United States v. Lopez, 340 F.3d 169 (3d Cir. 08/11/2003)

[1] U.S. Court of Appeals, Third Circuit


[2] No. 02-1111


[3] 340 F.3d 169, 2003


[4] August 11, 2003


[5] UNITED STATES OF AMERICA,
v.
ALBERT LOPEZ, APPELLANT


[6] On Appeal from the United States District Court for the Middle District of Pennsylvania District Judge: Honorable William J. Nealon D.C. No. 01-cr-00084-1


[7] Daniel I. Siegel (Argued) Office of the Federal Public Defender 100 Chestnut Street, Suite 306 Harrisburg, PA 17101 Counsel for Appellant


[8] Matthew E. Haggerty, Esq. Christian A. Fisanick, Esq. (Argued) Office of United States Attorney Federal Building, P.O. Box 309 Scranton, PA 18501


[9] Theodore B. Smith, III, Esq. Office of United States Attorney 228 Walnut Street, P.O. Box 11754 Harrisburg, PA 17108 Counsel for Appellee


[10] Before: Barry and Rosenn, Circuit Judges, and POLLAK,*fn1 District Judge


[11] The opinion of the court was delivered by: Pollak, District Judge.


[12] PRECEDENTIAL


[13] As modified August 12, 2003.


[14] Argued April 10, 2003


[15] OPINION OF THE COURT


[16] Albert Lopez, a federal prisoner, was convicted of (1) possession of heroin, in violation of 18 U.S.C. § 844(a), and (2) possession of contraband by an inmate, in violation of 18 U.S.C. § 1791(a)(1). On appeal, Lopez challenges two evidentiary rulings of the District Court, as well as the District Court's ruling that the government's voir dire peremptory challenge of a black jury panelist was not keyed to the impermissible factor of race.


[17] Because we agree with appellant Lopez that the statements of two government witnesses that they had "received information" that Lopez possessed heroin constituted inadmissible hearsay, and that the District Court's erroneous admission of those statements was not harmless, we reverse and remand for a new trial.


[18] I.


[19] In 1991, Lopez began serving a 140-month sentence for participating in a conspiracy to distribute cocaine. After periods of confinement in federal penitentiaries in Leavenworth, Kansas, and Lompoc, California, Lopez in 1997 was transferred to the Federal Correctional Institution Schuylkill (FCI Schuylkill), in Minersville, Pennsylvania, where the events leading to the criminal conviction now under review took place.


[20] On June 7, 2000, prison officials received information that inmate Lopez was in possession of heroin. Based on that information, prison officials conducted a search of Lopez's cell, during which they recovered twenty small packets of heroin from inside a sock, which was inside a laundry bag located on the floor near Lopez's bunk. A drug screen submitted by Lopez later that day tested positive for morphine, which is consistent with, though not conclusive of, the use of heroin.


[21] Prison officials referred the matter to the FBI, and on June 12, 2000, a federal agent arrived at FCI Schuylkill and read Lopez his Miranda rights. Lopez declined to waive his rights or to be interviewed. On March 13, 2001, a grand jury returned a two-count indictment against Lopez, alleging that he had possessed heroin in violation of 21 U.S.C. § 844(a), and that he had possessed contraband in violation of 18 U.S.C. § 1791(a)(1).


[22] After a two-day trial that began on August 20, 2001, a jury convicted Lopez on both counts. On November 30, 2001, the Court sentenced Lopez to 37 months imprisonment, followed by two years of supervised release.


[23] II.


[24] Lopez presents three issues on appeal. The first concerns the District Court's ruling admitting, under Federal Rule of Evidence 404(b), Lopez's 1991 federal conviction for conspiracy to distribute cocaine. We review a trial court's decision to admit evidence of a prior conviction for abuse of discretion. See United States v. Saada, 212 F.3d 210, 220 (3d Cir. 2000). For the reasons stated below, we find that the District Court did not abuse its discretion in admitting evidence of Lopez's 1991 conviction. The second issue concerns the District Court's ruling that the statements of two prison officials that they had "received information" that Lopez possessed heroin did not constitute inadmissible hearsay. Whether the challenged third-party statements were hearsay is a question of law subject to plenary review. United States v. Sallins, 993 F.2d 344, 346 (3d Cir. 1993). We conclude that those statements constituted hearsay and that the District Court erred in admitting them. We further conclude that the District Court's error was not harmless. We therefore remand the case for a new trial. In light of our resolution of the second issue, we find it unnecessary to address the third issuenamely, whether the District Court erred in deciding that the government's peremptory strike of a black jury panelist did not contravene the Supreme Court's constitutional directive, in Batson v. Kentucky, 476 U.S. 79 (1986), prohibiting the exercise of peremptory challenges on the basis of race.


[25] A.


[26] Prior to trial, Lopez filed a motion in limine urging that his 1991 conviction for participating in a conspiracy to distribute cocaine be excluded from evidence. Specifically, Lopez contended that the conviction was irrelevant, that any marginal relevance that it might possess was outweighed by the potential for prejudice, and that it constituted inadmissible character evidence under Rule 404(b). After defense counsel, Patrick Casey, raised the issue at a conference immediately preceding trial, the following exchange occurred:


[27] THE COURT: Why are you objecting to that?


[28] MR. CASEY: That is, again, 404(b) evidence. If he testifies, he will be open game for that conviction, but the fact that he's not...


[29] THE COURT: They're not offering it to impeach. They are offering it to show general intent, knowledge, absence of act of mistake and opportunity to obtain.


