Orie v. Sec'y Pa. Dep't of Corr.

• Decision Date: 15 October 2019
• Docket Number: No. 16-1685,16-1685
• Citation: 940 F.3d 845
• Parties: Jane C. ORIE, Appellant v. SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS
• Court: U.S. Court of Appeals — Third Circuit

940 F.3d 845

Jane C. ORIE, Appellant

v.SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS

No. 16-1685

United States Court of Appeals, Third Circuit.

Argued June 5, 2019

Filed October 15, 2019

William C. Costopoulos [ARGUED], Costopoulos Foster & Fields, 831 Market Street, P.O. Box 222, Lemoyne, PA 17043, Counsel for Appellant

Ronald M. Wabby, Jr. [ARGUED], Allegheny County Office of District Attorney, 436 Grant Street, Pittsburgh, PA 15219, Counsel for Appellee

Before: JORDAN, BIBAS, and MATEY, Circuit Judges

OPINION OF THE COURT

BIBAS, Circuit Judge.

Forging evidence is one way to get a mistrial. Jane Orie, a former Pennsylvania state senator, introduced forged evidence at her trial in state court. So the judge declared a mistrial. (The exhibits that triggered the mistrial are appended to this opinion.) During Orie's second trial, the court excluded her expert witness because his testimony would have been irrelevant. After her second trial, a jury convicted her of forgery, theft of services, Pennsylvania Ethics Act violations, and related crimes. Orie now brings a federal habeas petition challenging these convictions.

We hold that Orie's convictions do not warrant habeas relief. To start, we lack jurisdiction to consider her challenge to her Ethics Act convictions because she is not in custody for those convictions. On the merits, the state appellate court reasonably upheld the trial court's finding that a mistrial was manifestly necessary because the forged documents could have tainted the jury's verdict. So the mistrial and retrial did not amount to double jeopardy. And Orie did not show that her senate-rules expert's testimony would have been material, so she had no constitutional right to call this witness. As to the Ethics Act convictions, we will thus vacate and remand with instructions to dismiss for lack of jurisdiction. We will otherwise affirm.

I. BACKGROUND

Orie used her government-funded legislative staff to do political fundraising and campaigning for her reelection. When the Commonwealth started investigating that behavior and other alleged misconduct, she tried to hide and destroy documents. The Commonwealth then charged Orie with several crimes related to using state employees for personal gain and later trying to cover it up. Her sisters, Joan Orie Melvin, a Pennsylvania Supreme Court Justice, and Janine Orie, Melvin's aide, were charged with similar crimes.

A. Orie's first trial and the forged exhibits

In February 2011, Orie's case went to trial in Pennsylvania state court. At trial, she argued that she had consistently instructed her staff not to do political work on legislative time. She accused her chief of staff, Jamie Pavlot, of disobeying her instructions by letting staff do campaign work on the taxpayers' dime. Orie introduced and authenticated a number of exhibits with directives from her to Pavlot not to do political work on legislative time. But Orie claimed that Pavlot disregarded these directives.

Pavlot, who testified for the prosecution, said she did not recall seeing these directives. Orie's lawyer found this incredible. Both in his cross-examination of her and in his closing argument, he repeatedly questioned Pavlot's failure to recognize the documents.

But the prosecution quickly determined that at least two of these exhibits had forged signatures. See infra Appendix. During the cross-examination of Orie, the prosecution pointed out that Pavlot's signature line on one exhibit did not line up with the other words on the page. See infra Appendix Ex. 101B. And the prosecution claims that it noticed during jury deliberations that Pavlot's signature on a different exhibit seemed to have been copied and pasted from another document. Compare infra Appendix Ex. 101A (original signature), with id. Ex. 110 (copied-and-pasted signature). The prosecution made this discovery only three days after the defense belatedly turned over these exhibits.

The court immediately held a hearing to figure out what to do about the alleged forgeries. At the hearing, the prosecution called a handwriting expert, who testified that the signatures on the documents had been copied and pasted. The defense chose neither to cross-examine the prosecution's expert nor to introduce any evidence to contradict the expert's testimony. The prosecution asked the court to give the jury a special instruction on these forged documents. The defense objected to any new jury instructions, saying that it would prefer a mistrial to a new instruction. But Orie also objected to a mistrial and simply asked that jury deliberations resume. The court found that the forged documents were "a fraud on the Court," the jury, and the justice system; "call[ed] into suspicion every document that the defense offered"; and could undermine any verdict that the jury might reach. App. 1573a. So it declared a mistrial.

