Posted by Quiz Questions:
1. When does Federal Rule of Evidence 803(3) allow a court to admit hearsay statements, including the client’s own statement to the police?
2. True or False: A sentencing court may not base an upward variance on uncharged conduct that also underlies a conviction in another jurisdiction.
3. How many angels can dance on the head of a pin? Does a prior conviction count as a “crime of violence” under the guidelines if it requires an intentional act to use physical force?
Eleventh Circuit Opinions:
Alexander Alli was convicted of conspiracy to commit wire fraud. In its case in chief, the government only introduced portions of Alli’s statements to investigating officers, and the district court rejected Alli’s request to include additional statements under Federal Rule of Evidence 106, the Rule of Completeness. In United States v. Alli, the Eleventh Circuit found that the statements Alli sought to include were duplicative, irrelevant, and not necessary to clarify the statements introduced by the government. The panel found no error and affirmed Alli’s conviction. In a concurrence, Judge Tjoflat criticized defense counsel for failing to recognize that the statements should have been admitted not under Rule 106, but under Rule 803(3), which permits evidence of Alli’s then existing state of mind. Judge Tjoflat found that defense counsel (and the government, too, which argued only about Rule 106 and ignored Rule 803(3)) deprived Alli’s jury of hearing potentially exculpatory statements and “precluded the jury from deliberating over the possibility of an acquittal.” Alas, “defense counsel took the bait, hook, line and sinker.” Practice tip: Don’t stop at Rule 106 – review Rule 803(3) and all other FREs that might get your client’s statement admitted. Second practice tip: Don’t let the government’s framing of the issue dictate how you see it. [By Ashley Martin].
A jury convicted Hollington of illegally prescribing controlled substances to his patients at an addiction clinic and of obstructing justice by doctoring patient records after indictment. In addition to giving away pills at the clinic, the doctor was also sexually assaulting vulnerable patients. His guidelines were 30-37 months, the government’s recommendation was 37 months, and the district court sentenced him to 144 months in prison. Hollington appealed his sentence by arguing that the 107-month-above-guidelines sentence was both procedurally and substantively unreasonable. In United States v. Hollington, the Eleventh Circuit affirmed the sentence, holding that there was no clear error for the following reasons:
- The court’s consideration of multiple sexual assault victims was not factually wrong because the court can consider the statements of victims at sentencing though they did not testify at trial.
- The court’s explanation of the sentence (that the guidelines did not address the sexual misconduct) was sufficient justification.
- The sentence did not create unwarranted sentencing disparities where the most similar defendants to Hollington were not similarly situated enough (i.e., doctor-patient sexual relationships without claims of sexual assault).
- Sentencing disparities between federal and state sentences are not contemplated by 18 U.S.C. § 3553(a). So, Hollington’s comparison of his 144-month federal sentence to his three-year state sentence for sexual battery was a moot argument.
For good measure, the appeals court reminds us that it has routinely upheld even bigger variances than this and an upward variance that falls well beneath the statutory maximum sentence is probably still reasonable. [By Chelsea Champion].
Thomas Sheely pleaded guilty to 18 U.S.C. § 922(g)(1). At sentencing, the court increased the base offense level based on a prior conviction for Florida felony battery, which the court found was a crime of violence under the elements clause of U.S.S.G. § 4B1.2, pursuant to binding circuit precedent in United States v. Vail-Bailon. On appeal, Sheely argued that Vail-Bailon had been abrogated by Borden v. United States, in which the Supreme Court held that crimes that may be committed with the mens rea of recklessness cannot count as a violent felony under the Armed Career Criminal Act. (And because the term “violent felony” in the ACCA is virtually identical to the term “crime of violence” in U.S.S.G. § 4B1.1, decisions as to one apply to the other.) In United States v. Sheely, the Eleventh Circuit rejected Sheely’s argument, noting that Vail-Bailon had held that the Florida statute requires an intentional act (not recklessness) to use physical force, thus it was not abrogated by Borden, and remains good law. [By Colin Garrett].
Quiz Answers:
1. Rule 803(3) permits a court to admit a defendant’s hearsay statement when it expresses his then-existing mental, emotional, or physical condition.
2. False, an upward variance may be necessary when the guidelines do not address sexual misconduct in the federal offense, even when the defendant has already been convicted of sexual battery in state court.
3. How many angels can dance on the head of a pin? Haha, just kidding. Yes, a prior conviction count as a guidelines crime of violence if it requires an intentional act to use physical force.
