USA v. Whitten, 07-1320-cr.

• Decision Date: 19 October 2010
• Docket Number: No. 07-1320-cr.,07-1320-cr.
• Citation: 623 F.3d 125
• Parties: UNITED STATES of America, Appellee, v. Michael WHITTEN, Paris Bullock, Angel Rodriguez, also known as Ice, Jamal Brown, also known as Mal, Defendants, Ronell Wilson, also known as Rated R, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

623 F.3d 125

UNITED STATES of America, Appellee,

v. Michael WHITTEN, Paris Bullock, Angel Rodriguez, also known as Ice, Jamal Brown, also known as Mal, Defendants,Ronell Wilson, also known as Rated R, Defendant-Appellant.

No. 07-1320-cr.

United States Court of Appeals,Second Circuit.

Oct. 19, 2010.

COPYRIGHT MATERIAL OMITTED.

Beverly Van Ness, New York, New York; Barry J. Fisher, Saratoga Springs, for Defendant-Appellant.

Benton J. Campbell, United States Attorney, Eastern District of New York, Brooklyn; Morris J. Fodeman, David Bitkower (Peter A. Norling, Jason A. Jones, Zainab Ahmad, on the brief), Assistant United States Attorneys, Eastern District of New York, Brooklyn; Jeffrey B. Kahan (on the brief), United States Department of Justice Capital Case Unit, Washington, D.C., for Appellee.

ORDER

Following disposition of this appeal on June 30, 2010, an active judge of the Court requested a poll on whether to rehear the case in banc. A poll having been conducted and there being no majority favoring in banc review, rehearing in banc is hereby DENIED.

DEBRA ANN LIVINGSTON, Circuit Judge, with whom Judge CABRANES, Judge RAGGI, and Judge WESLEY join, dissenting:

The facts in this case are as straightforward as they are heartbreaking. Ronell Wilson, a violent gang member who favored the nickname “Rated R,” shot and killed two undercover police officers at point blank range, murdering the first without warning and the second even as the young officer, a father of three, pleaded for his life. Wilson did so because, in his own words, he “don't give a fuck about nobody.” The bodies were unceremoniously searched and then dumped in the street. Two days after the wanton executions of Detectives Rodney Andrews and James Nemorin, Wilson was arrested and was found to be carrying rap lyrics he had authored-lyrics that celebrated the gun violence of “Rated R,” appeared to brag of his recent murders, and, indeed, promised to continue committing such crimes until “I'm dead.” ¹

A properly empaneled jury described by the district court as “among the most attentive and serious [it] had ever seen,” heard and evaluated weeks of evidence before returning guilty verdicts on five capital counts. These jurors then absorbed another nine days of testimony at a penalty phase involving some forty witnesses and spanning nearly 1,800 transcript pages. On that record, the jury unanimously found that six aggravating factors-including killing for pecuniary gain, killing multiple people in a single incident, and killing a law enforcement officer in the course of duty-had been established beyond a reasonable doubt. The jurors also found that Wilson had established thirteen of the eighteen mitigating factors on which he relied, as well as finding a fourteenth-that Wilson “was possibly subject to peer pressure”-on their own. No juror concluded, however, that Wilson felt remorse for his crimes. Nor did any juror find that he had accepted responsibility for them, rejecting Wilson's claims to that effect made in an unsworn, uncrossed statement that he was permitted to read to the jury from the defense table. Having been instructed “to make a unique, individualized judgment about the appropriateness of imposing the death penalty” and that “no jury is ever required to impose the death penalty,” the jury imposed five capital sentences on Wilson.

Despite the impeccable record developed below and the careful and conscientious work of the district court and the jury, a divided panel of this Court vacated these capital sentences, discerning Fifth and Sixth Amendment error in a handful of words buried in the government's summation. For the reasons amply set forth in my dissent, I believe the panel majority's Fifth and Sixth Amendment holdings were not only in error but that they are in profound tension, if not direct conflict, with the law of this Court, a sister Circuit, and the Supreme Court. See United States v. Whitten, 610 F.3d 168, 205-17 (2d Cir.2010) (Livingston, J., concurring in part and dissenting in part).

The errors in the panel majority's analysis, moreover, have not only resulted in the unjustifiable vacatur of sentences that were properly imposed for grave and merciless crimes. If left uncorrected, they threaten to needlessly complicate both the proper conduct of death penalty phase litigation in this Circuit and elsewhere, as well as the orderly adjudication of criminal liability more generally. I therefore respectfully dissent from the denial of rehearing en banc.

I.

