On a March morning in 1994, two homicide detectives and a Los Angeles Times reporter stood on the roof of a South L.A. brothel, bullets and spent shells at their feet. The detectives were investigating the fatal shooting of a 29-year-old man who was killed during an apparent robbery the night before. Los Angeles police […]
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Some of you may recall a post I put up three months after Descamps suggesting an argument that the California drug statutes aren’t divisible because juries aren’t required to unanimously agree on the type of drug involved in the offense. (See “Still More on Descamps: An Application of Last Week’s Post” in the September 2013 link at the right.) That argument was rejected, albeit in a footnote with relatively minimal analysis and no discussion of the cases cited in my post, in Coronado v. Holder, 759 F.3d 977 (9th Cir. 2014). See id. at 985 n.4.
Judge Graber’s dissent from the denial of rehearing en banc in Rendon v. Holder which I discussed in my post last week recognizes that the panel opinion in Rendon raises doubt about Coronado. She notes that “at least one judge questioned the correctness of Coronado under Rendon’s approach.” Rendon v. Holder, ___ F.3d ___, 2015 WL 1474921, at *5 (9th Cir. April 2, 2015). The doubt was expressed by Judge Hawkins in a concurring opinion in United States v. Ramirez-Macias, 584 Fed. Appx. 818 (9th Cir. 2014). Judge Hawkins noted that “[b]oth sides reasonably can marshal intermediate appellate case law in their favor,” and went on to cite some of the same cases cited in my prior post. Id. at 820. (No, I’m not claiming he cited them because they were in my post, or even that he’d read my post.) He then went even further and suggested that “[b]ecause the magnitude of this issue is great and because we should tread carefully as we interpret unclear areas of state law, the en banc court may wish to consider these issues or certify the jury unanimity question to the Supreme Court of California.” Id. While the docket reflects that a petition for rehearing was denied in that case (just the day before the order denying en banc review, and accompanying dissenting opinions, were filed in Rendon), the docket also reflects all the judges in Ramirez-Macias voted for and/or recommended en banc review. Further, Judge Graber noted multiple pending petitions for rehearing in her Rendon dissent, not just the petition in Ramirez-Macias. See id., 2015 WL 1474921, at *5.
Coronado does seem subject to attack, moreover. It was decided before Rendon and, while it doesn’t reject the rule that something can be an “element” only if jury unanimity is required, it certainly doesn’t embrace that rule. It simply states in a three-sentence footnote:
Coronado further argues that “the precise controlled substance possessed is not an essential element” of § 11377(a). Neither case he cites supports this contention. See People v. Palaschak, 9 Cal. 4th 1236, 40 Cal. Rptr. 2d 722, 893 P.2d 717, 720-21 (1995) (holding that an offender may be convicted of the offense of possessing drugs despite having ingested those drugs); People v. Martin, 169 Cal. App. 4th 822, 86 Cal. Rptr. 3d 858, 861-62 (2008) (finding no error where the defense failed to object to the specificity of the pleadings and the defendant was not prejudiced by the conflicting references to “cocaine” and “cocaine base” because the penalty of the offense was the same). The jury instructions applicable to this offense also undermine Coronado’s argument. See CALCRIM No. 2304 (2013); CALJIC 12.00 (2013).
Coronado, 759 F.3d at 985 n.4.
This reasoning falls short in several respects. First, it ignores other cases that support the argument, which are cited in my prior post. Second, the pattern jury instructions the footnote cites don’t really suggest anything one way or the other. The CALJIC instruction indicates that the court should “[i]nsert the name of the controlled substance as alleged in the information,” which presumably means all of the substances alleged if more than one is alleged and/or just “controlled substance” if the specific type isn’t alleged. The CALCRIM instruction simply tells the court to “insert type of controlled substance,” but doesn’t indicate that the court can’t enter more than one type if there’s more than one possibility. And nothing in either instruction tells the jury it has to unanimously agree on the controlled substance if it’s given more than one option.
In sum, it’s worth trying to take Judge Hawkins up on his invitation for possible en banc review. Coronado was decided before Rendon clearly established that jury unanimity is a requirement for divisibility, it has minimal analysis, it ignores pertinent state case law, and it cites jury instruction authority that is at best ambiguous about unanimity.
Finally, remember a second, alternative challenge to the divisibility of some of the California drug statutes. That’s an argument from our Los Angeles Federal Public Defender office about the absence of a jury unanimity requirement in the California statutes criminalizing sale of drugs, such as California Health and Safety Code § 11352 (for most controlled substances) and 11360 (for marijuana). Those statutes apply (or at least they did until the statute was amended in 2013, and remember that what matters is the statute as it was written at the time the defendant was convicted, not the statute as it’s written now) not just to sale but also to transportation for personal use, and there’s a very plausible argument that juries aren’t required to unanimously agree on which conduct the defendant engaged in. For an outline of this argument and some sample pleadings, see the prior post mentioned in passing in last week’s post – entitled, “Another Descamps Angle on a California Drug Statute” – in the May 2014 link at the right.
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For those of you who knew about it – and even more for those of you who were worried about it – I thought I’d put up a post about a petition for rehearing en banc that’s been pending in the Rendon v. Holder case (764 F.3d 1077 (9th Cir. 2014)) which I discussed in a post last October. (See “The Ninth Circuit Agrees With Us on What Divisibility Means Under Descamps,” in the October 2014 link at the right.) You’ll recall that the holding in Rendon was that a statute containing a list of alternatives is divisible under Descamps only if a jury has to unanimously agree on which alternative is true. The good news is that the petition for rehearing en banc in Rendon was just recently denied.
The order denying rehearing was accompanied by two dissents, however. One was a very lengthy dissent by Judge Graber, see Rendon v. Holder, ___ F.3d ___, 2015 WL 1474921 (9th Cir. April 2, 2015), which I think is worth discussing for two reasons. First, just for the intellectual exercise (though those of you in circuits without controlling authority may have the dissent pointed out and then need to respond to it), and, second, for an attack on the California drug statutes that the dissent suggests is worth continuing, at least for now.
Judge Graber’s dissent relies largely on a footnote in Descamps v. United States, 133 S. Ct. 2276 (2013), which is the opinion Rendon interpreted and applied. That footnote reads:
The dissent delves into the nuances of various States’ laws in an effort to cast doubt on this understanding of our prior holdings, arguing that we used the modified categorical approach in Taylor[ v. United States, 495 U.S. 575 (1990)], Shepard[ v. United States, 544 U.S. 13 (2005)], and Johnson[ v. United States, 559 U.S. 133 (2010)] “in relation to statutes that may not have been divisible” in the way that we have just described. Post, at 2297 (ALITO, J.). But if, as the dissent claims, the state laws at issue in those cases set out “merely alternative means, not alternative elements” of an offense, post, at 2298, that is news to us. And more important, it would have been news to the Taylor, Shepard, and Johnson Courts: All those decisions rested on the explicit premise that the laws “contain[ed] statutory phrases that cover several different . . . crimes,” not several different methods of committing one offense. (Citations omitted.) And if the dissent’s real point is that distinguishing between “alternative elements” and “alternative means” is difficult, we can see no real-world reason to worry. Whatever a statute lists (whether elements or means), the documents we approved in Taylor and Shepard – i.e., indictment, jury instructions, plea colloquy, and plea agreement – would reflect the crime’s elements. So a court need not parse state law in the way the dissent suggests: When a state law is drafted in the alternative, the court merely resorts to the approved documents and compares the elements revealed there to those of the generic offense.
