U.S. v. Powell

• Decision Date: 12 May 2011
• Docket Number: No. 09–4012.,09–4012.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Solomon N. POWELL, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

650 F.3d 388

UNITED STATES of America, Plaintiff–Appellee,

v.Solomon N. POWELL, Defendant–Appellant.

No. 09–4012.

United States Court of Appeals, Fourth Circuit.

Argued: March 23, 2011.Decided: May 12, 2011.

ARGUED: Charles D. Lewis, Richmond, Virginia, for Appellant. Richard Daniel Cooke, Office of the United States Attorney, Richmond, Virginia, for Appellee. ON BRIEF: Neil H. MacBride, United States Attorney, Alexandria, Virginia, Michael R. Gill, Assistant United States Attorney, Office of the United States Attorney, Richmond, Virginia, for Appellee.Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge SHEDD and Judge DUNCAN joined.

OPINION

WILKINSON, Circuit Judge:

Solomon Powell was convicted of mail fraud, wire fraud, and attempted destruction of evidence because of his business of selling merchandise over the Internet and then pocketing the money without sending along the products. At sentencing, the district court relied on hearsay in concluding that Powell's scheme harmed more than ten people and caused just under $200,000 in damage, subjecting him to an increased advisory Guidelines sentence. He contends that because the Confrontation Clause applies with full force to sentencing proceedings, his sentence must be vacated.

We disagree. In accordance with our sister circuits, we conclude that the Confrontation Clause does not apply at sentencing proceedings like Powell's. This holding respects the traditional distinction between trial and sentencing, the sentencing court's need to consider a wide variety of evidence in choosing an appropriate sentence, and the sentencing judge's ability to properly evaluate that evidence. The judgment of the district court is therefore affirmed.

I.

Solomon Powell ran several businesses selling electronics and other items over the Internet. Using a number of websites he had acquired, as well as accounts he established with the online auction service eBay and the payment transfer service PayPal, Powell “sold” his products to customers who contacted him through the websites. But despite paying the requisite funds to Powell, only rarely did anything show up on customers' doorsteps. After largely fruitless attempts to reach him for redress, many of Powell's customers contacted groups such as the Better Business Bureau. Their complaints reached the ears of postal inspectors who began looking into Powell's practices, an investigation that culminated in Powell's indictment. A jury convicted Powell on five counts of wire fraud, two counts of mail fraud, and one count of attempted destruction of evidence.

Powell's presentence report determined that his scheme had harmed more than fifty people and had caused damages to the tune of over $200,000. The government arrived at these numbers largely by relying on information gathered by Postal Inspector Evelyn Cross. Inspector Cross combed through numerous complaints lodged with and filed against Powell, the loss reports submitted by entities such as American Express (which ended up footing the bill for many of its customers' attempted purchases), and Powell's own electronic records and correspondence. She further contacted other possible customers of Powell to determine whether they had actually sent payment to him and whether they had ever received any merchandise or refund from him. Based on the conclusions she reached, the government sought to enhance Powell's recommended Guidelines sentence. See U.S.S.G. § 2B1.1(b)(2)(B) (number of victims); § 2B1.1(b)(1)(G) (loss caused). When combined with Powell's criminal history, the enhancements based on these numbers would have led to a Guidelines range of 120 to 150 months in prison.

Powell disputed both enhancements. Because the number of victims and amount of loss was determined not solely by the testimony of trial witnesses subject to cross-examination, but also by the out-of-court statements of alleged victims to Inspector Cross, Powell contended that giving him an enhanced sentence would violate his Confrontation Clause rights. He requested that the sentencing court limit itself to the eight victims who had actually testified and to the less than $20,000 they lost, resulting in no enhancement for the number of victims and at most a four-level loss enhancement. See U.S.S.G. § 2B1.1(b)(2) (number of victims); § 2B1.1(b)(1)(A)–(C) (loss caused).

The sentencing court conducted an evidentiary hearing on these issues. Inspector Cross testified and was cross-examined about the methods she used to determine these numbers and the possible shortcomings of her approach. The court, “just purely giving Mr. Powell the benefit of the doubt,” reduced the number of victims from more than fifty to more than ten and the intended amount of loss caused to $199,000, resulting in a lowered Guidelines range of 84 to 105 months. After hearing from the government, Powell's attorney, and Powell himself, the court sentenced Powell to concurrent sentences of 102 months on each count. He was later ordered to pay $43,732.91 in restitution.

