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April 23, 2014

Split Fourth Circuit panel hold that Confrontation Clause does not apply in penalty phase of federal capital case

Today in US v. Umaña, No. 10-6 (4th Cir. Apr. 23, 2014) (available here) a Fourth Circuit panel affirms a federal capital conviction and sentence over numerous challenges. Here is how the panel majority opinion starts:

Alejandro Enrique Ramirez Umaña shot and killed two brothers, Ruben and Manuel Salinas, at point-blank range in a restaurant in Greensboro, North Carolina, because Umaña perceived that the brothers had insulted Umaña’s gang, Mara Salvatrucha, commonly known as MS-13.  A jury convicted Umaña of all counts for which he was charged, including two counts charging him with murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1), and two counts charging him with committing murder while using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) and (j)(1). The convictions on those charges subjected Umaña to a maximum sentence of death.

Following the verdict of conviction, the same jury returned a verdict that Umaña was death eligible on the four capital counts, as provided in 18 U.S.C. §§ 3591-3596. The jury found that two statutory aggravating factors applied: (1) that Umaña had created a grave risk of death to one or more persons in addition to each victim, and (2) that he had killed more than one person in a single criminal episode.

Finally, in the sentence selection phase of trial, the jury imposed the death penalty, finding that four additional nonstatutory aggravating factors applied: (1) that Umaña had killed the two brothers to protect and maintain the reputation of MS-13 and to advance his position in that gang; (2) that Umaña had caused injury and loss to the brothers’ family and friends; (3) that Umaña had earlier intentionally committed several murders in Los Angeles; and (4) that Umaña posed a continuing and serious threat to the lives and safety of others, as evidenced by his lack of remorse, his allegiance to MS-13, his lack of rehabilitation, and his pattern of violence.  The jury also found several mitigating factors. After weighing the aggravating and mitigating factors, the jury imposed the death penalty.

On appeal, Umaña challenges every phase of the proceedings below.  After carefully considering each of Umaña’s arguments, we reject them and affirm the convictions and sentence.

Here is how the dissent by Judge Gregory gets started:

The majority opinion denies Mr. Umaña the right to confront his accusers in a jury proceeding to determine whether he lives or dies. The right to confront one’s accusers is a right as old as it is important.  Cf. Acts 25:16 (“[I]t is not the Roman custom to hand over anyone before they have faced their accusers...”).  The Sixth Amendment guarantees a defendant the right “to be confronted with the witnesses against him” “in all criminal prosecutions.”  U.S. Const. amend. VI. It also guarantees the right to an attorney, jury factfinding, notice of the crimes of which a defendant is accused, and a trial in the venue where the crime was committed. Id.

The last four of these Sixth Amendment rights -- counsel, jury, venue, and notice -- are not at issue today, nor are they controversial. During Federal Death Penalty Act (“FDPA”) proceedings, a defendant cannot be sentenced to death without these Sixth Amendment rights.  However, under the majority’s holding today, capital defendants are denied the right to confront their accusers throughout certain stages of an FDPA proceeding. In contravention of the history and text of the Confrontation Clause, and in spite of modern Supreme Court jurisprudence emphasizing the importance of the Confrontation Clause, the majority strips Umaña of the Sixth Amendment right most important for ensuring the accuracy of trial outcomes during the most important proceeding of his life.

April 23, 2014 at 10:02 PM | Permalink


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"The majority today strips a defendant of his Sixth Amendment right to confront his accusers. Further, it denies this right in a proceeding in which a jury must decide whether a human being is fit to live. In this, the most momentous decision a jury can make, the majority would do away with the “constitutionally prescribed method of assessing reliability” of evidence. Crawford, 541 U.S. at 62."

Why are judges so maudlin about imposing a death sentence on a cold-blooded illegal immigrant killer? Aside from being maudlin, Judge Gregory is just plain wrong. The bottom line is that the decision to convict someone of a crime is far more momentous than the penalty phase decision.

Posted by: federalist | Apr 23, 2014 11:06:51 PM

lol well fed I think this is a perfect case of criminal gov't overcharging. let's see 4 counts of murder when he only killed 2 people?

then there is this bit of criminal stupidity!

"(3) that Umaña had earlier intentionally committed several murders in Los Angeles;"

just where did this bit of stupidity come from? I notice they DON'T say "that Umana had earlier been CONVICTED of intentionally committing several (and I'd expect a damn number not the useless SEVERAL) murders in Los Angeles"

if this stupidity came from the DA. The DA is either a retard or a liar!

