Tuesday, April 15, 2008

Last week at the 6th, all about the 5th, and a great quote for acquitted conduct

Amendment that is. Last week, the Sixth Circuit published two cases involving whether or not a potential defense witness' invocation of his Fifth Amendment rights prejudiced the defendant's right to present his case at trial. In both cases, the Sixth found that no prejudice occurred.

The Sixth started last Monday, April 7th, with its opinion in United States v. Highgate, No. 06-1447. Mr. Highgate was convicted in the Eastern District of Michigan for various drug and firearms charges, resulting in the district court sentencing him to 360 months imprisonment. Apparently back in 2004, the police were executing a search warrant on a home in Detroit, when Mr. Highgate was seen hiding a firearm and several packages of cocaine and heroin in the backyard. Also upon entry to the home, the police discovered a Mr. LaFrederick Jones inside, "who dropped bags of drugs to the floor upon seeing the officer". At trial, one police officer testified to arresting the defendant in the backyard. In his case in chief, the defendant sought to introduce the testimony of Mr. Jones to the effect that the officer who testified that he arrested Mr. Highgate was not the one who arrested him, but instead that it was a female officer. Mr. Jones had already been convicted and sentenced for his actions on that day. Mr. Highgate called Mr. Jones, but before he could ask any questions, the court stated that it was his understanding that Mr. Jones intended on taking the 5th Amendment. When Mr. Jones stated that was true, the court excused him.

On appeal, Mr. Highgate challenged the district court's dismissal of Mr. Jones without an inquiry into whether Mr. Jones's invocation of his 5th Amendment rights was legitimate. The Sixth Circuit agreed that it was error for a district court to accept a blanket assertion of the 5th Amendment without inquiring into the legitimacy of the witness' fear of prosecution. However, the 6th Circuit found that the district court's error was harmless in this case because they could not conclude that the error affected the outcome of the trial.

Mr. Highgate also raised an issue relating to his 360 month sentence. The district court, upon imposing sentence stated that he felt the Guideline range was too high for Mr. Highgate, but that he felt as if he was required to impose that sentence. The Sixth Circuit was reviewing this sentence under plain error grounds BECAUSE DEFENSE COUNSEL FAILED TO OBJECT TO THE SENTENCE IMPOSED AT THE END OF THE SENTENCING COLLOQUY. However, the Sixth Circuit found that Mr. Highgate could meet the prejudice requirement of plain error because of the district court's plain disgust with the Guideline sentence. The Sixth Circuit stated that "[a]t this stage of the game, sentencing courts frustrate effective appellate review by walking mechanically through the now-advisory Guidelines, lodging their regret all the way." They found that this equalled procedural unreasonableness because the district court treated the Guidelines as mandatory. The Sixth remanded Mr. Highgate for resentencing.

The second interesting opinion on the Fifth Amendment from last week was the case of United States v. Hunt, No. 06-6300/6301. Hunt involved Medicare fraud scheme involving several doctors. Dr. Hunt maintained his innocence and proceeded to trial. At trial, he attempted to introduce an affidavit prepared by a Mr. Noble that was made during the investigation which stated that he believed Dr. Hunt did nothing wrong. He also attempted to call Noble and a Dr. Bartee to testify. Both men refused to testify on 5th Amendment grounds. Apparently the district court in this case did what the district court in Mr. Highgate's case failed to do and inquired into why they were invoking their Fifth Amendment right. Dr. Bartee "refused to testify because of concerns about how his testimony might affect his diversion agreement, which had not been finalized by the time of trial, and Noble refused to testify because of his exposure to potential prosecution in other districts." After the trial and guilty verdict, the district court sentenced the defendant to 5 years probation, even though his Guideline range was 27 to 33 months.

Hunt challenged the dismissal of Noble and Dr. Bartee on the grounds that the government effectively made the witnesses unavailable. The district court found that the government did not make them unavailable because, "the Government did nothing to discourage or inhibit them from testifying."

Hunt also challenged the district court's exclusion of the statements from Noble's affidavit. The Sixth found that the statements were not admissible. They ruled that the statements amounted to hearsay, and that the exception found in Rule 804(b)(1) for the unavailable witness did not apply. They also ruled that the affidavit was not given at another hearing or different proceeding. Finally they stated that the catch-all rule, 807, which allows for the admission of hearsay statements not otherwise covered by the rules if they are trustworthy did not apply because the district court found the affidavit to be untrustworthy. The Sixth also found that the statements were not admissible for impeachment.

Finally, in Hunt, the Sixth Circuit thumbed its nose at Gall's abuse of discretion review, and reversed Hunt's sentence as substantively unreasonable. The Sixth Circuit found that the district court's statement that it had doubts regarding Hunt's intent to engage in criminal acts was improper. In an interesting quote that could be useful for the defense attorney challenging the use of acquitted conduct at sentencing, the Sixth stated that it was error "if the district court did so rely [on its doubts about Hunt's intent], then it is necessary for us to remand under the abuse-of-discretion scope of review. This is because it would be improper for the judge in the sentencing to rely on facts directly inconsistent with those found by the jury beyond a reasonable doubt. Indeed, we have stated repeatedly, albeit outside the sentencing context, that a district court abuses its discretion when it relies on clearly erroneous facts." The Sixth then remanded for resentencing. While I'm confident that the difference in being convicted beyond a reasonable doubt and being acquitted and then having the sentencing court find the facts by a preponderance will end up nullifying the effectiveness of this quote, I feel that is an excellent quote from the Sixth that can be used by defense counsel for any case where acquitted conduct is at issue.


My name is Richard Strong, the rws in the Memphis Federal Defender's office. At a CJA conference our office a few months back, I talked with Sumter Camp about helping out on this blog, and I thought it would be a lot of fun. So of course I forgot completely about it for a couple of months until Sumter helped kick start the process of getting me on board with the blog. Anyway, to make a long story short, I'm looking forward to trying to help reinvigorate this blog.

I wanted to start last week with several interesting decisions from the 6th, but because of a nice public corruption appeal that I was working on, I couldn't find the time. But without further ado....