After the mistrial, the prosecution had the Secret Service test the authenticity of thirty-four original defense exhibits. The Secret Service found that well over a dozen of these exhibits had handwriting that "may have been reproduced via photocopies." App. 1695a. It also found evidence that Pavlot's signature had been copied and pasted into three exhibits. As discussed below, after her second trial, Orie was convicted of forgery and evidence tampering for introducing fake exhibits during her first trial.

B. Orie's second trial and exclusion of her expert witness

In February 2012, Orie went to trial again on both her original charges and new charges related to the fake exhibits. During this second trial, the prosecution called an expert who testified that Orie's office lease barred her staff from using that office for anything besides legislative work. Orie asked to call an expert in rebuttal. She said that her expert would testify that the senate rules let staff do political work from senators' legislative offices on comp time. (Compensatory time, often called comp time, is time that an employee may take off work in return for having worked extra hours. See, e.g. , 29 U.S.C. § 207(o ).)

The prosecution argued that the senate rules were irrelevant. It pointed out that Orie's behavior could break the law even if her behavior did not violate the senate rules. The court agreed. The court also worried that the jury might think her expert was opining on the law. So it excluded her senate-rules expert.

The jury convicted Orie of theft of services, conspiracy to commit theft of services, evidence tampering, and forgery. It also convicted her of using her political position for personal gain, in violation of the Pennsylvania Ethics Act, 65 Pa. Cons. Stat. § 1103(a) (conflict of interest). See also id. § 1102 (defining conflict of interest). The court sentenced Orie to prison for her theft-of-services, conspiracy, evidence-tampering, and forgery convictions. But on the Ethics Act convictions, it imposed "[n]o further penalty." App. 1066a; see Pa. Cons. Stat. § 9723.

C. Post-conviction proceedings

Orie appealed her convictions in state court, but to no avail. Commonwealth v. Orie , 88 A.3d 983 (Pa. Super. Ct.), appeal denied , 627 Pa. 757, 99 A.3d 925 (2014). She then filed this federal habeas petition, which the District Court rejected on the merits. We granted a certificate of appealability. On appeal, she makes three arguments: first, that the Pennsylvania Ethics Act is unconstitutionally vague; second, that her retrial violated the Double Jeopardy Clause; and third, that excluding her senate-rules expert violated her constitutional right to call witnesses in her defense.

Besides disputing these claims on the merits, the Commonwealth raises two procedural issues: First, it argues that we lack jurisdiction over Orie's Ethics Act claim, because she received no further penalty. Second, it argues that she failed to exhaust her Sixth Amendment claim. Her habeas appeal was consolidated with those of her sisters, who were also convicted of various crimes. We will issue separate opinions in each case.

D. Standard of review

On federal habeas review of state convictions, we defer to state courts. "[W]e review the ‘last reasoned decision’ of the state courts on the petitioner's claims." Simmons v. Beard , 590 F.3d 223, 231–32 (3d Cir. 2009) (quoting Bond v. Beard , 539 F.3d 256, 289–90 (3d Cir. 2008) ). We must presume that the state court's factual findings are correct. 28 U.S.C. § 2254(e)(1). A petitioner can rebut this presumption only by offering "clear and convincing evidence." Id.

We also defer to state courts on issues of law: We must uphold their decisions of law unless they are "contrary to, or involve[ ] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Id. § 2254(d)(1). So on federal habeas, "even ‘clear error’ will not suffice." White v. Woodall , 572 U.S. 415, 419, 134 S.Ct. 1697, 188 L.Ed.2d 698 (2014) (quoting Lockyer v. Andrade , 538 U.S. 63, 75–76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) ). Instead, the state court must be wrong "beyond any possibility for fairminded disagreement." Id. at 420, 134 S.Ct. 1697 (quoting Harrington v. Richter , 562 U.S. 86, 103, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) ).

II. WE LACK JURISDICTION OVER ORIE'S ETHICS ACT CLAIM

Orie is not in custody for her Pennsylvania Ethics Act convictions. We thus lack jurisdiction to reach the merits of her claim that the Ethics Act is unconstitutionally vague.

A federal court has habeas jurisdiction only if the petitioner is "in custody." 28 U.S.C. § 2254(a). She is in custody when she suffers a "non-negligible restraint on [her] physical liberty" because of a particular conviction. Piasecki v. Court of Common Pleas , 917 F.3d 161, 166 (3d Cir. 2019) (internal quotation marks omitted). We gauge custody for each offense independently. Maleng v. Cook , 490 U.S. 488, 490–92, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989). In other words, a defendant convicted of multiple offenses can be in custody for one but not for another.

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