[30] MR. CASEY: Its simply prejudicial.


[31] THE COURT: A lot of relevance, I suppose, could be called prejudicial.


[32] The Court then overruled Lopez's motion to exclude the evidence. Later in the conference, the Court "put on the record that [it had] concluded that [the 1991 conviction, along with other contested evidence,] is relevant and the probative value of the issue of intent, knowledge, absence of incident*fn2 or mistake and opportunity to obtain.


[33] Furthermore, I conclude that the probative value is not substantially outweighed by prejudice to the Defendant."


[34] The upshot of the Court's ruling was that an FBI agent was permitted to testify that, at the time the heroin was discovered in his cell, Lopez was serving a sentence for participating in a conspiracy to distribute cocaine.


[35] Rule 404(b) provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident...." Fed. R. Evid. 404(b). For evidence of past bad acts to be admissible, "(1) the evidence must have a proper purpose under Rule 404(b); (2) it must be relevant under Rule 402; (3) its probative value must outweigh its potential for unfair prejudicial effect under Rule 403; and (4) the Court must charge the jury to consider the evidence only for the limited purpose for which it is admitted." United States v. Vega, 285 F.3d 256, 261 (3d Cir. 2002) (citing Huddleston v. United States, 485 U.S. 681, 691-92 (1988)). Resolution of the present case turns on the first prong of this admissibility inquirywhether Lopez's prior conviction had a proper purpose under Rule 404(b).*fn3


[36] Lopez relies chiefly on this court's decision in United States v. Sampson, 980 F.2d 883 (3d Cir. 1992), the facts of which are similar to those in the case at bar. At issue in Sampson was the District Court's decision permitting the government to introduce evidence of the defendant's prior conviction for possession with intent to distribute cocaine, for the purpose of proving that the defendant, who was in state prison at the time, was guilty of possessing marijuana. Prison officials had found several balloons filled with marijuana in the defendant's coat pocket, and although defendant admitted that he owned the coat, he denied knowledge of the balloons. In finding the prior conviction admissible, the District Court noted only that it was "inclined to think that this is the kind of incident which does fall within the purview of the exceptions listed in 404(b)." Id. at 885.


[37] As the Sampson court observed, "[t]here is no question that, given a proper purpose and reasoning, drug convictions are admissible in a trial where the defendant is charged with a drug offense." Id. at 887. "[W]here the evidence only goes to show character, or that the defendant had a propensity to commit the crime, it must be excluded. Where, however, the evidence also tends to prove some fact besides character, admissibility depends upon whether its probative value outweighs its prejudicial effect." Id. For prior offense evidence to be admissible, however, the government "must clearly articulate how that evidence fits into a chain of logical inferences, no link of which can be the inference that because the defendant committed drug offenses before, he therefore is more likely to have committed this one." Id. Further, "[t]he district court... must in the first instance... articulate reasons why the evidence also goes to show something other than character. Unless the reason is apparent from the record, a mere list of the purposes found in rule 404(b) is insufficient." Id. at 888. Based on this standard, the Sampson court concluded that because the District Court had neglected to construct the requisite chain of inferencesinstead merely noting that the challenged evidence fell within the purview of the 404(b) exceptionsits admission of the prior conviction amounted to an abuse of discretion.


[38] Although we agree with Lopez that the District Court in the present case could have been more explicit in articulating the chain of logical inferences warranting the admission of Lopez's prior conviction, that omission is not dispositive of the admissibility question. "The prime inquiry is whether the evidence is probative of a material issue other than character." United States v. Boone, 279 F.3d 163, 187 (3d Cir. 2002) (citing Huddleston, 485 U.S. at 687)).


[39] We are satisfied that, viewed in the full context of the oral argument on the defendant's various Rule 404(b) motions to exclude, the District Court's reasons for admitting Lopez's prior conviction are sufficiently apparent to warrant upholding its ruling. It is clear from the record that when, in announcing its ruling, the Court recited a number of permissible Rule 404(b) purposesthe "mere list" on which Lopez bases his objectionit was endorsing the government's position that the challenged evidence was admissible for the purpose of rebutting the defendant's anticipated claim of innocent association with, and lack of knowledge of, the heroin found near his bunk. That position had been elaborated, largely in reference to the defendant's motion to exclude another piece of proffered evidence, in an extended exchange immediately preceding the Court's prior-conviction ruling.*fn4 The propriety of this position is illustrated by recent decisions of this court upholding the admission of evidence of prior drug involvement for the purpose of rebutting defense claims of innocent association, and to prove criminal intent. See United States v. Givan, 320 F.3d 452, 461 (3d Cir. 2003); United States v. Vega, 285 F.3d 256, 261-62 & n.2 (3d Cir. 2002); United States v. Butch, 256 F.3d 171, 177 n.5 (3d Cir. 2001); Boone, 279 F.3d at 187-88. In light of the foregoing, we cannot say that the District Court abused its discretion in admitting evidence of Lopez's prior conviction.


[40] B.


[41] At trial, the government called as witnesses Officers James Fosnot and Kenneth Gabrielson, the prison officials who discovered the heroin during the search of Lopez's cell. The following exchange occurred during AUSA Matthew Haggerty's examination of Officer Fosnot:


[42] MR. HAGGERTY: Why did you search why did you search of the cell of Albert Lopez?


[43] THE WITNESS: We received information


[44] MR. CASEY: Objection, hearsay.


