Another loss for the Confrontation Clause: the Supreme Court's decision in Michigan v. Bryant

April 28, 2011 by Paul Kish

In criminal trials throughout the United States, whether here in Atlanta or elsewhere, the Sixth Amendment's Confrontation Clause protects defendants from being convicted based on out-of-court statements by people who never show up to testify. The Confrontation Clause means what it says, our clients can "confront" the evidence against them and prosecutors should not be allowed to put up one person to say what some other person told him or her. However, the Supreme Court's relatively recent decision in Michigan v. Bryant is a step backward and lets prosecutors get convictions even when the accuser never gets on the witness stand.

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court ruled that the Confrontation Clause is violated when a prosecutor uses hearsay which is "testimonial," the hearsay is admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial. The Court in Crawford used various formulations of the term "testimonial." Now, the most commonly adopted version defines a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial." The Supreme Court later expanded upon this analysis in Davis v. Washington, 547 U.S. 813 (2004), finding that "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution."

The basics facts in the recent Bryant case are that police found Anthony Covington in a gas station parking lot. Covington claimed he had been shot by Richard Bryant outside Bryant's house. Covington's story was that he had then driven himself to the parking lot. Covington died as a result of his wounds, and the prosecution introduced his statements concerning his shooting at Bryant's murder trial.

The Supreme Court used the "primary purpose test" to decide whether Covington's statements were testimonial or nontestimonial. If the "primary purpose" was to investigate a crime, then the statements are "testimonial" and thus inadmissible, unless the declarant gets on the witness stand. On the other hand, if the "primary purpose" of the session was to respond to an emergency, then the statements are nontestimonial, and can later be used by a prosecutor even if the declarant is unavailable.

In applying this test that looks for the "primary purpose", the Court first decided that an objective, and not a subjective view, should be used by judges who are deciding whether a prior statement was testimonial or nontestimonial. According to the Court, it doesn't matter what the officer (or the dying Mr. Covington) thought they were doing. Instead, judges should take an "objective" view of what was going on. Here, the majority decided that the police were responding to an emergency, and not merely trying to investigate a crime. Justice Scalia in his dissent calls this view of the facts a "transparently false ...tale", because in fact the cops and the dying Mr. Convington all were concerned about the same thing: making a case against the guy who had just plugged Covington with bullet holes.

Next, the Court ruled that judges should look to both the Declarant (here, the dying Mr.Covington) and the Interrogator (the 5 cops who kept asking questions like, "Who" "Where" "When" and "How long ago?") when deciding the "primary purpose" of the session. The Supreme Court decided that judges should not look merely to what the person said, but should also see what the questioners did or did not do.

The bottom line here is that the Court's decision in Michigan v. Bryant made it a lot easier for prosecutors to get around the Confrontation Clause. While the decision somewhat reduces the protections offered by the Sixth Amendment, we hope that judges everywhere will zealously guard our rights and not allow wholesale use of out-of-court statements in criminal trials.

Federal Criminal Defendants Continue to Win in Supreme Court Cases Involving the Sentencing Guidelines

April 20, 2011 by Paul Kish

We represent a lot of criminal defendants in federal courts, many here in Atlanta but also throughout Georgia, Alabama, Tennessee, Florida and other states. Since 2005, such criminal defendants have had good luck in the United States Supreme Court when challenging various aspects of the Federal Sentencing Guidelines. One more such success took place on March 2, 2011 when the Supreme Court issued its opinion in Pepper v. United States.

Readers will recall that like most criminal defense attorneys who specialize in federal cases, I have railed against the Sentencing Guidelines since their inception in 1987. These mechanical rules turned judges into soulless automatons, who were reduced to calculating various complex formulae when imposing a prison sentence on the human being standing in court. In 2005, the famous Booker decision held that the Guidelines are unconstitutional, and the only way to "save" them was to hold that these rules are no longer mandatory, but are merely "advisory." After Booker, judges began using their new-found freedom to impose shorter sentences than otherwise called for by the Guidelines. In a series of cases in the ensuing years, the Supreme Court ruled that a judge who gives a below-Guidelines sentence should be afforded great deference, and sentencing judges could even impose lower sentences based on policy disagreements with particular aspects of the Guidelines.

