Coming Soon to the Supreme Court: Umaña v. United States?

By Jonathan Biran

On August 12, 2014, a divided Fourth Circuit denied a petition for rehearing en banc that had been filed by capital defendant Alejandro Umaña. Umaña had sought the rehearing en banc of a panel opinion, 750 F.3d 320 (4th Cir. 2014), in which a majority held that the Sixth Amendment’s Confrontation Clause does not apply to the sentencing selection phase of capital sentencing. Eight judges (Chief Judge Traxler, Judge Wilkinson, Judge Niemeyer, Judge King, Judge Shedd, Judge Duncan, Judge Agee, and Judge Floyd) voted to deny the rehearing en banc, while five (Judge Motz, Judge Gregory, Judge Keenan, Judge Wynn, and Judge Thacker) voted to grant the petition.

A leader in the MS-13 transnational criminal gang, Umaña was convicted in federal court of murdering two brothers (who were not affiliated with any gang) in a bar in Greensboro, N.C., after the brothers got into an argument with Umaña and other MS-13 members about the music that should be played on the jukebox. After the jury found Umaña eligible for the death penalty in the first portion of the sentencing phase, the proceeding moved to the sentencing selection phase. Over Umaña’s objection, the district court allowed the government to introduce hearsay testimony from Los Angeles police detectives concerning statements that MS-13 informants had given the detectives implicating Umaña in several unrelated murders in Los Angeles. Umaña argued that the Confrontation Clause required the government to produce the informants themselves at the sentencing selection phase. In a 2-to-1 decision, the Fourth Circuit panel (Niemeyer and Agee, with Gregory dissenting) affirmed the admission of the informants’ statements through the detectives.

The Fourth Circuit denies almost all of the petitions for rehearing en banc it receives, and it almost always does so without issuing any opinions. In this case, however, two opinions accompanied the denial of the petition: Judge Wilkinson wrote an opinion concurring in the denial, and Judge Gregory wrote an opinion dissenting from the denial.

Judge Wilkinson contended that Williams v. New York, 337 U.S. 241 (1949), controlled the outcome of the case. In Williams, the Supreme Court upheld a death sentence that relied, in part, on a probation report that implicated the defendant in prior crimes. However, Williams was not a Confrontation Clause case – it was decided on due process grounds.

In light of the Supreme Court’s recent Confrontation Clause precedent (beginning with Crawford v. Washington, 541 U.S. 36 (2004)), Judge Wilkinson acknowledged that the Court might be inclined to revisit Williams. Nonetheless, he wrote, the Court of Appeals lacks the authority to overturn Williams preemptively, and the case was still controlling on the issue – as, he noted, the three other circuits that have considered Confrontation Clause challenges to the admission of hearsay evidence in capital sentencing proceedings have all found. Judge Wilkinson then devoted a few pages of his opinion to explaining his agreement with those other circuits and predicting that the Supreme Court would reaffirm Williams.

Ultimately, regardless of the merits of Umaña’s Confrontation Clause challenge, Judge Wilkinson was loathe “to create a circuit split, preemptively overturn Supreme Court holdings, and attempt to force the [Supreme] Court’s hand.” Slip Op. at 7. Judge Wilkinson also invoked the specter of district courts preemptively declining to follow Court of Appeals decisions: “It bears note that the hierarchical nature of the judicial system lends to law a stability and consistency that would be lost if, for example, district courts treated our rulings in the fashion urged by those with a more aggressive view of the intermediate appellate role.” Slip Op. at 7-8. As he often does, Judge Wilkinson concluded with a concise but powerful passage, in this case stressing the importance of adherence to legal precedent: “Society lives by law. When courts, convened in their roles as guardians of law, set the example of abiding by law, society as a whole will replenish its faith in our most cherished institutions.” Slip Op. at 8.

Of course, this argument could have been made in a bygone era to applaud lower courts’ adherence to Dred Scott and Plessy v. Ferguson. It would be interesting to poll “society” to determine whether its confidence in the legal system is bolstered or undermined by a decision affirming the admission in capital-sentencing hearings of gang members’ hearsay statements to police officers. The outcome of the poll likely would turn on the phrasing of the question(s).

