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Sentencing, ex post facto, and conspiracy lifespans

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United States Constitution (From public domain.)

A critical part of practicing criminal defense anywhere is to advise clients of their sentencing exposure. In the jurisdictions that have sentencing guidelines, lawyers must know and understand them thoroughly and apply them well, in addition to all statutory sentencing provisions.

It is not easy advising a client to plead guilty for a crime that the client did not commit (but for which s/he will likely lose at trial), that should not be criminalized in the first place, or that will likely involve a sentence that is far harsher than what is fair. However, a lawyer is obligated to help a criminal defense client reduce the harm on him or her. If the only way a lawyer can do that is to avoid practicing criminal defense, then so be it.

In that context, today’s blog entry addresses last week’s very important two-to-one federal sentencing opinion from the District of Columbia Circuit: U.S. v. Peter Turner, ___ F.3d ___ (D.C. Cir., Dec. 5, 2008).

A jury convicted appellant Turner of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, and bribery, in violation of 18 U.S.C. § 201(b). The D.C. Circuit summarizes Mr. Turner’s sentencing conundrum as follows:

"A sentencing court, applying the Sentencing Guidelines, must ‘use the Guidelines Manual in effect on the date that the defendant is sentenced’ unless the court determines that this would violate the Ex Post Facto Clause of the Constitution, U.S. CONST. art. I, § 9, in which case the court ‘shall use the Guidelines Manual in effect on the date that the offense of conviction was committed.’ U.S. SENTENCING GUIDELINES MANUAL §§ 1B1.11. The Ex Post Facto Clause bars the retroactive application of ‘enactments which . . . increase the punishment for a crime after its commission.’ Garner v. Jones, 529 U.S. 244, 249 (2000). When Turner received his share of the proceeds of Vester Mayo’s life insurance policy in 2001, the Guidelines set the base offense level for conspiracy to defraud the United States at 10. A 2004 amendment to the Guidelines increased the base offense level for his crime to 14. This was the base level in the 2006 Guidelines the district court used when sentencing Turner in September 2007 to 33 months’ imprisonment. As Turner sees it, the district court violated the Ex Post Facto Clause by applying the later edition of the Guidelines and thereby increasing his Guideline range from 21—27 months to 33—41 months."

In favorably resolving Turner’s appeal of his sentence, the D.C. Circuit resolves the following four questions:

1. Does the Constitution’s Ex Post Facto Clause still apply to sentencing guidelines now that such guidelines are merely advisory? The D.C. Circuit answers yes, despite the Seventh Circuit’s opposite conclusion in United States v. Demaree, 459 F.3d 791, 795 (7th Cir. 2006), based on the by-now purely advisory nature of sentencing guidelines. Maj. Op. at 9.

2. Seeing that the Ex Post Facto Clause still applies to sentencing guidelines, for a conspiracy, is a sentencing court permitted to use the Sentencing Guidelines in effect at the end of the conspiracy, even if said guidelines are harsher than versions that existed earlier in the conspiracy? The D.C. Circuit answers yes.

3. Because Turner’s co-defendant — several years after any conspiracy activity — lied to federal investigators in order to conceal the conspiracy, for sentencing purposes, did the conspiracy thus continue right through the date of such lying by Turner’s co-defendant? The D.C. Circuit answers no.

4. What is Turner’s relief? He will be resentenced using the more favorable Sentencing Guidelines manual in effect several years earlier at the time of the last conspiratorial act.

Strongly dissenting on the third and fourth issues above is Judge David S. Tatel. Although I have not tracked Judge Tatel’s record in criminal cases, he has some background showing experience caring about the downtrodden and disenfranchised, through having served as Director of the National Lawyers’ Committee for Civil Rights Under Law from 1972 to 1974. While in private law practice at Hogan & Hartson, Judge Tatel also was General Counsel to the then-nascent Legal Services Corporation from 1975 to 1976, before Reagan tried to de-fang the agency.

In pertinent part, and with more than apparent reluctance to being bound in the following way by the Supreme Court’s decision in Forman v. United States, 361 U.S. 416, 423—24 (1960), overruled on other grounds by Burks v. United States, 437 U.S. 1 (1978), dissenting Judge Tatel writes:

"Dismissing Forman’s relevance, this court concludes that the case before us must fall in the Grunewald line of cases because ‘the only possible way to find an agreement between Turner and Andrews to conceal their conspiracy is to infer its existence.’ Maj. Op. at 8. Perhaps the court means that proving a subsidiary conspiracy to conceal the principal criminal conspiracy after the latter realizes its objectives requires direct evidence of an agreement to conceal that is lacking here. If so, I agree, but Forman’s holding and Grunewald’s reasoning require that we answer a second question: whether the concealment could continue the principal conspiracy itself by furthering its very objectives. Sidestepping this question, my colleagues observe that the tax evasion conspiracy in Forman continued because the ‘essence’ of tax evasion is concealment, Maj. Op. at 6-7 (quoting Forman, 361 U.S. at 420), without considering whether the ‘essence’ of the conspiracy here could amount to concealment as well. I believe the answer to that question is yes. Just as ‘the "essence of [a] conspiracy" to evade taxes [is] concealing income,’ Maj. Op at 6-7 (quoting Forman, 361 U.S. at 420), the essence of the conspiracy here is concealing the identity of the rightful beneficiary of federal insurance proceeds." Diss. Op. at 3-4.

The Turner majority responds to Judge Tatel’s dissent as follows: "In trying to squeeze this case into the Forman framework, the dissent asserts that the ‘essence’ of the conspiracy here was concealing the ‘rightful’ beneficiary’s identity. That is an exceedingly odd formulation. One would have thought that the ‘essence’ or main objective was getting hold of the insurance proceeds. Of course Turner and Andrews wanted to avoid detection, and of course, after Turner got the money, disclosure of the ‘rightful’ beneficiary would have done him and Andrews in. But extending the life of a conspiracy on that basis is exactly what the Supreme Court refused to do in Grunewald and Lutwak and Krulewitch. All the dissent has managed in so many words is to restate the same theory those decisions reject." Maj. op at 7, n.2.

Hopefully en banc reconsideration will not be sought and obtained by the prosecution in Turner. Meanwhile, do judges in your jurisdictions apply the Ex Post Facto Clause to sentencing guidelines? To what extent do your jurisdictions agree or disagree with Judge Tatel’s dissent in Turner