United States v. Alejandro Umana , 762 F.3d 413 ( 2014 )

AMENDED ORDER
PUBLISHED
FILED: August 12, 2014
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6
(3:08-cr-00134-RJC-2)
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ALEJANDRO ENRIQUE RAMIREZ UMANA, a/k/a Wizard, a/k/a Lobo,
Defendant – Appellant.
O R D E R
The Court denies the petition for rehearing en banc.
A requested poll of the Court failed to produce a majority
of judges in regular active service and not disqualified who
voted in favor of rehearing en banc. Judge Motz, Judge Gregory,
Judge Keenan, Judge Wynn, and Judge Thacker voted to grant
rehearing en banc. Chief Judge Traxler, Judge Wilkinson, Judge
Niemeyer, Judge King, Judge Shedd, Judge Duncan, Judge Agee, and
Judge Floyd voted to deny rehearing en banc. Judge Diaz recused
himself and did not participate in the poll.
Judge Wilkinson wrote an opinion concurring in the denial of
rehearing en banc, in which Judge Niemeyer joined. Judge Gregory
wrote an opinion dissenting from the denial of rehearing en
banc, in which Judge Wynn joined.
Entered at the direction of Judge Niemeyer.
For the Court
/s/ Patricia S. Connor, Clerk
WILKINSON, Circuit Judge, concurring in the denial of rehearing
en banc:
Judge Niemeyer’s fine opinion for the court fully addresses
the points raised here by the dissent. United States v. Umaña,
750 F.3d 320 (4th Cir. 2014). I agree with that opinion, and add
only these brief observations.
Were we to renounce Williams v. New York, 337 U.S. 241(1949), this court would ignore a clear and consistent directive
from the Supreme Court not to overturn higher precedent
preemptively. In Rodriguez de Quijas v. Shearson/American
Express, Inc., 490 U.S. 477 (1989), the court of appeals had
declined to follow a decades-old Supreme Court case on the
enforceability of arbitration agreements, Wilko v. Swan, 346
U.S. 427 (1953), because in the view of the court of appeals,
the Court’s intervening decisions on the construction of related
federal statutes had reduced it to “obsolescence,” Rodriguez de
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Quijas v. Shearson/Lehman Bros., Inc., 845 F.2d 1296, 1299 (5th
Cir. 1988). While the Court finally did overrule Wilko,
Shearson, 490 U.S. at 484, its opinion is best remembered for
one sentence that is pure ice: “If a precedent of this Court has
direct application in a case, yet appears to rest on reasons
rejected in some other line of decisions, the Court of Appeals
should follow the case which directly controls, leaving to this
Court the prerogative of overruling its own decisions.” Id.The “tea leaves” for overruling were far clearer in
Shearson than they are in this case. But the practice of circuit
courts trying to anticipate, based on “trends,” what the Supreme
Court would do with an actual holding has not only raised
eyebrows upstairs but had heretofore met with disfavor on our
court. See, e.g., United States v. Danielczyk, 683 F.3d 611, 615
(4th Cir. 2012) (“Thus, lower courts should not conclude that
the Supreme Court’s ‘more recent cases have, by implication,
overruled [its] earlier precedent.’” (alteration in original)
(quoting Agostini v. Felton, 521 U.S. 203, 237 (1997))), cert.
denied, 133 S. Ct. 1459 (2013). Because Williams controls this
case, I concur in the denial of the petition for rehearing en
banc.
Williams examined which rules of evidence were applicable
to “the manner in which a judge may obtain information to guide
him in the imposition of sentence upon an already convicted
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defendant” in a capital murder case. 337 U.S. at 246. In
rejecting the view that the defendant enjoyed trial
confrontation rights at sentencing, the Court noted:
In addition to the historical basis for different
evidentiary rules governing trial and sentencing
procedures there are sound practical reasons for the
distinction. . . . A sentencing judge, however, is not
confined to the narrow issue of guilt. His task within
fixed statutory or constitutional limits is to
determine the type and extent of punishment after the
issue of guilt has been determined. Highly relevant—if
not essential—to his selection of an appropriate
sentence is the possession of the fullest information
possible concerning the defendant’s life and
characteristics. . . . It is urged, however, that we
should draw a constitutional distinction as to the
procedure for obtaining information where the death
sentence is imposed. We cannot accept the contention.
