In United States v. Franklin, --- F.4th ---, No. 20-30136 (9th Cir. 2021), the Court affirmed the sentence for possession of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i)–(ii) and 2, and robbery affecting interstate commerce (Hobbs Act robbery) in violation of 18 U.S.C. § 1951(a).
This case is a must read for anyone practicing federal criminal law. It focuses on the minimal-indicia-of-reliability doctrine, which governs the type of information that district judges can rely on at sentencing.
It is a lengthy opinion with a concurrence.
Here are the most relevant passages:
- Mr. Franklin contends that the district court violated his due-process rights at sentencing by relying on his codefendants’ unsworn hearsay statements, which accused him of trying to influence their testimony, in imposing the obstruction-of-justice enhancement. Finding the appropriate standard of review unclear from our precedents, we take this opportunity to clarify it. Under the correct standard, Mr. Franklin’s challenge fails.
- Hearsay is generally admissible in sentencing hearings, as neither the Confrontation Clause nor the Federal Rules of Evidence apply to such hearings. United States v. Petty, Nevertheless, “[d]ue process requires that some minimal indicia of reliability accompany a hearsay statement” introduced at sentencing. In particular, “relying on accomplice hearsay without adequate indicia of reliability violate[s]” due process. The defendant typically has the burden to show that disputed hearsay is false or unreliable.
- But a statement by a coconspirator that inculpates the defendant “is inherently unreliable.” We presume such statements unreliable because the coconspirator “may very well have been hoping to curry favor with law enforcement officials by implicating his accomplice.”
- Whether the government rebuts that presumption turns on whether the coconspirator’s statements have independent corroboration. That corroboration may come from trial testimony, the defendant’s own testimony, or even from other codefendants’ hearsay accounts.
- Reviewing our cases, we find that we have not yet clearly enunciated the standard by which we review a district court’s determination of whether coconspirator hearsay is unreliable.
- We conclude that there are two distinct questions that we answer in examining a hearsay statement at sentencing: (1) whether the statement is “procedurally reliable” and (2) whether the statement is “substantively reliable.” This is a disjunctive test: If we answer either question in the affirmative, then the statement may be considered at sentencing.
- First, procedural reliability. We ask whether there are sufficient procedural protections so that the defendant does not have to “prove a negative” in the face of government allegations. This is an essentially legal question because whether the defendant is in that position “implicate[s] constitutional rights” and requires us “to exercise judgment about the values that animate legal principles. Generally, if the government supports the hearsay statements with extrinsic evidence that the defendant can challenge on cross-examination, then we have found the process to be adequate to ensure that the defendant is not sentenced on the basis of unreliable or false information. The district court may then consider the hearsay statement under the rubric of procedural reliability after finding the extrinsic evidence to sufficiently corroborate the hearsay statement.
- Second, if the government offers no corroboration of a hearsay statement that the defendant can challenge at sentencing through the normal adversarial process, we proceed to the substantive inquiry. As our cases show, substantive indicia of reliability can be enough to safeguard the defendant’s right not to be sentenced on the basis of unreliable or false information. Thus, hearsay from a source that is self-demonstrably reliable is permissible on its own. See Chee, 110 F.3d at 1492. And even if the hearsay is from a presumptively unreliable source, such as a coconspirator, the government can prove its reliability by exhibiting other, independently obtained, consistent hearsay statements— even other presumptively unreliable statements, as in Berry. But, unlike procedural reliability, substantive reliability is an essentially factual issue. It requires judging whether a statement is probably truthful in light of all the circumstances—that is, “the application of the fact-finding tribunal’s experience with the mainsprings of human conduct.”
- The upshot is this. A determination of procedural reliability—that the hearsay in question does not put the burden on the defendant to prove a negative and that the defendant has adequate opportunity to confront corroborative evidence of the hearsay—is an essentially legal question that we review de novo. A determination of substantive reliability—whether hearsay statements admitted at sentencing are from reliable sources or are consistent enough with one another to indicate their probable truth—is an essentially factual question that we review for clear error. And so long as each hearsay statement offered by the government at sentencing is either procedurally reliable or substantively reliable, due process is not offended.
Judge Berzon concurred because she "disagree[d] that we have developed a disjunctive test under which a hearsay statement may form the basis for a defendant’s sentence if it is either “procedurally reliable” or “substantively reliable.” I read our cases as requiring, at a minimum, "substantive reliability."
