Fourth Circuit weighs in on circuit split; harmless error review in collateral challenge to conviction

In an opinion published today, the U.S. Court of Appeals for the Fourth Circuit announced that, in collateral challenges to federal criminal convictions under § 2255, it would follow the harmless error standard used by most of the other circuit courts of appeal.

The defendant in this case was sentenced to 80 years for federal witness tampering (it involved firebombing). He hoped to cut this down because the U.S. Supreme Court recently narrowed the scope of what may be considered witness tampering under federal law; at trial, the jury was instructed under the old standard. So he filed a collateral challenge to his conviction, citing the Supreme Court’s decision and the incorrect jury instruction.

Finding that the jury instruction was indeed incorrect, the court had to evaluate whether the difference in the instruction was harmless. Here, the court had to decide for the first time what standard to apply in § 2255 cases: the Chapman standard of “harmless beyond a reasonable doubt,” or the Brecht standard of “substantial and injurious effect.” The former is traditionally applied on direct appeals, the latter in habeas proceedings under § 2254. The latter is also harder for a defendant to show.

The court noted that four sister circuits had gone with the Brecht standard (the Sixth, Ninth, Tenth, and Eleventh Circuits, for those keeping score at home; click for opinions). One sister circuit has used the Chapman standard in this context (the Seventh).

The court ultimately joined the majority in applying the Brecht standard. In the Fourth Circuit, harmless error review in § 2255 litigation is now governed by the “substantial and injurious effect” standard. The court wrote that the defendant was unable to satisfy this burden, and affirmed the judgment below which denied his challenge.

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DC Circuit: To measure a crime’s “seriousness,” use Sentencing Guidelines

An opinion issued today by the U.S. Court of Appeals for the D.C. Circuit begins by saying that the defendant “is innocent of the crime for which he was charged and convicted. The government does not dispute that point.” But the government still insisted that the conviction should stand, because they argued that the defendant could have instead been convicted of a different, equally serious crime. Judge Garland, writing for the court, held that this was not so.

The defendant’s actual innocence claim arose out of a recent Supreme Court decision which narrowed the scope of “honest services fraud” to cases of bribes and kickbacks — which is most definitely not what happened in the defendant’s case. The government did not dispute his claim of innocence under this new understanding of the law, but instead argued that the evidence showed that he made a false statement. According to the government, this crime is equally serious.

This matters because, in order to win an innocence claim after you’ve been convicted, you must show that you are also innocent of more serious charges that the government could have pursued. (Some courts have interpreted this to include equally serious charges also.) So the question in this case became, is making a false statement just as serious as honest services fraud?

The government argued yes, because the maximum sentences of these crimes are the same. But the defendant pointed out that the U.S. Sentencing Guidelines indicate that honest services fraud is the more serious crime: it has a guideline base offense level of 14, compared to the false statement’s base level of 6. (For someone with no criminal history, this makes a difference of about 15 months in prison.)

The court agreed with the defendant, ruling that the Sentencing Guidelines are a better indicator of the seriousness of a crime than the statutory maximum sentence. As a result, the defendant’s conviction should be thrown out.

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Fed. Circuit: Necessity of burning forest can be challenged

In an opinion today for the U.S. Court of Appeals for the Federal Circuit, the court deals with a situation in which the U.S. Forest Service set fire to a landowner’s property in order to help prevent a forest fire from spreading. The landowner claimed that burning this particular land was not actually necessary to prevent the spread of the fire, and wants to be compensated for the burnt timber. The court decided that the lawsuit against the government could go forward, despite the government’s claim of necessity.

"Firewise_Black_Forest_Fire" by flickr user USDAgov
Sometimes the needs of the many outweigh the needs of the few… or the one.

It has long been established under the law that the government can, for example, destroy your home, if doing so will prevent your entire neighborhood from burning down. And they don’t even have to compensate you for it: they did it out of necessity, because it would have been far worse to let all the homes be destroyed. So when the landowner sued in this case, the Court of Federal Claims held that this doctrine of necessity applied, and dismissed the case outright.

Not so fast, the Federal Circuit ruled on appeal. The property owner in this case alleges that setting fire to this piece of land wasn’t actually necessary — in other words, the fire would not have reached the land or spread beyond it. Also, it is alleged that the government could have burned more of its own land instead and had the same preventative effect. The Federal Circuit ruled that there should be some inquiry and discovery into whether these allegations are true, before simply dismissing the case. If necessity does not apply, this could be a taking of private property, which under the Fifth Amendment, requires compensation. The Federal Circuit sends the case back to the lower court so that the discovery process can go forward.

This ruling has important implications for the future. The Forest Service, going forward, will need to be prepared to justify its decisions to burn private land when controlling wildfires. With wildfires seeming to grow more frequent and more intense every year, this is no small issue. While this ruling threatens the government with litigation over difficult, literally heat-of-the-moment decisions with great consequences (potentially, human lives), it also protects landowners from potentially arbitrary and unjustified government action.

It will now be up to the lower court to balance these interests and determine whether the burning was actually justified by necessity.

