demand is made by one jurisdiction for the surrender of a person in another jurisdiction. There was no showing that New Mexico made any executive demand on California. Constitutional rights connected to extradition proceedings did not attach. Under certain circumstances, a requesting state's failure to request timely extradition implicates the right to speedy trial under the Interstate Agreement on Detainers Act. But Aycox had already been convicted of the New Mexico charges prior to serving his California sentence.
(3) If a state violates its own laws, the habeas petitioner must show the violation of state law denied him due process. Aycox has not even shown a violation of state law with regard to giving credit on a sentence.
Habeas Corpus (28 U.S.C. § 2254) - AEDPA Applies, Standard For Relief, Evidentiary Hearing; Ineffective Assistance of Counsel - Mental Health Expert, Time to Prepare, Deficient Performance and Prejudice; Jury - Fair Cross-Section, Systematic Exclusion; Prosecutorial Misconduct - Comment on Defendant's Failure to Testify; Confession - Voluntariness; Exhaustion of State Remedies - Claim Not Presented; Aggravating Circumstances - Reweigh or Harmless Error, Double Counting, Prior Conviction of Violent Felony and Continuing Threat
Trice v. Ward, 98-6465 (November 15, 1999); (Vicki Ruth Adams Werneke, FPD, Oklahoma City, Oklahoma)
Trice was sentenced to death after being convicted of first degree murder and other charges. His habeas petition was denied. The habeas petition was filed after the effective date of the AEDPA and therefore the Act applies. The statute does not operate retrospectively because it applies to conduct antedating the statute's enactment.
HELD:
(1) Under the AEDPA, a state prisoner is entitled to relief if he can establish that the claim adjudicated by the state courts results in a decision contrary to, or involves an unreasonable application of, clearly established federal law as determined by the Supreme Court, or results in a decision that was based on an unreasonable determination of the facts. If the state court did not decide the claim on the merits, the court reviews the federal district court's conclusions de novo and fact findings for clear error. Trice was not entitled to an evidentiary hearing under pre-AEDPA standards because the circuit could fully resolve his claim on the record before it.
(2) To show ineffective assistance, a petitioner must show deficient performance and prejudice. The OCCA's resolution of the claim was a reasonable application of Strickland regarding lack of a mental health expert. Similarly the OCCA was not unreasonable in its ruling as to time to prepare. It was also reasonable for counsel to concede guilt as to the rape, and try to persuade the jury that Trice did not intend to commit first degree murder or that the jury should spare his life. Counsel must conduct reasonable investigation. Even assuming counsel's performance was deficient, Trice could not show prejudice.
(3) The Sixth Amendment requires that petit juries be drawn from a fair cross-section of the community. A defendant must show the group alleged to be excluded is a distinctive group, representation of the group is not fair and reasonable in relation to the number of such persons in the community, and this under- representation is due to systematic exclusion.
(4) Although a prosecutor may not comment on a defendant's decision not to testify, the prosecutor is free to comment on failure to call certain witnesses. Other prosecutorial comments did not deprive Trice of his constitutional rights. Barring violation of a specific constitutional right, improper comments require reversal only where they infect the trial so as to make it fundamentally unfair. The evidence was overwhelming against Trice.
(5) The ultimate question of voluntariness of a confession is a mixed question of fact and law. State fact findings are entitled to a presumption of correctness. Whether a confession is voluntary depends on the totality of the circumstances. The OCCA's conclusion that Trice's confessions were voluntary is an entirely reasonable application of Supreme Court precedent.
(6) A defendant's rights are not infringed when an appellate court invalidates one or more aggravating circumstances, but affirms the death sentence after reweighing. If state law prevents a state appellate court from reweighing, the court may apply harmless error analysis.
(7) The continuing threat aggravator has been upheld. Double counting under a weighing scheme has a tendency to skew the weighing process. The prior conviction of a violent felony aggravator focuses on past behavior while the continuing threat aggravator is a prediction of the future.