[45] THE COURT: Overruled.


[46] THE WITNESS: We received information that Inmate Lopez might be carrying drugs on his person or in his cell.


[47] Later, the following exchange occurred during Mr. Haggerty's examination of Officer Gabrielson:


[48] MR. HAGGERTY: And on June 7th of 2000, did you have reason to search the cell of Albert Lopez?


[49] THE WITNESS: Yes, sir.


[50] MR. HAGGERTY: And why did you do that?


[51] THE WITNESS: I received information that


[52] MR. CASEY: Objection, hearsay.


[53] THE COURT: Overruled. It's just information.


[54] THE WITNESS: I received information that Albert Lopez was in possession of heroin and that he was keeping that heroin on his person, and when I received that information, I took the information to the SIS Lieutenant, which is Joseph Reed, and he instructed myself


[55] MR. CASEY: Objection, hearsay.


[56] THE COURT: Overruled. Were you instructed just to search the cell?...


[57] THE WITNESS: Yes, that's what we continued to do.


[58] Finally, Mr. Haggerty invoked the above-excerpted testimony during his closing argument:


[59] If I could for a minute, I would like to go over some of the evidence that is presented here, kind of from the beginning to the end, and kind of see what I think is important. The things that you heard from this witness stand, if you will recall, we called James Fosnot and Ken Gabrielson, two of the officers that had searched Albert Lopez's cell on June 7th.


[60] They testified that they had information that Albert Lopez was in possession of heroin. It wasn't a random search. They weren't walking by and decided to go in. They had information that he had heroin in the cell. So what did they do? They... went to Albert Lopez's cell on June 7th to search it for this heroin.


[61] Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed. R. Evid. 801(c). The question of "[w]hether evidence is hearsay is a question of law subject to plenary review." United States v. Sallins, 993 F.2d 344, 346 (3d Cir. 1993).


[62] Our analysis is guided by our opinion in Sallins. The defendant in Sallins, who previously had been adjudged guilty of a felony, was convicted of possessing a firearm. Under review was the District Court's decision to admit, over defense counsel's objection, the arresting officer's testimony that when he encountered the defendant he was searching for a person described in a police radio dispatch as a "black male wearing all black clothing carrying a gun on the 2500 block of North Franklin Street." Id. at 345. At issue was whether the prosecutor had offered this testimony merely as "background information," in order to explain the officer's presence at the site of the arrest, as the government claimed, or rather to prove the truth of the matter assertedthat is, that the defendant had possessed a firearm. This court acknowledged in Sallins that "[s]everal courts have admitted testimony by police officers or government agents revealing information received out-of-court for the limited purpose of establishing background for the officers' actions," but observed that the use of such statements for that purpose had been subject to "widespread abuse." Id. at 346. "If the hearsay rule is to have any force," we cautioned, "courts cannot accept without scrutiny an offering party's representation that an out-of-court statement is being introduced for a material non-hearsay purpose." Id.


[63] In Sallins, this court conducted a searching evaluation of the government's purported need to introduce the third-party suspect description, and concluded that the content, if not the fact, of the radio dispatch was unnecessary either to account for the presence of the arresting officers at the scene of the arrest, or to explain why the officers had pursued and arrested the defendant (one of the officers saw the defendant throw what he thought may have been a gun underneath a car). "Not only was the testimony regarding the radio call inadmissible to show background," we observed, "it clearly was not offered for that purpose. The absence of a tenable non-hearsay purpose for offering the contents of the police radio call establishes that the evidence could have been offered only for its truth value." Id. at 347.


[64] Finally, the government's closing argument, in which the prosecutor repeatedly asked rhetorically whether it could be "just a coincidence" that the defendant matched the suspect description in the radio dispatch, "dispell[ed] any conceivable doubt as to the true evidentiary purpose of the disputed testimony."*fn5 Id. Because the details of the radio call were thus "offered for their truth value," the court concluded, "the testimony was hearsay and should have been excluded." Id.


[65] In the instant case, as in Sallins, the absence of any direct evidence that Lopez possessed the prohibited object that is, the heroininforms our evaluation of the purported purpose for which the government offered the challenged statements. Lopez's defense centered on his attempt to develop reasonable doubt about whether the heroin belonged to him. To that end, defense counsel sought at trial to raise the possibility that the laundry bag in which the heroin had been found belonged to Lopez's cell mate, or that the heroin had been placed in the bag by one of the more than one hundred members of the defendant's prison unit who allegedly had access to Lopez's cell. Lopez also notes that defense counsel established at cross-examination that government investigators "lost possession" of the laundry bag during the course of the investigation, thus further compromising the prosecution's effort to assign possession. Because the question of possession itself was the principal issue in dispute, the prospect that the out-of-court statements were used to prove the truth of the matter demands close scrutiny.


[66] Further, there clearly were alternative means available to the government to establish the factual context of the officers' search of Lopez's cell. As the Sallins court suggested, "testimony that [an officer] acted 'upon information received,' or words to that effect, should be sufficient." Id. at 346 (quoting McCormick On Evidence § 249, at 104 (4th ed. 1992)). In the present case, the government could have accounted for the search of Lopez's cell in similarly general terms.


