Sentencing – trial court’s erroneous reliance on ambiguous “other crimes” evidence previously rejected under Rule 404(b), F. R. Evid., justifies vacation of lengthy sentence: United States v. Kpodi, _ F.3d _ (D.C. Circuit, No. 14-3037, May 31, 2016)
A unanimous panel of the D.C. Circuit found error and vacated a 151-month sentence imposed over objection by the trial court, which previously had found the same evidence too attenuated to allow its introduction at trial. Finding the trial judge’s decision an abuse of discretion, and the admission harmful, the Court of Appeals vacated the sentence and remanded the case.
In Kpodi the defendant had been accused of narcotics and weapons charges occurring about May 9, 2013, when federal and state agents searched a residence Kpodi shared with a roommate. The district judge had rejected the Government’s effort to present evidence under Rule 404(b), F. R. Evid., of several supposedly related events, most pertinently an April 4th shooting near Kpodi’s home. Although there was no evidence that shell casings found near the scene matched any particular weapon, the Government argued that they were circumstantial evidence of Kpodi’s constructive possession of a firearm found a month later in the search of his house. (slip op. at 2-4). Kpodi successfully argued prior to trial that no one had identified the April 4th shooter. In response to the prosecution’s contention that people had seen him running in the neighborhood after the shots rang out, Kpodi pointed out that the Government’s proffered evidence merely placed him on the street. (Id. at 4-5)
Given the “‘logical leaps,’” “‘limited and vague eyewitness testimony’” and “‘speculation,” the trial judge rejected the Rule 404(b) evidence of the shooting. Kpodi went to trial and was acquitted of one narcotics charge and a charge of using a firearm in furtherance of a drug trafficking offense. He was convicted of the other narcotics charge and a charge of being a felon in possession of a firearm. (Id. at 2-3, 5-6).
Surprisingly, at sentencing the district judge considered the very evidence it previously had rejected, to the point of stating that “two eyewitnesses identified Mr. Kpodi as participating in such a gunfight outside his home in D.C. a short time before the search warrant was obtained.” The trial court added that “‘the association of the defendant’s drug conviction with guns . . . is a very important consideration in the Court’s determination of which sentence recommendation is appropriate in this case.’”(Id. at 6-7).
On appeal Kpodi contended the district court had erred in considering this evidence. The Government responded that admission of the evidence was neither an abuse of discretion nor harmful.
Speaking for the panel, Circuit Judge Henderson began by observing that while “a sentence must ‘not be based on improper or inaccurate information,’” (slip op. at 9) (quoting United States v. Lemon, 723 F.2d 922, 933 (D.C. Cir. 1983)), “[i]t is not per se error, however, for the sentencing judge to consider facts beyond those found by the jury.” (Id.) (citing United States v. Watts, 519 U.S. 148, 157 (1997)). The vice here, Judge Henderson reasoned, was the trial court’s “relying on a clearly erroneous inference in sentencing Kpodi.” (Id.). In particular, nothing had changed between the pretrial ruling and sentencing to make the Government’s inference anything other than a weak link: “it was just as likely that Kpodi fled from gunfire and took shelter behind a car.” (slip op. at 10). Although the trial court’s pretrial analysis had been “eminently reasonable,” its about-face at sentencing, where no new facts had been identified, was found “clearly erroneous.” (Id. at 10-11).
Before the Circuit Court of Appeals, the Government first conjured a claim that the lower court’s pretrial ruling rested on a conclusion that the prosecution hadn’t shown Kpodi used a weapon during the shooting but at sentencing the district court had concluded he had participated in the shooting. The panel dissected the evidence and the oral argument and found this theme equivocal at best. (slip op. at 11-12) (emphasis original).
Next the Government submitted that any error was harmless. This, too, went nowhere. The panel noted that the issue of a sentencing court’s reliance on a clearly erroneous inference was a matter of first impression in the D.C. Circuit. But whether considered under the more stringent test for constitutional error or the less stringent test for non-constitutional error, the Government had failed to meet its burden to prove the absence of prejudicial error. (slip op. at 13-14) (citing United States v. Linares, 367 F.3d 941, 952 (D.C. Cir. 2004)), For one thing, although Kpodi had received a bottom-of-the-Guidelines-range sentence, the trial judge had refused to exercise his request that she impose a below-Guidelines range sentence in order to remain part of his children’s lives. As the panel explained, “the fact that Kpodi was sentenced to the bottom of the Guidelines range is itself insufficient to render the court’s consideration of the April 4 evidence harmless.” (slip op. at 15-16).
Lastly, the Government claimed that the district court’s error was harmless because the April 4th shooting ostensibly was one of multiple incidents that led the district court to conclude that Kpodi was likely to use guns in furtherance of his drug transactions. The panel retorted that “[t]he Government’s argument, however, again mischaracterizes the tone of the sentencing hearing” and for good measure added that “it is a stretch for the Government to claim that the court’s reference to the April 4 gunfight had no effect on its ‘selection of the sentence imposed.’” (slip op. at 16) (quoting United States v. Williams, 503 U.S. 193, 203 (1992)).
The first recorded success of the summer appellate season goes to Sandra Roland, ably assisted by Tony Axam, Jr., of A. J. Kramer’s Federal Defender’s Office.
–Steve Leckar, of counsel to Kalbian Hagerty LLP, enjoys following and occasionally arguing in the D.C. Circuit.