Puerto Rico Association of Criminal Defense Lawyers

Disparity Between State and Federal Sentences for Same Conduct

In a Booker remand in United States v. Wilkerson, No. 02-1729 (1st Cir. June 9, 2005) the panel seems to be endorsing the idea that a district court may take into account the disparity between federal and state sentences for the same conduct in arriving at a correct sentence in the post-Booker world. The passage comes towards the end of the opinion, and states:

    The district judge sentenced Wilkerson to the lowest available sentence under the Guidelines. He repeatedly expressed his concern about disparate treatment between federal and state court sentences in similar cases, but stated that the Guidelines did not permit him to take that disparity into account. The district judge also observed that Wilkerson had the most horrible young life he had seen in 17 years on the bench. Both the need to avoid unwarranted sentencing disparities and the history and characteristics of the defendant are among the factors to be considered by the now advisory Guidelines. 18 U.S.C. § 3553(a). As this court recognized in Heldeman, where there is a reasonable indication that the district judge might well have given a different sentence under an advisory guidelines regime, and it would be easy enough for him to say no with a minimum expenditure of effort, we are persuaded that remand is required. 402 F.3d at 224. We express no view on whether defendant should be resentenced or on any possible resentence.

Professor Berman in this post at Sentencing Law and Policy states that prosecutors "will seek re-hearing on this point since, as noted in this post, DOJ has been saying it will appeal any district court sentence with a variance based on comparisons to state sentencing laws.  Wilkerson as it stands seems to approve such comparisons."

According to this last linked to post at SL&P, DOJ personnel have stated that there are "five types of sentencing decisions that would be appealed in every instance: (1) any sentence with a variance of straight probation; (2) any sentence with a variance based on crack/powder cocaine disparity; (3) any sentence with a variance based on fast-track disparity; (4) any sentence with a variance based on comparison to state sentencing laws; and (5) any sentence with a variance based on substantial assistance in the absence of a 5K letter.  This appellate approach should produce some interesting (and, I would anticipate, somewhat disparate) circuit court rulings about the meaning of reasonableness."

I have a different take on this than Professor Berman. In my view, rather than seeking rehearing before the Court at this stage, DOJ will likely wait to see what the District Court does on remand and then appeal the matter if the District Court actually considers the disparity between state and federal sentences.

See also this post at Appellate Law & Practice which covers not only the Booker aspects, but also other issues decided in the Wilkerson opinion such as the use of prior consistent statements to rehabilitate a witness as well as prosecutorial vouching.

The 9th Reverses on Prosecutorial Misconduct

Today we have a good case for defendants from the 9th Circuit. Yes, I know that you are reluctant to cite those 9th Circuit cases to the judges in our district, but save this one anyway.  In United States v. Weatherspoon, No. 03-10551 (9th Cir. May 6, 2005) the 9th Circuit reverses a conviction due to prosecutorial vouching and urging the jury to cure society's ill by convicting defendant of a felon in possession charge. The prosecutor is a repeat offender and two previous convictions were thrown out by 9th Circuit panels for similar conduct.  The Court points to it in the following passage:

In that respect we stress that the ethical bar is set higher for the prosecutor than for the criminal defense lawyer—a proposition that has been clear for at least seven decades (see Berger v. United States, 295 U.S. 78, 88 (1935); and see also such cases as United States v. Modica, 663 F.2d 1173 (2d Cir. 1981) as well as the ABA Standards for Criminal Justice § 3-5.8(b)). Although to be sure no lawyer, either public or private, should lay his or her own credibility on the line by expressing his or her own opinion about a witness’ believability, the difference is that a private lawyer’s impropriety in that respect carries no implication of official governmental support. And in this particular instance, it is surely worth noting that the selfsame prosecutor has engaged in exactly the same kind of vouching conduct in two instances that has led other panels of this court to upset convictions obtained by that prosecutor (see the unpublished opinions in United States v. Williams, 2004 WL 2370557 (9th Cir. Oct. 21, 2004) and United States v. Green, 2004 WL 2984356 (9th Cir. Dec. 28, 2004)). To label such recidivist conduct as “unremarkable” [the dissent's description] is itself remarkable.

Weatherspoon, at 4913.  To the criminal defense bar practicing in the district of Puerto Rico an opinion such as Weatherspoon offers little solace.  After all, we practice in a district where the U.S. Attorney's Office has been repeatedly warned and slapped on the hand by the First Circuit Court of Appeals for improper comments and misconduct, only to be warned and slapped on the hand again, with no reversals. If any Judges from the First Circuit read this blog, let me state loud and clear that your method of dealing with this has not been helpful at all. Make them really pay a price, such as a few convictions being reversed, and then --and only then-- will the prosecutors who are prone to misconduct start to get their act together.

A not so level playing field: Prosecutors Run NCIC Checks on Jurors While You Conduct Guesswork

While you are practically blindly conducting what amounts to almost a joke of a voir dire in jury selection, is it possible that the prosecutors are way ahead of you having run background checks of the prospective jurors in federal databases?

I always felt uneasy when I saw a federal prosecutor get the prospective jurors' list and hand it off to some US Attorney's Office secretary or legal assistant. Why?

I figured that since the U.S. Attorney's office is one firm handling all criminal prosecutions in federal court, they would certainly be able to keep tabs on jurors who had served previously and how the verdicts had come down.  Quite an advantage over the myriad solo practitioners litigating against the government!

But check out this article in Law.com as to Ohio prosecutors making use of federal NCIC database to screen some jurors.  There is something that smells bad about this, and the Courts should step in to correct it.