Monday, December 31st, 2007

Permanent Waive

United States v. Quinones, No. 04-5554 (2d Cir. December 28, 2007) (Winter, Cabranes, Raggi, CJJ)

This case has lengthy discussions of two important issues. It turns out that the one that has received the less press is actually the more interesting of the two, so we’ll begin with that.

1. Sentencing Error Waived

Facts: In this capital case, the defendants initially faced three counts that exposed them to the death penalty. Two related to murder in aid of racketeering under 18 U.S.C. § 1959; for these, a life sentence was mandatory if death was not imposed. The defendants were acquitted of these counts.

They were convicted only of murder in relation to a continuing drug enterprise (“CCE”) under 21 U.S.C. § 848(e). At the time, that section provided for a mandatory minimum sentence of 20 years’ imprisonment and a maximum of life if death was not imposed. Nevertheless, the defendants repeatedly asserted, both before the jury and to the district court, that life without parole was the only legal option if they were acquitted of death. While this was true under the then-mandatory Guidelines, it was not true under the statute. On appeal, they asserted that they should be resentenced due to the district court’s mistaken belief that a life sentence was mandatory.

Holding: The circuit disagreed. Although it recognized that the district court erroneously believed that life sentences were mandated, and not just by the Guidelines, the court concluded that the judge had not “misread or misunderstood” the statute. Rather, it found that “a more likely explanation” was that “the defendants agreed to life imprisonment as the only possible non-capital sentence to strengthen their argument to the jury, at the penalty phase of this case, that justice did not demand their deaths.”

The circuit noted that, even after the defendants were acquitted of the racketeering counts for which life truly was mandatory, they continued to “insist” that the jury be charged that the only two sentencing possibilities on the CCE count were life imprisonment or death, and asked the court to emphasize this in its instructions, which it did. Moreover, the defendants then repeatedly argued this to the jury. Characterizing this as a “tactical” decision, the court held that the appellate claim that the district court erred in believing that a life sentence was required was waived – “truly” waived, such that not even plain error review would apply – and not merely forfeited. “A finding of true waiver applies with even more force when, as in this case, defendants not only failed to object to what they now describe as error, but they actively solicited it, in order to procure a perceived sentencing benefit.”

The court concluded that it was “no doubt that it was a tactical decision” by the defense attorneys to agree that a life sentence was the only alternative to death, and not a mistake, citing numerous treatises that have observed that capital juries are less likely to impose the death penalty if they believe that the defendants will not be released from prison. The court also noted that this tactical decision was a “reasonable” one, likening it to accepting a Rule 11(c)(1)(C) plea.

Comment: This is a tough case, because it really does seem that both the district court and the defense attorneys misread the CCE statute. It is, after all, a confusing provision that does mandate a life sentence in some circumstances, although, oddly enough, not in murder cases. The circuit is clearly off the mark in finding that the district judge did not misread the statute, since the judge repeatedly said that the section mandates a life sentence, and never said that it reached this conclusion based on the defendants’ offer to accept a life sentence. Nevertheless, the court is on firmer ground in finding that the defendants waived their appellate claim by inviting the error in the district court, since they clearly did so.

By the way, it is no accident that the court goes to such lengths to characterize the actions of defense counsel as “tactical” and “reasonable.” These findings, unnecessary to the disposition of this appeal, are an obvious effort to preempt any future claim that the defense attorneys were ineffective. Although the court never mentions Strickland, it is clearly the subtext of this portion of the decision.

2. Jury Selection

This case also has an interesting discussion of jury selection issues in capital cases. At trial, the district court dismissed a few jurors for cause based solely on their responses on written questionnaires that indicated, in essence, that they would never impose the death penalty in any case. The appellate court strongly urged district courts, particularly in capital cases, to question prospective jurors before dismissing them for cause, but refused to characterize this as a constitutional mandate. It also noted that any error here was rendered harmless by the jury’s refusal to impose the death penalty. The court rejected, at least on these facts, the notion that this type of error could produce a jury that was more likely to convict at the guilt phase. Here, the jury acquitted the defendants of two of the three capital counts.

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