Then came Mr. Pepper's case. His judge used this new sentencing freedom to impose a 24-month sentence, far below what the Guidelines called for. The prosecutors appealed, and the Eighth Circuit agreed with them, sending the matter back for a new sentencing hearing. Along the way, Mr. Pepper had completed a lengthy drug treatment program, and got out from the 24-month sentence 3 days after the case was sent back for a new sentencing hearing.

Again, the judge imposed 24 months. This time, the judge looked at how well Mr. Pepper had fared since the first sentencing hearing. The judge noted how Pepper had truly rehabilitated himself, was in college, and had re-established ties with his family. Again, the prosecutors appealed, arguing that such "post-sentencing rehabilitation" could not support a lower sentence. Once again, the Eighth Circuit agreed with the government, sending the case back for a third hearing, and this time snatching the case away from the reasonable judge who had imposed the 24 month term. At the third sentencing hearing, this new judge imposed 65 months and made Mr. Pepper go back to prison. Mr. Pepper's lawyers asked the Supreme Court to look at his case, and he was released from the new sentence when they agreed to review the matter.

In its March 2, 2011 decision, the Supreme Court soundly rebuked the Eighth Circuit. In an opinion written by Justice Sotomayor, the Court noted that there generally are no limits on what a sentencing judge can consider, and post-sentence rehabilitation is clearly a factor that can justify a lower sentence. Along the way, the Supreme Court also chided the U.S. Sentencing Commission for a rule it had created that supposedly prohibited judges from using such post-sentencing efforts to justify lower sentences.

The Pepper decision is one more case showing how federal criminal sentencing has changed. When we stand with our clients, the Guidelines are merely "advisory". A judge is duty-bound to impose a sentence for that person, not just a sentence that is spit out after a complex formula created by a "commission". We have returned to the time when a lawyer can make arguments about his or her client's personal situation. We like representing people, so this trend makes our jobs easier and more enjoyable.

Eleventh Circuit Holds That Even Though Federal Sentencing Guidelines Are Advisory, Applying A Harsher Guideline That Was Not in Effect At the Time Of The Crime Can Create Ex Post Facto Concerns

April 19, 2011 by Carl Lietz

In 2005, the United States Supreme issued its landmark decision in the federal criminal case of United States v. Booker. Among other things, the Court in Booker ruled that the federal sentencing Guidelines are no longer mandatory, but are instead advisory. Before Booker, it was undisputed that courts were required to apply the Guidelines that were in effect when the federal crime at issue was committed, if applying a later Guideline created Ex Post Facto concerns. In other words, if the Guideline in effect on the date of a sentencing established a harsher Guideline range, the sentencing court was required to apply the more lenient Guideline that was in effect when the crime was committed. An example that comes to mind arises in federal, white collar cases. For instance, under the Guideline that applied up until October 31, 2002, the base offense level in white collar cases was 6, rather than 7. For this reason, under the law as it existed before Booker, courts in white collar cases were required to use the Guideline with the base offense level of 6, as long as the crime was completed prior to the effective date of Guideline that changed the base offense from 6 to 7.

When Booker was decided, however, some people (mostly prosecutors) claimed that since the Guidelines were no longer mandatory, the Ex Post Facto principles discussed above no longer applied. According to these individuals, courts were now free to apply the Guideline in existence on the date of the sentencing, even when the Guideline in effect when the crime was committed provided for a more lenient sentencing range.