Attorney's Fees - Equal Access to Justice Act; Aliens - Holding Deported Aliens For Indeterminate Time, Denial of Counsel by Transfer, Bivens Action; Statutory Construction - Title and Text, Interpretations That Make Other Sections Superfluous; Jurisdiction - Subject Matter
Van Dinh v. Reno, 98-1312 (November 18, 1999)
Plaintiffs appealed the district court's denial of attorney fees applied for under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A). Van Dinh had permanent resident alien status until convicted of a criminal act and sentenced to deportation. He filed a habeas action challenging the constitutionality of holding deported aliens for an indeterminate time when their country of origin refuses to allow them reentry. In an amended application, he challenged as unconstitutional the possibility of his transfer from the INS facility in Aurora, Colorado, because he would be denied his right to counsel if moved to a remote area. The district court issued a TRO ordering that Van Dinh and the class not be transferred out of Denver. A hearing was scheduled. Van Dinh also filed a Bivens action. Ultimately the INS executed a new contract for the Aurora facility, and the parties reached a stipulation. The court denied the motion for attorney's fees, concluding that the plaintiffs had not shown they prevailed in the underlying Bivens class action.
HELD:
(1) The EAJA requires that a court award to a prevailing party fees and other expenses incurred in any civil action of any court having jurisdiction of that action. A decision regarding attorney fees may be reversed only for abuse of discretion.
(2) The INS claims the district court lacks subject matter jurisdiction under 8 U.S.C. § 1252(a). Appellants claim they prevailed on the habeas action under § 2241, though not on the Bivens claim. Even if the district court had jurisdiction on the habeas action, this does not automatically extend to the Bivens class action. The resolution of this matter is not governed by habeas law.
(3) The title of a statute may imply a limitation on the statute's applicability. But the general rule is where the text is complicated, headings and titles do no more than indicate the provisions in a most general manner. They cannot limit what the text makes plain. Section 1252 addresses a multitude of jurisdictional issues, including ones that are collateral to the review of a final order of deportation. Section 1252 is not limited to review by the circuit courts of final orders of removal.
(4) A Bivens action may be available to remedy a violation of due process, but only when there are no special factors counseling hesitation, in the absence of affirmative action by Congress, no explicit statutory prohibition against relief sought, and no exclusive statutory alternative remedy. Section 1252 indicates a legislative intent to limit review of immigration decisions in federal courts. Prior to the IIRIRA, judicial review of immigration decisions could occur either in a federal court of appeals or a federal district court. In enacting the IIRIRA, Congress reduced review available in district courts, repealed § 1105 that provided that an alien could obtain review by habeas corpus of an order of deportation, and replaced it with § 1252. The new statute limits statutory habeas jurisdiction in the district courts.
(5) The attorney general is mandated to arrange for places of detention for aliens detained pending removal. The attorney general has discretionary power to transfer aliens. Section 1252(f) forcloses jurisdiction to grant class-wide injunctive relief to restrain operation of §§ 1221-31 by any court other than the Supreme Court. The district court has no jurisdiction to restrain the Attorney General's power to transfer aliens by granting injunctive relief in a Bivens class-action suit. Section 1252(a)(2)(B)(ii) provides that no court has jurisdiction to review any decision or action the Attorney General has discretion to make.
(6) A court should not adopt an interpretation of a congressional enactment which renders superfluous another portion of the same law. Section 1252(a) is not redundant of § 1252(g), because that subsection applies only to bar review of discreet discretionary decisions in transitional cases. Even if two statutes overlap, redundancy may be reasonably explained. Two other provisions in the immigration statutes bar judicial review of discretionary decisions. Judicial review of the decision to transfer is barred. Without subject matter jurisdiction, the district court was without authority to award attorney fees under the EAJA.
Motion to Suppress - Review Standard; Arrest - Probable Cause; Sufficient Evidence - Review Standard; Possession - Constructive, Joint Occupancy; Armed Career Criminal Act - Walk Away, Escape
United States v. Springfield, 98-8093 and 98-8103 (November 17, 1999); (James H. Barrett, FPD, Cheyenne, Wyoming)
Springfield was convicted of methamphetamine and gun charges.
