Petition for Writ of Certiorari — Glenvert Green, Petitioner v. United States

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 2017

GLENVERT GREEN,

Petitioner

v.

UNITED STATES OF AMERICA,

Respondent

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Third Circuit

PETITION FOR A WRIT OF CERTIORARI

HEIDI R. FREESE

Federal Public Defender

/s/ Frederick W. Ulrich

FREDERICK W. ULRICH

Asst. Federal Public Defender

100 Chestnut Street, Suite 306

Harrisburg, PA 17101

(717) 782-2237

Attorney ID# PA44855

Counsel for Petitioner,

Glenvert Green

Question Presented

A.

Do the Sixth and Fifth Amendments provide a criminal defendant with a

right to cross-examine a government witness who testifies during a

sentencing proceeding or can a district court forbid such questioning because

hearsay is admissible in the form of victim impact statements and because

cross-examination may be unpleasant for the victim?

i

Table of Contents

Table of Authorities ................................................................................................. iii

Opinions Below..........................................................................................................1

Jurisdiction .................................................................................................................1

Relevant Constitutional Provisions ............................................................................2

Statement Of The Case ..............................................................................................3

a.

Relevant facts ........................................................................................3

b.

Procedural history..................................................................................3

c.

i.

The charges and guilty plea ........................................................3

ii.

The sentencing ............................................................................4

iii.

The District Court’s ruling ..........................................................5

The ruling by the Court of Appeals.......................................................6

Reasons For Granting A Writ Of Certiorari .............................................................7

A.

When the Government elects to present testimony from a victim at a

sentencing, it should not be permitted to insulate this testimony from crossexamination because it could have introduced a victim impact statement and

because cross-examination may be unpleasant. ..............................................7

Conclusion ...............................................................................................................10

ii

Table of Authorities

Cases

California v. Green,

399 U.S. 149 (1970) ...............................................................................................7

Chambers v, Mississippi,

410 U.S. 284 (1973) ...............................................................................................7

Crawford v. Washington,

541 U.S. 36 (2004) .................................................................................................7

Delaware v. Fensterer,

474 U.S. 15 (1985) .................................................................................................7

Hohn v. United States,

524 U.S. 236 (1998) ...............................................................................................1

Morrissey v. Brewer,

408 U.S. 471 (1972) .............................................................................................10

Pennsylvania v. Ritchie,

480 U.S. 39 (1987) .................................................................................................7

Pointer v. Texas,

380 U.S. 400 (1965) ...............................................................................................7

United States v. Robinson,

482 F.3d 244 (3d Cir. 2007) ...................................................................................9

United States v. Clark,

335 F. App’x 181 (3d Cir. 2009) ............................................................................8

United States v. Donzo,

335 F. App’x 191(3d Cir. 2009) .............................................................................8

United States v. John-Baptiste,

747 F.3d 186 (3d Cir. 2014) ...................................................................................8

United States v. Lloyd,

566 F.3d 341(3d Cir. 2009) ..................................................................................10

iii

United States v. Smith,

751 F.3d 107 (3d Cir. 2014) ...................................................................................8

Vankirk v. State,

385 S.W.3d 144 (Ark. 2011) ..................................................................................9

Williams v. United States,

358 U.S. 576 (1959) ...........................................................................................8, 9

Statutes

18 Pa. C.S. § 3127 ......................................................................................................4

18 U.S.C. § 13 ............................................................................................................4

18 U.S.C. § 3553(a) ...................................................................................................4

28 U.S.C. § 1254(1) ...................................................................................................1

Rules

FED. R. EVID. 1101(d)(3)............................................................................................8

Treatises

5 J. WIGMORE EVIDENCE § 1367 (3d ed. 1940) .........................................................7

Constitutional Provisions

U.S. CONST. amend. V ...............................................................................................2

iv

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 2017

GLENVERT GREEN,

Petitioner

v.

UNITED STATES OF AMERICA,

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Petitioner, Glenvert Green, by his attorney Frederick W. Ulrich, Assistant

Federal Public Defender in the Office of the Federal Public Defender for the

Middle District of Pennsylvania, respectfully petitions for a writ of certiorari to

review the order entered here by the United States Court of Appeals for the Third

Circuit.

OPINIONS BELOW

The United States Court of Appeals for the Third Circuit filed its opinion at

17-1943, and it’s in the appendix. See (App. 1a-5a). The District Court filed its

opinion, denominated as a “certified supplement to the record” at 1:08-CR-00073,

and it’s in the appendix. See (App. 6a-11a).

JURISDICTION

On April 10, 2018, the Court of Appeals affirmed the judgment of the

District Court. See (App. at 5a). The jurisdiction of the United States Supreme

Court is invoked under Section 1254(1) of Title 28 of the United States Code, 28

U.S.C. § 1254(1). See Hohn v. United States, 524 U.S. 236, 253 (1998).

1

RELEVANT CONSTITUTIONAL PROVISIONS

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a grand jury, except in cases arising in the

land or naval forces, or in the militia, when in actual

service in time of war or public danger; nor shall any

person be subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public use,

without just compensation.