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Fed. Circuit: To prove marriage, use state law

In a recent opinion for the U.S. Court of Appeals for the Federal Circuit, Judge Mayer writes that state evidence law should be used to prove a couple was married for the purposes of awarding veterans’ survivor benefits. Alabama state law requires “clear and convincing” proof to establish a common law marriage. The court held that this standard of proof must be used for purported Alabama common law marriages, rather than the more lenient “preponderance of evidence” standard usually applied in evaluating veterans claims.

"The wedding ring" by flickr user leehaywood
Shoulda put a ring on it. (A marriage certificate wouldn’t hurt, either.)

The court, reviewing rulings in two cases from the Court of Appeals for Veterans Claims, interpreted the federal statute defining “marriage” for the purposes of survivor benefits: it says that marriage can be established according to the law of the state where the couple lives. The veterans’ survivors in these cases lived in Alabama, which is one of the jurisdictions that allows for “common law marriage” (D.C. is another). Common law marriage allows couples to prove they are married under certain circumstances without a valid marriage license or certificate.

The Federal Circuit writes that this section of the statute applies not only to what must be proved to establish common law marriage, but also to how much proof is needed. In the case of Alabama, one must prove by “clear and convincing evidence” the factors establishing common law marriage. (Maybe the claimants would have had better luck if they had lived here in D.C., which only requires proof by a preponderance of evidence.)

The lower court had found that the evidence in each case did not meet this heightened state law standard, and the Federal Circuit saw no reason to disturb these rulings.

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NC Supreme Court: Scientific experts can testify to out-of-court results

In recent years, the U.S. Supreme Court has created a new field of evolving case law regarding the Sixth Amendment’s confrontation clause (the criminal defendant’s right “to be confronted with the witnesses against him”). This right was given new life in the 2004 Crawford decision, and the high court has been clarifying (or muddying, depending on your perspective) the contours of this right ever since.

One line of cases deals with how the results of scientific tests (like drug analysis or DNA profiles) can be used properly at trial. These are Melendez-Diaz (2009, decided 5-4), Bullcoming (2011, 5-4), and Williams (2012, 4-1-4 and downright confusing). A full explanation of these cases would be too long. But to simplify, the current Supreme Court seems to have (with the occasional qualification):

  • four justices (Roberts, Kennedy, Breyer, Alito) who would make an exception to the confrontation clause for scientific tests;
  • four justices (Scalia, Ginsburg, Sotomayor, Kagan) who tend to rule that the specific analyst who performed the test must be present to testify; and
  • one justice (Thomas) who bases his rulings on whether each out-of-court analysis counts as “formalized testimonial material.”
"DNA lab" by flickr user snre

In Melendez-Diaz and Bullcoming, the view of the latter four (plus the one) prevailed. The analysts (drug and blood alcohol, respectively) had to come to court, testify, and be cross-examined about the tests they performed; otherwise, the results could not be used. This was a fairly clear rule… until Williams, in which a DNA expert was allowed to testify to the results of a test that she did not do herself.

Here, the other four justices wrote a non-controlling plurality opinion, holding that the DNA test was being admitted not as evidence of the defendant’s guilt, but only as the basis for the expert’s opinion. The five remaining justices thought this justification was nonsense: of course the DNA test was being treated as substantive evidence against the defendant. But because Justice Thomas also wrote separately that the DNA test was not “formalized testimonial material”, the result was that five justices held that the analysis was admissible. So, with no controlling justification coming out of Williams, the state of the law is extremely confusing.

With this backdrop, the North Carolina Supreme Court concluded its term last month with seven decisions about drug analysis. The justices on this court are also closely divided on the issue, 4-3. But the controlling opinion (in the lead case, Ortiz-Zape) was that an independent expert could “present an independent opinion obtained through his or her own analysis [as long as it was] not merely ‘surrogate testimony’ parroting otherwise inadmissible statements.” (The other opinions can be found here.)

As a result, in most of the seven cases the NC Supreme Court looked at, the expert’s testimony was permitted, even though the testimony described the results of tests that the expert did not perform him- or herself. According to the majority, the defense has the right to cross-examine this witness, and this would include establishing, for example, that the witness did not actually run the test, and is only assuming that another analyst did the test correctly. As long as the witness engages in this rhetorical dance (giving an “independent opinion” assuming the tests were done correctly), the results of the test may be described as the basis for the expert’s opinion.

This reasoning aligns with the four-justice plurality in Williams. But would five justices of the US Supreme Court buy it? I think this is unclear, but my opinion is, probably not. In my view, the NC cases are unlike Williams, in part because the drug analyses were done specifically for proving the guilt of a specific defendant. By contrast, in Williams, the plurality noted (in an alternative holding) that the original DNA profile was generated without a specific suspect in mind; the potential for misconduct is much less in such a situation. This angle also seemed to influence Justice Thomas’s holding that the original DNA profile was not a “formalized testimonial” statement.

Similar stories are playing out in each jurisdiction across the country right now. For now, the state of the law in North Carolina is that an expert scientific witness can give an “independent opinion” based on tests done by other analysts, even if those analysts do not come to court and present their results.

Emphasis on “for now.” Eventually, the U.S. Supreme Court will have to address these questions again. I think that they will be confronted with issues like this for years to come.

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