Rushin: Defense precluded from asking cooperating witnesses about specific future sentences

In U.S. v. Rushin, No. 14-15622 (Dec. 21, 2016), the Court affirmed the convictions and sentences of prison guards charged with abusing prisoners and covering up the incidents. The Court declined to address whether the district court erroneously limited one defendant’s counsel CJA voucher, finding that no appellate jurisdiction existed because the notice of appeal did not indicate that counsel intended to participate as an appellant. The Court rejected the defendants’ challenge to the district court’s ruling that during cross-examination of the government’s cooperating witnesses who had pled guilty, the defense could not inquire regarding the specific sentences these cooperating witnesses might have received, absent their cooperation. The Court noted that the defendants were permitted to ask whether the cooperating witnesses would have faced a more severe penalty, or expected a lesser sentence. However, “the precise number of years the cooperating witnesses may have faced provides little, if any, value above those questions defense counsel were permitted to ask.” Moreover, “due to the fact that the sentence range applicable to these witnesses would reveal the sentence range for defendants, the proposed additional examination could invite jury nullification. The risk of jury nullification is accentuated by the fact that defendants were guards and the victims prisoners.” The Court also rejected the defendants’ claim that the district court unduly limited their defense when it precluded them from introducing evidence of “unrelated inmate violence.” The Court explained that unrelated inmate violence did not make the defendants’ assaults more or less likely or more or less justified. Moreover, jury nullification appeared to be the reason for introducing this evidence – an improper basis. Turning to sentencing, the Court rejected the argument that the district court unduly relied on the conduct underlying the civil rights violations, for which the defendants were acquitted, to punish them for obstruction of justice. A district court may rely on acquitted conduct at sentencing. [Jordan, J., concurring, stated that in certain cases it could be a Confrontation Clause error to preclude the defense from asking a cooperating witness about the mandatory minimum sentence he would otherwise be facing.]