U.S. v. Bell

• Decision Date: 13 September 1993
• Docket Number: No. 93-5158,93-5158
• Citation: 5 F.3d 64
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. George Robert BELL, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 64

5 F.3d 64

UNITED STATES of America, Plaintiff-Appellant, v. George Robert BELL, Defendant-Appellee.

No. 93-5158.

United States Court of Appeals Fourth Circuit.

Argued July 15, 1993.

Decided Sept. 13, 1993.

Gregory Welsh, Asst. U.S. Atty./Chief, Criminal Div., Baltimore, MD, argued (Richard D. Bennett, U.S. Atty., on brief), for plaintiff-appellant.

Jean A. Garner, Garner & Walls, Laurel, MD, argued (C. Michael Walls, on brief), for defendant-appellee.

Before WILKINS, NIEMEYER, and HAMILTON, Circuit Judges.

OPINION

WILKINS, Circuit Judge:

In an earlier opinion, a panel of this court vacated the sentence of George Robert Bell and remanded for resentencing within the guideline range of 87-108 months imprisonment. See United States Sentencing Commission, Guidelines Manual, (Nov. 1989); United States v. Bell, 974 F.2d 537 (4th Cir.1992) (Bell I ). On remand, rather than follow the mandate, the district court vacated Bell's guilty plea to sexual exploitation of children, see 18 U.S.C.A. Sec. 2251(a) (West Supp.1993), and dismissed the indictment. Because the district court was in error, we reverse, reinstate Bell's conviction, and remand for resentencing.

I.

Following indictment on multiple counts of sexual exploitation of children, Bell pled guilty to a single count of using a minor to engage in sexually explicit conduct for the purpose of making a visual depiction of that conduct. The facts supporting his plea arose during a camping trip on which Bell took his daughter, age 13, and three daughters of a family friend, ages 12, 8, and 7. Bell and his daughter left their home in Maryland and traveled to Pennsylvania where they picked up the other children. During the trip, Bell placed a video camera in his camper in a position to record the children while they changed their clothes. Bell instructed them to take off their clothes, sit in certain locations, and to "examine" themselves for the presence of ticks by spreading and examining their vaginas. At one point, Bell repositioned the camera so that the genitals of one child were the direct focus of the recording. At other points, Bell himself examined the children for ticks and rubbed lotion on them. Noticing the video camera, one of the children asked Bell if it was recording; Bell falsely assured her that it was not. At the end of the camping trip, Bell returned to his home in Maryland with the videotape. The circumstances leading to Bell's arrest and indictment are recounted in the earlier opinion:

Several months later, [after the camping trip] Montgomery County police were called to an elementary school in Rockville, Maryland, to investigate a complaint of child sexual abuse. A seven year old female student told police detectives that she had been taken by "Uncle George" to his residence in Salisbury, where he had taken photographs of her in the nude. Further investigation revealed that "Uncle George" was George Bell, and police obtained a warrant to search Bell's home. During the ensuing search police seized a number of videotapes containing scenes of young girls posing in the nude under Bell's direction. One of those tapes included the scenes of the girls "checking for ticks" in the camper [in Pennsylvania].

Id. at 538. Bell ultimately pled guilty to one count of violating Sec. 2251(a).

At the sentencing hearing, the district court assigned Bell an adjusted offense level of 28. ¹ Based on Bell's prior convictions for promotion and distribution of child pornography and for sexual abuse of a child, his Criminal History Category was III. The district court, however, departed downward to Category II on the ground that Bell demonstrated "little or no likelihood of recidivism." Id. (internal quotation marks omitted). This yielded a guideline range of 87-108 months imprisonment. The district court departed from this range and imposed a sentence of 12 months imprisonment, giving as its reason the impact Bell's incarceration would have on his family.

The Government appealed the departure based on the extraordinary family circumstance. ² The Bell I panel reversed, stating that because Bell is the father in a traditional two-parent family, his "circumstances [were] even less 'extraordinary' than that of a single mother." Id. at 539. The panel further noted that Bell had " 'shown nothing more than that which innumerable defendants could no doubt establish: namely, that the imposition of prison sentences normally disrupts spousal and parental relationships,' and that simply is not a sufficient basis for a departure." Id. at 539 (quoting United States v. Daly, 883 F.2d 313, 319 (4th Cir.1989)). The sentence was vacated and the case remanded for resentencing. The instructions to the district court were explicit: "We vacate the sentence and remand for resentencing within the range of 87-108 months." Id. at 537.