Recently, the Eleventh Circuit squarely addressed this issue for the first time, and in our view, reached the right result (for the most part). In Wetherwald, (a federal white collar case), the defendants were convicted of defrauding investors out of millions of dollars. On appeal, the defendants argued that the trial court erred by applying the federal sentencing Guidelines that were in effect on the day of sentencing, rather than the more lenient Guidelines that were in place when the crimes at issue were committed.

Importantly, although the Eleventh Circuit rejected the defendants' contention that their sentences should be reversed, in doing so, it reaffirmed the principle that requires sentencing courts to apply the Guideline that is in effect when the crime is committed. In its decision, the court recognized that other federal courts of appeal are currently split on this issue. For instance, the Seventh Circuit has concluded that the "the Ex Post Facto Clause no longer poses a problem, as it applies 'only to laws and regulations that bind rather than advise.'” The D.C. Circuit, however, has "squarely rejected this position, finding that the application of a harsher Guidelines range in place at sentencing presents a constitutional problem."

In the end, the Eleventh Circuit adopted the view of the D.C. Circuit, stating that this view "is consistent both with our interpretation of Supreme Court precedent and this circuit’s jurisprudence . . . ." Although the court declined to reverse the defendant's sentences in Wetherwald, it recognized that all of the respective sentences were lower than the Guideline that was in place when the crime was committed. Moreover, the court recognized that in the future (and this is the part that gives us some concern), it would "only find an Ex Post Facto Clause violation when a district judge’s selection of a Guidelines range in effect at the time of sentencing rather than that at the time of the offense results in a substantial risk of harsher punishment." The opinion in Wetherwald is found here.

Alabama Mail Fraud Convictions Reversed by Court of Appeals sitting in Atlanta

April 18, 2011 by Kish & Lietz

The United States Court of Appeals for the Eleventh Circuit, which sits several blocks from our offices here in Atlanta, reversed some of the convictions in a federal fraud prosecution that were brought against a defendant in Alabama. The reversal of some of the charges was because the indictment failed to allege the necessary facts for one type of federal fraud. This issue about what is needed in federal fraud indictments arises in many such cases we handle. It is refreshing to see the court make prosecutors indict such cases correctly, or else face the consequences.

The case is United States v. Suzanne Schmitz, and it was published on March 4, 2011. We have gotten a little behind in our blogging here, and over the next couple of weeks we will try to catch up by posting some entries from earlier this year.

In the Schmitz case, the defendant was charged with two varieties of fraud, mail fraud and fraud involving a program that received federal funds. The mail fraud charges were OK, appropriately setting out facts to support what we call the "scheme to defraud." However, the counts alleging that Ms. Schmitz defrauded a program that got some money from federal funds fared less well. These charges merely alleged that she worked for the program, that she got her salary each year by engaging in fraud, and that such conduct violated the specific law in question.

On the one hand, indictments that set out the language of a law sometimes are good enough. However, the indictment also needs to set out sufficient facts and circumstances so that the defendant knows what he or she must defend against. Here, the part of the indictment involving federal funds fraud failed to allege any such facts.

The prosecutors in the Schmitz case had a fallback position. There is another set of rules that tell judges to look at the indictment "as a whole" and give it a "common-sense construction." The prosecutors in Schmitz argued that by looking at the mail fraud charges (which, as mentioned above, were pled correctly) a person could understand what was charged in the counts alleging federal funds fraud. The Eleventh Circuit rejected this argument. While one part of an indictment can "inform" the meaning of other portions, this does not mean that one part can be simply read into that other portion of the indictment. The better practice is to have explicit cross-references between the various parts of a complex indictment, so that the defendant knows exactly what he or she must defend against.

We are currently involved in a case with somewhat similar issues. We filed a series of pretrial motions in an attempt to force the prosecutors to tell us exactly what we must defend against. In one way we were successful, in that the government went back and got a new indictment that included some of the material we suggested had been missing from the earlier version. The Schmitz decision is a lesson to those prosecutors who fail to plead fraud cases with the appropriate particularity.