HELD:
(1) The court accepts district court fact findings unless clearly erroneous on a motion to suppress, and reviews de novo the legal issue of whether the police had probable cause to arrest the defendant.
(2) Probable cause to arrest exists when an officer has learned of facts and circumstances through reasonably trustworthy information that would lead a reasonable person to believe that an offense has been or is being committed. The court considers the totality of the circumstances. Although nearness to the place of arrest of a co-conspirator is not sufficient for probable cause, that was not the only reason defendant was arrested. The circuit affirmed the district court's denial of the motion to suppress.
(3) In reviewing a sufficiency of the evidence claim, the court takes the evidence in the light most favorable to the government, and will not question the jury's credibility determinations.
(4) A person constructively possesses contraband when he or she knowingly holds ownership, dominion or control over the object and premises. To prove constructive possession where there is joint occupancy, the government must present direct or circumstantial evidence to show some connection or nexus between the defendant and the contraband.
(5) In the government's cross-appeal, the government urges the district court erred in refusing to sentence the defendant under the Armed Career Criminal Act which provides that a defendant, who has three or more prior violent felony convictions and is subsequently convicted under § 922(g), shall be imprisoned for at least 15 years. The district court had agreed with the defendant that his walk away from a prison honor camp did not constitute a violent felony. The circuit disagreed, relying on prior circuit precedent that an escape always constitutes conduct that presents a serious potential risk of physical injury. It is irrelevant whether the escape actually involved any violence, or whether the defendant was convicted under a state statute that defines escape as a non-violent offense.
Bank Fraud (18 U.S.C. § 1344) - Elements; Speedy Trial Act - Open-Ended Continuance, Ends of Justice, Constitutional Speedy Trial Distinguishable; Juror - Fair and Impartial, Fair Cross-Section, Systemic Exclusion; More Than Minimal Planning; Acceptance of Responsibility - Preserve Legal Argument
United States v. Hill, 98-1446 (November 18, 1999)
Hill was convicted of devising a scheme to defraud a financial institution in violation of 18 U.S.C. § 1344. The district court had granted the government an open-ended continuance to resolve issues arising out of the circuit's decision in Singleton.
HELD:
(1) In order for a continuance to qualify as an excludable "ends of justice" continuance under § 3161(h)(8)(A), certain prerequisites must be satisfied. The trial court must consider those factors and set forth reasons for finding that the ends of justice would be served. The circuit reviews the district court's application of the legal standards of the Speedy Trial Act de novo, and its underlying fact findings for clear error. The grant of an ends of justice continuance is reviewed for abuse of discretion. The continuance qualified as an ends of justice continuance. There are occasions when an open ended continuance for a reasonable time period is permissible.
(2) In determining whether a defendant was deprived of his constitutional right to a speedy trial, the court considers length of delay, reason for delay, defendant's assertion of his right to speedy trial, and prejudice to the defendant. The length of time between indictment and trial was four months, and as such, is not presumptively prejudicial.
(3) Whether the charged conduct constitutes a scheme to defraud is a question of law reviewed de novo. To show a violation of § 1344, the government must show the defendant knowingly executed or attempted to execute a scheme or artifice to defraud a financial institution, he did so with intent to defraud, and the federal institution was federally insured. The court referred to Black's law dictionary for the definition of a scheme or artifice to defraud, and concluded the facts alleged in the indictment and proven at trial demonstrated a scheme or artifice to defraud.
(4) The district court denied Hill's motion regarding fair and impartial jury due to lack of a fair cross-section of the community. Review is de novo. The Sixth Amendment requires that petit jurors in criminal trials be drawn from a fair cross section of the community. To establish a prima facie violation of the Sixth Amendment fair cross-section requirement, a defendant must show that the group alleged to be excluded is a distinctive group in the community, that representation of this group is not fair and reasonable in veneers from which jurys are selected, and not fair and reasonable in relation to the numbers of such persons in the community, and this under-representation is due to systematic exclusion of the group in the jury selection process. Hill failed to establish a prima facie case. Evidence of a discrepancy on a single veneer panel is insufficient to demonstrate systematic exclusion.