Descamps, 133 S. Ct. at 2285 n.2, quoted in Rendon, 2015 WL 1474921, at *2 (emphasis added by Judge Graber).
I have to confess the language in this footnote seems far more ambiguous to me than Judge Graber suggests. It does disclaim the need to “parse state law,” but it also refers at multiple points to “elements,” including in the text Judge Graber emphasizes. And Judge Graber’s position is problematic for multiple other reasons. First, it creates a problematic distinction between statutes which list alternative means (as opposed to elements) and those which don’t list the alternative means; she would allow a court to use the modified categorical approach for the former, but not use it for the latter. Second, it ignores the limits and rationales for the modified categorical approach which Descamps emphasized in the non-footnote text. Those are that (1) the modified categorical approach is merely another version of the categorical approach to be used when a single statute includes multiple offenses, see Descamps, 133 S. Ct. at 2285; (2) it must avoid creating Sixth Amendment problems by making sure the Sixth Amendment’s jury unanimity requirement was respected (see another post, “More on Descamps,” in the September 2013 link at the right for multiple ways in which the Descamps opinion emphasizes this); and (3) it must retain the categorical approach’s focus on the crime the defendant was “convicted” of, not the crime he “committed,” see Descamps, 133 S. Ct. at 2285, 2287; see also Taylor, 495 U.S. at 600.
Judge Graber does make a couple of other policy and/or practice points in support of her argument. One is a suggestion that the jury instructions in most trial cases will have narrowed the alternatives in the statutory list down to a single one, so the jury will have unanimously found that single alternative, and in cases where there wasn’t such narrowing, the modified categorical approach wouldn’t have any impact anyway. See Rendon, 2015 WL 1474921, at *4. But, first, this ignores guilty plea convictions, where there are far more gradations in the record than the “yes or no” of whether there were jury instructions requiring unanimity. (See, as an example, United States v. Murcia-Acosta, ___ F.3d ___, 2015 WL 1283771 (9th Cir. March 23, 2015), where the court had to consider whether a defense attorney statement of the factual basis was enough.) Second, Judge Graber may be setting up a straw man with the example she uses, which is the type of drug in a California drug case. See Rendon, 2015 WL 1474921, at *4 (asserting that jury will usually have been instructed it must unanimously find “cocaine,” and the instructions will be insufficient if it was instructed it need find only a “controlled substance” or “cocaine or khat”). It may be unusual that the jury will be told they can find either of two different drugs, but it might not be unusual for them to be told they can find either of two different types of conduct, such as either sale or transportation. (For a discussion of California statutes’ inclusion of both of these types of conduct and the potential for a challenge to divisibility based on that, see another Descamps post – “Another Descamps Angle on a California Drug Statute” – in the May 2014 link at the right.)
Judge Graber also expresses concern about having to “delve into the nuances of a seemingly endless variety of state laws in order to determine whether, in the abstract, a jury must unanimously agree as to which statutory alternative the defendant committed.” Rendon, 2015 WL 1474921, at *5. But that train’s already left the station. We already “delve into the nuances” of state law in determining the substantive scope of state statutes. Judge Graber asserts that determining state law on jury unanimity is “a notoriously uncertain inquiry,” Rendon, 2015 WL 1474921, at *5, but determining the scope of state statutes can also be a highly nuanced and difficult task. See, e.g., James v. United States, 550 U.S. 192, 204-06 & nn.3,4 (2007) (acknowledging state case law establishing differing scope of attempted burglary statutes in different states). Jury unanimity questions may actually be easier to answer at times, because there may be pattern jury instructions to look to.
For us in the Ninth Circuit – and the Fourth (see the case of United States v. Royal, 731 F.3d 333 (4th Cir. 2013), that’s cited in Rendon and discussed in another prior post, “More on What’s a Divisible Statute Under Descamps,” which can be found in the April 2014 link at the right) – the foregoing discussion is largely an intellectual exercise. But for those of you in other circuits, it’s more than an intellectual exercise, because your circuits will have to decide whether to follow the analysis of the panel opinion in Rendon or the analysis suggested in Judge Graber’s dissent. At least you’ve got controlling precedent in two circuits to start with.
And for those in our circuit, I’ll have some more thoughts in next week’s post – on what Judge Graber’s dissent suggests about continuing an attack on the California drug statutes. That post will hopefully be more than an intellectual exercise.
Read/Write CommentsIn the vein of last week’s post on ameliorating sentencing legislation – and maybe because I’m feeling a little lazy this week – I thought I’d share a presentation I gave – just before leaving the Federal Public Defender’s office – on what I called the “history” of changes in the criminal justice system over my lifetime and my career as a public defender. It was a presentation put on by the California Supreme Court Historical Society that was led by Barbara Babcock, a mentor and former professor of mine (and former public defender), who’s made her most recent project a study of the first Los Angeles County Public Defender, Clara Foltz.
In any event, my presentation on the panel was about the history of changes in the criminal justice system over my lifetime and career as a public defender in the form of the horrible swing toward harshness, and possible glimmers of hope for a swing back. I also offered some thoughts on how and why restricting sentencing in individual cases with detailed sentencing rules created by bodies like Congress and a Sentencing Commission creates an inherent bias in favor of harshness.
Rather than try to reproduce it all here, I’m attaching the Society’s newsletter that transcribed the presentation for you to read for yourself, linked here. My presentation starts at page 27, but feel free to read the other panelists’ remarks as well, including Barbara’s presentation about Clara Foltz and two local law professors’ presentations on “Public Defense and the Women’s Movement” and “Prosecutorial Misconduct in the Modern Age.”
Perhaps you’ll be able to use some of my thoughts – or your own modification and improvement on them – for policy attacks on the guidelines. If not, at least entertain yourself with the short “history” of the criminal justice system over my lifetime and career. I’ll be back next week with something a little less lazy.
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Last year, I put up a post about some potential sentencing policy changes on all three government fronts – Sentencing Commission, Congress, and Executive – and wondered if we might actually see some real relief. (See “Is There Some More Real Change Going to Happen Out There?” in the January 2014 link at the right.) There was a policy memorandum put out by the Attorney General directing more limited charging of mandatory minimum quantities and prior conviction enhancements, a proposed guideline amendment reducing drug base offense levels by 2 levels across the board, and, perhaps most exciting of all, a bill introduced in Congress named the “Smarter Sentencing Act” which would have cut statutory mandatory minimums in half. And the bill in Congress was expressly supported by the Sentencing Commission, as noted in my post last year.
