Last week, the Sixth Circuit and Supreme Court issued opinions on criminal law that could affect trial and sentencing strategy for white collar defendants in regulated industries.
District court discretion does not override the need for “the perception of fair sentencing” in the Sixth Circuit.
On June 22, 2023, the Sixth Circuit issued an opinion granting a rare victory to criminal defendants and putting certain guardrails on courts with respect to sentencing for violations of supervised release conditions (United States v. Morris, No. 22-1970, 2023 WL 4117939 (6th Cir. June 22, 2023)).
While out on supervised release for narcotic distribution and firearm possession charges, defendant Andrew Morris committed certain crimes, of which he was later found guilty, including leading police on a high-speed chase through a residential neighborhood while in possession of methamphetamines. After the defendant was sentenced, the Supreme Court’s Borden v. United States, 141 S. Ct. 1817 (2021), decision changed the severity of Morris’ violations and significantly reduced the applicable sentencing guideline range. Morris successfully appealed his original sentence, but on remand, the district court, relying on its “discretion,” declared that it had the power to again sentence Morris to the same original sentence of 48 months of imprisonment — despite the high-end of the guidelines range for Morris’ violations being reduced to only 27 months.
On appeal for a second time, the Sixth Circuit found that the district court failed entirely to consider most of the relevant 18 U.S.C. § 3553(a) factors, and the district court’s desire to re-impose the same sentence “does not promote the perception of fair sentencing” and “renders the sentence in this case substantively unreasonable.” Importantly, even where the district court seemed to consider § 3553(a) factors, it did so incorrectly, misconstruing the “nature and circumstances of the offense” consideration as allowing the court to sentence Morris based on the severity of his revocation violations, when the appropriate inquiry was for the court to assess Morris’s conduct based on the severity of his original federal offenses.
Bruton Who? Confrontation Clause? What Confrontation Clause?
The very next day, on June 23, 2023, the Supreme Court decidedly took a less defendant-friendly approach.
In Samia v. United States, No. 22-196, 2023 WL 4139001 (U.S. June 23, 2023), the government tried three defendants together for crimes associated with a murder-for-hire. Two of the defendants confessed involvement in the murder, while the third, Adam Samia, the alleged gunman, maintained his innocence.
At the joint trial, the government introduced the confession of one of Samia’s co-defendants, who had exercised his right to remain silent and declined to testify. Samia was unable to confront his co-defendant, and the trial court allowed the confession in through the testimony of a federal agent, subject to minimal redactions focused on Samia’s name and limiting instructions that the testimony was only admissible against the co-defendant who gave the confession and not Samia.
Where the co-defendant had mentioned Samia in his confession, the agent was allowed to refer to Samia as “the other person.” But, as Samia’s counsel argued, the jury no doubt knew that Samia was “the other person” despite the supposed “redactions.” For example, the agent described “the other person” who had pulled the trigger in the confession as someone with whom the co-defendant had traveled and lived and who carried a particular gun. The government elicited evidence that Samia and the co-defendant traveled to, and lived together in, the Philippines, and Samia owned the same type of gun as “the other person.” During opening statements, the government also made clear that its theory of the case was that the confessing, non-testifying co-defendant was the driver, while Samia was a passenger who pulled the trigger.
At trial, the jury convicted all three defendants, denied post-trial motions, and sentenced Samia to life plus 10 years imprisonment. The Second Circuit affirmed Samia’s conviction, finding admission of the co-defendant’s confession did not violate Samia’s Confrontation Clause rights. The Supreme Court agreed. Despite recognizing that Bruton v. United States, 391 U.S. 123 (1968), concluded that admission of a “facially incriminating confession of a nontestifying codefendant … at their joint trial,” even with a proper limiting instruction, violated the Sixth Amendment, and that Gray v. Maryland, 523 U.S. 185 (1998), held that “certain obviously redacted confessions might be ‘directly accusatory,’ … even if they did not specifically use a defendant’s name,” in Samia, the Supreme Court nonetheless found that admission of the redacted confession of the co-defendant, paired with a limiting instruction, did not violate Samia’s constitutional rights.
Prior to the Supreme Court’s holding in Samia, most circuit courts, although not the Second Circuit where Samia originated, construed the Supreme Court precedent as requiring consideration of context when determining whether a proposed redaction was sufficient to protect a defendant’s rights under the circumstances of the case. While the law presumes “that jurors will follow instructions,” defense counsel and prosecutors alike know that the presumption and reality can be drastically different, and the Supreme Court’s claim that its Samia holding is “consistent with … longstanding historical practice” is baffling and disappointing, as it effectively eviscerates the protections of Bruton and progeny.
While the crimes committed by the defendants in Morris and Samia were not of the white-collar variety, the implications of these holdings matter for all defendants. The white-collar bar knows and understands the importance of the 3553(a) factors. Thanks to the Morris decision, defendants are now armed with authority to fight back against judges inclined to disregard or undervalue those factors when imposing sentence. On the other hand, a multi-defendant, white-collar trial could replicate the Samia scenario of a confessing co-defendant being tried alongside others who have made no incriminating statements to law enforcement. The Supreme Court’s holding in Samia is the type of gut punch to justice that will necessitate every defendant involved in a multi-party case to carefully evaluate any Bruton issues and consider fighting for severance.