[67] Finally, the government's emphatic invocation of the officers' testimony during closing argument could only have served to strengthen the jury's perception that the officers' "information that Albert Lopez was in possession of heroin" was itself a datum in the construction of the government's substantive case. Specifically, the prosecutor reminded the jury that Officers Fosnot and Gabrielson had "testified that they had information that Albert Lopez was in possession of heroin. It wasn't a random search. They weren't walking by and decided to go in. They had information that he had heroin in the cell." We thus conclude that the challenged statements constituted inadmissible hearsay, and that their introduction at trial was improper.


[68] Having concluded that the District Court erred in overruling defense counsel's hearsay objection, we now inquire whether that error nevertheless was harmless. "The inquiry cannot be merely whether," notwithstanding the error, "there was enough to support the [conviction]." Government of the Virgin Islands v. Toto, 529 F.2d 278, 283 (3d Cir. 1976) (quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)). Rather, "if one cannot say... that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected." Id. See also Sallins, 993 F.2d at 348 ("An evidentiary error is harmless only if it is highly probable that the improperly admitted evidence did not contribute to the jury's judgment of conviction."). In the case at bar, the government did introduce substantial evidence apart from the improperly admitted hearsay that Lopez possessed heroin, foremost among which was the fact that Lopez tested positive for morphine shortly after the heroin, which is broken down into morphine in the body, was discovered in his cell. The dispositive question, however, is not whether, in the absence of the inadmissible hearsay evidence, the jury nevertheless could have convicted Lopez.


[69] Rather, the question is whether the improperly admitted statements may have helped to "cement[ ] the government's case by adding an invisible, presumably disinterested witness" to corroborate the government's position. Sallins, 993 F.2d at 348. Notwithstanding the incriminating results of Lopez's urine test, there is no direct evidence that Lopez possessed heroin on the day prison officials discovered it near his bunk. For that reason, and in light of the defense's not implausible argument that the heroin could have been placed there by any of the more than one hundred inmates who had relatively unrestricted access to Lopez's cell, we are not confident that the improperly admitted hearsay statements did not help to "cement" the jury's judgment of conviction. We therefore conclude that the District Court's error was not harmless. Accordingly, we reverse appellant's conviction and remand for a new trial.


[70] Finally, costs should not be taxed against the United States in this criminal appeal.



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Opinion Footnotes

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[71] *fn1 Honorable Louis H. Pollak, District Judge for the United States District Court for the Eastern District of Pennsylvania, sitting by designation.


[72] *fn2 We presume that the phrase, "absence of incident," reflects a mistranscription, and that the passage instead should read, "absence of accident." See Rule 404(b), which states that evidence of "other crimes, wrongs, or acts" may be admissible to show, among other things, "absence of mistake or accident."


[73] *fn3 Lopez has not raised as an issue in this appeal the third prong of the Vega test. Therefore, we do not consider whether the prejudicial effect of the prior bad act evidence might have outweighed its probativeness.


[74] *fn4 The exchange centered on the defendant's Rule 404 motion to exclude the results of two urine testsone taken 15 months before, and one taken immediately after, the heroin was discovered in Lopez's cell showing that Lopez had used morphine, a result consistent with, but not conclusive of, the use of heroin. With respect to the first urine test, the prosecutor, AUSA Matthew Haggerty, stated: [T]he Third Circuit said in United States v. Butch, [256 F.3d 171 (3d Cir. 2001),] in cases of innocent association, which it's the only defense that could be made,... [that evidence of past drug involvement is admissible.] There's 180 cell mates on the cell floor. [Lopez] had a cell mate, he has others that he's friends with. The fact that he's found sleeping with a bag of heroin underneath his bed, the only defense I could see is innocent association. It's not mine. It's my cell mate's, or it's my friend's or somebody that was in the cell, and I didn't know this was here. We're saying he's going to say it's not mine, and the Third Circuit says you can use prior convictions and prior bad acts to show that, to refute that argument of innocent association. Shortly thereafter, the Court pointed out to Mr. Casey that, according to Butch, "such evidence is permissible to show criminal intent and absence of innocent association." After Mr. Casey then attempted to persuade the Court that the factual circumstances did not present an issue of innocent association, the Court inquired of him: "Assuming possession is established, wouldn't it be relevant to show knowledge that it was heroin,... isn't evidence that he had used the heroin in the confinement of prison some year or so earlier, evidence that he knew what was in that bag that he possessed was heroin?"


[75] *fn5 The prosecutor stated: [C]ould it be just a coincidence that the defendant is wearing dark clothing, that matches the description on the radio call? Could it be just a coincidence that the defendant is a black male? That also matches the description of the radio call. Could it be just a coincidence that the defendant is on the 2500 block of North Franklin Street? That's the location that was put in on the radio call.... Was it just a coincidence that the defendant was there about a minute after the call was put in?... Could that just be a coincidence? Id.

Torres v. Berbary, 340 F.3d 63 (2d Cir. 08/07/2003)

[1] U.S. Court of Appeals, Second Circuit


[2] Docket No. 02-2463


[3] 340 F.3d 63, 2003


[4] August 07, 2003


[5] DANIEL TORRES, PETITIONER-APPELLANT,
v.
J. BERBARY, SUPERINTENDENT, RESPONDENT-APPELLEE.


[6] SYLLABUS BY THE COURT


[7] Appeal from a judgment denying a petition for a writ of habeas corpus entered in the United States District Court for the Southern District of New York (Martin, J.), the District Court having determined that the state court sentencing challenged by petitioner was justified by a satisfactory evidentiary showing of a breach of the condition of the original sentence imposed. Vacated and remanded for entry of judgment conditionally granting the writ.


