stating the general rule applicable in the federal system that the sentencing court must apply the sentencing guidelines manual in effect at the time of sentencing, but noting that where such retroactive application would result in harsher penalties, the court must apply the manual in effect at the time of the offense to avoid improper ex post facto application
How later courts described this case
- stating the general rule applicable in the federal system that the sentencing court must apply the sentencing guidelines manual in effect at the time of sentencing, but noting that where such retroactive application would result in harsher penalties, the court must apply the manual in effect at the time of the offense to avoid improper ex post facto application
- recognizing that amendments which clarify, rather than substantively change, the guidelines do not present ex post facto issues when they are applied retrospectively, but holding that 1991 amendment to section 2J1.2’s background commentaiy “is not a clarifying amendment but, rather, a substantive change”
- concluding that, "while the one-book rule ... certainly can compel application of the earlier Manual," the Ex Post Facto clause may apply so as to prohibit the application of the later Manual to all counts
- distinguishing Resko on its facts but holding, in reliance on Resko, that a reviewing court must satisfy itself that the trial court engaged in a meaningful assessment of whether there was any prejudice to defendant, and that when a trial court fails to conduct a meaningful assessment, a reviewing court cannot evaluate its conduct and, thus, remand for a new trial is proper
Written by the judges who cited it.
The opinion
ROTH, Circuit Judge, concurring:
I join the opinion in Parts I, II.Al, and 2, II.B, and III. I concur with the result that the majority reaches in Part II.A.3. I write separately, however, to express my concern on the issue of providing written transcripts to the jury. I recognize that other circuits have afforded trial courts great discretion in determining whether or not to allow copies of written transcripts to go to the jury. In view of this precedent, I agree that the trial court in this case did not abuse its discretion.
I approve the cautionary language that the majority suggests to prevent the jury from focusing improperly on one portion of the testimony contained in a transcript. However, I would prefer to go further. I would exercise our court’s inherent supervisory power to bar trial courts from permitting the jury to obtain copies of written transcripts of trial testimony unless the district judge ensured that: (1) no party was likely to be unduly prejudiced, and (2) the transcript or particular portion thereof was not likely to be improperly used by the jury. 1 In this regard, the trial court should afford counsel for each party the opportunity to express counsel’s opinion as to the likelihood of prejudice and improper use.
The Uniform Rules of Criminal Procedure (1987) provide support for the limitation that I would propose to place on a trial court’s discretion to send written transcripts to the jury. In particular, Rule 533 provides that:
“If the jury, after retiring for deliberations, requests a review of any evidence, *1415 the court, after notice to the parties, shall recall the jury to the courtroom. If the jury’s request is reasonable, the court shall have any requested portion of the testimony read or played back to the jury and permit the jury to reexamine any requested exhibit received in evidence. The court need not submit evidence to the jury for review beyond that specifically requested by the jury, but the court also may have the jury review other evidence relating to the same factual issue in order to avoid undue emphasis on the evidence requested. If it is likely that the jury cannot otherwise adequately consider any evidence reviewed, the court may -permit the jury to take the evidence, including any part of a deposition or of a prepared transcript or recording of the testimony, to the jury room if it appears:
(1) no party will he unduly prejudiced; and
(2) the evidence is not likely to be improperly used by the jury.
(emphasis added). 2
I believe that the exercise of our supervisory power in this manner would best protect the parties from the problems which are inherent in permitting trial transcripts to go to the jury room. At the same time we would afford a district court the discretion to provide the jury with transcripts when the court determines that such a practice is necessary and not likely to be prejudicial to the parties. Although such a rule might indeed constitute an “intrusion into the district court’s discretion to adapt procedures to the situation in the case before it,” see Majority Opinion at 1400, because of the magnitude of my concerns, I consider such an intrusion to be warranted.
. Although it is not to be invoked lightly, we have exercised our supervisory power to resolve various procedural and substantive matters and to provide guidance to the district courts. See, e.g., Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 and n. 16 (3d Cir.1994) (invoking inherent supervisory power to require a showing of good cause whenever order of confidentiality is granted); Sowell v. Butcher & Singer, Inc., 926 F.2d 289, 295 (3d Cir.1991) (invoked supervisory power to require district courts, when granting motion for directed verdict, to set forth explanation sufficient to permit this Court to understand legal premise upon which decision was based); see also Murray M. Schwartz, The Exercise of Supervisory Power By the Third Circuit Court of Appeals, 27 Vill.L.Rev. 506, 510-11 (1982).
. It is worthy of note, however, that the American Bar Association’s related Standard 15-4.2 of its Standards for Criminal Justice (1991) does not make any reference to the practice of permitting transcripts of testimony to go into the jury room: Jury request to review evidence.
(a) If the jury, after retiring for deliberation, requests a review of certain testimony or other evidence, they shall be conducted to the courtroom. Whenever the jury’s request is reasonable, the court, after notice to the prosecutor and counsel for the defense, shall have the requested parts of the testimony read to the jury and shall permit the jury to reexamine the requested materials admitted into evidence.
(b) The court need not submit evidence to the jury for review beyond that specifically requested by the jury, but in its discretion the court may also have the jury review other evidence relating to the same factual issue so as not to give undue prominence to the evidence requested.
(emphasis added). I read the failure of this standard to discuss the practice of sending transcripts to the jury as a reluctance on the part of the ABA to encourage courts to engage in such a practice on a regular basis.