June 24, 2005
2d Circuit approves use of hearsay at sentencing
Thanks to this helpful post at Appellate Law & Practice, I see that the Second Circuit continues to produce notable sentencing rulings this week (some from earlier this week are noted here and here). Of course, with a few more dispositions today available on this official eIGHth Circuit opinion page, the busy beavers on the Eighth Circuit still appear to be the farthest along at clearing the Booker pipeline.
Today's work by the Second Circuit includes interesting rulings in US v. Byrd, No. 04-3607 (2d Cir. June 24, 2005) (available here), concerning the "appropriate standard of proof applicable to a finding that the defendant breached his plea agreement," and in Johnson v. Wright, No. 04-3234 (2d Cir. June 24, 2005) (available here), concerning the standards defining deliberate indifference to a prisoner's medical needs. But the biggest decision from the Second Circuit to celebrate Blakely's birthday involves attorney Jeff Fisher's other big win, Crawford v. Washington.
In US v. Martinez, No. 04-2075 (2d Cir. June 24, 2005) (available here), the Second Circuit holds that "the Sixth Amendment rights of confrontation as elaborated in Crawford v. Washington, 541 U.S. 35 36 (2004), and of jury factfinding discussed in United States v. Booker, 125 S. Ct. 738 (2005), do not bar judicial consideration of hearsay testimony at sentencing proceedings." In support of this conclusion, the Second Circuit relies primarily on the half-century-old Supreme Court decisions of Williams v. Oklahoma, 358 U.S. 576(1959), and Williams v. New York, 337 U.S. 241 (1949). In response to the claim that Crawford and Booker the sentencing equation, the Second Circuit states:
Neither Crawford nor Booker ... addressed the applicability of the right of confrontation to the sentencing context or the admissibility of hearsay testimony at sentencing proceedings. These cases therefore provide no basis to question prior Supreme Court decisions that expressly approved the consideration of out-of-court statements at sentencing.
The court elaborated further with some interesting comments about Booker and due process:
We find it significant, moreover, that judges imposing sentence in accordance with Booker may exercise greater discretion than they could have exercised under the pre-Booker regime. If consideration of hearsay testimony during a sentence proceeding was not prohibited under a mandatory Guidelines regime, there is no logical basis for concluding that it is prohibited under the system of advisory Guidelines established by Booker.
This is not to say, of course, that any and all consideration of hearsay testimony at sentencing proceedings is permissible. The Due Process Clause "is plainly implicated at sentencing," even though it does not require at sentencing "all the procedural safeguards and strict evidentiary limitations of the criminal trial itself." United States v. Fatico, 603 F.2d 1053, 1054 (2d Cir. 1979) (internal quotation marks and citation omitted); see also United States v. Egge, 223 F.3d 1128, 1132 (9th Cir. 2000) ("Although the Confrontation Clause does not apply at sentencing, a defendant clearly has a due process right not to be sentenced on the basis of materially incorrect information. Due process requires that some minimal indicia of reliability accompany a hearsay statement." (citation and internal quotation marks omitted)). Nevertheless, for reasons explained in the accompanying summary order, we are satisfied that the district court afforded Martinez due process in the sentencing proceeding at issue here.
June 24, 2005 at 04:26 PM | Permalink
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