As you all presumably know, two of the three policy changes actually took effect. The guideline amendment is in place, effective November 1, 2014, and the Attorney General charging policies had already been created, though I’m not clear on how readily they’re being implemented by line AUSA’s. (If any of you have comments and/or experiences you want to share on that, feel free to share them by clicking on the “Read More” or “Comment” option at the bottom of this post.) The statutory amendments proposed in the Smarter Sentencing Act unfortunately didn’t take effect, however, so we’re left with harsh statutory mandatory minimums that even many members of Congress – perhaps even a majority, if we attribute the bill’s failure to legislative inertia more than lack of support – think are too harsh.
Still, hope springs eternal, or, to track the title of this post, we can keep on dreaming. A comparable bill, linked here, was introduced in this year’s Congress, named the “Smarter Sentencing Act of 2015.” It’s like last year’s bill, except that it would limit the reduced minimums in importation cases to “couriers,” which are defined to be defendants “whose role in the offense was limited to transporting or storing drugs or money.” Like last year’s bill, it has bipartisan support from both ends of the political spectrum, including not just Democrats like Senators Leahy and Durbin, but Republicans like Rand Paul and Ted Cruz. There’s also another sentencing bill, named the “Justice Safety Valve Act of 2015.” which is linked here. That bill would add a subsection (g) to 18 U.S.C. § 3553 allowing a court to impose a sentence below a statutory mandatory minimum without finding any of the present safety valve requirements, whenever “the court finds that it is necessary to do so in order to avoid violating the requirements of subsection (a).” In other words, a court can go below the mandatory minimum whenever it’s required by what we’ve started calling the “3553(a) factors” and/or the “parsimony principle,” United States v. Chavez, 611 F.3d 1006, 1010 (9th Cir. 2010).
Of course, it may be just dreaming to think this bill will pass. On the other hand, it does have support from both sides, and it’s not just the interests of our clients that the bill advances. The bill also has significant budgetary implications that advance the interests of all taxpayers, as noted in the Senator Paul press release linked here. One of the interesting facts noted in this press release is that correctional spending now accounts for almost a third of the Department of Justice’s budget.
Even if the Smarter Sentencing Act again doesn’t get passed, think about how and whether you can use this for Booker variance arguments. What’s suggested by the bill – and directly expressed by the Congresspersons and Senators supporting it – is that far lower sentences will reflect the seriousness of the offense, promote respect for the law, and provide just punishment, to track the language of 18 U.S.C. 3553(a)(2)(A). It’s not just that the drug mandatory minimums and the guidelines tied to them aren’t the product of any empirical research or analysis. (See the last paragraph of my post from last year – and all the times you’ve perhaps argued it yourself in deconstructing the guidelines, as discussed in my past posts on that topic (and for the point that this is what guidelines are supposed to be based on, see the post entitled “Deconstruction and Reconstruction of the Sentencing Guidelines: Part 1” in the November 2013 link at the right and the posts following it).) It’s that even present day legislators – from all points along the political spectrum – don’t think present drug sentences are a good idea. Think about making this point as a reason why your judge should decline to follow the drug guidelines. The judge can decide that he or she simply disagrees with the present drug sentencing structure on a policy basis – like a multitude of respected legislators. (For authority that such a policy disagreement can be enough, see the opinions of none other than the Supreme Court in Spears v. United States, 555 U.S. 261, 265-66 (2009) and Pepper v. United States, 131 S. Ct. 1229, 1247 (2011).)
So step out there and use this bill even if it isn’t passed. And write your Congressperson or Senator if you’re so inclined.
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Why is it that the government gets to pick and choose what parts of your client’s statement or confession to introduce? Why don’t they have to put in the whole thing if they want to put in part of it? Or why can’t we at least put in the rest of it if they don’t? (Yes, I know, every now and then we’re thankful they don’t put in the whole thing because the rest of it’s even worse. But usually they put in the worst stuff, no?)
Unfortunately, there’s an answer to these questions which isn’t helpful, albeit one that’s qualified. It’s the rule of evidence governing admissions of party-opponents, codified in the Federal Rules of Evidence as Rule 801(d)(2)(A). This creates an exception to the hearsay rule for a statement made by a party (such as a criminal defendant) that “is offered against [the] opposing party.” When the government offers part of a defendant’s statement, it’s being offered against an opposing party. But when the defendant tries to offer it, it’s being offered not against an opposing party, but by the party who made the statement.
There is a limitation, however, in Rule 106 of the Federal Rules of Evidence. The limitation is known as “the rule of completeness,” which was recognized at common law long before there were any evidence codes. Rule 106 provides that “[i]f a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part – or any other writing or recorded statement – that in fairness ought to be considered at the same time.” While the rule by its terms applies only to written or recorded statements, case law has extended it to oral statements – through a provision in Rule 611(a) that allows courts to “exercise reasonable control over the mode and order of examining witnesses and presenting evidence.” See United States v. Collicott, 92 F.3d 973, 983 n.12 (9th Cir. 1996) (noting that “other circuits have held that ‘Fed. R. Evid. 611(a) grants district courts the same authority regarding oral statements which [Rule] 106 grants regarding written and recorded statements’” (quoting United States v. Li, 55 F.3d 325, 329 (7th Cir. 1995)). See also United States v. Liera-Morales, 759 F.3d 1105, 1111 (9th Cir. 2014) (noting other Ninth Circuit opinions suggesting rule applies only to written and recorded statements, but going on to acknowledge that “at least two of our sister circuits have recognized the principle underlying Rule 106 also applies to oral testimony ‘by virtue of Fed. R. Evid. 611(a), which obligates the court to make the interrogation and presentation effective for the ascertainment of the truth’” (quoting United States v. Mussaleen, 35 F.3d 692, 696 (2d Cir. 1994) and citing Li)). And where it’s a criminal defendant who wants to offer the remainder of a statement, there are constitutional confrontation and due process rights that are implicated. See, e.g., United States v. Mitchell, 502 F.3d 931, 965 (9th Cir. 2007) (framing issue as whether defendant’s “constitutional right to cross-examine witnesses [was] severely restricted [ ]or . . . his due process rights offended”).
