Federal Evidence Review

Fourth Circuit majority reverses heroin conspiracy conviction based on stipulation concerning the forensic testing results (that “the package contained a total weight of 98.61–grams of heroin”) which was published to the jury over the defendant’s objection; while the panel unanimously agreed that the stipulation violated the Confrontation Clause, the majority concluded that the error was not harmless beyond a reasonable doubt because the stipulation was used to establish an element of the offense and the jury used the stipulation based on its question to the court, in United States v. Williams, 632 F.3d 129 (4th Cir. Jan. 21, 2011) (No. 09-4049)

What Confrontation Clause issues are raised when a defense attorney and the prosecutor agree to sign a trial stipulation concerning chemist testimony but the defendant objects? The Fourth Circuit recently considered this issue. In doing so, the circuit noted but did not decide an open issue on whether defendants must demonstrate “a clear waiver of their Sixth Amendment right” before a stipulation can be entered.

In the case, defendant Williams was prosecuted for his role in a heroin distribution conspiracy. At trial the prosecutor and defense counsel agreed to introduce a stipulation concerning the test results of the seized substances. However, the defendant did not agree to sign the stipulation. The trial court permitted defense counsel to sign the stipulation. The stipulation was read to the jury:

United States of America vs. Randolph Williams also known as Red, Criminal No 7:08-25, the Government and counsel for the defendant, Randolph Williams, that counsel being Lora Collins stipulate the following: that on October the 11th of the 2007 [sic] lieutenant Beth Rampey Vaughn a certified forensic chemist with the Spartanburg County Sheriff’s Office forensic laboratory located in Spartanburg, South Carolina, examined and analyzed the contents of the package addressed to Sabrina Hutchinson, 142 Westover Drive No. 5, Spartanburg, South Carolina, 29306 and seized by Eric Murphy of Customs and Border protection Louisville Kentucky, that the package was seized on October the 3rd of 2007 from the UPS sorting facility and submitted to forensic chemist Rampey Vaughn under ICE file No. GV13HE08GV0C1[ ], that forensic chemist Rampey Vaughn who has been qualified as an expert in the analysis of controlled substances in both state and federal courts within the District of South Carolina determined that this – that the package contained a total weight of 98.61–grams of heroin, a schedule I controlled substance. We do so stipulate, signed by Lora Collins, attorney for the defendant, and Assistant United States Attorney Regan A. Pendleton in Greenville, South Carolina.

Williams, 632 F.3d at 132. During jury deliberations, the jury sent a note to the court, asking: “What amount of drugs does it take to qualify for distribution as opposed to self-use?” The trial court responded “that the jury should use common sense but that the more drugs there are, the more likely it is that there is an intent to distribute.” The trial court also marked the stipulation as an exhibit and provided it to the jury. After an Allen charge, the jury ultimately convicted the defendant and found the defendant had intended to possess 98.61 grams of heroin. On appeal, the defendant argued that his Confrontation Clause rights were violated by the admission of the stipulation.

The Fourth Circuit agreed and vacated the conviction. The majority found the error was not harmless beyond a reasonable doubt. The dissent would have found the error was harmless.

On appeal, there was no dispute among the parties that the stipulation violated the Sixth Amendment. However, there was an open issue in the Fourth Circuit whether counsel could enter a stipulation without the express or clear waiver of the defendant. The circuit reviewed the cases in other circuits and noted a split.

As the Fourth Circuit noted, a majority of the circuits have held that the right of confrontation may be waived under a stipulation where the defendant does not object and the decision is considered as a legitimate trial tactic or strategy. The circuit noted the following cases under this position:

• First Circuit: Janosky v. St. Amand, 594 F.3d 39, 48 (1st Cir. 2010) (noting “the hearsay testimony” which counsel elicited would have been “inadmissable under the Confrontation Clause had the petitioner objected at that time”) (citing United States v. Stephens, 609 F.2d 230, 232-33 (5th Cir. 1980) (counsel may waive his client’s right of confrontation “so long as the defendant does not dissent … and so long as it can be said that the attorney’s decision was… part of a prudent trial strategy”); Cruzado v. Puerto Rico, 210 F.2d 789, 791 (1st Cir.1954) (noting “where an accused is represented by counsel, we do not see why counsel, in his presence and on his behalf, may not make an effective waiver of this privilege”))

