United States v. Mitchell: the Fifth Amendment at Sentencing - Matthew E. Cook

• Citation: Vol. 49 No. 3
• Publication year: 1998

United States v. Mitchell: The Fifth Amendment at Sentencing

Whether the Fifth Amendment privilege against self-incrimination may be claimed by a criminal defendant after conviction is an open question. In United States v. Mitchell,¹ the Third Circuit aligned itself with the minority of circuits by holding that defendants retain no Fifth Amendment right against self-incrimination with respect to the facts or circumstances of a crime once convicted, even though their testimony may work to increase their level of punishment.²

I. BACKGROUND

In Mitchell, defendant was indicted on four counts for her involvement in a four-year cocaine conspiracy extending from 1989 to 1994. Count one charged Mitchell with conspiring to distribute five or more kilograms of cocaine, which carries a minimum mandatory ten year sentence. Mitchell entered an open plea of guilty to all counts, but specifically reserved her right to contest the amount of cocaine she had distributed. The trial court explained to Mitchell that by entering a plea of guilty she was waiving her Fifth Amendment right not to testify.³

The case against nine of Mitchell's co-defendants went to trial a few months later. During the trial, some of Mitchell's co-defendants, who pled guilty and agreed to cooperate with the Government, testified about the extent of Mitchell's involvement in the conspiracy. Richard Thompson, a co-defendant, testified that Mitchell sold one and a half ounces of cocaine two to three times a week between April 1992 and December 1993. Later, at Mitchell's sentencing hearing, Thompson adopted his trial testimony and elaborated on the specific amount of cocaine Mitchell had sold. Thompson testified that Mitchell had received one and a half ounces of cocaine two to three times a week beginning in April 1992; that she received the same amount three to five times a week between August 1992 and December 1993; and that Mitchell was in charge of distribution from January 1994 through March 1994. On cross examination, Thompson conceded that he had not consistently seen Mitchell during these times.⁴

Another witness for the Government, Alvita Mack, testified that he had bought a total of two ounces of cocaine from Mitchell on three occasions under the supervision of the DEA. This testimony was also adopted by both parties during the sentencing hearing. Mitchell contended at the sentencing hearing that this was the only quantity of cocaine established by reliable testimony and thus the only amount for which she should be held responsible. Mitchell did not testify at the sentencing hearing nor did she offer any evidence to contravene that of the Government.⁵

The district judge then indicated that he believed Mitchell retained no Fifth Amendment right to remain silent at the sentencing hearing with respect to the crimes to which Mitchell had pled guilty. On this premise, the district court judge told Mitchell, "I held it against you that you didn't come forward today and tell me that you really only did this a couple of times [and] I'm taking the position that you should come forward and explain your side of this issue."⁶ The trial judge then concluded that Mitchell had sold a total of thirteen kilograms of cocaine from 1992-1994. Mitchell was sentenced to ten years imprisonment, six years of supervised release, and a special assessment of two hundred dollars.⁷

Mitchell appealed the conviction, arguing that the district court had violated her Fifth Amendment right not to testify at the sentencing hearing.⁸ The Court of Appeals for the Third Circuit affirmed the decision of the district court and held that when a criminal defendant has pled guilty to or has been convicted of a crime, that defendant retains no Fifth Amendment right against self-incrimination with respect to the facts or circumstances of that crime even though the testimony may affect the level of punishment.⁹

II. LEGAL HISTORY

The Fifth Amendment provides in part that "no person shall . . . be compelled in any criminal case to be a witness against himself."¹⁰ This right extends to defendants in all proceedings where their statements may be used to incriminate them.¹¹ However, the right is not absolute and ceases to apply once the sanctions that justify the invocation of the privilege are removed.¹² "The interdiction of the [Fifth] Amendment operates only where a witness is asked to incriminate himself,—in other words, to give testimony which may possibly expose him to a criminal charge."¹³ Thus, the Fifth Amendment's sole concern is preventing witnesses from being forced to give testimony that may lead to the infliction of criminal penalties.¹⁴

In the past, the Court's holdings sufficed to offer protection to criminal defendants who had pled guilty to or been convicted of a crime. However, with mandatory minimum sentences and the institution of the Federal Sentencing Guidelines ("the Guidelines"),¹⁵ which mandate certain sentence increases or reductions, the contours of the Fifth Amendment protection have become somewhat obscured. The Guidelines condition the sentence not merely upon the core facts that constitute the crime but on "specific offense characteristics."¹⁶ For example, in drug related offenses the base offense (the acts constituting the crime) may be conspiring to distribute cocaine. The specific offense characteristics would be the amount of cocaine for which the defendant is responsi-ble.¹⁷ These specific offense characteristics are aggravating factors.¹⁸ If indeed the concern of the Fifth Amendment is with the "penalties affixed to the criminal acts,"¹⁹ then this concern may be frustrated when defendants' testimony works to enlarge their sentences, sometimes nearly twofold.

Defendants have often been asked to testify at their own sentencing hearings regarding a crime to which they have either already pled guilty or for which conviction is had, and frequently defendants assert their Fifth Amendment privilege. The circuit courts stand uniformly on the proposition that if a defendant remains subject to the possibility of prosecution, the defendant may not be compelled to testify and can properly assert his Fifth Amendment privilege.²⁰ However, the circuits are split when the issue of further prosecution is removed and the

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11. In re Gault, 387 U.s. 1, 49 (1967).

12. Ullmann v. United States, 350 U.s. 422, 431 (1956).

13. Id.

14. Id. at 438-39 (quoting Boyd v. United States, 116 U.s. 616, 634 (1886)).

15. See generally U.s. sentencing Guidelines Manual [hereinafter U.s.s.G.j.

16. Id. at Sec. 181.3.

17. Id.

18. Id.

19. Ullmann, 350 U.s. at 438-39.

20. See Mitchell, 122 F.3d at 190. defendant is asked to talk only about the crime for which the defendant has already been convicted.²¹

The Supreme Court has not squarely addressed the issue raised in Mitchell, namely whether defendants retain their Fifth Amendment privilege against self-incrimination for crimes when they no longer face the possibility of conviction, nor risk additional prosecutions, but when such testimony may lengthen the sentence. The circuit courts have found language in several of the Supreme Court cases upon which they have based their decisions when resolving this issue. Two approaches have emerged in the circuits and, not surprisingly, the two are directly opposed.²² The approach followed by the Second and Third Circuits is that when defendants plead guilty to a crime, they admit commission of that crime and waive their privilege as to the acts comprising the crime.²³ In support of this approach, these circuits point to instances where the Supreme Court has written "if the criminality has already been taken away, the [A]mendment ceases to apply."²⁴

Although the Third Circuit labeled the issue in Mitchell as one of first impression, the court had already touched upon the issue earlier in United States v. Frierson.²⁵ The Frierson decision accurately reflects the position of the circuits that follow the "waiver-by-plea" doctrine.²⁶ The court in Frierson said, "the...