In his dissenting opinion, Judge Gregory was much less sanguine about the message the Fourth Circuit’s affirmance sends. Proving once again that Confrontation Clause cases make strange bedfellows, Judge Gregory quoted (quite reverently) Justice Scalia’s opinions in Crawford and Ring v. Arizona, 536 U.S. 584 (2002). Judge Gregory stated that his goal was to explain why he believed Supreme Court review of the case is warranted. He opined that the Fourth Circuit’s decision “misread the past five decades of Supreme Court jurisprudence on the Sixth Amendment and the death penalty,” and that “this misreading is the difference between Mr. Umaña living and dying.” Id. Indeed, Judge Gregory’s chief argument for staking out a position that seems to be at odds with Williams was that the Supreme Court’s Confrontation Clause jurisprudence had already “created a sea change in death penalty procedure and Sixth Amendment doctrine” that, he believed, indicated that Williams was incorrectly decided. Helped by quotes from Justice Scalia’s opinion in Ring, 536 U.S. at 612 (Scalia, J., concurring), that provided a counterpoint to Judge Wilkinson’s plug for adherence to precedent, Judge Gregory summed up his argument equally powerfully:

Justice Scalia has lamented that “the repeated spectacle of a man’s going to his death” without the Sixth Amendment protection of jury factfinding “accelerate[s]” the “perilous decline” of “our people’s traditional belief in the right of trial by jury.”  Ring, 536 U.S. at 612 (Scalia, J., concurring). He argues that “we render ourselves callous to the need for that protection by regularly imposing the death penalty without it.” Id. I firmly believe that these words are as true for the Confrontation Clause of the Sixth Amendment as they are for the jury clause. There is no doubt that Mr. Umaña is being sent to his death in large part based on accusations of murder for which he was never charged, much less convicted. There is no doubt that the basis for these accusations was weak and would have withered under the scorching sunlight of cross-examination. Mr. Umaña was never given this opportunity, however. For the Framers of the Constitution, this state of facts was unacceptable when they occurred in England in the infamous Sir Walter Raleigh trial. Crawford, 541 U.S. at 44, 62. I consider it just as unacceptable today.

Slip Op. at 13.

Interestingly, only Judge Niemeyer signed on to Judge Wilkinson’s opinion, and only Judge Wynn signed on to Judge Gregory’s opinion. I suspect that, if Judge Wilkinson had merely cited Williams as controlling and not sought to weigh in on the merits of the issue, some of the other judges who voted for denial of the petition would have joined his opinion. However, given the Supreme Court’s steady drumbeat of cases during the past decade recognizing an extremely broad Confrontation Clause, it seems likely to me that some of the judges who voted to deny rehearing en banc did not want to lend their names to what may well be a losing argument on the merits, should the Court accept Judge Gregory’s invitation to take up the case. Williams allowed those judges to deny relief to an exceedingly unsympathetic defendant (the panel opinion noted that Umaña doesn’t contest having pulled the trigger in the North Carolina murders) and leave it to the Supreme Court to sort the issue out. At the same time, Judge Motz, Judge Keenan, and Judge Thacker — while signaling their agreement with Judge Gregory on the merits — perhaps were not in a rush to sign onto an opinion that went heavily to bat for an MS-13 member who committed what Judge Gregory acknowledged (arguably, in an understatement) was an “appalling” crime. Slip Op. at 8-9.

Only the active judges of the Court vote on petitions for rehearing en banc; thus, Senior Judges Hamilton and Davis did not participate in the poll. Judge Diaz recused himself for reasons unexplained in the order – but he is from North Carolina, where the murders took place. The newest active judge of the Court, Judge Harris, also did not vote on the petition. Even if she had been inclined to vote for rehearing en banc, however, the nays would have carried the day. And although Senior Judge Davis’s vote presumably in favor of rehearing en banc would not have made the difference, I have to believe that it caused him some pain to sit this one out on the sidelines.

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