# United States v. Amanda Mitchell, AKA Amanda Foster, Amanda Mitchell

> Court of Appeals for the Third Circuit · September 9, 1997 · 122 F.3d 185

URL: https://www.frixlaw.com/law-library/cases/9490566

## Case

- **Full name:** UNITED STATES of America v. Amanda MITCHELL, AKA Amanda Foster, Amanda Mitchell, Appellant
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** September 9, 1997
- **Citations:** 122 F.3d 185; 1997 U.S. App. LEXIS 23617; 1997 WL 556275
- **Precedential status:** Published
- **Opinion:** Concurrence by Michel
- **Judges:** Sloviter, Roth, Michel
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed by Mitchell v. United States, 526 U.S. 314 (1999).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9490566

## Opinion text

MICHEL, Circuit Judge,
concurring.
While I agree with the result, I am not persuaded to join the categorical rationale that a guilty plea entirely waives a defendant’s Fifth Amendment privilege — even as to facts that are not elements of the offense charged and as to which a defendant expressly “reserved” in offering a plea. Further, if the court’s opinion is ready to indicate merely that the reservation here was ineffective, it is unclear to me why.
Mitchell and her attorney explicitly identified the quantity of drugs stated in the indictment, emphasizing that they “reserved” as to that allegation. It is true that neither Mitchell nor her attorney said anything about Mitchell believing she thereby retained a right to silence at sentencing. Was that omission fatal? And what if they had? Would the trial judge then have been obligated either to reject the plea or to refrain from relying on Mitchell’s silence at all?
I accept that ordinarily a guilty plea waives the privilege as to all facts concerning the transactions alleged in an indictment. My only question is whether the same rule applies in the face of such an express reservation as to a non-element, especially where, as here, the defendant’s silence was relied on in part to double the mandatory minimum sentence to ten years.
Finally, I believe the appeal could be disposed of under the Harmless Error rale. The trial judge found the government witnesses’ testimony credible and sufficient to prove five kilograms, without considering Mitchell’s silence. While he later relied as well on her silence in determining her sentence, the evidence amply supported his finding on quantity apart from that reliance. Given the unsettled state of the law among the Circuits on this important Fifth Amendment issue, I would defer a decision on it to a case in which deciding it is unavoidable and the briefs are more informative. Moreover, although the majority accurately analyzes and artfully distinguishes seemingly contrary decisions by other Circuits, I hesitate to create an apparent split among Circuits.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9490566. Public record. Not legal advice.