U.S. CONST. amend. V.

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of

the state and district wherein the crime shall have been

committed, which district shall have been previously

ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the

assistance of counsel for his defense.

U.S. CONST. amend. V.

2

STATEMENT OF THE CASE

a.

Relevant facts

Petitioner, Glenvert Green, was an inmate at the United States Penitentiary

in Allenwood. See (App. 2a). During a designated open move of inmates in the

Allenwood compound, Mr. Green exited his housing unit, but remained in the sally

port area connected to it. See id. While Mr. Green waited in the sally port, a

female correctional officer (“CO”), Jacqueline Showers, entered to observe the

inmates as they passed through a metal detector. See id.

CO Showers encountered Mr. Green and instantly noticed that he was facing

her with his genitals exposed, and he was stroking his penis. See id. This occurred

within a few feet of CO Showers. CO Showers ordered Mr. Green to stop, but he

did not immediately comply. See id. Instead, Mr. Green approached, stating,

“come get on this Ms. Showers.” CO Showers radioed for assistance, at which

point Mr. Green stopped. See id. A closed-circuit camera recorded portions of the

incident.

b.

Procedural history

i.

The charges and guilty plea

The institution administratively sanctioned Mr. Green with, among other

things, a loss of “good time.” On September 8, 2016, a grand jury returned a onecount indictment, charging Mr. Green under the Assimilated Crimes Act, 18

3

U.S.C. § 13, with indecent exposure, in violation of Section 3127 of the

Pennsylvania Consolidated Statutes, 18 Pa. C.S. § 3127. See (App. 2a). Mr. Green

pleaded guilty to the indictment without a plea agreement. See id.

ii.

The sentencing

The Probation Office prepared a presentence report, finding that there was

no applicable or analogous guideline and, as a result, the factors in Section 3553(a)

of the Sentencing Reform Act of 1984, 18 U.S.C. § 3553(a), guided the Court’s

sentencing discretion. The maximum penalty for the offense is two years and a

$5,000 fine.

The presentence report included a memorandum by CO Showers, which

outlined the offense and detailed the affect the offense had upon her and her

family. See (App. 2a). Among other things, CO Showers noted that, although the

behavior at issue was something that she had seen many times, on this occasion it

was worse because of Mr. Green’s proximity. As for Mr. Green, the presentence

report detailed his history of abuse at the hands of his mother, father, and uncle.

The report also discussed Mr. Green’s mental health, including hospitalization and

diagnoses of bipolar disorder and depression.

At the sentencing proceeding, the Government strenuously advocated for the

imposition of the statutory maximum, asserting that Mr. Green’s conduct was

premeditated, commonplace within the Bureau of Prisons (“BOP”), and that it

4

affected the safety of the staff globally. The Government also presented testimony

from CO Showers, who recounted the events surrounding the offenses and the

affect it had on her and her family. See (App. 2a). On behalf of Mr. Green,

counsel emphasized his abusive childhood, his need for treatment, and the fact that

the institution had sanctioned him as part of the administrative process.

The District Court declined the Government’s request for the 24-month

statutory maximum, imposing a sentence of 21 months consecutive to the sentence

Mr. Green is serving. See id.

iii.

The District Court’s ruling

After the Government presented testimony from CO Showers, counsel for

Mr. Green sought to cross-examine her. See (App. 70). The Government objected,

asserting that the testimony was for sentencing and cross-examination would be

irrelevant. Counsel responded that her questioning would address the following:

the context of CO Showers resuming her duties; the indication by CO Showers that

this type of incident commonly occurs; whether there were protocols in place that

may have allowed CO Showers to protect herself; whether there has been a change

of such protocols; whether there was surveillance; her post-incident suffering and

how long it took for her to recover; and that CO Showers is not the average victim

as she has been trained to handle a specific population.

5

The District Court denied cross-examination, stating that the proffer

respecting remedial measures was not relevant. See (App. 2a). Following the

appeal, the District Court filed a “Supplement to the Record,” which was, in the

end, an opinion addressing the reasons for its ruling. See (App. 6a). In the

supplement, the Court expressed concern that allowing a victim to be crossexamined would “mark the first step down a troubling path,” and observing that a

rule that “strictly cabins adversarial examination during victim impact testimony

thus prioritizes truth and courage over intimidation.” (App. 9a).

c.

The ruling by the Court of Appeals

The Third Circuit reasoned that, because the Confrontation Clause does not

apply to a sentencing and the Due Process Clause includes no right to crossexamine at a sentencing, Mr. Green was unable to show a violation of his rights.

See (App. 5a).

6

REASONS FOR GRANTING A WRIT OF CERTIORARI

A.

When the Government elects to present testimony from a victim at a

sentencing, it should not be permitted to insulate this testimony from

cross-examination because it could have introduced a victim impact

statement and because cross-examination may be unpleasant.