(5) Hill's sentence was enhanced for more than minimal planning. Review is for clear error.
(6) The district court denied the acceptance of responsibility reduction under §3E1.1. Hill's contention is that he proceeded to trial to preserve his legal argument that the conduct did not violate the bank fraud statute. The court concluded the district court did not commit clear error in denying Hill's request.
(7) Hill's argument regarding the promise of leniency to a witness is governed by the Singleton en banc decision.
Role in Offense - Organizer or Leader, Clear Error Review Standard, Reasons, Sufficient Evidence; Presence at All Stages of Trial
United States v. Spears, 98-5226, and United States v. Chambers, 98-5230 (November 23, 1999)
Spears and Chambers plead guilty to conspiracy in violation of 18 U.S.C. § 371. Each was found to be an organizer or leader.
HELD:
(1) The court reviews for clear error the determination that a defendant was an organizer or leader. The government must prove by a preponderance that the defendant was an organizer or leader. A district court must make findings in the record that describe the defendant's exercise of control or decision-making authority. The district court's findings with regard to Spears were inadequate. Although the findings discuss what sources of evidence the district court used to reach its decision, they do not provide a factual basis for the conclusion. Even if the record evidence overwhelmingly supports the enhancement, appellate fact finding cannot substitute for the district court's duty to articulate clearly the reasons for the enhancement.
(2) Chambers did not raise this issue and it is waived.
(3) Section 3B1.1(a) provides for an increase of four points if the defendant was an organizer or leader of criminal activity that involved five or more participants. Note 7 lists seven factors for determining whether a conspirator was an organizer or leader. The gravamen of the enhancement is exercise of control. A defendant may be a leader even if she only exercises control over one person. The evidence was sufficient to support the finding that Chambers was an organizer or leader.
(4) Criminal defendants have a right to be present at every stage of the trial. Rule 43(a). This includes presence at a presentence hearing in a co-defendant's case if the testimony will affect the defendant's sentence. Chambers had an opportunity to call a co-defendant, Duroy, to testify before she was sentenced. Spears had done so. Because Chambers has not shown that the district court prevented her from calling Duroy to testify, she has not shown that the district court violated her right to be present at all stages of her trial. In addition, use of testimony from a co-defendant's sentencing is analogous to use of testimony from a co-defendant's trial.
Habeas Corpus (28 U.S.C. § 2254) - AEDPA Does Not Apply, Discovery; Prosecutorial Misconduct - False Testimony, Mislead Jury; Admission of Evidence - Fair Trial, Prior Bad Acts; Instructions - Fair Trial; Ineffective Assistance of Counsel - Performance and Prejudice, Conflict of Interest; Mitigation - Mental Condition; Instructions - Lesser Included Offense; Aggravating Circumstances - Double Counting, Continuing Threat
Smith v. Gibson, 98-7066 (November 23, 1999); (Randy Bauman, AFPD, Death Penalty Federal Habeas Corpus Division, Oklahoma City, Oklahoma)
This is a habeas corpus case under 28 U.S.C. § 2254. Smith was convicted of bludgeoning an acquaintance to death, and was sentenced to death based on three aggravating circumstances.
HELD:
(1) Because this habeas petition was filed prior to the enactment of the AEDPA, the Act does not apply.
(2) The court affords the presumption of correctness to a state appellate court's fact findings. The court rejected the claim that the prosecutor knowingly misled the jury into believing that a witness, Dixon, was not testifying pursuant to a deal with prosecutors. Dixon had been Smith's cellmate and testified that Smith admitted that he had killed the victim. The mere fact that a witness is subsequently allowed to plead on favorable terms is not evidence that a plea agreement was secretly reached prior to the witness' testimony.