The majority held that Wilson's Sixth Amendment right to stand trial was violated when the government argued-albeit fleetingly-in the penalty phase that Wilson's belated claim of “accept[ance] of responsibility,” which he asserted as a mitigating factor, was not credible given that it came only after the jury's guilty verdict. ² As more fully discussed in my principal dissent, this holding is in direct conflict with our prior holding in United States v. Fell, 531 F.3d 197, 218-21 (2d Cir.2008), and the Seventh Circuit's decision in United States v. Mikos, 539 F.3d 706 (7th Cir.2008), and is in considerable tension with the Supreme Court's analysis in Portuondo v. Agard, 529 U.S. 61, 67-68, 120 S.Ct. 1119, 146 L.Ed.2d 47 (2000). The majority simply disregarded Portuondo despite the fact that: (1) it is the only case in which the Supreme Court has addressed the question of whether a prosecutor's comment in summation on the exercise of a defendant's Sixth Amendment rights can be said to unconstitutionally penalize that exercise; and (2) the Portuondo analysis and outcome are directly contrary to the majority's. Resolving the conflicts the majority opinion creates is, in and of itself, reason for the full Court's consideration of the Sixth Amendment issue.

In Fell, this Court found no error in the government's argument, during the penalty phase, that Fell's assertion of acceptance of responsibility as a mitigating factor was not credible in light of the fact that Fell had chosen to go to trial. There, Fell introduced a stipulation that he had offered to plead guilty in exchange for a life sentence to support his claim that he had accepted responsibility for his crimes. We found no error in the government's statement that, “Ladies and gentlemen, we had to try to convict him. If [Fell] wanted to plead guilty, he could have pled guilty.” Fell, 531 F.3d at 218. Here, Wilson in effect testified-albeit without taking the stand-that he had accepted responsibility and felt remorse. The government merely argued in summation that this testimony was not credible in light of its belated and self-serving timing:

He has an absolute right to go to trial, put the government to its burden of proof, to prove he committed these crimes, but he can't have it both ways. He can't do that, then say I accept responsibility.... And [say] [“]I'm sorry, only after you prove I did it.[”] ...

The timing of his statement alone should tell you it's nothing more than a self-interested selfish man trying to save his own skin.

Whitten, 610 F.3d at 208 (Livingston, J., concurring in part and dissenting in part) (internal quotations omitted).

The conflict between the two cases is as apparent as it is confounding. In Fell, as here, the defendant asserted acceptance of responsibility as a mitigating factor. There, as here, the government responded to that acceptance of responsibility argument by noting that the defendant had chosen to go to trial. There, we affirmed, finding that where a defendant “endeavor[s] to ... prove acceptance of responsibility as a mitigating factor,” the government may “respon[d]” by putting that acceptance of responsibility “in context.” Fell, 531 F.3d at 221. Here the majority, with no significant discussion of Fell, reversed, finding error in just such a response.

Leaving Fell aside, the majority's Sixth Amendment analysis also completely disregards the most significant authority available-the Supreme Court's decision in Portuondo v. Agard. There, the Supreme Court found no constitutional error, let alone reversible error, in a prosecutor's argument that the defendant's testimony might not be credible because “unlike all the other witnesses in this case the defendant has a benefit ... he gets to sit here and listen to the testimony of all the other witnesses before he testifies.” Portuondo, 529 U.S. at 64, 120 S.Ct. 1119. Responding to the claim that this summation argument unlawfully burdened the defendant's Sixth Amendment rights to be present, to testify, and to confront the witnesses against him, the Court explained that it is “natural and irresistible for a jury, in evaluating the relative credibility of a defendant who testifies last, to have in mind and weigh in the balance the fact that he heard the testimony of all those who preceded him.” Id. at 67-68, 120 S.Ct. 1119. The government's comment, the Court noted, merely “invite[d] the jury to do what the jury is perfectly entitled to do.” Id. at 68, 120 S.Ct. 1119 (emphasis added).

Here, as in Portuondo and as in Fell, the government was commenting on a fact that was “natural and irresistible” for the jury to “have in mind” in evaluating Wilson's assertion of acceptance of responsibility-namely, that it came only after a lengthy trial at which he maintained his innocence. Moreover, the government was simply “inviting the jury to [consider] what the jury [was] perfectly entitled to [consider].” Indeed, nowhere in its opinion did the majority contend-nor could it-that the jury was not entitled to consider that Wilson went to trial in evaluating the credibility of his belated profession of acceptance of responsibility and remorse. See generally U.S.S.G. § 3E1.1, Application note 2 (observing that an acceptance of responsibility adjustment is “not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only...