Sunday, September 04, 2011

Case o' The Week: That (Apprendi) Dog Don't Hunt -- Harmless Error for Apprendi cases, Hunt

Think "harmless error" analysis is the dry, technical domain of appellate wonks? Compare these two quotes:

"Today, a defendant who has consistently evaded responsibility for his criminal conduct is once again rewarded for his labors. And today, the public sees a criminal who has shown nothing but cruelty to his fellow citizens and contempt for the law escape a richly deserved sentence based on an irrelevant technicality."

United States v. Hunt, 2011 WL 3850555, *17 (O'Scannlain, J., dissenting) (9th Cir. Sept. 1, 2011).

"We are aware that Hunt has a less than stellar criminal record, but we reject the dissent's implicit suggestion that Hunt's criminal record should somehow influence our harmless error analysis."

Id. at *9 (majority decision, written by Judge Paez).

You'll have to Hunt hard if you Neder better example of how abstract legal principles can have a real-world impact.
United States v. Hunt, 2011 WL 3850555 9th Cir. Sept. 1, 2011), decision available here.

Players: Decision by Judge Paez (above right), joined by Judge Beezer. Dissent by Judge O’Scannlain.

After cops discovered a FedEx package with a over kilo of cocaine they did a controlled delivery. Id. at *1. Hunt ended up with the package; he confessed when he was stopped. Id. at *2. Hunt was indicted for attempting to possess with intent to distribute over 500 grams of cocaine. Id.

At a later guilty plea, Hunt conceded that he tried to possess a controlled substance – with the caveat that he had no specific knowledge “of what [the package] contained.” Id. At sentencing Hunt argued that he had not conceded at his plea the type or amount of drug. Id. at *3. A detective then testified as to the amount in the box and opined that a buyer of large amounts of cocaine (such as a kilo) would specify the amount he wanted to purchase. Id.

Over defense objection, the district court found Hunt responsible for more than 500 grams of cocaine and sentenced him to 180 months (with an obstruction adjustment, an upward departure, and an upward variance thrown in). Id. at *4.

Issue(s): “Hunt appeals his sentence but not his conviction. He alleges that the district court erred under Apprendi v. New Jersey, 530 U.S. 466 . . . (2000), by sentencing him for attempted possession with intent to distribute an unspecified amount of cocaine even though he never admitted that he attempted to possess cocaine.” Id.

Held: “The district court erred under Apprendi in sentencing Hunt under section 841(b)(1)(C) because his maximum penalty increased from one year to 20 years in prison based on a fact – Hunt’s possession of cocaine – that Hunt never admitted and the government never proved beyond a reasonable doubt.” Id. at *6.

“[B]ecause Hunt contested the fact that the drug he intended to possess was cocaine and because the record evidence is far from overwhelming, we conclude that the Apprendi error in this case was not harmless . . . . Due to the Apprendi error, we are required to vacate Hunt’s sentence and remand for resentencing. We recognize that our ruling will result in a substantial reduction in Hunt’s sentence. On remand, the district court must resentence Hunt within the statutory range applicable given the facts that were admitted at the original change of plea hearing. . . . Without an admission to the type of drug involved in the offense or a waiver of his rights under Buckland and Apprendi, Hunt faces a maximum of one year in prison under 21 U.S.C. § 841(b)(3) . . .” Id. at *9.

Of Note: While defense folks were excited for a new Apprendi / Buckland / Thomas decision from the Ninth, Hunt is actually far more important for its second layer of analysis: harmless error. You’ll recall that Neder harmless error was the kryptonite to our Apprendi efforts back in the heady early days of this Sixth Amendment litigation. See, generally, United States v. Zepeda-Martinez, 470 F.3d 909, 913 (2006). In Hunt, Judge Paez undertakes a lengthy and rigorous review of harmless error – and after addressing each proffer of evidence, concludes that the government ultimately comes up short. Id. at *6-*9.

Judge O’Scannlain (above left) is (thoroughly) unpersuaded, and grumbles in dissent that the majority “promulgates a new rule for this circuit, essentially eliminating harmless error review of Apprendi violations.” Id. at *10 (O'Scannlain, J., dissenting).

Hunt-ing for en banc votes, Judge O’Scannlain probably exaggerates when he describes Judge Paez’s fact-specific holding as a “new rule” for the Ninth. Nonetheless, his point bears much emphasis: Hunt is now one of the precious few harmless error cases that favor the defense, and deserves a close read and heavy citation.

How to Use: This defendant was sentenced to 15 years; he’ll serve one after appeal. How do we replicate that outcome? There are, sadly, some caveats.

As Judge Paez observes, the judge and AUSA could have simply been more precise during the plea colloquy and secured Hunt’s explicit admission of the type of drug he intended to possess. Id. at *9. And, if Hunt balked (as he did here), the AUSA could have demanded a Thomas bench trial to try to prove it. Id. (Though Judge Paez, intriguingly, discusses “proof beyond a reasonable doubt” “to a jury” in Hunt.) Id. at *6.

In sum, Hunt’s gambit is an interesting needle, but one that can be a tad tricky to thread.

For Further Reading: Hunt came down the same day as another Apprendi decision in the Eight Circuit. The good Prof Berman highlights the very different outcomes in these two cases, in his blog here.

Image of the Honorable Richard Paez from

Image of the Honorable Diarmuid O’Scannlain from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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