Ineffective Assistance of Counsel

United States v. Timothy W. Spence, No. 05-1848 (June 13, 2006): Mr. Spence was ordered to provide handwriting exemplars and refused. At first, his attorney questioned the validity of the order and requested a stay of the order so that he might research the issue. At the next hearing the attorney conceded the validity of the order and informed the judge that he had so advised his client. Mr. Spence continued to refuse compliance and was charged with contempt.

Mr. Spence eventually plead guilty to contempt (and other offenses). On appeal, he raised a claim of ineffective assistance of counsel, arguing that the attorney’s prior advice caused him to resist compliance. The Court held that the attorney’s later advice removed any claim of ineffective assistance of counsel, since once the attorney told him that he had to comply, Mr. Spence could not blame his plight on the attorney’s advice.

The Court once again reminded the bar that claims of ineffective assistance have almost no chance of success when raised on direct appeal and should be raised in a section 2255 proceeding. This case maintains the Court’s record of never granting relief on direct appeal. Indeed, one wonders why appellate counsel ever embark on this course of action. Of course, it must come from the client’s insisting, but one wonders if the client would insist if he or she knew that this strategy has never worked before and will almost never work in any future case.

One aspect of the case did not receive any comment from the Court, but raises a question. How ethical or wise was it for counsel in the lower court to tell the judge the content of his advice to the client, essentially giving evidence on the question of wilfullness, which could have been an issue had the client gone to trial on the contempt charge. As far as can be told from the opinion, this possible claim of ineffectiveness was not presented on appeal.

Crack-Powder Cocaine Disparity

United States v. Taryll Miller, No. 05-2978 (June 7, 2006): Under the crack guidelines, Mr. Miller’s sentencing range was 324 to 405 months. The district judge disagreed with the 100-1 ratio, and using a 20-1 ratio, calculated the range as 262 to 327 months. The court sentenced Mr. Miller to 300 months. He challenged that sentence as too high, claiming that the court should have used a 1-1 ratio.

The Seventh Circuit definitively rejected this position. ". . . district judges are obliged to implement the 100-to-1 ratio as long as it remains a part of the statute and the Guidelines." Tightening up on an earlier decision that might be interpreted to allow district judges to ignore the 100-1 ratio, the Court ruled that in all crack cases the sentencing judge must employ the 100-1 ratio. Having done so, a judge remains free to treat the resulting range as advisory. However, a judge’s belief that the 100-1 ratio is unjust or unwise is never a basis for going below the calculated range.

The Court concluded with the comment that, "Miller should give thanks that the United States did not file a cross-appeal." Otherwise, it would have sent the case back and exposed him to a higher punishment.

Earlier in the opinion the Court reaffirmed that hearsay is allowable in a sentencing hearing, although it did allow that district courts should avoid unreliable hearsay. In this case, the hearsay came in the form of testimony given in a separate trial, in which Mr. Miller’s uncle had implicated him in a murder. The Court found it significant that Mr. Miller had not made this transcript part of the record on appeal.

Grouping of Offenses under the Guidelines

United States v. Michael J. Brisson, No. 05-1540 (June 2, 2006): Mr. Brisson defrauded a bank of a substantial sum of money. He also submitted false claims for IRS refunds, which netted him a substantial sum of money. The district court refused to group the tax counts with the bank fraud count, despite Mr. Brisson's aargument that all the offenses were of the fraud variety and U.S.S.G. sec. 3D1.2 allows grouping. The Seventh Circuit ruled that although this section might seem to permit grouping or at least not disallow it, the true test is whether the offenses are of the same general type. It found that grouping was not required since the victims were different. The opinion is somewhat unclear as to whether it was reviewing the grouping on a de novo basis or merely finding that the district judge did not commit clear error. It is also unstated (perhaps the briefs did not raise the issue) whether the two losses were combined for purposes of calculating relevant conduct.