U.S. v. Wise

Decision Date17 September 1992
Docket NumberNo. 90-1070,90-1070
Citation976 F.2d 393
Parties, 5 Fed.Sent.R. 67 UNITED STATES of America, Appellee, v. James Michael WISE, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Dennis J. David, Bryant, Ark., argued, for appellant.

Robert J. Erickson, Washington, D.C., argued (Matt Flemming, J. Michael Fitzhugh and Robert J. Erickson, on the brief), for appellee.

Before LAY, * Chief Judge, McMILLIAN, RICHARD S. ARNOLD, ** JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, and LOKEN, Circuit Judges, En Banc.

WOLLMAN, Circuit Judge.

I.

In United States v. Wise, 923 F.2d 86 (8th Cir.1991), a panel of this court reversed James Michael Wise's sentence on the ground that the district court had improperly relied upon a probation officer's hearsay testimony without undertaking the confrontation clause analysis required by our decision in United States v. Fortier, 911 F.2d 100 (8th Cir.1990). Thereafter, we considered the question of rehearing en banc on our own initiative. We directed the United States to file a supplemental brief stating its position on whether the case should be reheard en banc and explaining why the United States had not petitioned for en banc review. The United States responded by explaining that the Assistant United States Attorney who had handled the appeal had failed to report the panel's decision to the Department of Justice for review by the Solicitor General, as required by the United States Attorneys' Manual. Because no extension of time in which to file a petition for rehearing was sought and because a petition for rehearing would thus have been time-barred, the Solicitor General had no occasion to consider the appropriateness of en banc review in this case. In response to our direction that a supplemental brief be filed, the case was resubmitted to the Solicitor General for a review of the merits of our decision and a determination whether en banc review should be sought. Following such review, the Solicitor General determined that the issue presented was one that should be resolved by the court en banc.

On March 15, 1991, we entered an order vacating the panel opinion and setting the case for argument before the court en banc. We now affirm the sentence imposed by the district court.

II.

Wise pleaded guilty to two counts of counterfeiting Federal Reserve notes, in violation of 18 U.S.C. § 471.

The sentencing hearing commenced late on the afternoon of October 27, 1989. As is apparent from the record, the district court expressed some dissatisfaction at having been given defense counsel's objections to the presentence report only minutes before the start of the hearing. After determining that the objections had been filed within the ten-day time limit, the district court announced the procedure that would be followed:

Well, what we're going to do--I just do not have time to read 17 pages handed to me five minutes ago. What we're going to do is that I'm going to put Mr. Sexson [the probation officer] under oath. I'm going to ask Mr. Sexson to tell me whether the information, the factual statements contained in the presentence report are accurate to the best of his knowledge and belief.

If there are specific items that you think are not accurate, and I'm only concerned now with the factual statements, if you think some are not accurate, you may cross-examine him about that. You may call any witnesses you wish to in relation to those factual statements but otherwise I'm going to assume that the factual statements--Now forgetting for a moment about the application of the guidelines--the facts and statements are correct and accurate unless you are able to convince the Court that they are not.

After being sworn, Sexson testified in response to the district court's questions that the factual matters set forth in the presentence report were accurate to the best of his knowledge and belief and that the report correctly reflected the statements made to him by those persons to whom he attributed the statements. The district court then stated to defense counsel that "[i]f there are factual statements that you believe are inaccurate--again, forgetting for the moment about the application of the guidelines to those facts, you may point those out by cross-examining Mr. Sexson." Defense counsel then questioned Sexson regarding the matters set forth in the presentence report.

Regarding Wise's role in the offense, Sexson testified that, counting Wise, there were five individuals involved in the counterfeiting operation. Two of these were persons on pretrial diversion. The other two were Terry Lankford and Earl Dean Laughlin, Jr., both of whom had been charged and pleaded guilty to counterfeiting charges in state court as a result of their involvement in Wise's counterfeiting scheme. Sexson testified that based upon the admissions made by the two persons who were placed on pretrial diversion and the admissions made by Lankford and Laughlin in connection with the state court proceedings, he believed that Wise had given the four individuals counterfeit money for the purpose of distributing it for him. Sexson acknowledged that he had never spoken with Laughlin and that his information regarding Laughlin had been gathered from the Secret Service's investigation report and from Sexson's conversation with personnel in the prosecuting attorney's office. (Sexson also testified regarding Wise's involvement in a burglary and his involvement in drug use with minors.).