On remand, the district court held a conference with counsel during which the court sua sponte opined that a departure would be warranted on the ground that the children were not aware of Bell's actions until notified by law enforcement authorities and therefore did not become victims until that time. The district court reasoned that this delayed victimization constituted a mitigating factor not adequately considered by the Sentencing Commission in promulgating U.S.S.G. Sec. 2G2.1, and therefore a departure on this basis was proper. During a second conference, the district court, again sua sponte, suggested that Sec. 2251(a) contained an element of direct or implied commercial purpose for which the Government had not provided a sufficient factual basis to support Bell's plea of guilty. Relying on this reasoning, the district court then invited Bell to file a motion to withdraw his guilty plea with a companion motion to dismiss the indictment.

Although no motions were made, at the sentencing hearing the district court vacated the judgment and dismissed the indictment on the ground stated above. The district court also declared that if its decision to vacate were reversed, it would depart again and sentence Bell to 12 months imprisonment on the ground that the children did not become immediate victims and therefore suffered no harm until apprised of Bell's actions by law enforcement authorities. Pursuant to 18 U.S.C.A. Sec. 3731 (West Supp.1993), the Government appealed.

II.

A.

Few legal precepts are as firmly established as the doctrine that the mandate of a higher court is "controlling as to matters within its compass." Sprague v. Ticonic Nat'l Bank, 307 U.S. 161, 168, 59 S.Ct. 777, 780, 83 L.Ed. 1184 (1939). Indeed, it is indisputable that a lower court generally is "bound to carry the mandate of the upper court into execution and [may] not consider the questions which the mandate laid at rest." Id. Because this "mandate rule" is merely a "specific application of the law of the case doctrine," in the absence of exceptional circumstances, it compels compliance on remand with the dictates of a superior court and forecloses relitigation of issues expressly or impliedly decided by the appellate court. United States v. Bell, 988 F.2d 247, 251 (1st Cir.1993). In addition, the rule forecloses litigation of issues decided by the district court but foregone on appeal or otherwise waived, for example because they were not raised in the district court. Seeid. at 250. ³ Thus, when this court remands for further proceedings, a district court must, except in rare circumstances, " 'implement both the letter and spirit of the ... mandate, taking into account [our] opinion and the circumstances it embraces.' " Id. (quoting United States v. Kikumura, 947 F.2d 72, 76 (3d Cir.1991)). However, to the extent that the mandate of the appellate court instructs or permits reconsideration of sentencing issues on remand, the district court may consider the issue de novo, entertaining "any relevant evidence on that issue that it could have heard at the first hearing." United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992).

We have previously recognized that these well-established rules apply when this court remands for resentencing. For example, in United States v. Apple, 962 F.2d 335, 336 (4th Cir.1992), the first review of Apple's case involved an evidentiary issue and the applicability of a sentencing enhancement for possession of a weapon during the commission of a narcotics offense. A panel of this court directed the district court to address these points on remand. At resentencing, Apple urged the district court to consider suggested mitigating circumstances that had occurred since the first sentencing hearing. The district court refused, deeming itself "constrained ... by our remand instructions and by Fed.R.Crim.P. 35, to limit its reconsideration of the sentence[ ] to that alone which we indicated might have been incorrect." ⁴ Id. at 337. Similar to the mandate in Apple, the mandate in Bell I contained precise and unambiguous instructions, and directed the court to do only one thing on remand--impose a sentence within the specified guideline range of 87-108 months imprisonment.

B.

The mandate rule, however, is not without exception when a lower court is faced with extraordinary circumstances. Even though the mandate of an appellate court may "not contemplate resurrecting an issue on remand, the trial court may still possess some limited discretion to reopen the issue in very special situations." Bell, 988 F.2d at 250-51. These circumstances are: (1) a "show[ing] that controlling legal authority has changed dramatically; [ (2) that] significant new evidence, not earlier obtainable in the exercise of due diligence[, has come to light]; or ... [ (3) ] that a blatant error in the prior decision will, if uncorrected, result in a serious injustice." Id. at 251; accordSejman v. Warner-Lambert Co., 845 F.2d 66, 69 (4th Cir.1988). Applying the last of these circumstances, the district court found that Sec. 2251(a) contained an element of direct or implied...