So far I may not have told you anything you don’t already know. What led me to write this post is what I see as overly restrictive Ninth Circuit case law interpreting and applying Rule 106 and the way the government trumpets that case law in its boilerplate trial briefs. The bad case law started with the Collicott case I cite above, which was actually a defense challenge to the government’s use of Rule 106. Collicott found the rule didn’t allow admission of the other parts of a declarant’s statements there because (1) “in textual form, Rule 106 is inapplicable to the present action because no writing or recorded statement was introduced,” id. at 983 (though the court then acknowledged this was “not dispositive” because of the alternative Rule 611 theory noted above, id. at 983 n.12); (2) Rule 106 “does not compel admission of otherwise inadmissible hearsay evidence,” id. at 983 (quoting Phoenix Associates III v. Stone, 60 F.3d 95, 103 (2d Cir. 1995) and United States Football League v. National Football League, 842 F.3d 1335, 1375-76 (2d Cir. 1988)); and (3) the purpose of Rule 106 was not served “because there was no concern in this case that [the defendant] introduced a misleadingly-tailored snippet from [the out-of-court declarant’s] statement,” Collicott, 92 F.3d at 983. The court then went on in a later case – which the government loves to cite in its boilerplate trial briefs – to apply these rationales to statements or confessions by criminal defendants. See United States v. Ortega, 203 F.3d 675, 682-83 (9th Cir. 2000).
Ortega – and other cases – do leave an opening, however, which the government likes to ignore. Even in Ortega, the court felt compelled to point out that the testimony about the limited portions of the defendant’s statements actually introduced “did not distort the meaning of [the defendant’s] statements.” Id. at 683. And other cases both before and after Ortega have similarly felt compelled to emphasize this. In United States v. Dorrell, 758 F.2d 427 (9th Cir. 1985), the court emphasized that the excluded portions of the defendant’s confession “did not change the meaning of the portions of his confession submitted to the jury.” Id. at 435. In United States v. Duran-Orozco, 192 F.3d 1277 (9th Cir. 1999), the court similarly noted that “the excluded portion of [the defendant’s] statement would not have cast further any extenuating light on his declaration.” Id. at 1282. In United States v. Mitchell, supra, the court cited Ortega and mirrored Ortega’s reasoning to find there was no constitutional violation, because the selected defendant statements “were not taken out of context or otherwise distorted.” Id., 502 F.3d at 965. Finally, in United States v. Vallejos, 742 F.3d 902 (9th Cir. 2014) and United States v. Liera-Morales, supra, the court found no violation because the redacted statements were “not misleading,” Vallejos, 742 F.3d at 905, or were “neither misleading nor taken out of context,” Liera-Morales, 759 F.3d at 1111. A four-factor test suggested by the Second, Third, and Seventh Circuits focuses on whether the other statements are “necessary to (1) explain the admitted portion, (2) place the admitted portion in context, (3) avoid misleading the trier of fact, or (4) insure a fair and impartial understanding.” United States v. Sweiss, 814 F.2d 1208, 1211-12 (7th Cir. 1987) (quoting United States v. Soures, 736 F.2d 87, 91 (3d Cir. 1984) and citing United States v. Marin, 669 F.2d 73, 84 (2d Cir. 1982)). See also United States v. Dorrell, 758 F.2d at 435 (citing Marin with approval).
The clear implication of this line of cases taken as a whole is that the government can offer portions of a defendant’s statements only when the statements it offers are not taken out of context, when offering those statements alone is not misleading, and when offering those statements alone does not change the meaning of the statements. That this is a requirement is illustrated by United States v. Haddad, 10 F.3d 1252 (7th Cir. 1993), in which the court held it was error, albeit harmless error, to admit a defendant’s statement that he knew about marijuana found under a bed without also admitting testimony that he had denied knowing about a gun found right next to the marijuana. The court explained:
The admission of the inculpatory portion only (i.e. that he knew of the location of the marijuana) might suggest, absent more, that the defendant also knew of the gun. The whole statement should be admitted in the interest of completeness and context, to avoid misleading inferences, and to help insure a fair and impartial understanding of the evidence.
Id. at 1259.
It doesn’t have to be an all or nothing call, moreover. One middle-of-the-road approach a court can take is suggested by United States v. Burreson, 643 F.2d 1344 (9th Cir. 1981). The district court there had not simply let the government alone decide what to introduce but had, as described by the court of appeals, “carefully considered the entire transcript, and added material to the excerpt offered by the government to put it in proper context.” Id. at 1349. So consider asking the judge to at least take this middle ground. Remember to also point out that the published court of appeals opinions hold only that it wasn’t an abuse of discretion for the district courts in those cases to exclude the other parts of the defendants’ statements. That doesn’t mean a different court couldn’t exercise its discretion differently in a different – or even similar – case. The only thing a “not abuse of discretion” holding by a court of appeals means is “that within substantial margins the district court could be upheld had it determined the issue one way or the other.” Speiser, Krause & Madole, P.C. v. Ortiz, 271 F.3d 884, 887 (9th Cir. 2001) (emphasis added). (For more on this point, see my prior post on what prior cases finding no abuse of discretion do and don’t mean – “The Case Law They Cite Is About the Abuse of Discretion, Not the Exercise of Discretion” – in the March 2013 link at the right.)
Finally, in the event none of this convinces the trial court in your case and the court interprets Rule 106 narrowly and expresses doubt about whether it has discretion to require the government to include other portions of the defendant’s statements, think about Rule 403 of the Federal Rules of Evidence. Rule 403 allows a court to exclude any evidence whose probative value is substantially outweighed by a danger of, among other things, “unfair prejudice,” “confusing the issues,” and/or “misleading the jury.” If the judge has doubts about whether he or she can affirmatively tell the government to include something, suggest the judge can use Rule 403. The judge can tell the government it has to include enough of the defendant’s statements to avoid unfair prejudice, confusing the issues, and/or misleading the jury and that the statements will simply be excluded in their entirety if it doesn’t avoid those things. Cf. 1 Christopher B. Mueller and Laird C. Kirkpatrick, Federal Evidence § 1:43 (4th ed. 2013) (suggesting that “basic notions of relevancy embodied in Rule 401, coupled with the principle in Rule 403 that evidence can be excluded if it is misleading or overly prejudicial, both complemented by the power of trial judges acknowledged in Rule 611 to exercise ‘reasonable control’ over the presentation of evidence in order to aid in ‘determining the truth,’ provide ample basis to apply the completeness principle more broadly”).
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I left off in my last post with the hopeful comment that there’s one more angle. It’s actually a silver lining that can be found in some of the more recent of the cases rejecting the Apprendiargument that I suggested on the ACCA “committed on occasions different from one another” “element” (if I can use that word). It’s a line of recent cases that, first, make clear the burden is on the government to show the prior offenses were “committed on occasions different from one another,” and, second, hold the only evidence the government can use is the limited set of records that can be used for categorizing an offense as a “violent felony” or “serious drug offense” underTaylor v. United States, 495 U.S. 575 (1990) and Shepard v. United States, 544 U.S. 13 (2005). See United States v. Dantzler, 771 F.3d 137, 145 & n.3 (2d Cir. 2014) (collecting cases);Kirkland v. United States, 687 F.3d 878 (7th Cir. 2012) (also collecting cases).
