Silence at Sentencing on Fraud Amounts: Can a Defendant Say Mum? A Look at Mitchell v. United States, 119 S.Ct. 1307 (1999)

Larry Allen Nathans
Jason D. Tulley
Nathans & Biddle, LLP
120 East Baltimore Street
Suite 1800
Baltimore, Maryland 21202
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In a rare victory for criminal defendant's rights before the Supreme Court, this term the Court held that a defendant has the right to remain silent at sentencing and not have that silence used against her by the trial court in fashioning the sentence. The defendant, Ms. Amanda Mitchell, plead guilty to a drug conspiracy offense. At the plea, the government recited the factual allegations against her that formed the basis of the offense. Following that reading, the District Court asked her, "Did you do that?" To which she replied, "Some of it." Id. at 1310. In imposing the ten year mandatory minimum, the District Court explicitly held Mitchell's refusal to testify against her, stating that because of her guilty plea she had no right to remain silent. Id.

As we know, the most important fact at sentencing in a majority of federal fraud cases is the amount of loss, or the value of the funds laundered, as the case may be. In drug cases, the issue is the quantity involved in the offense itself and any relevant conduct. At Ms. Mitchell's sentencing, the government utilized testimony from an earlier trial and then presented two witnesses who provided information on particular drug transactions involving Ms. Mitchell and her role in the drug organization. Ms. Mitchell herself refused to testify and contended that the government had failed to prove a sufficient quantity of cocaine required for the ten year minimum to apply (five kilograms). Id. at 1311. When the government put on independent testimony increasing the amount of drugs, the trial court found in its favor and explained that a factor in crediting the government witnesses was the defendant's failure to testify at the sentencing hearing. Although other circuits had found that a defendant should be able to assert the Fifth Amendment at sentencing without fear of retribution, the Third Circuit affirmed the trial court's decision to draw an adverse inference against the defendant for her failure to testify and rejected the contrary views of other courts.

In a 5-4 decision, the Supreme Court disagreed with the Third Circuit by an opinion written by Justice Kennedy (with Stevens, Souter, Ginsberg, and Breyer). The Court held that the narrow inquiry provided in a plea colloquy to determine voluntariness and intelligence of the plea protecting the defendant does not waive the Fifth Amendment privilege. Creating such a waiver would allow prosecutors to indict with unspecified amounts, obtain guilty pleas and then place defendants on the stand to determine the amount at sentencing. This would list the defendant as "an instrument of his own condemnation." Id. at 1313.

The Court extended its holding in Estelle v. Smith, 451 U.S. 454 (1981), a death penalty case, to all criminal cases, that even once guilt has been adjudicated, incrimination is not complete until after sentencing is imposed. Thus the Fifth Amendment right against self-incrimination applies through a sentencing hearing. Finally, because the Fifth Amendment privilege applies to sentencing proceedings, no adverse influences can be drawn from invocation of the right to silence, just as in any other criminal proceeding, extending Griffin v. California, 380 U.S. 609 (1965).

The Court noted that it was expressing no opinion as to whether the invocation of the right to silence at sentencing could be used to help determine downward departures for lack of remorse or acceptance of responsibility. Id. at 1316. Application Note 1(a) to Guideline Section 3E1.1 currently provides that "[a] defendant may remain silent in respect to relevant conduct beyond the offense of conviction without affecting his ability to obtain a reduction [for acceptance]. However, a defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility."

Justice Kennedy's opinion concluded with a strong affirmation of the rights of a criminal defendant to a fair process, stating, "The rule against adverse influences is a vital instrument for teaching that the question in a criminal case is not whether the defendant committed the acts of which he is accused. The question is whether the Government has carried its burden to prove its allegations while respecting the defendant's individual rights." Id. at 1316

The dissent by Justice Scalia (joined by O'Connor, Thomas, and Rehnquist) argued that although a defendant has a right to invoke his or her Fifth Amendment right against self-incrimination at sentencing, the Court should not restrict a trial court from finding an adverse influence from that silence. Justice Scalia relied heavily on the long tradition of wide discretion afforded a judge in fashioning the proper sentence for a criminal defendant. Id. at 1317-20.

This case provides strong protection of your client at sentencing, both state and federal, to invoke their right to silence. It also allows defense counsel to contend, where the government has produced evidence at sentencing and the defendant has no positive evidence to present, that the lack of production cannot be used against the defendant in determining sentence.

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