[8] David E. Liebman, Esq., New York, Ny, for Petitioner-Appellant.


[9] Nisha M. Desai, Assistant District Attorney for Bronx County, Bronx, Ny, (Joseph N. Ferdenzi, Assistant District Attorney, Robert T. Johnson, District Attorney for Bronx County, Bronx, Ny, on the brief), for Respondent-Appellee.


[10] Before: Miner, McLAUGHLIN and Pooler, Circuit Judges.


[11] The opinion of the court was delivered by: Miner, Circuit Judge


[12] Argued: April 30, 2003


[13] Petitioner Daniel Torres appeals from a judgment denying a writ of habeas corpus entered in the United States District Court for the Southern District of New York (Martin, J.). Torres filed his petition for the writ pursuant to 28 U.S.C. § 2254 as a person in state custody. By the petition, Torres challenged his resentencing by a state court following an alleged breach of the condition of his original sentence. The District Court determined that the resentencing was justified by a satisfactory evidentiary showing of the breach in state court and concluded that the decision of the trial court was not contrary to the jurisprudence of the Supreme Court of the United States. See Torres v. Berbary, No. 01 CIV 4512, 2002 WL 1218276 (S.D.N.Y. June 4, 2002). Because we conclude that the hearing afforded by the state court that resulted in the resentencing was inconsistent with due process, we vacate the judgment of the District Court and remand with directions to grant the writ conditionally.


[14] BACKGROUND


[15] On March 16, 1998, Torres entered a plea of guilty in New York Supreme Court, Bronx County, to the offense of Criminal Sale of a Controlled Substance in the Third Degree, N.Y. Penal Law § 220.39(1), a Class B Felony. The court accepted the plea following the customary allocution and proceeded to impose sentence in accordance with a plea bargain previously arrived at. The sentence provided for a conditional release to Phoenix House, a drug treatment facility and was encompassed in its entirety in the following dialogue between the court and Torres, designated "THE DEFENDANT" in the transcript:


[16] THE COURT: Okay. I am going to sentence you. I will release you on the 23rd to Phoenix House. If you work out, you will be allowed to come back, re-plead to a misdemeanor, and I will sentence you [to] time served. If you don't work out, you will get at least four and a half to nine years in jail. Do you understand?


[17] THE DEFENDANT: Yes.


[18] THE COURT: Is that satisfactory to you?


[19] THE DEFENDANT: Yes.


[20] "If you work out" apparently was understood by all concerned to refer to the successful completion by Torres of the drug treatment program provided by Phoenix House. According to the sentence, successful completion would result in a return to court for repleading to a misdemeanor in place of the felony, and a resentencing to time served. Failure to complete would result in a sentence of imprisonment of four-and-a-half-to-nine years on the original felony charge.


[21] Torres immediately entered the Phoenix House program. Less than a month later, Torres was discharged from the program. The "Client Discharge Form" dated April 10, 1998, provided to Torres by Phoenix House, gave the following reasons for his discharge: "Your alledge [sic] involvement in the distribution of contraband in the facility. You are being directed to immediately surrender yourself to 1020 Grand Concourse Part 51 Bronx Supreme Court." The Form contained the following legend: "You have the right to have this decision reviewed by the Program Director. You may seek advice from outside sources in preparation for the program director/designee review of the discharge decision." Although Torres inserted a checkmark in the space provided in the Form following the words: "I wish a review" and signed the Form, no review was provided to him.


[22] By letter dated the same date as the Discharge Form, Ed Greaux of Phoenix House advised the Bronx Supreme Court of Torres' discharge. The letter, in its substantive entirety, reads as follows:


[23] Your Honor, with reference to the above-named client, information has come to light that compels us to discharge this resident. New resi[d]ents overheard conversations conducted in [S]panish between this client and other residents claiming that they could make illicit drugs available for sale within this facility.


[24] It is suspected that the drugs may have been entering the facility through the use of church trips. Confederates may have met clients at church to pass drugs or money. Also, it is suspected that gang activity in the form of meetings on the male floor and the use of gang hand signals have involved the above-named client.


[25] Although we have been unable to obtain physical evidence, we have received information from residents that clearly implicates this individual in an organized attempt to sell drugs in this facility.


[26] Following his discharge, Torres was returned to the court for further proceedings. At the outset of the proceedings, counsel for Torres addressed the court as follows:


[27] [COUNSEL]: Judge, for the record, my client is, again, he had pled guilty and was given his plea wherein if he completed the Phoenix Drug House program, to which he was assigned, he would be allowed to complete that program and that if he completed it successfully, he would be allowed to withdraw his felony plea and receive a plea with a misdemeanor and time served.


[28] I realize there has been a communication to the Court. I've seen a copy of it indicating that my client was discharged from Phoenix House and making an accusation that he was involved with other people in trying to bring drugs into the facility. My client denies that. He's asked me to state that he never was a participant with anyone else in trying to bring drugs into the facilities, and he has tested clear all times and he would like an opportunity to complete a drug program and complete all the conditions of the plea.


[29] The court responded as follows:


[30] THE COURT: The application is denied. The report has convinced me that he violated the conditions I set down, very seriously. You have an exception for the record.


[31] Later, there was this exchange between counsel and the court:


[32] [COUNSEL]: Judge, the Defendant is again giving me [a] copy of the notification, that he received a client discharge form from Phoenix House, and that he says he requested a review which he was never given.


[33] THE COURT: I'm still prepared to sentence him. Phoenix House has indicated they don't want him. Let's proceed, please.