This is certainly going to be helpful in some cases, as illustrated by both Dantzler and Kirkland. In both of those cases, the charging document from the prior case alleged multiple offenses that were committed on the same date. See Dantzler, 771 F.2d at 140, 145; Kirkland, 687 F.3d at 887. And the courts found there was insufficient evidence to establish the offenses were “committed on occasions different from one another,” in one instance because there was no document other than the charging document and the charging document was insufficiently clear, see Kirkland, 687 F.3d at 887, and in the other instance because the additional documents the district court relied upon “were not of the type specifically condoned byTaylor or Shepard,” Dantzler, 771 F.2d at 146. This suggests that, at least in the case of offenses which were committed on the same date, the government may have trouble carrying its burden on the “committed on occasions different from one another” element.
There may be further arguments to make based on Descamps, moreover. Consider one of the points made in one of my posts onDescamps soon after it came out – “The Rest of My Own Little Supreme Court Update,” accessible through the July 2013 link at the right. The modified categorical approach allows a court to use court records for a very limited purpose. They don’t get used to identify what the defendant did, but get used solely to identify which alternative in a divisible statute the defendant was convicted of. And the alternative must be an “element” on which there has to be jury unanimity. (See my prior posts on this, titled “More on Descamps,” in the September 2013 link at the right, and “The Ninth Circuit Agrees With Us on What Divisibility Means Under Descamps,” in the October 2014 link at the right.) Can we use this to argue that whatever fact the government wants to use – be it the date of the offense or whatever – has to be an element on which there had to be jury unanimity? That may start running into the Grisel holding – discussed in the last post – that records showing different dates are sufficient, but (1) did Griselconsider this other aspect of the issue and (2) is Grisel undercut by the intervening decision in Descamps? There may be some food for thought there. (And if you have any other food to offer for other thoughts, feel free to offer it through the comments feature at the bottom of this blog.)
Consider also some of the language from Descamps quoted in the last post. The Court pointed out that facts other than elements of the offense (such as the exact date of an offense?) “may be downright wrong,” id. at 2289, in part because they didn’t matter at the time.
A defendant, after all, often has little incentive to contest facts that are not elements of the charged offense – and may have good reason not to. At trial, extraneous facts and arguments may confuse the jury. (Indeed, the court may prohibit them for that reason.) And during plea hearings, the defendant may not wish to irk the prosecutor or court by squabbling about superfluous factual allegations.
Id. Can we use this to limit the use to which the Taylor andShepard documents are put?
In any event, these are some thoughts on using Descamps. They’re not as well-formed as some, but I offer them for what they’re worth. This might be a good place for readers to share some thoughts through the comment feature at the bottom of the blog, if any of you’d would like to do that.
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I left off last week saying there was another angle on the question of deciding when multiple prior convictions count as one under the ACCA. Applying the “committed on occasions different from one another” provision of the statute – or, as the cases have characterized it, the “separate criminal episodes” requirement – raises both Apprendi questions about who gets to decide this question and Descamps questions about how it gets decided.
What I find particularly interesting – but where the case law creates an uphill battle for us – is the Apprendi question. Remember that Apprendi establishes the general rule that any fact which increases a sentence must be charged in a charging document and found by a jury beyond a reasonable doubt. This doesn’t apply to ACCA predicate convictions only becauseApprendi preserved – at least for the time being – what it labeled an “exceptional departure” from this general rule,Apprendi v. New Jersey, 530 U.S. 466, 487 (2000), which was established in Almendarez-Torres v. United States, 523 U.S. 224 (1998), for “the fact of a prior conviction,” Apprendi, 530 U.S. at 490. But cf. Apprendi, 530 U.S. at 489 (acknowledging that “it is arguable that Almendarez-Torres in fact was incorrectly decided”); id. at 518-21 (Thomas, J., concurring) (arguing thatAlmendarez-Torres was incorrectly decided).
But is “committed on occasions different from one another” a “fact of a prior conviction” (emphasis added), or is it a factabout a prior conviction? Judge Wilkins, the first chairman of the Sentencing Commission, suggested precisely this distinction in a dissenting opinion in United States v. Thompson, 421 F.3d 278 (4th Cir. 2005). In response to the majority’s characterization of offense dates alleged in charging documents as part of the facts of the prior convictions that showed the offenses were “committed on occasions different from one another,” Judge Wilkins stated that “in my view it is a fact ‘about a prior conviction.’” Id. at 292 (Wilkins, J., dissenting) (quotingShepard v. United States, 544 U.S. 13, 25 (2005)) (emphasis added in Thompson).
Judge Wilkins then explained why the distinction “is not merely a matter of semantics.” Thompson, 421 F.3d at 292.
Although a defendant is entitled to a jury trial on the question of whether he committed a particular crime, in few, if any cases is a jury required to find that the offense occurred on a particular date. Thus, the protections that the Supreme Court identified as critical to the “fact of a prior conviction” are not customarily afforded a defendant with regard to the date that a crime was committed.
Id. at 292-93 (footnotes omitted).
Judge Wilkins’s reasoning reflects the rationale the Supreme Court has given for the Almendarez-Torres exception. That rationale, as expressed in Apprendi, is that “there is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof.” Id., 530 U.S. at 496, quoted in Thompson, 421 F.3d at 292 (Wilkins, J., dissenting). As expressed in the earlier case of Jones v. United States, 526 U.S. 227 (1999), “a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees.” Id. at 249, quoted in Thompson, 421 F.3d at 292 (Wilkins, J., dissenting).
This will rarely, if ever, be true of the facts on which a “committed on occasions different from one another” finding is based. To begin, Judge Wilkins is correct that even the dates of the offenses will generally not have been subject to the protections on which Apprendi and Jones based approval of the “fact of a prior conviction” exception. Most charging documents allege that the offense in question was committed not simply “on” a particular date, but “on or about” the date. And juries are usually instructed that this “on or about” allegation means they do not have to make a finding that the offense was committed on the particular date alleged in the charging document but only that the offense was committed on a date “reasonably near” that date. See, e.g., United States v. Casterline, 103 F.3d 76, 78 (9th Cir. 1996). See also United States v. Alviso, 152 F.3d 1195, 1197 (9th Cir. 1998) (no fatal variance where date established by proof was “reasonably near” date alleged in indictment).
It becomes even more problematic when two offenses are committed on the same date. Consider the following factual analysis in United States v. Morris, 293 F.3d 1010 (7th Cir. 2002), finding two “aggravated discharge” offenses committed on the same night to have been “committed on occasions different from one another.”
[T]he two offenses committed by Morris, although close in time and location, involved distinct criminal aggressions from which he had an opportunity to cease and withdraw. . . . Morris shot at victim Derek Kye from his automobile at the corner of 17th and Pine, and then drove away. Kye then ran to his aunt’s home and told his aunt and cousin what had happened. His cousin, Lebaron Pettis, left the home to seek help presumably because they did not have a phone at the house. Pettis ran to 1501 Martin Luther King Drive and was knocking on the door when Morris drove up and fired three shots at Pettis. Pettis escaped injury. Those shooting incidents were similar in nature, but involved different victims at different locations and times. Although they were close in time and proximity, they involved distinct criminal aggressions. Morris had left the scene of the first incident, and that was a complete criminal act at that time. He certainly had the opportunity at that time to drive away from the scene and cease his criminal actions. Instead, he chose to drive back and to initiate an additional criminal aggression, this time shooting at Pettis.