(3) Review of the record establishes that the state trial court permitted discovery in the post-conviction proceeding. Therefore the court would presume that the state appellate court's credibility determination was correct.
(4) A federal habeas petitioner will be entitled to discovery only if, and to the extent, that the district judge, in the exercise of his discretion and for good cause shown, grants leave to do so. Because Smith had discovery and an opportunity to develop this evidence during the state post-conviction proceedings, the district court did not abuse its discretion in denying further discovery.
(5) In order to recover on a claim of prosecutorial use of false testimony, Smith had to establish that the prosecutor knowingly presented false testimony.
(6) Dixon at trial volunteered that Smith had been charged with kidnaping his daughter. The state had previously agreed not to present evidence of this incident in response to Smith's motion in liminie. Smith is entitled to relief on his claim if he can establish that the admission of this testimony rendered the trial fundamentally unfair. It did not. Admission of unadjudicated bad acts during a capital sentencing proceeding does not violate due process.
(7) Smith's claim regarding failure to give a cautionary instruction concerning Dixon's testimony is not a recognized federal constitutional right, and he is not entitled to habeas relief on this claim unless the refusal to give the instruction resulted in a fundamentally unfair trial.
(8) To support a claim of ineffective assistance of counsel, Smith must show his attorney's performance was deficient and he was prejudiced. During closing argument defense counsel acknowledged the crime was cruel. However, given the evidence, defense counsel could not credibly have argued otherwise. Considered in the light of the entire argument, counsel argued Smith's innocence. Counsel did not abandon his duty of loyalty to his client. There was no per se ineffectiveness. Nor was counsel's performance deficient. Counsel's argument, targeting residual doubt the jurors might have had, has been recognized as an effective argument for defendants in capital cases. Even assuming counsel's performance was deficient with regard to preparation of Smith for testimony, Smith has not shown any resulting prejudice. Counsel did not go into details of Smith's prior rape conviction, in order to prevent the prosecution from presenting rebuttal testimony of the rape victim.
(9) The state presented evidence of future dangerousness. Smith would have been entitled to appointed psychiatric assistance if he could have established that his mental condition was likely a significant mitigating factor. Trial counsel stated at the post-conviction hearing that nothing led him to believe Smith was not competent, and the record does not suggest that Smith's mental condition would have been a significant mitigating factor. Nor did the absence of such evidence prejudice Smith. A 1995 evaluation indicated he suffers from organic brain damage which impairs his judgment and causes him to act impulsively. While this would have been proper mitigating evidence, it does not outweigh the supporting multiple aggravating circumstances.
(10) Counsel has a duty to conduct reasonable investigation for mitigating evidence, or to make a reasonable decision that such investigation is unnecessary. In a capital case, the attorney's duty to investigate all possible lines of defense is strictly observed. Even if counsel's performance were deficient, Smith cannot show prejudice. Smith has presented affidavits and deposition testimony of a number of people who said they would have testified if called in his behalf. But Smith could not show that this mitigating evidence concerning close family, affect of his mother's death, care for his children, reliability at work, likable personality, school and athletic activities, etc. would have resulted in the jury sentencing him to life imprisonment, in light of the brutal and senseless nature of this crime.
(11) Beck requires the trial court to instruct the jury in a capital case on a lesser included non-capital offense, if the evidence would support such an instruction. Smith did not make such request. When a defendant chooses not to request such instruction, Beck does not require reversal in a federal habeas action, because there may be strategic reasons why a defendant might not want to present the jury with a compromise opportunity.
(12) Double counting of aggravating factors, especially under a weighing scheme, has a tendency to skew the weighing process. The test is not whether certain evidence is relevant to both aggravators, but rather whether one aggravating circumstance necessarily subsumes the other.
(13) Oklahoma's continuing threat aggravating factor has been consistently upheld in the face of claims that it is unconstitutionally vague and overbroad.
Motion to Suppress - Review Standard; Arrest - Probable Cause, State Law; Search - Without Warrant, Home, Consent
United States v. Davis, 98-8087 (November 26, 1999); (James H. Barrett, FPD, Cheyenne, Wyoming)
Davis was convicted of being a felon in possession of a firearm. He appeals the denial of his motion to suppress.