[34] After a further exchange during the proceedings, counsel again advised the court of Torres' adamant assertion that he did not bring drugs into Phoenix House, and of Torres' request that he have "some sort of hearing, evidentiary hearing on this issue." The court responded to that request as follows:


[35] THE COURT: I decline to do so. I received a communication, as you know, you were given it as soon as I received it, indicating that Phoenix House had had people overhear him plotting with other people to bring drugs into the facility.


[36] I'm not going to try that case because Phoenix House, in my opinion, generally gives me accurate reports, and most of the time, they want to keep a client, not let a client go. I'm prepared to sentence your client. I deny any further applications to be given.


[37] Torres then personally requested the opportunity to speak, which the court granted. The following is a transcript of Torres' unsworn statement to the court:


[38] THE DEFENDANT: Yeah. When I went, a lot of people, which is usually people that I know was upstate with me before, one of them, which I don't know, who supposedly got caught with drugs or gave drugs to somebody, now, it's the people I talk to almost every day when I have a cigarette break. When that happened, they took my unit twice and searched me and saying, that's my people, that I screw around, but I say that I don't know what happened. They still threw me out due to the fact that I associate with them, that I say what's up to them, and I say hello to them, when we used to go down for a cigarette smoke. In other words, they also told me, I will have a review with the director, but they are stating that they just threw me out for associating with them. It was really, I don't know who or what really happened.


[39] The court immediately proceeded with sentencing after Torres' statement as follows:


[40] THE COURT: Okay. Based upon everything I know about the case, based upon the recent communication and writing that I received from Phoenix House, Defendant is sentenced to a minimum term, which I promised him if he did not successfully complete the program, four and a half to nine years, and I am imposing the statutory surcharge.


[41] On appeal to the Appellate Division, First Department, Torres' judgment of conviction and sentence was affirmed. The Appellate Division reasoned as follows:


[42] The court promised that it would impose a more lenient disposition in the event that [Torres] successfully completed a drug program. [Torres] was expelled from the drug program. Before imposing sentence, the court conducted an inquiry to determine whether or not there was any legitimate basis for defendant's exclusion from the drug program, and satisfied itself that the report of [Torres'] misconduct in the program was reliable and accurate. Hence, the court properly sentenced [Torres] on the felony.


[43] People v. Torres, 277 A.D.2d 12, 12 (1st Dep't 2000) (mem.) (citations omitted). Leave to appeal to the New York Court of Appeals was denied. See People v. Torres, 96 N.Y.2d 764 (2001).


[44] In his petition for a writ of habeas corpus dated May 29, 2001, Torres alleged that his due process rights were violated because he was denied an evidentiary hearing in connection with his discharge from Phoenix House. He asserted that he was "ejected from the treatment program on the basis of uncorroborated and unsubstantiated double-hearsay allegations from unnamed sources" and that "[t]he ejection was conducted without an internal review hearing and in violation of the treatment program's internal policies." His due process challenge was grounded in his claim that "[n]o evidentiary hearing of any kind was conducted by the sentencing court to evaluate the allegation, even though I requested and was not given a hearing at the treatment center, and I was not permitted to challenge the evidence or cross-examine any witness."


[45] In an unpublished, eleven-page opinion and order dated May 31, 2002, the District Court denied Torres' petition for relief under the provisions of 28 U.S.C. § 2254. The District Court concluded that the state court's decision was "not contrary to 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Torres, 2002 WL 1218276, at *4. In support of that conclusion, the District Court reasoned as follows:


[46] [T]he sentencing judge had a report from a reliable institution to which the courts regularly send defendants for treatment, that Petitioner had been involved in bringing drugs into the institution. While the institution's conclusion was based on information from unnamed, recently admitted residents, there was no reason to believe that the institution did not have an adequate basis to believe their statements. Had the court ordered a hearing, the institution would no doubt have resisted disclosing the identities of those who provided information in confidence.


[47] Thus, it is likely that the record at the close of the hearing would have been no different than it was at the time of sentencing, with the petitioner denying the charge, and Phoenix House staff persuaded that the charges were true and stating that they would not re-admit the Petitioner.


[48] Id. A certificate of appealability was issued by the District Court, and Torres filed a timely notice of appeal.


[49] DISCUSSION


[50] I. Standards for Habeas Corpus Review of State Convictions: The Statutory Scheme Examined.


[51] We review de novo a district court's denial of a writ of habeas corpus to a person in custody pursuant to a state court judgment. Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001). The standard for review by a district court in the first instance has been established by an Act of Congress, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), as codified in 28 U.S.C. § 2254(d). The statute provides as follows:


[52] An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim --


[53] (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or


[54] (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.


[55] 28 U.S.C. § 2254(d).


[56] The deferential review of state court judgments established by the statutory scheme is dependent on the federal claim having been "adjudicated on the merits" by the state court. If there is no such adjudication, the deferential standard does not apply, and "we apply the pre-AEDPA standards, and review de novo the state court disposition of the petitioner's federal constitutional claims." Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001). A petitioner's federal constitutional claim is adjudicated on the merits in state court when the state court disposes of the claim on the merits and reduces its disposition to judgment. See Norde v. Keane, 294 F.3d 401, 410 (2d Cir. 2002). The issue of whether the claim has been disposed of on the merits by a state court includes an inquiry into: "(1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state court's opinion suggests reliance upon procedural grounds rather than a determination on the merits." Sellan v. Kuhlman, 261 F.3d 303, 314 (2d Cir. 2001) (internal quotation marks omitted).


