Wednesday, May 18, 2011

No Right to Confront Witnesses at Sentencing

No Right to Confront Witnesses at Sentencing

By Deborah Elkins
Published: May 17, 2011

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A defendant convicted of mail fraud for his scheme of selling electronics over the Internet, who pocketed the money without shipping the products, is not entitled to resentencing because the district court used hearsay to conclude defendant had harmed more than 10 people and caused just under $200,000 in damages; the 4th Circuit joins its sister circuits to hold that the Confrontation Clause does not apply at sentencing proceedings.

Our holding that the Confrontation Clause of the U.S. Constitution does not apply at sentencing proceedings 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.

After numerous complaints from people who paid for the electronics and other items defendant offered through various websites, postal inspectors uncovered defendant’s fraudulent activities. A jury convicted defendant of five counts of wire fraud, two counts of mail fraud and one count of attempted destruction of evidence.

A presentence report determined defendant had harmed more than 50 people and caused damages of over $200,000. The government arrived at these numbers largely by relying on information gathered by a postal inspector who researched the consumer complaints, loss reports submitted by entities such as American Express and defendant’s own electronic records and correspondence. Based on this information, the government sought an enhanced sentence. Defendant objected, arguing that use of out-of-court statements to help ascertain the number of victims and amount of loss violated his Confrontation Clause rights. During an evidentiary hearing, the postal inspector testified and was cross-examined. The court reduced the number of victims to 10 and the amount of damage to just under $200,000, and sentenced defendant to concurrent sentences of 102 months on each count and ordered him to pay $43,732.91 in restitution.

Defendant’s Confrontation Clause argument ignores the fundamental differences between trial and sentencing. In a criminal trial intended to determine whether a person presumed innocent is in fact guilty, the Confrontation Clause affords a defendant the “greatest legal engine ever invented for the discovery of truth.” But once the accused has been properly convicted, the purpose of the proceeding shifts and the sentencing judge is allowed to consider a host of fact-intensive issues. These issues include the particular defendant’s background and conduct, the need to punish and deter criminal wrongdoing and the need to eliminate unjustified sentencing disparities. The wider evidentiary universe at sentencing has always included reliable hearsay of many varieties.

Recent Confrontation Clause decisions such as Crawford v. Washington, 541 U.S. 36 (2004), do not require us to reconsider the settled distinction between trial evidence and sentencing evidence in the hearsay context. In holding that the Confrontation Clause does not apply at sentencing, we join every other federal circuit court that hears criminal appeals.

We have previously noted the traditional use of reliable hearsay at sentencing and there is no evidence that gives us pause about the particular evidence used in this case. Due process is fully satisfied by reliance on evidence so methodically gathered and so carefully evaluated as that here. Even if the district court committed plain error in failing to explain how the sentencing factors in 18 U.S.C. § 553(a) led to the sentence imposed, defendant cannot show how that error affected his substantial rights.

Judgment affirmed.

U.S. v. Powell (Wilkinson) No. 09-4012, May 12, 2011; USDC at Richmond, Va. (Spencer) Charles D. Lewis for appellant; Richard D. Cooke, U.S. Att’y Office, for appellee. VLW 011-2-096, 13 pp.

Virginia Lawyers Weekly











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