HELD:
(1) The court accepts fact findings on a denial of a motion to suppress unless clearly erroneous, and reviews the ultimate reasonableness of a search or a seizure de novo.
(2) An arrest is a seizure and is reasonable when there is probable cause to believe an offense has been or is being committed. Probable cause is measured against an objective standard. The subjective belief of an individual officer as to whether there was probable cause for making an arrest is not dispositive. Officers could reasonably have believed that Davis committed two crimes under Wyoming law, given his threat to shatter his estranged girlfriend's windshield and his admission that he had done so.
(3) Under Wyoming law a peace officer may arrest a suspect without a written warrant when the officer has probable cause to believe that a misdemeanor has been committed by that person, and that the person may cause injury to himself or others or damage to property. Davis' arrest was justified under Wyoming law.
(4) A warrantless search of an arrestee's home is per se unreasonable, unless it falls within some well defined exception. Consent to search must be unequivocal, specific, and freely and intelligently given. Davis was advised of his Miranda rights, had orally consented to the search of his bedroom, and signed a form advising him of his right to refuse. Therefore the search was the product of an uncoerced consent.
Sufficient Evidence - Review Standard; Continuing Criminal Enterprise - Supervision, Instructions; Admission of Evidence - Discretion Standard, Opinion Testimony, Impeachment With Guilty Pleas; Indictment - Notice of Drug
United States v. McSwain, 97-6345 (November 24, 1999); (Howard A. Pincus, FPD, Denver, Colorado)
McSwain was convicted of several narcotics violations. The case involves an Oklahoma based piperidine and phencyclidine (PCP) distribution network. In 1986, the government charged McSwain and eight others in a 31 count indictment. Co-defendants were tried, but McSwain had escaped and remained a fugitive. He was rearrested in 1996 and tried in 1997. His ex-wife provided the bulk of testimony at the trial. She testified that McSwain had been incarcerated in August 1982 for conspiracy to manufacture PCP. She had helped arrange shipments of piperidine, a precursor chemical. She testified to various piperidine sales that she made to buyers. Several other testified at the trial. McSwain was found guilty on all counts. He was sentenced to concurrent pre-guideline sentences of 15 years on the CCE count, 10 years on the conspiracy and PCP counts, five years on the Travel Act counts, and one year on each tax count. The court also imposed a special term of parole of two years on the PCP count.
HELD:
(1) The court reviews de novo whether sufficient evidence exists to support a conviction asking whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
(2) The CCE statute, 21 U.S.C. § 848, imposes addition criminal liability for defendants who exercise differing levels of managerial control and coordination. The evidence was sufficient that McSwain supervised at least five other people.
(3) If certain individuals were, as a matter of law, incapable of counting as supervisees, the jury needed to be instructed of this. This issue was not adequately raised in the district court. It is incumbent on the defendant to request an instruction that the jury is not to consider persons as to whom he regards evidence of supervision as insufficient. With regard to jury instructions, error arises, if, considering the instructions as a whole, the jury has been mislead. It was not plain error for the district court to fail to instruct the jury as to which, if any, persons could not have been considered for the CCE conviction.
(4) The court reviews a decision to admit testimony for abuse of discretion. Rule 704 allows for admission of opinion testimony, even though it embraces an ultimate issue to be determined by the trier of fact.
(5) The conspiracy conviction must be vacated as it is a lesser included offense of the CCE conviction. There is no Speedy Trial Act violation where McSwain waived his right to a speedy trial. Nor was McSwain denied due process when indicted on PCP offenses because the term PCP was used synonymously with phencyclidine at least as early as 1973.
(6) It was not plain error for the district court to introduce co-defendants' guilty pleas. McSwain had not objected at trial. The purpose was proper, that is, credibility. Defense counsel made use of this evidence to attempt to impeach the witnesses. The court gave a cautionary instruction.