[57] II. The Appropriate Standard of Review in this Case: The Unreasonable Application Rule Described.


[58] There is no question that the issue before us was "adjudicated on the merits" in the state courts. The Appellate Division concluded that the inquiry conducted by the state trial court revealed an adequate basis for the expulsion of Torres from the drug program, specifically determining that the trial court had properly satisfied itself that the report of Torres' conduct at Phoenix House "was reliable and accurate." Torres, 277 A.D.2d at 12. The Appellate Division effectively decided that there was no violation of Torres' right to constitutional due process and sentencing when it held that the trial court "properly sentenced [Torres] on the felony." Id. Accordingly, we are constrained to conduct our review under the deferential standard established by the AEDPA.


[59] With respect to the elements of AEDPA deferential review set forth in § 2254(d)(1), a state court's decision is "contrary to" clearly established Supreme Court precedent if "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000); see also Eze v. Senkowski, 321 F.3d 110, 123 (2d Cir. 2003). And an "unreasonable application" of "clearly established" Supreme Court precedent occurs when a state court "identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. "Although it is clear that the question is 'whether the state court's application of clearly established federal law was objectively unreasonable,' the precise method for distinguishing 'objectively unreasonable' decisions from merely erroneous ones is less clear." Cotto v. Herbert, 331 F.3d 217, 248 (2d Cir. 2003) (citation omitted). "However, it is well-established in [this C]circuit that the 'objectively unreasonable' standard of § 2254(d)(1) means that petitioner must identify some increment of incorrectness beyond error in order to obtain habeas relief." Id. (internal quotation marks omitted).


[60] III. Due Process in the Sentencing Context: Supreme Court Precedent Identified.


[61] The Supreme Court has clearly spoken on the question of the standard of proof of facts in sentencing in relation to the constitutional requirement of due process, holding that the preponderance of evidence standard satisfies the requirement. See McMillan v. Pennsylvania, 477 U.S. 79, 91 (1986) ("Like the [state] court below, we have little difficulty concluding that in this case the preponderance standard satisfies due process."); see also United States v. Watts, 519 U.S. 148, 156 (1997) (noting, in connection with the approval of standard under Federal Sentencing Guidelines, that the Court has "held that application of the preponderance standard at sentencing generally satisfies due process").


[62] The Supreme Court also has clearly spoken on the question of the process due one who is alleged to have "fail[ed] to abide by the rules" governing his parole. See Morrissey v. Brewer, 408 U.S. 471, 479 (1972). The determination to resentence for the breach of a condition of a sentence is analogous to the determination to revoke the parole of a parolee for failure to comply with the conditions of parole. It is also analogous to the determination to impose a sentence for violation of the terms of probation. All these determinations should be informed by the same considerations. For parole revocation, an opportunity for a hearing must be provided. According to the Supreme Court,


[63] [t]his hearing must be the basis for more than determining probable cause; it must lead to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation. The parolee must have an opportunity to be heard and to show, if he can, that he did not violate the conditions, or, if he did, that circumstances in mitigation suggest that the violation does not warrant revocation.


[64] Id. at 488.


[65] In order to justify the further punishment generated by parole revocation, the following "minimum requirements of due process" must be filled:


[66] (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a "neutral and detached" hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.


[67] Id. at 489. The inquiry is said to be a "narrow" one, and "the process should be flexible enough to consider evidence, including letters, affidavits, and other material that would not be admissible in an adversary criminal trial." Id.


[68] We have previously reviewed Supreme Court teaching to arrive at the conclusion that, although due process considerations are implicated in sentencing generally, not all the evidentiary limitations and procedural safeguards are required in the conduct of a sentencing proceeding. See United States v. Fatico, 579 F.2d 707, 711 (2d Cir. 1978). We have gone so far as to hold "that Due Process does not prevent use in sentencing of out-of-court declarations by an unidentified informant where there is good cause for the nondisclosure of his identity and there is sufficient corroboration by other means." Id. at 713 (footnote omitted).


[69] IV. Torres' Second Sentence: The Process Analyzed and Evaluated.


[70] Torres actually was sentenced a second time under the peculiar procedure followed by the state trial court. Originally, his plea to a felony drug count was accepted by the court, and he was remanded to a drug rehabilitation program. Successful completion of the program, he was told, would result in his return to the court for a plea to a misdemeanor, apparently in replacement of the felony conviction, and a sentence to "time served" in the rehabilitation program. When Torres was returned to the trial court for further proceedings, however, it was not for a misdemeanor plea, but for a sentence of four-and-a-half-to-nine years. The felony sentence imposed was the sentenced promised if Torres did not "work out" in the Phoenix House program. In imposing the sentence, the trial court relied only on its review of the letter from Phoenix House, and, after he had requested and received permission to be heard, on Torres' brief unsworn statement to the court that he was innocent of the alleged wrongdoing. Due process standards clearly established by the Supreme Court were thereby ignored.


[71] In rejecting Torres' unsworn statement and relying on the report from Phoenix House, the trial court noted that it was convinced by the report that Torres had "violated the conditions" the court had set down "very seriously." An examination of the report that formed the entire basis for the court's determination reveals that double and triple hearsay informed the decision of Phoenix House to discharge Torres from the program for attempting to sell drugs at the facility. According to the report, certain residents of the facility overheard conversations in Spanish between Torres and others "claiming that they could make illicit drugs available for sale" within the facility. (emphasis supplied) The report recites that "[i]t is suspected that drugs may have been entering the facility through the use of church trips," and that "[c]onfederates may have met clients at church to pass drugs or money." (emphasis supplied) These speculative statements obviously do not implicate Torres in any way.


