U.S. v. Paul, No. 08-30125 (4-2-09). The defendant had embezzled some federal funds: it was her first offense, she returned the funds, she apologized profusely before charges were filed, and she explained that she had taken the funds because she felt, wrongly, that it was compensation for work she had done for the school district. The court nonetheless gave her a 16 month sentence! The judge, the Hon. Sam E. Haddon, D. Mont., explained that it was for abuse of trust. The 9th found that the sentence was unreasonable, and had vacated and remanded, explaining that the court had to more closely look at the mitigating factors. The court, upon resentencing, still focused on the abuse of trust, and gave a 15 month sentence. The 9th (per curiam with Reinhardt and M. Smith) found the sentence again to be unreasonable. The 9th put down the marker that the reasonableness of a sentence is an inquiry, and that the appellate courts can say, in specific cases, that the sentence is too much. Moreover, the court did not appear to give sufficient, if any, weight to the recognized mitigation specifically found by the 9th. The case is also reassigned to a different judge because of the appearance for justice. In a dissent, Hall argues that the recent cases of Gall and Rita focus on the individualization of a sentence, and that is what took place here. The dissent would uphold the sentence as reasonable for the reasons stated, even if the 9th disagreed. The dissent seems to adopt the approach, championed by Scalia and Thomas, that focuses on procedure and not substance in appellate review. The response would be that a sentence still has to be rational and reasonable, and indicate a weighing of 3553 factors.
In United States v. Guthrie, Nos. 07–6215/6286 (6th Cir. Mar. 2, 2009), the panel of Judges Martin, Moore, and Gwin (N.D. Ohio) considered a number of trial issues presented by the defendant and a sentencing challenge by the government. A jury convicted the defendant of car-jacking, discharging a firearm during a crime of violence, possessing a sawed-off shotgun, and being a felon in possession of a firearm. The court sentenced the defendant to 300 months of incarceration total. This sentence accounted for the mandatory minimum sentences at play.
The defendant challenged several aspects of the trial proceedings: 1) The AUSA being able to speak with the victim-witness during her cross-examination; 2) introduction of audio recordings of 911 calls; 3) introduction of video of a police pursuit; 4) the trial court’s refusal to issue a writ to produce a witness at trial; 5) the court’s instruction on "intent to cause death or serious bodily injury;" and 6) the denial of his motions for a judgment of acquittal based on the insufficiency of the evidence.
The government challenged the sentence, which included a variance from the guideline range. The government argued that the sentencing court varied because of the impact of the statutory mandatory minimums on the overall sentence and that the court did not adequately explain the grounds for the sentence.
The panel affirmed the conviction and sentence.
I will focus on two issues here: the witness-sequestration issue and the sentencing issue. The sequestration issue is interesting for a number of reasons. In our office in the Western District of Michigan, we recently brought a similar challenge because of conduct during a trial. This Guthrie decision does recognize the viability of such challenges. The Guthrie defendant characterized the error he raised as a failure to sequester the witness and as a violation of his Sixth Amendment right to confront his accuser. In rejecting the challenge, the panel pointed out that the district court merely had called a routine recess at the end of the day and that the defense did not object to the handling of the situation as the decision was made—the defense only objected as the witness was being dismissed and asked that the prosecutor not talk to the witness.
The panel concluded that sequestration orders do not prohibit witnesses from speaking with counsel. The panel noted that the defense did not question the witness regarding potentially improper communications when the witness took the stand the following day. Finally, the defense did not, on appeal, allege that anything improper occurred. I think these facts are what decided the issue. Perhaps on different, less benign, facts the situation could have come out differently.
As to sentencing, the government had argued for a 40-year sentence. The guideline recommendation was for 360 months and an additional 10 years because of the 10-year, consecutive minimum for the use of the firearm during a violent crime. The appellate court upheld the 25-year sentence imposed. It found that the district court was not trying to "negate" the mandatory minimum sentence for the use of the firearm during a crime of violence, as is prohibited by United States v. Franklin, 499 F.3d 578 (6th Cir. 2007). The panel found that the sentencing court had concluded that a 40-year sentence was just too long. The panel refused to impute an improper analysis to the district court and concluded the sentence was reasonable.
