Tuesday, December 21, 2021

US v. Franklin, No. 20-30136 (11-23-21)(Boggs w/Murguia; Berzon concurring). This is an important sentencing opinion. It involves Guidelines, relevant conduct, and hearsay.  You need to read it.

The 9th considers what standard to use in reviewing the unsworn hearsay testimony of a codefendant used to increase the offense level. Reviewing almost a half century of Guidelines jurisprudence, and the cases, the 9th fashions a two-factor test: (1) whether the statement is “procedurally reliable;” or (2) whether the statement is “substantively reliable.” “Procedural reliability” cannot put the burden on the defendant to prove a negative. The defendant must have an opportunity and means to challenge the statement. “Substantive reliability” requires the statement to be reliable or consistent enough with other statements to indicate probable truth. “Procedural reliability” is reviewed de novo. “Substantive reliability” is more factual and is reviewed for “clear error.” This test is disjunctive: “or.”

At the end, a Hobbs Act robbery, the 9th upheld the use on both standards.  The 9th also found that former precedent foreclose the argument that the Hobbs Act robbery was not a COV.

Berzon concurs. She agrees with the outcome; but argues the test, as developed, requires both. At a minimum, Berzon argues the test has to be “substantively reliable.”

This is a lengthy opinion, reviewing the cases, development of case doctrines, concerns, and various tests.



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