[72] There is one statement in the report that does implicate Torres: "[I]t is suspected that gang activity in the form of meetings on the male floor and the use of gang hand signals have involved [Torres]." (emphasis supplied) This statement does not even implicate Torres directly in drug dealing at the facility. It is only the concluding sentence of the Report that mentions Torres in connection with drug dealing at the facility. According to the concluding sentence, information received from (unnamed) residents "clearly implicates" Torres "in an organized attempt to sell drugs in this facility." That statement is qualified by the statement: "[W]e have been unable to obtain physical evidence."


[73] In affirming Torres' felony sentence, the Appellate Division recognized the due process implications of the procedure in the trial court, finding that the trial court properly relied on a report of misconduct that was "reliable and accurate." 277 A.D.2d at 12. The Appellate Division therefore recognized the Supreme Court's due process jurisprudence relating to sentencing but applied it to the facts of this case in an objectively unreasonable manner. See Wiggins v. Smith, 123 S. Ct. 2527, 2538-39 (2003); see also Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam).


[74] In the first place, it cannot be said that the required preponderance of the evidence standard in sentencing can be met with only a report of the type furnished by Phoenix House. As has been demonstrated, due process in sentencing requires at least a showing by a preponderance of evidence to resolve disputed factual issues. While it is true, as the learned district judge noted, that Morrissey v. Brewer permitted the use of "material that would not be admissible in an adversary criminal trial," 408 U.S. at 489, a single report replete with multiple levels of hearsay and speculation cannot be said to suffice to make a showing by a preponderance of the evidence, even under the "flexible" standard that is permitted. And, while Morrissey involves standards for parole revocation, it is not a great extension to apply its principles to the breach-of-condition-of-sentence case before us. See Kennaugh v. Miller, 289 F.3d 36, 44-45 (2d Cir.), cert. denied, 123 S. Ct. 251 (2002).


[75] Due process has clearly been held to require "some kind of hearing" before a person is deprived of a liberty interest. See Wolff v. McDonnell, 418 U.S. 539, 558 (1974) (In the context of deprivation of good time prison credits for serious misconduct, "the determination of whether such behavior has occurred becomes critical, and the minimum requirements of procedural due process appropriate for the circumstances must be observed."). The teachings of the Supreme Court have been effectively ignored in the case of Torres. He was not afforded the opportunity to testify under oath, and no witness from Phoenix House testified as to the reliability of those who furnished the information of Torres' wrongdoing. The district judge opined that the institution "no doubt" would have resisted disclosure of the names of those who furnished the information. We cannot say that this is so, and we certainly cannot say that a witness familiar with the administration of Phoenix House could not or would not have furnished some basis for determination of the informants' reliability. A Phoenix House representative could have testified in this regard.


[76] The District Court also opined that "there was no reason to believe" that Phoenix House did "not have an adequate basis to believe" the informants' statements. The problem with that analysis is that there was no explanation of the basis for the beliefs of Phoenix House other than vague references to information furnished by informants. Had the informants furnished reliable information in the past? Did they have any axes to grind? Were they promised any rewards for informing? Torres said he was discharged from the program merely for associating with certain other inmates during "cigarette breaks." His "hearing" did not even include his own sworn testimony in the trial court and he therefore was not available for cross examination regarding his contentions. As a matter of fact, he was not even given a review by Phoenix House prior to his discharge despite the fact that he requested a review by the Program Director by checking the space provided for such a request on his Client Discharge Form.


[77] While it is true that the Supreme Court in Williams v. New York, 337 U.S. 241, 252 n.18 (1949), "held that it was not a denial of due process in sentencing to rely on information supplied by witnesses whom the accused could neither confront nor cross-examine," Fatico, 579 F.2d at 711, it is also true that "Williams does not hold that all hearsay information must be considered," id. at 712. In the federal sentencing context, we have held "that admission of an unidentified informant's corroborated declarations in a sentencing proceeding where there is good cause for not disclosing his identity is not barred by the Confrontation Clause." Id. at 714 (emphasis supplied). In the case at bar, there was no corroboration of informant declarations and no showing of good cause for failure to disclose the identity of any informant who may have furnished information to Phoenix House regarding Torres.


[78] We think that well-settled and clearly established Supreme Court due process jurisprudence or, at the very least, a reasonable extension of it, mandates a finding of denial of due process in Torres' sentencing. The following elements, unique to this case, compel the issuance of a writ of habeas corpus: total reliance by the trial court on a hearsay report that itself contains only uncorroborated statements of unnamed informants; omission of any finding by the trial court as to the reliability of the informants or as to reasons for the non-disclosure of their identities; failure of the trial court to conduct some kind of hearing, including provision for the examination of Torres under oath; lack of preponderating evidence of Torres' wrongdoing; and the gross disparity between a sentence that would release Torres to society on a plea to a misdemeanor charge after completion of the Phoenix House program and the four-and-a-half-to-nine-year felony sentence to state prison that he received for violating the original sentence condition.


[79] CONCLUSION


[80] We direct that a writ of habeas corpus be issued releasing Torres from his present confinement unless the State provides him with a new sentencing hearing within ninety days.