Criminal Defense of Immigrants


§ 10.2 (C)

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(C)  The Prosecutor’s Role.  Several principles of prosecution standards are of assistance to the defense:


                (1)  Severity of Sentence.  “The prosecutor should not make the severity of sentences the index of his or her effectiveness.”[20]  The goal, instead, is “to assure that a fair and informed judgment is made on the sentence and to avoid unfair sentence disparities.”[21]  This final standard is used by prosecutors to argue against giving any lighter sentence to a noncitizen solely because s/he is a noncitizen.  The answer, however, is that the U.S. citizen and the noncitizen are not in the same position, since the noncitizen faces immigration penalties, and so should not receive the same sentence as a U.S. citizen when the totality of the circumstances is taken into consideration.


(2)  Complete and Accurate Information.  As part of the obligation to assure a “fair and informed” sentence, “[t]he prosecutor should assist the court in basing its sentence on complete and accurate information . . . .” [22]  This duty implies the obligation to “disclose to the defense and to the court . . . all unprivileged mitigating information known to the prosecutor . . . .” [23]  The obligation of the prosecution to disclose exculpatory evidence to the defense includes evidence in mitigation of sentence.  The rule of Brady v. Maryland[24] applies equally to sentencing, in order that the sentence not be based on a mistake of fact or faulty information.[25]


(3)  Improper Inflammatory Argument.  Due process may also be violated if the prosecution makes improper or inflammatory arguments at the time of sentence.[26]  The prosecution has both an ethical and constitutional duty to ensure that its arguments regarding sentence do not lead to a sentence based on prejudice or passion.  Due process can be violated by inflammatory remarks by the prosecutor, especially before a sentencing jury.[27]  The prosecution must also refrain from making disparaging remarks regarding racial, ethnic or religious groups.[28]


(4)  Prosecutorial Vindictiveness.  A defendant must be free to exercise constitutional and statutory rights without fear of retaliation.  See § 11.73(O), infra.


(5)  Prosecutorial Dishonesty or Bad Faith.  A sentence must be vacated if it is brought about as a result of prosecution dishonesty or bad faith.[29]


(6)  Providing Materially False or Unreliable Information.  Prosecution statements at sentence violate due process by being materially false or unreliable, where the court relies on that information in imposing sentence.[30]


(7)  Making Improper Sentence Recommendations.  The prosecution should refrain from making specific sentence recommendations unless requested by the court or as the product of plea discussions or agreement.[31]


                (8)  Improper Prosecutorial Vouching.  Another form of prosecutorial misconduct is “vouching” for the veracity of witnesses or information:


Improper vouching occurs when: (1) the prosecutor places the prestige of the government behind a witness by expressing his or her personal belief in the veracity of the witness, or (2) the prosecutor indicates that information not presented to the jury supports the witness’s testimony.  United States v. Edwards, 154 F.3d 915, 921 (9th Cir. 1998).  Also, a prosecutor may not, for instance, express an opinion of the defendant’ s guilt, United States v. Molina, 934 F.2d 1440, 1444 (9th Cir. 1991), denigrate the defense as a sham, United States v. Sanchez, 176 F.3d 1214, 1224 (9th Cir. 1999), implicitly vouch for a witness’s credibility, United States v. McKoy, 771 F.2d 1207, 1211 (9th Cir. 1985), or vouch for his or her own credibility, United States v. Smith, 962 F.2d 923, 933-34 (9th Cir. 1992).  Additionally, there is the “advocate-witness” rule, which prohibits an attorney from appearing as both a witness and an advocate in the same litigation.  United States v. Prantil, 764 F.2d 548, 552-53 (9th Cir. 1985).[32]


These errors may invalidate a sentence.


                (9)  Arguing Contradictory Theories.  If the prosecutor argues one version of the facts as to one defendant, and another contradictory version as to another defendant, that may violate due process and invalidate a conviction or sentence.[33]

[20]  ABA Standards for Criminal Justice on the Prosecution Function, Standards 3-6.1(a) (1993).

[21] Ibid.

[22]  ABA Standards for Criminal Justice on the Prosecution Function, Standards 3-6.2(a) (1993).

[23]  ABA Standards for Criminal Justice on the Prosecution Function, Standards 3-6.2(b) (1993).

[24] Brady v. Maryland, 373 U.S. 83 (1963) (prosecutor violates Due Process by failing to disclose exculpatory information to defense).

[25] See, e.g., United States v. Pfingst, 477 F.3d 177, 191 (2d Cir. 1973).