Id. at 1014. How likely is it that a jury was required to find all of these facts beyond a reasonable doubt? Or that the defendant was required to admit them in a plea?
Allowing findings of such facts to support an enhanced sentence is exactly what Apprendi and its progeny do not allow. As the Supreme Court explained in strictly limiting the “modified categorical approach” in Descamps v. United States, 133 S. Ct. 2276 (2013):
The Sixth Amendment contemplates that a jury – not a sentencing court – will find such facts, unanimously and beyond a reasonable doubt. And the only facts the court can be sure the jury so found are those constituting elements of the offense – as distinct from amplifying but extraneous circumstances.
Id. at 2288. Descamps also pointed out that “facts” other than elements of the offense “may be downright wrong,” id. at 2289, and explained why that might be the case.
A defendant, after all, often has little incentive to contest facts that are not elements of the charged offense – and may have good reason not to. At trial, extraneous facts and arguments may confuse the jury. (Indeed, the court may prohibit them for that reason.) And during plea hearings, the defendant may not wish to irk the prosecutor or court by squabbling about superfluous factual allegations.
Id. This could easily be true of both allegations of specific offense dates that have nothing to do with guilt and any or all of the facts like those in the passage from the Morris case that’s quoted above. See also Kirkland v. United States, 687 F.3d 878, 887 (7th Cir. 2012) (example of actual after-the-fact dispute in ACCA case in which defendant claimed that victim of robbery count in prior indictment was same person as victim of burglary count).
Unfortunately, no court of appeals has yet accepted such an argument. One of the adverse court of appeals cases is theMorris opinion just quoted. Other courts of appeals have all taken a similar view, at least when the records reflect different dates for the prior offenses. The Ninth Circuit opinion is United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc), in which the court cited multiple decisions from other circuits, includingMorris, and reasoned as follows:
[W]e reject Defendant’s assertion that the dates of his prior convictions are not a part of the “fact” of his prior convictions. When, as here, the face of the document demonstrating Defendant’s prior conviction includes the date of the offense, the date is just as much a part of the plea as is the nature of the offense described on the face of the document. (Footnote omitted.) Thus, the dates of Defendant’s prior convictions were properly before the district court.
Id. at 847. See also id. at 847 n.1 (collecting cases from other circuits).
Note at least two qualifications in the Grisel opinion, however. First, note the qualifying phrase, “[w]hen . . . the face of the document demonstrating Defendant’s prior conviction includes the date of the offense.” What if the face or faces of the document or documents include identical dates for two of the offenses? Does Grisel apply to the sort of detailed facts recited inMorris – that are presumably not on “the face of the document”? Will the court really hold that those facts as well are “part of the plea”? After what the Supreme Court said in Descamps about the reasons a defendant might not bother contesting them even if they were, to use Descamps’s words, “downright wrong”? And speaking of Descamps, is it an intervening Supreme Court decision that makes Grisel no longer good law? (See the post titled “What Fury Hath Descamps Wrought?” in the August 2013 link at the right suggesting this possible impact of Descamps on other Ninth Circuit cases under the “clearly irreconcilable” test of Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc).)
Second, note the “part of the plea” phrase in Grisel. What if the conviction wasn’t the product of a plea, but the product of a verdict in a jury trial? And what if the jury was instructed, as juries usually are, that they only needed to find dates “reasonably near” the dates in the indictment, not the exact dates? Aren’t the “fact[s] of conviction” then just dates “reasonably near” the dates alleged in the indictment rather than the exact dates alleged?
Finally, the courts of appeals aren’t the last word. The last word is the Supreme Court, whose collection of ACCA and Apprendicases makes clear it’s more than willing to consider important ACCA and Apprendi issues. I’d submit this issue is a good one that we should be preserving and pursuing, especially in cases that have the distinguishing characteristics suggested in the preceding two paragraphs.
Plus, there’s one more angle. More on that in next week’s post.
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I recently exchanged e-mails with a colleague about an issue that’s always interested me, and suggests the somewhat tongue-in-cheek title of this post. The issue is whether and when multiple convictions count as multiple convictions for purposes of recidivism enhancements such as the Armed Career Criminal Act in 18 U.S.C. § 924(e), also known by its acronym as the ACCA, and the career offender guideline in § 4B1.1 of the sentencing guidelines. The title of the post may seem a little silly, but it really isn’t silly if you think about what your most natural assumption might be. If you hadn’t (or haven’t) researched it, wouldn’t you assume that multiple counts in a prior case would count as just one of the three prior convictions that are required for the ACCA enhancement?
That assumption and the title of the post also isn’t silly if you think about the purpose of a recidivism enhancement. As Ninth Circuit Judge Trott recognized when he testified in support of the Armed Career Criminal Act while he was an assistant attorney general with “Main Justice” in Washington, D.C.:
[Armed career criminals are] people who have demonstrated, by virtue of their definition, that locking them up and letting them go doesn’t do any good. They go on again, you lock them up, you let them go, it doesn’t do any good, they are back for a third time. At that juncture we should say, “That’s it; time out; it is all over. We, as responsible people, will never give you the opportunity to do this again.”
ACCA, Hearing Before the Subcomm. on Crime of the House Comm. on the Judiciary, 98th Cong., 2d Sess. at 64 (1984),quoted in United States v. McElyea, 158 F.3d 1016, 1020 (9th Cir. 1998). Though Judge Trott later disavowed this testimony in a dissent in the McElyea case as “the combative and irrelevant testimony of an aggressive assistant attorney general,” id. at 1021-22 (Trott, J., concurring and dissenting), it makes a lot of sense. We punish recidivists because they don’t learn their lesson. And the lesson is taught not by the commission of the crime but by the punishment for the crime. If the idea is to put people away when they still haven’t learned after three lessons, the pattern we ought to require for the recidivist enhancement should be conviction for first offense (or set of offenses)/sentence/conviction for second offense (or set of offenses)/sentence/conviction for third offense (or set of offenses)/sentence, not conviction for first, second and third offenses all at once/sentence. See, e.g., 18 U.S.C. § 3559(c) (federal three strikes statute requiring that “each serious violent felony or serious drug offense used as a basis for sentencing under this subsection, other than the first, was committed after the defendant’s conviction of the preceding serious violent felony or serious drug offense”).