337 U.S. at 246-47, 251.
The three circuits to have addressed this issue have found
Williams to be controlling in capital sentencing cases. The
procedures or sentencing criteria may vary, but a sentencing
proceeding remains a sentencing. Its purpose of providing a
complete and rounded sense of the one to be sentenced does not
fluctuate with the identity of the sentencer or the severity of
the sanction to be imposed. The Seventh Circuit explicitly
stated that the “Confrontation Clause does not apply to capital
sentencing,” that “the Supreme Court . . . has never questioned
the precise holding of Williams v. New York,” and that it was
not free to revisit the Williams decision. Szabo v. Walls, 313
F.3d 392, 398 (7th Cir. 2002). Likewise, the Eleventh Circuit
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considered Williams controlling when it made clear that a
defendant has a right to rebut before the jury information
relevant to his character and record, but not to exercise full
confrontation rights as to hearsay declarants. Muhammad v.
Sec’y, Fla. Dep’t of Corr., 733 F.3d 1065, 1074 (11th Cir.
2013). Finally, the Fifth Circuit grounded its opinion on
Williams and indicated that it also was not free to revisit that
decision. United States v. Fields, 483 F.3d 313 (5th Cir. 2007).
Granting rehearing en banc in this case not only would fail to
resolve a circuit split but in fact would risk creating one in
the face of controlling Supreme Court precedent.
Unlike in Shearson, it is anything but clear here that the
Supreme Court will overrule Williams. Numerous factors support
Williams’s continuing vitality, even after the passage of the
Federal Death Penalty Act of 1994. Citing Williams, the Court
recently continued to differentiate between a trial’s guilt and
sentencing phases and affirmed the broader evidentiary
discretion attached to the latter. See Alleyne v. United States,
133 S. Ct. 2151, 2163 n.6 (2013) (”[J]udges may exercise
sentencing discretion through ‘an inquiry broad in scope,
largely unlimited either as to the kind of information [they]
may consider, or the source from which it may come.’”
(alteration in original) (quoting United States v. Tucker, 404
U.S. 443, 446 (1972))); id. (“‘[B]oth before and since the
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American colonies became a nation, courts in this country and in
England practiced a policy under which a sentencing judge could
exercise a wide discretion in the sources and types of evidence
used to assist him in determining the kind and extent of
punishment to be imposed within limits fixed by law.’”
(alteration in original) (quoting Williams v. New York, 337 U.S.
241, 246 (1949))). This position has been firm and consistent.
See United States v. Watts, 519 U.S. 148, 154 (1997); Witte v.
United States, 515 U.S. 389, 399-401 (1995); Nichols v. United
States, 511 U.S. 738, 747-48 (1994). It is not just that an
“already convicted defendant,” Williams, 337 U.S. at 244, no
longer benefits from the presumption of innocence in the
sentencing phase. Practical considerations likewise counsel
against formal constrictions that may not only impede the quest
for a full human picture in all of its complexity, but lay the
groundwork for additional sparring and sow the seeds for added
assignments of error.
Circumscribing these rights does not leave the convicted
defendant without protection from unreliable evidence. Due
process requires that the broader range of evidence available
during sentencing still possess sufficient indicia of
reliability. United States v. Powell, 650 F.3d 388, 393-94 (4th
Cir. 2011); see also U.S. Sentencing Guidelines Manual
§ 6A1.3(a) (2013). The defendant also retains the opportunity
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for rebuttal of adverse evidence. Gardner v. Florida, 430 U.S.
349, 362 (1977); see also U.S. Sentencing Guidelines Manual
§ 6A1.3. Furthermore, the Supreme Court has identified certain
“structural errors” that “undermine the fairness of the entire
criminal proceeding” and require automatic reversal. United
States v. Davila, 133 S. Ct. 2139, 2142 (2013); see also Arizona
v. Fulminante, 499 U.S. 279, 310 (1991). Among these structural
errors are violations of the rights to counsel and to an
unbiased judge, both of which are retained during sentencing.
Fulminante, 499 U.S. at 308-10; Gardner, 430 U.S. at 358.
Confrontation Clause violations, by contrast, are subject to
harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673,
680, 684 (1986). The trial right to confrontation and cross-
examination remains part of our imperishable inheritance of
liberty, see Crawford v. Washington, 541 U.S. 36, 50-51 (2004),
but it is not among the constitutional accoutrements of
sentencing, in part because “Williams shows that witnesses
providing information to the court after guilt is established
are not accusers within the meaning of the confrontation
clause,” United States v. Roche, 415 F.3d 614, 618 (7th Cir.