II.

Powell argues that the district court violated his Confrontation Clause rights by relying on the out-of-court statements of people who did not testify and were never cross-examined in determining that he harmed more than ten victims and that he caused just shy of $200,000 in losses. He further contends that cross-examination is the only way to ensure that such evidence is sufficiently reliable.

A.

Powell's Confrontation Clause argument ignores the fundamental differences between trial and sentencing. “Tribunals passing on the guilt of a defendant always have been hedged in by strict evidentiary procedural limitations,” Williams v. New York, 337 U.S. 241, 246, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), and rightfully so: because the criminal trial is the means by which we determine the guilt of someone presumed innocent, we afford the defendant a host of evidentiary protections designed to ensure that society's affixation of wrongdoing is accurately made. The defendant's right to be “confronted with the witnesses against him” is among these protections. U.S. Const. amend. VI. By giving the accused the power to cross-examine those providing evidence against him at trial, the Confrontation Clause affords him the “greatest legal engine ever invented for the discovery of truth.” California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) (quoting 5 J. Wigmore, Evidence § 1367 (3d ed.1940)).

Once the accused has been properly convicted, however, the purposes of the proceeding—and the evidentiary rules governing it—change. Congress has instructed sentencing judges to consider a host of fact-intensive issues when imposing sentence, including the particular defendant's background and conduct, the need to punish and deter criminal wrongdoing, and the need to eliminate unjustified sentencing disparities. See 18 U.S.C. § 3553(a). To accomplish these ends and to realize “the principle that ‘the punishment should fit the offender and not merely the crime,’ ” Pepper v. United States, –––U.S. ––––, 131 S.Ct. 1229, 1240, 179 L.Ed.2d 196 (2011) (quoting Williams, 337 U.S. at 247, 69 S.Ct. 1079), the sentencing judge must have recourse to a much broader array of information than we allow the trier of fact to consider in determining a defendant's guilt.

Courts have accordingly “long recognized that sentencing judges ‘exercise a wide discretion’ in the types of evidence they may consider when imposing sentence....” Id. at 1235 (quoting Williams, 337 U.S. at 246, 69 S.Ct. 1079); see, e.g., Payne v. Tennessee, 501 U.S. 808, 820–21, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) (“Whatever the prevailing sentencing philosophy, the sentencing authority has always been free to consider a wide range of relevant material.”). This recognition is further grounded in the applicable criminal, evidentiary, and sentencing codes. See 18 U.S.C. § 3661 (stating that “[n]o limitation shall be placed on the information concerning the background, character, and conduct” to be considered at sentencing); Fed.R.Evid. 1101(d)(3) (exempting sentencing proceedings from the Federal Rules of Evidence); U.S.S.G. § 6A1.3(a) (allowing sentencing courts to consider all relevant information regardless of admissibility at trial provided it has “sufficient indicia of reliability”).

This widened evidentiary universe at sentencing has always included reliable hearsay of many varieties, the Confrontation Clause notwithstanding. Williams, for example, noted that “most of the information now relied upon by judges to guide them in the intelligent imposition of sentences would be unavailable if information were restricted to that given in open court by witnesses subject to cross-examination,” and it upheld a state sentencing scheme allowing consideration of evidence “obtained outside the courtroom from persons whom a defendant has not been permitted to confront or cross-examine.” Williams, 337 U.S. at 245, 250, 69 S.Ct. 1079.

We too have repeatedly allowed a sentencing court to consider “any relevant information before it, including uncorroborated hearsay, provided that the information has sufficient indicia of reliability to support its accuracy.” United States v. Wilkinson, 590 F.3d 259, 269 (4th Cir.2010); see also United States v. Fulks, 454 F.3d 410, 436 (4th Cir.2006) (affirming the use of reliable hearsay); United States v. Love, 134 F.3d 595, 607 (4th Cir.1998) (same). Indeed, in United States v. Johnson, 935 F.2d 47, 50 (4th Cir.1991), we affirmed a sentence where the defendant had no opportunity to cross-examine probation officers about ex parte communications between them and the sentencing court, noting that “[w]hen a probation officer imparts information to a sentencing court as its neutral agent, the interests underlying the confrontation clause are not implicated.”

B.

Recent Confrontation Clause decisions do not require ...