This was precisely the argument we made when the ACCA first became effective. Unfortunately, it was accepted by just one half of one circuit – in United States v. Balascsak, 873 F.2d 673 (3d Cir. 1989) (12 judges dividing 6-6 on issue). All the other circuits rejected the argument, see, e.g., United States v. Wicks, 833 F.2d 192 (9th Cir. 1987), although they did recognize a requirement that the prior convictions have arisen out of separate “criminal episode[s],” United States v. Petty, 828 F.2d 2, 3 (8th Cir. 1987) (adopting position of Solicitor General in Supreme Court proceedings). Congress then jumped on the bandwagon to write the majority view expressly into the statute. It amended the statute to expressly require not the crime/sentence/crime/sentence/crime/sentence pattern that logic would suggest and that Judge Trott described in his testimony as an assistant attorney general, but three convictions for qualifying offenses that were simply “committed on occasions different from one another.” 18 U.S.C. § 924(e)(1).Compare 18 U.S.C. § 3559(c), cited supra.
This not only allows three counts of conviction in a single indictment to support the ACCA enhancement by themselves, but allows them to do this when the offenses were committed the very same night – or even the very same hour. See, e.g., United States v. Phillips, 149 F.3d 1026, 1030 (9th Cir. 1998) (burglary of store and second burglary of “adjacent business” “[s]hortly thereafter” held to be “separate criminal episodes” for purposes of ACCA); United States v. Antonie, 953 F.2d 496, 499 (9th Cir. 1991) (two robberies within 40 minutes of each other, though in different cities and with different victims, held to be “two separate and distinct criminal episodes” which counted separately under ACCA); Wicks, 833 F.2d at 193 (burglaries committed the same night, albeit at different locations, held to be separate criminal episodes which counted separately).Compare United States v. McIlyea, 158 F.3d at 1018, 1021 (burglarizing first store in strip mall by breaking into it and then burglarizing adjacent store by chopping hole in wall and going through hole into adjacent store held to be “part of one criminal episode” and so counted as just one prior conviction under ACCA). As articulated in a summary in United States v. Brady, 988 F.2d 664 (6th Cir. 1993) (en banc) that was adopted inPhillips:
“[M]ere proximity in time between two offenses occurring at different places and involving different victims” would not merge offenses for purposes of the ACCA. Brady, 988 F.2d at 668. Rather, the court reasoned that “time alone” can be sufficient “to separate criminal episodes occurring on the same date, at the same place, and against the same victim.” Id. The en banc court ruled that “[c]onsistent with the holdings of our sister circuits, we believe that offenses committed by a defendant at different times and places and against different victims, although committed within less than an hour of each other, are separate and distinct criminal episodes and that convictions for those crimes should be counted as separate predicate convictions under § 924(e)(1). Id. at 669 (citing United States v. Schieman, 894 F.2d 909, 913 (7th Cir. 1990) (defendant who burglarized shop and shortly thereafter assaulted a police office committed two distinct criminal acts); Antonie, 953 F.2d at 499; . . . ; Wicks, 833 F.2d at 193). Again, the key to the court’s decision was the fact that after the defendant committed the first robbery, he could have decided to stop. “Instead, he decided to rob again.” Brady, 988 F.2d at 669.
Phillips, 149 F.3d at 1032.
This means that multiple counts of a conviction in a single case will often count as separate predicate convictions for ACCA purposes. There are some fact patterns where defendants have prevailed – including scenarios such as robbing multiple victims at one time, see United States v. Petty, 828 F.2d at 3; United States v. Montgomery, 819 F.2d 847, 850 n.2 (8th Cir. 1987); see also United States v. Thomas, 211 F.3d 316, 318, 321 (6th Cir. 2000) (continuing rapes of two different passengers in vehicle without leaving vehicle); offenses against a single victim in a continuing incident, see United States v. Towne, 870 F.2d 880, 889 (2d Cir. 1989) (kidnapping and rape of victim during continuing kidnapping); virtually simultaneous drug sales to two companions at the same location and/or simultaneous possession of drugs at two different locations, see United States v. Willoughby, 653 F.3d 738, 744-45 (8th Cir. 2011); United States v. Blackwood, 913 F.2d 139, 145 (4th Cir. 1990); and attempting to evade and/or assaulting police officers when interrupted by officers during an initial crime, see United States v. Graves, 60 F.3d 1183, 1187 (6th Cir. 1995); United States v. Sweeting, 933 F.2d 962, 967 (11th Cir. 1991); but cf. United States v. Schieman, 894 F.2d at 910-13 (burglary and assault on police officer not single criminal episode when assault took place while fleeing down street several minutes after departure from burglary). See also McElyea, 158 F.3d at 1018, 1021 (facts described above); United States v. Murphy, 107 F.3d 1199, 1208-10 (6th Cir. 1997) (robbery of second apartment in building while holding victim of first robbery in other apartment to keep victim from calling police). These scenarios may be more the exception than the rule, however. See generally James W.L. Osborne, One Day Criminal Careers: The Armed Career Criminal Act’s Different Occasions Provision, 44 J. Marshall L. Rev. 963, 975-80 (2011) (collecting and discussing cases). You certainly can’t assume that a single violent felony or drug trafficking entry in a rap sheet means ACCA won’t apply to your client.
This contrasts with the rule for the career offender guideline, by the way. The rule for that provision is better, though it still falls short of fitting into the more logical crime/punishment/crime/punishment/crime/punishment chain suggested at the beginning of this post. The career offender guideline incorporates the general criminal history rules of the sentencing guidelines, see U.S.S.G. § 4B1.2, comment. (n.3), which allow prior sentences to be counted separately only if (1) they are for charges contained in different charging instruments and imposed on different days or (2) they are separated by intervening arrests, see U.S.S.G. § 4A1.2(a)(2). See also U.S.S.G. § 4B1.2(c) (providing that prior convictions are counted separately only if “the sentences . . . are counted separately under the provisions of §4A1.1(a), (b), or (c)”). So multiple counts of conviction in a single prior case usually won’t count as separate prior convictions for purposes of the career offender guideline, as long as they’re not separated by an intervening arrest. And note that the career offender guideline varies from the usual criminal history rules in one respect, by requiring that the prior convictions exist at the time of the new offense, seeU.S.S.G. § 4B1.2(c). Compare U.S.S.G. § 4A1.2, comment. (n.1) (defining “prior sentence” to include “[a] sentence imposed after the commencement of the instant offense, but prior to sentencing on the instant offense”). Note that this is also true of the ACCA, since it requires that the person possess a firearm and “has [not later sustains] three previous convictions for a violent felony or serious drug offense.” 18 U.S.C. § 924(e)(1) (emphasis added).
So the bottom line for today’s post is a mixed bag. The assumption we might make about prior convictions in a single case not counting as separate convictions for purposes of a recidivist enhancement is true for the career offender guideline (unless there was an intervening arrest), but isn’t true for the ACCA. Your felon in possession of a firearm client could face a life sentence as an ACCA “career criminal” based on just a single prior crime spree.
There is another angle, however. Coming up in the next weeks’ posts – some potential Apprendi– and Descamps-based defenses.
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A summary of a nice Ninth Circuit opinion came across my desk (all right, came across my computer screen) a few months back, and it triggered some thoughts about a guidelines issue that I’ve always found troubling. That’s the question of whether and when a defendant can be given an obstruction of justice enhancement when he testified at trial and allegedly perjured himself. It’s troubling because of the inevitable chilling effect it will have on a defendant’s exercise of his constitutional right to testify.