2005).
It is not our office to create a circuit split,
preemptively overturn Supreme Court holdings, and attempt to
force the Court’s hand. It bears note that the hierarchical
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nature of the judicial system lends to law a stability and
consistency that would be lost if, for example, district courts
treated our rulings in the fashion urged by those with a more
aggressive view of the intermediate appellate role. Society
lives by law. When courts, convened in their roles as guardians
of law, set the example of abiding by law, society as a whole
will replenish its faith in our most cherished institutions.
Judge Niemeyer joins me in this opinion.
GREGORY, Circuit Judge, dissenting from the denial of rehearing
en banc:
The government used unconfronted accusations from police
informants to send a man to his death. I strongly believe that
this violated Mr. Umaña’s Sixth Amendment rights. My full
reasoning is set out in my dissent. United States v. Umaña, 750
F.3d 320, 360–70 (4th Cir. 2014). With all due respect, I
consider our refusal to rehear this case en banc to be a grave
mistake. However, I write today to explain why I believe that
Supreme Court review of Mr. Umaña’s argument is warranted.
I believe Supreme Court review is vital because this Court
and the district court misread the past five decades of Supreme
Court jurisprudence on the Sixth Amendment and the death
penalty. Further, I believe this misreading is the difference
between Mr. Umaña living and dying. The conviction supporting
the death sentence was a gang-related double murder that
occurred after an argument in a bar. Though this crime was
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appalling, it is unlikely that it alone would have supported a
death sentence, given Mr. Umaña’s lack of previous convictions.
Rather, the reason Mr. Umaña now faces execution is that the
prosecutor was able to introduce out-of-court accusations from
police informants that accused Umaña of several previous
murders. An examination of the government’s summation argument
at sentencing demonstrates this: nearly every page of the
transcript references these past murders. Umaña, 750 F.3d at
362 (collecting references to past murders) (Gregory, J.,
dissenting). For the reasons set out in my dissent, these
accusers were not tenable witnesses: they would likely not have
withstood the scrutiny of cross-examination. Mr. Umaña was
never given this chance, however. Instead, the court
substituted a reliability finding for Umaña’s Sixth Amendment
rights, and the result was that the jury sentenced Umaña to
death.
As Justice Scalia writes, “[d]ispensing with confrontation
because testimony is obviously reliable is akin to dispensing
with jury trial because a defendant is obviously guilty.” See
Crawford v. Washington, 541 U.S. 36, 62 (2004). “This is not
what the Sixth Amendment prescribes.” Id. Further buttressing
my view is that this constitutional violation occurred during a
Federal Death Penalty Act trial, in which a jury is required to
make factual findings before a death sentence is within the
permissible range of punishments. 18 U.S.C. § 3593(e)
(requiring a jury to find the existence of enumerated
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aggravating factors, any additional aggravating factors, and
that all aggravating factors outweigh all mitigating factors
before death is permissible). Even in sentencing proceedings,
certain Sixth Amendment rights apply for factfinding that can
increase the range of punishments. Ring v. Arizona, 536 U.S.
584, 589 (2002). “[A]ll facts essential to imposition of the
level of punishment that the defendant receives -- whether the
statute calls them elements of the offense, sentencing factors,
or Mary Jane -- must be found by the jury beyond a reasonable
doubt.” Id. at 610 (Scalia, J., concurring). Thus, the primary
reason that I believe Supreme Court review is necessary in this
case is because the district court’s decision, and our panel
opinion affirming it, do not heed the clear trend that Crawford
and Ring represent.
However, even if my view on the reach of the Confrontation
Clause is incorrect, Supreme Court review is still vital in
order to resolve the tension in current death penalty doctrine
and to achieve uniformity across federal prosecutions. The
panel’s decision is driven in large part by the Supreme Court’s
ruling in Williams v. New York. 337 U.S. 241 (1949). That case
held that under the Due Process Clause, the defendant did not
have a right to confront his accusers during New York’s death
sentencing procedure, in which a judge had discretion to reject
a jury-imposed life sentence for a death sentence. Id. The
reason I respectfully disagree with the majority opinion is that
since Williams, several lines of Supreme Court cases have
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created a sea change in death penalty procedure and Sixth
Amendment doctrine. See Crawford, 541 U.S. 36 (overruling
precedent to find that reliability finding cannot substitute for
cross-examination); Ring, 536 U.S. 584 (overruling precedent to
find that Sixth Amendment can apply during sentencing); Furman
v. Georgia, 408 U.S. 238 (1972) (holding that death penalty
cannot be imposed using sentencing procedures that create a risk
of arbitrary and discriminatory enforcement). In fact, Williams
was decided before it was even accepted that the Sixth Amendment
applied to state sentencing procedures in the first place.
