... and Justice for All

"Safety-valve" relief; a Circuit-split on the meaning of "and"

The First Step Act of 2018 amended 18 U.S.C. § 3553(f)(1) to broaden substantially the eligibility criteria for “safety valve” relief. Previously, a defendant was ineligible for “safety valve” relief if he or she had more than 1 criminal history points. The First Step Act expanded the eligibility criteria and made a defendant eligible for safety valve relief if he had (A) “more than 4 criminal history points” excluding those resulting from a 1-point offense; (B) a prior 3-point offense; and (C) a prior 2-point violent offense.

A circuit split has developed centered upon the meaning of “and” in the amended statute. In other words, the question is whether, as the Sixth Circuit has described in United States v. Haynes, No. 22-5132 (6^th Cir., December 19, 2022), “whether … this provision requires the defendant to show that he has none of the criminal history described in subsections (A) – (C); or whether instead … the defendant must show only that he lacks the criminal history described in any one of those subsections. The answer to that question, everyone agrees, depends on the meaning of the word “and” as used in § 3553(f)(1).”

The Sixth Circuit ruled in Haynes that “and” doesn’t mean “and” but means “or,” as described in the dissenting opinion of Judge Richard Griffin, a jurist not known for seeing anything in favor of a criminal defendant. The Sixth Circuit joins the Eighth Circuit, United States v. Pulsifer, 39 F.4^th 1018 (8^th Cir. 2022), Seventh Circuit, United States v. Pace, 48 F.4^th 741 (7^th Cir. 2022), and, of course, the Fifth Circuit, United States v. Palomares, 52 F.4th 640 (5th Cir. 2022), in that holding. 

On the opposite side of the fence and holding that “and” means “and” is the en banc Eleventh Circuit, United States v. Garcon, __ F.4^th ___ (11^th Cir., Dec. 6, 2022)(en banc), and the Ninth Circuit, United States v. Lopez, 998 F.3d 431 (9th Cir. 2021). The en banc Eleventh Circuit, in an opinion authored by Tulane Law School grad and Chief Judge William J. Pryor, described the question presented as “whether, in the First Step Act, the word ‘and’ means ‘and.’”

This issue, given this circuit split, seems destined for the Supreme Court, where the plain language reading followed by the Eleventh and Ninth Circuits will likely carry the day.

Robert L. Abell
www.RobertAbellLaw.com

Defining Hearsay: The truth of “the matter asserted” means “the matter asserted by the statement,” not the matter asserted by the party offering the testimony

The defendant was charged after having been filmed by an informant selling methamphetamine. The informant, who is identified as “B.B.”, passed away before trial. Nevertheless, the government played B.B.’s videos of the transactions to the jury, although recordings of statements from B.B. to law enforcement personnel were excluded. The defendant was found guilty and challenged on appeal the admission of the redacted videotapes, arguing that they were hearsay, and their admission violated his rights under the Confrontation Clause.

The Sixth Circuit rejected this contention and affirmed the convictions in United States v. Harrison, No. 21-6146 (6^th Circuit, December 1, 2022).

When a witness cannot testify at trial and has not been cross-examined, the confrontation clause prohibits entry of the witness’s statements that are: (1) testimonial, and (2) hearsay. United States v. Gibbs, 506 F.3d 479, 486 (6^th Cir. 2007). A statement is testimonial when its purpose is to be used against the defendant.

Federal Rule of Evidence 801(c) defines hearsay to be a statement “offered in evidence to prove the truth of the matter asserted.” The key, however, as explained by the Sixth Circuit is that “the matter asserted” refers to or means “the matter asserted by the statement, not the matter asserted by the government. United States v. King, 865 F.3d 848, 850-51 (6^th Cir 2017).

This is a good way to understand whether or not a statement is in fact “hearsay”: is the statement being offered toward proving its truth? If the statement is merely being offered in support of the position of the party offering it but not because it is true or not, the statement is not hearsay.

Robert L. Abell
www.RobertAbellLaw.com

"Our law applies to all, without regard to numbers, wealth or rank" says Eleventh Circuit ruling against former President Trump

The Eleventh Circuit in Donald J. Trump v. United States, the government's appeal from the ruling by district judge Aileen Cannon to appoint a special master to review the government's ongoing investigation related to the former president. The Court went through the relevant factors for such a ruling, found them all wanting and came to this conclusion:

Only one possible justification for equitable jurisdiction remains: that Plaintiff is a former President of the United States. It is indeed extraordinary for a warrant to be executed at the home of a former president -- but not in a way that affects our legal analysis or otherwise gives the judiciary license to interfere in an ongoing investigation. ... To create a special exception here would defy our Nation's foundational principle that our law applies "to all, without regard to numbers, wealth, or rank." State of Georgia v. Brailsford, 3 U.S. (3 Dall.) 1, 4 (1794).

And so a very ordinary ruling by the appellate court corrects a very big error by the district judge. 

Robert L. Abell
www.RobertAbellLaw.com