• Second Circuit: United States v. Plitman, 194 F.3d 59, 64 (2d Cir. 1999) (holding the defendant “suffered no loss of his Sixth Amendment confrontation rights and that it was not plain error for the district court to have accepted the stipulation” which included hearsay testimony)

• Fifth Circuit: United States v. Reveles, 190 F.3d 678, 683 & n.6 (5th Cir. 1999) (“When a defendant has waived a right, the district court cannot be said to have erred by failing to override the intentions of the defendant’s counsel by asserting the right sua sponte.”) (citing United States v. Stephens, 609 F.2d 230, 232-33 (5th Cir. 1980) (holding that a defendant’s attorney can waive the defendant’s Sixth Amendment confrontation right “so long as the defendant does not dissent from his attorney’s decision, and so long as it can be said that the attorney’s decision was a legitimate trial tactic or part of a prudent trial strategy”))

• Seventh Circuit: United States v. Cooper, 243 F.3d 411, 418 (7th Cir. 2001) (“Since Cooper does not argue that he dissented from his attorney’s decision to use the tip’s substantive details and to refrain from objecting to the government’s use of those details, and since Cooper has not presented any persuasive argument as to why the waiver could not have been a ‘legitimate trial tactic or part of a prudent trial strategy,’ we hold that his attorney effectively waived Cooper’s right to object to the admission of the tip’s substance, even if that right was guaranteed by the Sixth Amendment.”) (citation omitted)

• Ninth Circuit: United States v. Gamba, 541 F.3d 895, 900 (9th Cir. 2008) (noting “defense counsel may waive an accused’s constitutional rights as a part of trial strategy”); see also Wilson v. Gray, 345 F.2d 282, 286 (9th Cir. 1965) (”[T]he accused may waive his right to cross examination and confrontation and … the waiver of this right may be accomplished by the accused’s counsel as a matter of trial tactics or strategy.”)

• Tenth Circuit: Hawkins v. Hannigan, 185 F.3d 1146, 1155 (10th Cir. 1999) (“[T]here is no evidence that Hawkins disagreed with or objected to his counsel’s decision. Furthermore, we find that counsel’s decision to enter the stipulation was a matter of prudent trial strategy.”)

In contrast, the Fourth Circuit noted two circuits which require a defendant’s express waiver before the stipulation can be given without violating the Confrontation Clause:

• Sixth Circuit: Carter v. Sowders, 5 F.3d 975, 981 (6th Cir. 1993) (“there must be evidence in the record to support” a defendant’s waiver of the Confrontation Clause)

• Eighth Circuit: Clemmons v. Delo, 124 F.3d 944, 956 (8th Cir. 1997) (“the law seems to be clear that the right of confrontation is personal and fundamental and cannot be waived by counsel”), cert. denied, 118 S. Ct. 1548 (1998)

The Fourth Circuit found it unnecessary to resolve the open issue but noted its inclination on the issue:

While this Court is inclined to require that defendants make a clear waiver of their Sixth Amendment right, the Court need not reach this question here since both counsel and the district court were aware that Williams objected to the introduction of the stipulation. We can find no reasoning or case law that would uphold a waiver of a Sixth Amendment right by defense counsel over a defendant’s objection. Therefore, we find that the district court erred when it accepted the stipulation over Williams’ objection and violated his Sixth Amendment right.

Williams, 632 F.3d at 133 (footnote omitted).

As a separate constitutional issue, the Fourth Circuit also noted that the introduction of the stipulation may have violated the Fifth and Sixth amendment right to a jury trial, including the jury’s determination of each element beyond a reasonable doubt. Williams, 632 F.3d at 133 n.2 (citing United States v. Gaudin, 515 U.S. 506, 509-10 (1995) (United States Constitution “requires criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.”)). Based on the Confrontation Clause violation, it was unnecessary to address this distinct issue.

Having unanimously found a violation of the Confrontation Clause, the panel then split on whether the constitutional error was harmless beyond a reasonable doubt. The majority found the error was not harmless beyond a reasonable doubt because the stipulation was used to establish an element of the offense and the jury used the stipulation based on its question to the court. In dissent, District Judge Dever would have affirmed the conviction as harmless beyond a reasonable doubt based on the evidence and since “the stipulation did not connect Williams to the seized package or inculpate Williams in the charged conspiracy in any way.” Williams, 632 F.3d at 143.