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Illegal evidence may be used at sentencing

Statements taken in violation of the right to counsel may be considered at sentencing, the Seventh Circuit held on July 28, where the purpose of the interrogation was not to gather evidence against the defendant, but against co-conspirators.

Paul A. Krueger was stopped for speeding, and police discovered over two kilograms of marijuana in his truck, and more at his residence. Krueger was charged in Marinette County Circuit Court for trafficking in marijuana, and a public defender was appointed to represent him.

However, federal authorities announced their intent to prosecute Krueger for the offense, and the state charge was dismissed. The same day, he was taken into federal custody and the federal agents asked if he wished to cooperate. Krueger ultimately waived his right to remain silent and gave a detailed statement, implicating himself in the distribution of more than 100 kilograms of marijuana.

The federal agents had requested a Marinette County deputy to join the interrogation, because he would be more familiar with anyone Krueger might implicate.

Krueger moved to suppress the statement, contending that because he had already invoked his Sixth Amendment right to an attorney as to the state charges, federal agents were barred from questioning him without an attorney present.

U.S. District Court Judge William C. Griesbach denied the motion, and Krueger pleaded guilty to possessing marijuana with the intent to distribute, while reserving the right to appeal the Sixth Amendment question insofar as his self-incriminating statement had an impact on the district court’s sentencing decision.

At sentencing, the court found Krueger responsible for distributing between 100 and 400 kilograms of marijuana and ordered Krueger to serve a prison term at the low end (57 months) of the range specified by the guidelines. The drug quantity finding was based on Krueger’s admission that he had distributed from five to seven pounds of marijuana every other week for six years.

Krueger appealed, but the court of appeals affirmed, in a decision by Judge Ilana D. Rovner. However, the court issued a limited remand pursuant to U.S. v. Paladino, 401 F.3d 471 (7th Cir. 2005).

The court declined to decide whether the statement violated the Sixth Amendment right to counsel pursuant to Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404 (1986), which holds that if the police initiate interrogation of a defendant after he has asserted his Sixth Amendment right to counsel at an arraignment or a similar proceeding, any waiver by the defendant of his right to counsel, outside the presence of counsel, is invalid.

The court framed the question as, "whether a defendant’s invocation of his right to representation in a state prosecution can trigger the Jackson bar against interrogation as to a subsequent federal prosecution on a related charge."

The court noted that the general rule is that the Sixth Amendment right to counsel is offense-specific, so that, even if there is a factual relationship between prior and subsequent charges, Jackson does not necessarily prohibit the police from talking to the defendant about the later charge.

What the court held

Case: U.S. v. Paul A. Krueger, No. 04-2539.

Issue: Was a police interrogation conducted for the purpose of increasing a suspect’s sentence under the sentencing guidelines?

Holding: No. The evidence suggests the primary purpose was that the suspect implicate others, and thus, even if the interrogation was unlawful, the exclusionary rule does not bar its use at sentencing.

Furthermore, pursuant to the dual sovereignty doctrine, the Double Jeopardy Clause does not bar both the federal and state governments from prosecuting a defendant based on the same facts.

The court noted a split of authority. Some jurisdictions hold that a defendant’s invocation of counsel in state court does not bar interrogation on a federal charge.

U.S. v. Avants, 278 F.3d 510, 517 (5th Cir. 2002); U.S. v. Coker, 298 F. Supp. 2d 184, 190-91 (D. Mass. 2003). Others hold that the Sixth Amendment extends to the federal offense, U.S. v. Mills, ___ F.3d ___, 2005 WL 1444145 (2d Cir. June 21, 2005), U.S. v. Bowlson, 240 F.Supp.2d 678 (E.D.Mich.2003), and U.S. v. Red Bird, 287 F.3d 709 (8th Cir. 2002)(involving tribal court, rather than state court).

After discussing Mills, Bowlson, and Red Bird at length, the court wrote, "The facts in this case make room for a similar theory. … Once a federal warrant was issued for Krueger’s arrest, the state charges against Krueger were dismissed and he was immediately arrested on the federal warrant at the Marinette County Courthouse, driven to Green Bay by a state deputy, and delivered into the custody of federal agents. As Judge Griesbach observed, the transition between the state and federal prosecutions of Krueger was virtually seamless."

The court also noted that a Marinette deputy sheriff remained involved, even after the state charges were dismissed.

However, the court declined to decide the issue, because it found that, even if the interrogation violated the Sixth Amendment, the statements could nevertheless be used for sentencing purposes, pursuant to U.S. v. Brimah, 214 F.3d 854 (7th Cir. 2000). In Brimah, the court held that, with narrow exceptions, the exclusionary rule is inapplicable at sentencing.

The only exception is where the authorities deliberately violated the defendant’s rights for the purpose of acquiring evidence to boost his prospective sentence.

Krueger argued that was the case here, as the amount "ballooned" from the three kilograms in his truck and home to over 100 kilograms: "Clearly, the purpose
and result of the interview was to increase Krueger’s sentence. What other purpose could it serve?"

The court rejected the argument, however, concluding, "the testimony concerning the August 8 interview suggests that the agents were primarily interested in having Krueger name other persons who were involved in his drug dealing."

The court noted that Krueger did not want to implicate anyone else (or at most, one other person), whereas the agents were unwilling to talk with him unless he was willing to name others. Also, when Krueger ultimately decided to talk, the officers invited the Marinette County deputy to join them, because he was more likely to know the individuals that Krueger would name.

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Case Analysis

The court wrote, "We do not suppose that the agents were blind to the sentencing ramifications of what Krueger told them about the extent of his marijuana sales.

But the record as it stands does not suggest that they purposely trampled his constitutional rights in order to lengthen his prison sentence. Thus, even if Handy and DeValkenaere did run afoul of Michigan v. Jackson and Krueger’s right to the assistance of counsel when they questioned him on August 8, the district court was not precluded from relying on Krueger’s statement at sentencing to ascertain the quantity of marijuana for which he was responsible. We leave for another day the question of whether and when Jackson might preclude interrogation as to a federal charge that is based on the same facts underlying a state charge as to which the defendant has already invoked his right to counsel."

Turning to the effect of U.S. v. Booker, 125 S.Ct. 738 (2005), the court acknowledged that, arguably, Booker bars use of an unlawful interrogation to increase the sentence. However, Krueger made no such argument in the trial court, and so the court found the argument forfeited.

Nevertheless, the court issued a limited remand pursuant to Paladino, because the sentence was imposed based on an erroneous assumption that the guidelines were mandatory.

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David Ziemer can be reached by email.

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