Thus, while the majority and I disagree on the reach of the
Confrontation Clause, it is clear that there is tension in
Supreme Court case law. Ring and Crawford suggest a broader
understanding of Sixth Amendment rights and Furman creates more
muscular requirements for death sentencing procedure, and these
developments postdate the Williams decision. While Williams has
not been overruled, this tension suggests that it must be
revisited in light of our modern understanding of the Sixth
Amendment and the quality of procedure necessary for the
government to take a man’s life.
More importantly, this tension in Supreme Court case law
has fostered a lack of uniformity in federal death sentencing
procedure that creates intolerable unfairness. The end result
is that a defendant’s constitutional rights depend on the whims
or strategic maneuvering of the prosecutor. In the absence of
Supreme Court guidance, district courts across the country have
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reached conflicting views on whether the Confrontation Clause
applies throughout a Federal Death Penalty Act trial, with some
courts adopting my view and others adopting the majority’s view
that the rights only apply to the initial stage of capital
sentencing. Compare United States v. Umaña, 707 F. Supp. 2d
621, 633 (W.D.N.C. 2010) (finding Confrontation Clause rights in
first stage of federal capital sentencing but not the second
stage), with United States v. Stitt, 760 F. Supp. 2d 570, 581-82
(E.D. Va. 2010) (finding Confrontation Clause rights in both
stages of federal capital sentencing), and United States v.
Sablan, 555 F. Supp. 2d 1205 (D. Colo. 2007) (same). Circuit
court judges, too, have disagreed on this precise issue. * The
result is that in federal capital trials – the most important
possible proceeding of a defendant’s life -- the scope of a
defendant’s Sixth Amendment rights depends on the district in
which the case is brought. See, e.g., Umana, 707 F. Supp. at
633 (“Absent guidance from the Supreme Court or the Fourth
Circuit, the district courts are left to determine this
issue.”); United States v. Mills, 446 F. Supp. 2d 1115, 1122
(C.D. Cal. 2006) (noting its struggle “to apply the Supreme
Court’s decision in Crawford” and lamenting that “recent Supreme
*
See Muhammad v. Sec’y, Fla. Dep’t of Corr., 733 F.3d 1065(11th Cir. 2013) (divided panel opinion finding that
Confrontation Clause does not apply to capital cases after
guilty verdict); United States v. Fields, 483 F.3d 313, 324–338
(5th Cir. 2007) (same); Proffitt v. Wainwright, 685 F.2d 1227,
1252–53 (11th Cir. 1982) (finding a right to cross examine the
author of a psychiatric report under the Sixth Amendment during
sentencing) modified, 706 F.2d 311 (expressly limiting case to
psychiatric reports).
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Court decisions complicate the matter”). Thus, even if my view
is wrong, Supreme Court review is necessary to ensure fairness
and uniformity in federal death cases. The scope of a
defendant’s Sixth Amendment rights should not depend on the
venue in which a case is brought.
Justice Scalia has lamented that “the repeated spectacle of
a man’s going to his death” without the Sixth Amendment
protection of jury factfinding “accelerate[s]” the “perilous
decline” of “our people’s traditional belief in the right of
trial by jury.” Ring, 536 U.S. at 612 (Scalia, J., concurring).
He argues that “we render ourselves callous to the need for that
protection by regularly imposing the death penalty without it.”
Id. I firmly believe that these words are as true for the
Confrontation Clause of the Sixth Amendment as they are for the
jury clause. There is no doubt that Mr. Umaña is being sent to
his death in large part based on accusations of murder for which
he was never charged, much less convicted. There is no doubt
that the basis for these accusations was weak and would have
withered under the scorching sunlight of cross-examination.
Mr. Umaña was never given this opportunity, however. For the
Framers of the Constitution, this state of facts was
unacceptable when they occurred in England in the infamous Sir
Walter Raleigh trial. Crawford, 541 U.S. at 44, 62. I consider
it just as unacceptable today. Accordingly, I dissent.
Judge Wynn joins in this dissent.
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