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Disparity Case Analysis

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

Disparity Case Analysis

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

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There are a number of holdings in this case that defendants can use in the future:

  • Defendants can request in-camera reviews by the court of co-conspirators’ statements in presentence reports, even if they are not entitled to them as a matter of law under the Jencks Act;

  • Courts should not limit cross-examination of a witness in a multi-defendant trial to one defendant’s attorney, even if it was harmless error in this case;

  • Recordings of defendant’s phone conversations in jail should not be admitted as impeachment evidence just to show they are liars, but only if the content of those conversations is inconsistent with their testimony; and

  • If improper use of recordings that should have remained sealed under the Wiretap Act leads to other evidence, the impropriety may be grounds for reversal, even if the impropriety in this case was not sufficient grounds.

However, the most useful aspect of the decision is the discussion of sentence disparity and 18 U.S.C. 3553(a)(6), which directs courts to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."

The Seventh Circuit has always been more sympathetic than some other circuits to defendants who receive disparate sentences relative to their co-defendants.

In some circuits, it has long been ironclad that, when the statute speaks of disparity between sentences, Congress’ only purpose is to eliminate disparity nationwide, not between co-defendants. U.S. v. Garza, 1 F.3d 1098, 1100 (10th Cir. 1993); U.S. v. LaSalle, 948 F.2d 215, 218 (6th Cir. 1991). In other words, any sentence outside the guidelines is the disparate one; no guideline sentence can ever be considered disparate.

In contrast, the Seventh Circuit briefly flirted with the idea that disparity among co-defendants was grounds for downward departure. U.S. v. McMatuary, 176 F.3d 959 (7th Cir. 1999). However, on rehearing, the court reversed itself. U.S. v. McMatuary, 217 F.3d 477, 489-490 (7th Cir. 2000). On rehearing, the court accepted the "nationwide disparity" argument.

Several years later, however, the court vacated a sentence based in part upon disparity among co-defendants. U.S. v. Carroll, 346 F.3d 744, 751 (7th Cir. 2003).

Related Links

Seventh Circuit Court of Appeals

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Admittedly, the defendant in Carroll received an upward departure at sentencing, and an overall sentence of 262 months, compared to the co-defendant’s 38-month sentence. There is a big difference between vacating an upward departure, and ordering the trial court to consider granting a downward departure, as the court initially did in McMatuary.

Since the U.S. Supreme Court decision in U.S. v. Booker, the idea that disparate sentences between co-defendants may be grounds for attacking a sentence has resurfaced, and this decision should fuel such arguments.

The court could easily have said that King’s argument is foreclosed by McMatuary; instead, it called the argument "credible."

Defendants in King’s position have an open door to ask the Seventh Circuit to reconsider the issue in McMatuary one more time, arguing disparity between co-defendants as grounds for a downward departure, and also that co-defendant disparity can render a sentence "unreasonable," even if within the applicable Guideline range.

– David Ziemer

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David Ziemer can be reached by email.

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