Upon completion of Sexson's testimony, defense counsel called Wise's mother as a witness and, in response to the district court's ruling that the testimony would be cumulative and redundant, made an offer of proof, which was accepted by the district court, that Wise's father would give the same testimony as previously given by Wise's mother on the point in issue.

The testimony completed, the district court then ruled on the disputed factual matters. After ruling that it would impose no enhancement for obstruction of justice, the district court found that the factual matters set forth in the presentence report were accurate and correct and adopted the factual matters contained in the report as the court's findings of fact. The court then gave Wise a four-level enhancement for his role in the offense, pursuant to section 3B1.1(a) of the Sentencing Guidelines, and denied Wise a two-level reduction for acceptance of responsibility. Finding that the sentencing range prescribed by the Guidelines called for a sentence of from 30 to 37 months, the court sentenced Wise to thirty-two months' imprisonment, to be followed by three years on supervised release.

Wise appealed, challenging, among other things, the use of hearsay testimony to increase his offense level for being an organizer of a criminal activity involving five or more participants. As indicated above, the panel opinion reversed and remanded for resentencing because the district court's use of the hearsay violated Wise's rights under the Confrontation Clause.

III.

As authority for the proposition that the Confrontation Clause applies at sentencing, the panel in Wise cited Fortier. Fortier, in turn, derived this rule from United States v. Streeter, 907 F.2d 781, 792 (8th Cir.1990), which stated, by way of ipse dixit, that the Sixth Amendment's Confrontation Clause applies at evidentiary hearings held pursuant to Fed.R.Crim.P. 32(c)(3)(D).

The rule announced in Streeter, however, conflicts with previous decisions of this court. In United States v. Papajohn, 701 F.2d 760 (8th Cir.1983), for example, we did not apply the Confrontation Clause to evidence introduced at sentencing. Instead, we held that the sentencing court may properly consider "uncorroborated hearsay evidence that the defendant has had an opportunity to explain or rebut." Id. at 763 (citing Farrow v. United States, 580 F.2d 1339, 1360 (9th Cir.1978)) ("hearsay evidence of unproved criminal activity not passed on by a court may be considered in sentencing").

Subsequent to our decision in Papajohn, Congress passed the Sentencing Reform Act, Pub.L. No. 98-473, 98 Stat. 1837, 1987 (codified as amended at 18 U.S.C. §§ 3551-3673 (1988); 28 U.S.C. §§ 991-998 (1988)), pursuant to which the United States Sentencing Commission issued the Sentencing Guidelines. It is for us, then, to address explicitly what we assumed in Streeter, that is, whether sentencing under the Guidelines is so different from previous practice that the Confrontation Clause should apply to evidence introduced at sentencing proceedings.

IV.

When considering the scope of the right of confrontation, courts have consistently distinguished the guilt phase of a criminal proceeding from the sentencing phase. Historically, "[t]ribunals 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, 1082-83, 93 L.Ed. 1337 (1949) (footnote omitted). Having found a defendant guilty, however, "courts in this country ... practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment...." Id. "Whatever the prevailing sentencing philosophy, the sentencing authority has always been free to consider a wide range of relevant material." Payne v. Tennessee, --- U.S. ----, ----, 111 S.Ct. 2597, 2606, 115 L.Ed.2d 720 (1991); Dawson v. Delaware, --- U.S. ----, ----, 112 S.Ct. 1093, 1097 (1992); see also United States v. York, 830 F.2d 885, 893 (8th Cir.1987) ("A sentencing judge has broad discretion as to the type of information he may consider, as well as its source.") (pre-Guidelines), cert. denied, 484 U.S. 1074, 108 S.Ct. 1047, 98 L.Ed.2d 1010 (1988).

The practice of conducting a wide-ranging inquiry at sentencing is reflected in the United States Code, the Federal Rules of Evidence, and the...

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