My first foray into this area, back when the guidelines were still in their infancy with lots of undecided issues to be litigated, was making an argument that an obstruction of justice adjustment could never be based on a defendant’s alleged perjury at trial. In support of this argument, I pointed to reasoning in the pre-guidelines case of United States v. Grayson, 438 U.S. 41 (1978). In that case, the Supreme Court held a court could impose a higher sentence based on a defendant’s perjury at trial, even though it might chill a defendant’s exercise of his constitutional right to testify in his own defense. See id. at 54-55. But the Court qualified that holding with several caveats, as follows:
Nothing we say today requires a sentencing judge to enhance in some wooden or reflex fashion, the sentences of all defendants whose testimony is deemed false. Rather, we are reaffirming the authority of a sentencing judge to evaluate carefully a defendant’s testimony on the stand, determine – with a consciousness of the frailty of human judgment – whether that testimony contained willful and material falsehoods, and, if so, assess in light of all other knowledge gained about the defendant the meaning of that conduct with respect to his prospects for rehabilitation and restoration to a useful place in society.
Id. at 55.
The implicit rejection of “requir[ing] a sentencing judge to enhance in some wooden or reflex fashion” triggers an immediate reaction that “wooden or reflex” is precisely what the guidelines are (or at least were before Booker). I and others argued that the obstruction of justice enhancement therefore couldn’t be applied to alleged perjury. The argument didn’t work in most published opinions (though it may have made some district judges hesitate to apply the enhancement in individual sentencings), but it did succeed in the Fourth Circuit case ofUnited States v. Dunnigan, 944 F.2d 178 (4th Cir. 1991). See id.at 183-85 (expressing concern about chilling effect on defendants’ right to testify and distinguishing Grayson in part because “[t]he guidelines supply precisely the ‘wooden or reflex’ enhancement disclaimed by the Court”).
Dunnigan as a court of appeals opinion didn’t last long, however. It quickly became Dunnigan the Supreme Court opinion, when the Supreme Court granted certiorari and reversed – in United States v. Dunnigan, 507 U.S. 87 (1993). The Supreme Court held the chilling effect on a defendant’s right to testify lacked weight because “a defendant’s right to testify does not include a right to commit perjury,” id. at 96, and “the risk of incorrect findings of perjury . . . is inherent in a system which insists on the value of testimony under oath,” id. at 97. And “[n]either d[id] [the Court’s] cautionary remark that the enhancement in Graysonneed not be imposed ‘in some wooden or reflex fashion’ compel invalidation of § 3C1.1,” because “the elements of perjury must be found by the district court with . . . specificity . . . , so the enhancement is far from automatic.” Id. at 98.
Still, the Dunnigan opinion carried its own set of caveats. To begin, the Court did emphasize, as just set forth, that the district court must specifically find the elements of perjury before it can apply the enhancement. Those elements, as set forth earlier in the opinion, are “[(1)] giv[ing] false testimony [(2)] concerning a material matter [(3)] with the willful intent to provide false testimony, rather than as a result of confusion, mistake or faulty memory.” Id. at 94. As put by the Ninth Circuit in discussing the last of these elements – in both pre- and post-Dunnigan opinions – “the defendant [must] ‘consciously act with the purpose of obstructing justice,’” United States v. Lofton, 905 F.2d 1315, 1316-17 (9th Cir. 1990) (quoting United States v. Stroud, 893 F.2d 504, 507 (2d Cir. 1990) (emphasis in original)). See also United States v. Manning, 704 F.3d 584, 585 (9th Cir. 2012) (quoting Lofton).
The Supreme Court also gave some examples of why testimony might not be perjury warranting the obstruction of justice enhancement.
[A]n accused may give inaccurate testimony due to confusion, mistake, or faulty memory. In other instances, an accused may testify to matters such as lack of capacity, insanity, duress, or self-defense. Her testimony may be truthful, but the jury may nonetheless find the testimony insufficient to excuse criminal liability or prove lack of intent.
Dunnigan, 507 U.S. at 95. This mirrors what the commentary to the actual guideline suggests:
In applying this provision to alleged false testimony or statements by the defendant, the court should be cognizant that inaccurate testimony or statements sometimes may result from confusion, mistake, or faulty memory and, thus, not all inaccurate testimony or statements necessarily reflect a willful attempt to obstruct justice.
U.S.S.G. § 3C1.1, comment. (n.2).
This opens up a number of arguments that we need to make when the government tries to base an obstruction of justice adjustment on our client’s alleged perjury. First and foremost, we ought to argue whenever possible that our client’s inaccurate testimony wasn’t willful and conscious fabrication, but the product of, in the words of Dunnigan, “confusion, mistake, or faulty memory.” For a client with a serious drug problem who was in the throes of a drug binge or a client with mental problems, this is not only plausible, but perhaps even likely. Even for an ordinary person without drug problems or mental problems, there’s a natural tendency to convince oneself months or years after the fact – in the guise of wishful, but honest, thinking – that it really couldn’t have happened that way or you really couldn’t have done that. The human mind is unfortunately a very malleable organ, especially for the relatively weak-willed people who give in to criminal impulses.
Second, now that we have Booker, we need to grab onto and use the various caveats from the Grayson opinion. Initially, the obstruction of justice guideline, even more than others, shouldn’t – indeed, can’t – be applied in a “wooden or reflex fashion,” but needs to be applied with flexibility. Secondly, courts need to keep in mind “the frailty of human judgment.” Finally, the court needs to consider whether and to what extent the alleged perjury really carries “meaning . . . with respect to [the defendant’s] prospects for rehabilitation and restoration to a useful place in society.”
Oh, yes – the new opinion that triggered me sharing these thoughts. It’s United States v. Castro-Ponce, 770 F.3d 819 (9th Cir. 2014). It does several things. First, it reiterates the three elements of perjury which a district court must find before imposing the obstruction of justice enhancement. See id. at 822. Second, it establishes a requirement that the district court make “explicit findings” of the three elements and expressly declines “to adopt a more forgiving standard.” Id. at 823. Third, it recognizes that “[o]bstruction of justice is a serious charge, and requires serious proof,” id., with the implication that there should be caution in finding it. See also United States v. Shannon, 137 F.3d 1112, 1119 n.3 (9th Cir. 1998) (stating that “[o]bstruction of justice resting on perjury should require a high degree of proof” and that “[m]ere dispute or disagreement as to a defendant’s perception of facts, without more, should not give rise to a charge of perjury in the context of sentencing”).
So there’s some ammunition to fight the obstruction of justice enhancement. It may be hard to get acceptance of responsibility after a trial (but see the post, “Acceptance of Responsibility With a Trial: You Can Get It if You Really Want It,” in the September 2012 link at the right), but obstruction of justice is far from a foregone conclusion.
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