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Court takes up unduly disparate sentences

By: dmc-admin//June 8, 2005//

Court takes up unduly disparate sentences

By: dmc-admin//June 8, 2005//

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The Seventh Circuit on June 3 issued encouraging dicta to defendants who receive sentences that may be considered disparately large relative to those of their co-defendants.

In 1999, 15 defendants were charged for their respective roles in a drug conspiracy in Chicago led by Robert Allen. They all pleaded guilty (including Allen) or were found guilty at trial. Those who went to trial appealed, and their convictions were affirm-ed, but their sentences were remanded pursuant to Booker, in a decision by Judge William J. Bauer.

Jencks Act

Addressing the convictions, the court first held that the defendants who went to trial were not entitled under the Jencks Act, 18 U.S.C. 3500(b), to have copies of the statements to the presentence writer made by the defendants who pleaded guilty.

The Jencks Act provides, in relevant part: "After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified."

The Act defines a statement as "a written statement made by said witness and signed or otherwise adopted or approved by him." 18 U.S.C. 3500(e)(1).

Addressing an issue of first impression in this circuit, the court held the act did not apply to statements made for the preparation of presentence reports.

The court noted that courts must have full disclosure of information, and defendants may not be as forthcoming if the information will be disclosed to coconspirators. In addition, the reports may contain information relevant to ongoing investigations.

Finally, the court noted that the Act was enacted in 1957, when presentence reports were not even disclosed to defendants. The court added that defendants are not necessarily deprived of all access to cooperating witnesses’ presentence reports, because they may request an in camera review by the court.

Confrontation Clause

The defendants also challenged the district court’s actions in only allowing one of the defendants who went to trial to cross-examine Allen about two letters he wrote to the prosecutor prior to sentencing.

The court agreed that it would have been better practice to allow each defendant’s attorney opportunity to cross-examine Allen. Nevertheless, the court found that, even if the limitation imposed by the trial court violated the Confrontation Clause, the error was harmless.

The court noted that all the defendants’ attorneys cross-examined Allen, even if not on that issue, and that the one attorney who was allowed to question him regarding the letters "hammered Allen’s credibility for approximately three hours."

The court concluded, "we think that the not-fully-impeached evidence had little or no effect on the reliability of the factfinding process at trial. In sum, due to Ector’s cross-examination of Allen on the letters, Allen’s admissions about the contents of the letters, the otherwise extensive cross-examination of Allen by all defense attorneys, and the overall strength of the prosecution’s case, we doubt that further cross-examination on the letters would have had an appreciable effect on the jury’s assessment of Allen’s credibility or the outcome of the case and conclude that any error by the district court was harmless beyond a reasonable doubt."

Extrinsic Evidence

The court also held that it was improper for the government to play tape recordings of one of the defendants’ conversations while in custody at the MCC. During one call to his employer, defendant Smith lied about why he was absent from work, and in another to his wife, he bragged about the elaborate lie to his employer.

The court concluded the recordings constituted inadmissible extrinsic evidence under Rule 608(b), reasoning, "The force of the MCC phone call recording was not due to a comparison of Smith’s statements on the tape and his equivocations at trial. Rather, Smith’s elaborate lie to his supervisor, in and of itself, cast significant doubt on Smith’s character for truthfulness. For this reason, the MCC tape falls squarely within the ambit of Rule 608(b), and it was error for the district court to allow the government to play the tape."

Nevertheless, the court held the error harmless, and declined to reverse Smith’s conviction.

Prosecutorial Misconduct

The court also found that the prosecutor engaged in misconduct in two respects: by failing to disclose the MCC tapes to Smith prior to trial; and by playing recordings of conversations of Smith for his neighbors.

Again, the court declined to reverse the conviction, however, reasoning, "we do not punish prosecutors for government misconduct by reversing convictions. … While the pre-trial disclosure of the tape recordings may have hurt Smith’s reputation with his neighbors, we fail to see how the disclosure had any effect at all on the outcome of Smith’s case, considering that the neighbors did not testify at trial or provide the government with incriminating evidence about Smith after the disclosure."

Sentences

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Seventh Circuit Court of Appeals

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Case Analysis

Although the court affirmed all the convictions, it granted a limited remand of the sentences pursuant to U.S. v. Paladino, and vacated one sentence entirely, because that defendant properly preserved an Apprendi challenge at the trial level.

The court noted the case was unusual in that the principal conspirators cooperated, and testified against the underlings, "a reverse of the more typical situation where the subordinates turn on the principals."

Addressing the sentence of one of those underlings who went to trial and lost — Thomas King — the court wrote, "King maintains that other defendants with similar roles in the conspiracy fared better with their ultimate sentences than he did, undercutting the guidelines’ goal of uniformity in sentencing. This is a credible argument, given that King, Allen’s ‘gofer,’ was sentenced to 360 months, which is more than ten years longer than the highest sentence of the other defendants that went to trial, and the same sentence that a high-ranking conspirator received in a related prosecution. 18 U.S.C. sec. 3553(a)(6) (directing district judge’s to consider ‘the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.’). Nonetheless, we think that this argument is best directed to the district court on limited remand, particularly considering that King’s sentence was at the bottom of the applicable sentencing range and the district judge may have imposed a different sentence had he known the guidelines were merely advisory (cites omitted)."

Case: U.S. v. McGee, et al., Nos. 01-2493, et al.

Click here for Case Analysis.

David Ziemer can be reached by email.

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