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.]

Green: Harmless Rule 404b errors

In U.S. v. Green, No. 14-12830 (Nov. 30, 2016), the Court affirmed the conviction and sentence of 262 months for a defendant charged with being a felon-in-possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The Court rejected Green’s challenge to the sufficiency of the evidence: Green was hiding in the same room in which the firearm was discovered, had been living at this residence, and had admitted to the arresting officer that the firearm was his. The Court also rejected the argument that Green’s admission was uncorroborated and therefore should not have been considered, finding that there was circumstantial evidence of constructive possession. The Court agreed with Green that the district court should have redacted the indictment’s reference to prior “crimes” in the plural, given that Green had stipulated to having a single prior conviction. The Court recognized that communicating to the jury that a defendant could have “dozens of convictions” increases the risk of unfair prejudice. However, the error was harmless in light of the significant circumstantial evidence. The ammunition possession conviction that the government relied on for purposes of Rule 404(b) had been entered after Green pled nolo contendere to the charge. Citing Federal Rule of Evidence 803(22), which precludes the use of a nolo plea to prove the truth the matter asserted in a judgment of conviction, the Court concluded that the admission of Green’s prior conviction was insufficient to prove that Green actually committed the prior act at issue. However, again, the error was harmless in light of the “ample” evidence “independent of the Rule 404(b) conviction,” supporting guilt. Moreover, the nolo conviction was “not emphasized during trial or closing argument,” as the district court gave a cautionary Rule 404(b) instruction, and the prosecutor in closing told the jury that the 404(b) conviction was only admitted for the “very limited purpose” of showing whether Green had the “intent” to possess the items at issue. Turning to the sentence, the Court found no error in sentencing Green under the Armed Career Criminal Act (“ACCA”), based on prior Florida battery convictions. The Court noted that the Supreme Court left open the possibility of relying on Shepard documents to determine whether a prior battery conviction qualified as a “crime of violence.” Here, these documents (the agreed factual basis for Green’s nolo plea) indicated that Green “struck” another against his will. Specifically, that the victim said that Green “hit him in the face.”