[26] Horner v. State of Florida, 312 F.Supp. 1292 (M.D.Fla. 1967) (sentence infected by prosecutorial “venom”); United States v. Fogg, 652 F.2d 551 (5th Cir. 1981); United States v. Perri, 513 F.2d 572 (9th Cir. 1975) (improper reference to defendant’s connection with organized crime without furnishing basis on which to rebut the allegation); United States v. Cavazos, 530 F.2d 4 (5th Cir. 1976) (prosecution argument that all drug offenders are repeat offenders).

[27] See ABA Standards Relating to Sentencing Alternatives and Procedures, § 5.3(b) (1968); Brooks v. Kemp, 762 F.2d 1383 (11th Cir. 1985).

[28] Cf. United States v. Cabrera, 222 F.3d 590 (9th Cir. 2000) (due process violated where investigating officer made repeated generalizations based on defendants’ national origin when testifying; such comments equal plain error as irrelevant references to Cuban community prejudiced defendant in eyes of jury); Bains v. Cambra, 204 F.3d 964, 974 (9th Cir. 2000) (the prosecutor’s improper closing argument, which invited the jury to consider prejudices and stereotypes concerning the Sikhs, violated petitioner’s constitutional rights; a defendant’s due process and equal protection rights are implicated under clearly established federal law where prosecution argument relates to race, ethnicity or religious discrimination); see also McCleskey v. Kemp, 481 U.S. 279, 309 n.30 (1987) (noting that “[t]he Constitution prohibits racially biased prosecutorial arguments”).

[29] United States v. Khan, 920 F.2d 1100 (2d Cir. 1990), cert. denied, 111 S.Ct. 1606 (1991) (government conclusion that defendant’s performance under a cooperation agreement was inadequate may not be caused by dishonesty or bad faith).

[30] United States v. Winfield, 960 F.2d 970 (11th Cir. 1992); see United States v. Penta, 940 F.2d 13 (1st Cir. 1991) (no reversible error found where defendant failed to prove court was misled by prosecutor’s marginal overstatements).

[31] ABA Standards Relating to Sentencing Alternatives and Procedures § 5.3(c) (1968).

[32] United States v. Hermanek, 289 F.3d 1076 (9th Cir. May 15, 2002) (prosecutorial portrayal of prosecutor and law enforcement agents as investigative team, using terms “we” and “us,” constitutes impermissible vouching; harmless error).

[33] Smith v. Groose, 205 F.3d 1045 (8th Cir. 2000) (“Even if our adversary system is ‘in many ways, a gamble,’ Payne v. United States, 78 F.3d 343, 345 (8th Cir. 1996), that system is poorly served when a prosecutor, the state’s own instrument of justice, stacks the deck in his favor. The State’s duty to its citizens does not allow it to pursue as many convictions as possible without regard to fairness and the search for truth.” Due process is found violated in this case where, in two separate trials, the prosecutor utilized mutually inconsistent statements by a witness as to the timing of the murder in order to secure convictions of both defendants. “[T]he State’s zeal to obtain multiple murder convictions on diametrically opposed testimony renders [petitioner’s] convictions infirm.” In finding that the error was not harmless, the appeals court rejected the argument by the state that petitioner could have been convicted of felony-murder on the evidence presented at the other defendant’s trial. “The State proved its case against [petitioner] under the Bowman-as-murderer theory, and speculation regarding what the jury might have done under different circumstances is not a basis upon which to dispense with the State’s due process duty of fair prosecution.”); Nguyen v. Lindsey, 232 F.3d 1236 (9th Cir. Nov. 30, 2000) (“[A] prosecutor’s pursuit of fundamentally inconsistent theories in separate trials against separate defendants charged with the same murder can violate due process if the prosecutor knowingly uses false evidence or acts in bad faith.” Here, the prosecutor’s theory was the same at both trials that in a case of voluntary mutual combat it did not matter who fired the first shot, and although the evidence about who did fire the first shot was different, it was consistent with the evidence actually offered at each trial).



Fourth Circuit

United States v. Valdovinos, ___ F.3d ___, ___, 2014 WL 3686104 (4th Cir. Jul. 25, 2014) (Davis, Senior Circuit Judge, dissenting) (Our disagreement as to the outcome in this case stems, I think, less over the content and application of relevant precedent and more from a fundamental disagreement regarding our role as arbiters of a flailing federal sentencing regime. Where, as here, we have been presented with a choice in how to interpret the interstices of federal sentencing law, and where one choice would exacerbate the harmful effects of over-incarceration that every cadre of social and political scientists (as well as an ever-growing cohort of elected and appointed officials, state and federal, as well as respected members of the federal judiciary) has recognized as unjust and inhumane, as well as expensive and ineffectual, this insight can and should inform our analysis. I deeply regret the panel's failure to take advantage of the opportunity to do so here.).


Stephen R. Sady & Lynn Deffebach, A Defenders Guide To Sentencing And Habeas Advocacy Regarding Bureau Of Prisons Issues (Aug. 2011)