This Court has consistently emphasized the “necessity for cross-examination

as a protection for defendants in criminal cases.” Pointer v. Texas, 380 U.S. 400,

404 (1965). Indeed, this Court has described cross-examination as “the greatest

legal engine ever invented for the discovery of truth.” California v. Green, 399

U.S. 149, 158 (1970) (quoting 5 J. WIGMORE EVIDENCE § 1367 (3d ed. 1940)).

Cross-examination is, thus, the prescribed method for measuring the reliability of

evidence. See Crawford v. Washington, 541 U.S. 36, 61 (2004).

The right to cross-examination has two constitutional bases. First, under the

Fifth and Fourteenth Amendments, “[t]he rights to confront and cross-examine

witnesses and to call witnesses in one’s own behalf have long been recognized as

essential to due process.” Chambers v, Mississippi, 410 U.S. 284, 294 (1973); see

also Pointer, 380 U.S. at 405. In addition, the Sixth Amendment’s “Confrontation

Clause provides two types of protections for a criminal defendant: the right

physically to face those who testify against him, and the right to conduct crossexamination.” Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987) (citing Delaware v.

Fensterer, 474 U.S. 15, 18–19 (1985) (per curiam)). Despite the constitutional

underpinnings, a district court retains significant latitude to impose reasonable

7

limits on cross-examination. See United States v. John-Baptiste, 747 F.3d 186, 211

(3d Cir. 2014). Here, however, the District Court did not simply impose some

limitations, but denied cross-examination altogether.

Mr. Green acknowledges, even so, that this Court has declined to extend the

constitutional protections in the Confrontation Clause to non-capital sentencing

proceedings. See Williams v. United States, 358 U.S. 576, 584 (1959)). Similarly,

the Federal Rules of Evidence do not apply at sentencing proceedings, allowing a

court to consider hearsay. See FED. R. EVID. 1101(d)(3). There are valid reasons,

however, upon which to distinguish Mr. Green’s case.

First, this is not an instance when the Court merely considered a victim

impact statement that was a part of a presentence report. See, e.g., United States v.

Clark, 335 F. App’x 181, 184 (3d Cir. 2009) (non-precedential). Nor is this an

instance in which the investigating law enforcement officer testified, recounting

how some victims had discovered fraudulent activity in their bank accounts. See,

e.g., United States v. Smith, 751 F.3d 107, 112 (3d Cir. 2014). There is no

indication in either the Smith or Robinson opinions that counsel for the defendants

were precluded from cross-examining the Government’s law enforcement witness.

No one disputes the Government’s prerogative to introduce victim impact

statements as part of the sentencing proceeding. See United States v. Donzo, 335

F. App’x 191, 196 (3d Cir. 2009) (non-precedential). Here, however, the

8

Government sought to bolster a victim impact statement by presenting testimony

surrounding the commission of the offense and its impact upon the victim and her

family. Neither the District Court nor the Government offered a credible reason

why the extent, nature, and veracity of the alleged impact is off limits and not

subject to adversarial testing. Indeed, the Government sought the statutory

maximum, citing as one of the bases the affect the offense had upon the victim.

In this circumstance, the Confrontation Clause’s right to cross-examination

should apply. While courts have cited Williams for the proposition that the

Confrontation Clause does not apply at a sentencing, in that case, this Court framed

the issue as relating “to the rules of evidence applicable to the manner in which a

judge may obtain information to guide him in the imposition of sentence upon an

already convicted defendant.” Williams, 337 U.S. at 244. Ultimately, the Williams

Court held that the statutory scheme at issue did not violate due process. See id. at

252. Given the basis for the holding in Williams, the Confrontation Clause may

have some application at sentencing. See generally Vankirk v. State, 385 S.W.3d

144, 149-50 (Ark. 2011) (concluding that Williams did not address whether the

Confrontation Clause applied at sentencing).

In any event, due process considerations impose a constitutional floor on the

admission of evidence at sentencing. See United States v. Robinson, 482 F.3d 244,

246 (3d Cir. 2007). And as noted, due process includes a right to cross-examine.

9

Indeed, even in the context of a revocation of supervised release, due process

provides a limited right to confront and cross-examine adverse witnesses. See

United States v. Lloyd, 566 F.3d 341, 343 (3d Cir. 2009) (citing Morrissey v.

Brewer, 408 U.S. 471 (1972)). Once the Government has elected to present

testimony, it should not, consistent with due process, be able to preclude this

evidence from adversarial testing.

CONCLUSION

For these reasons, the Petitioner, Glenvert Green, requests that this

Honorable Court grant his petition for a writ of certiorari.

/s/ Frederick W. Ulrich

FREDERICK W. ULRICH

Asst. Federal Public Defender

100 Chestnut Street, Suite 306

Harrisburg, PA 17101

(717) 782-2237

Attorney ID# PA44855

Counsel for Petitioner,

Glenvert Green

Date: July 5, 2018

10

CERTIFICATE OF BAR MEMBERSHIP

I, Frederick W. Ulrich, Esquire, Assistant Federal Public Defender, hereby

certify that I am a member of the Bar of this Court.

Respectfully submitted,

/s/ Frederick W. Ulrich

FREDERICK W. ULRICH

Asst. Federal Public Defender

Date: July 5, 2018

11