Posted by: rodsmith | Apr 24, 2014 12:14:20 AM

Was this a trifurcated proceeding? It sounds that the Court is distinguishing statutory aggravating factors from the final weighing (and non-statutory) phase. Given Ring v. Arizona and Alleyne, I do think the argument is strong that the Confrontation Clause applies. The Fourth Circuit seems to tacitly concede as much. This final bit is where the Sixth Amendment in other areas gets murky as well (Alabama Judicial override of the Jury's recommendation of life is one clear example that the Court has refused to address where the Sixth Amendment doesn't apply in full force either). My personal view is that the Prosecution bears the burden of persuasion, just like they do elsewhere, that the legal standard is met and the right to confront their evidence through Cross-Examination should apply. But I know there are courts that disagree with me there. I hope, one day, the Supreme Court addresses this.

Of course, there might be concerns of lack of reciprocity that is motivating the decision. The rules of hearsay are not to be applied mechanistically to defeat the ends of justice in the penalty phase of a trial. The Fourth Circuit might not want that rule to only go one way (whether that's constitutionally permissible is a different question, but it's still a common sentiment). They also had an expansive view of what constitutes reliable hearsay - making it a case-specific determination rather than an abstract consideration of indicias of reliability. Some courts look at cases like Green and see the Court was considering a statement against penal interest and decide "the fear of prosecution always helps ensure reliability." The Fourth Circuit, on the other hand, looked for case-specific corroboration in deciding that it was reliable hearsay.

Posted by: Erik M | Apr 24, 2014 10:44:11 AM

The dispute between the Sixth Circuit majority and dissent is remarkably closely related to the recent debate between Professor Berman and former Judge Paul Cassell over acquitted-conduct sentencing. The former involves a jury sentencing on the basis of evidence that was not admissible to prove guilt. The latter involves a judge sentencing on the basis of evidence that was not sufficient to prove guilt. Thus, both address reliance during the sentencing phase on facts that were not determined to be sufficiently creditable to be a basis for a finding of guilt during the culpability phase. Both debate whether "the policy of presenting full information to sentencers" in a quest for maximum sentencing "reliability" trumps criminal defendants' right to not be punished on the basis of evidence found insufficiently reliable to establish culpability. And both wind up with the Alleyne case at the center of the argument.
Here, the majority writes:
"During the sentence selection phase of trial . . . the district court allowed the government [over a Confrontation Clause objection] to introduce hearsay statements of MS-13 members accusing Umaña of committing the murders. Specifically, the court allowed detectives to testify at trial about their interviews with Luis Ramos, Luis Rivera, and Rene Arevalo. The court also allowed the government to introduce the transcripts of the interviews with Rivera and Arevalo. . . . Only after finding Umaña death penalty eligible did the jury in this case consider hearsay evidence to assist it in exercising its discretion to select the appropriate sentence. During the selection phase, a jury is not legally required to find any facts. And while it may do so, such facts are neither necessary nor sufficient to impose the death penalty -- they merely guide the jury’s discretion in choosing a penalty. As the Supreme Court has recently explained: 'Juries must find any facts that increase either the statutory maximum or minimum because the Sixth Amendment applies where a finding of fact both alters the legally prescribed range and does so in a way that aggravates the penalty. Importantly, this is distinct from factfinding used to guide judicial discretion in selecting a punishment “within limits fixed by law.” Williams v. New York, 337 U.S. 241, 246 (1949). While such findings of fact may lead judges to select sentences that are more severe than the ones they would have selected without those facts, the Sixth Amendment does not govern that element of sentencing.' Alleyne, 133 S. Ct. at 2161 n.2 (emphasis added). Accordingly, we conclude that the Confrontation Clause does not preclude the introduction of hearsay statements during the sentence selection phase of capital sentencing."

This sounds almost like part of the podcast of the Federalist Society debate between Prof. Berman and Judge Cassell last week.

And when you think about it, this is a striking holding. Does it really mean to say that the Constitution is never offended if a compliant judge lets a prosecutor bring in a dozen questionable witnesses at sentencing to tell the jury that other people not in the room had told them at some point that the defendant did other bad things, as long as the judge finds some minimal indicium of reliability? Doesn't this aggravate exactly the problem Professor Berman argues exists in the "third bite at the apple" use by a judge of acquitted conduct as a necessary basis for a more punitive sentence: not only letting the judge give a thumbs-up to evidence to which the jury gave a thumbs-down, but relaxing the rules of evidence to admit further, inadmissible evidence at the exact same time?

Posted by: PatentLawyer | Apr 24, 2014 2:33:37 PM

There are striking similarities (I knew it sounded familiar). Even some of the cases cited by the majority are the same. For any Constitutional component, I suppose there's a due process right to not be convicted by unreliable hearsay, but that's the best argument (and it's certainly not well-settled and supported).

Posted by: Erik M | Apr 24, 2014 3:22:10 PM

personally patentlawyer I find any attempt to use aquitted conduct or uncharged conduct to be a criminal violation at a capital lvl. Therefore the individual it's been done to has every legal and moral right to escape and punish the two-faced traitors involved any way they wish.

Posted by: rodsmith | Apr 24, 2014 6:58:35 PM

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