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

Case: 17-2175

Document: 003112899503

Page: 1

Date Filed: 04/10/2018

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 17-2175

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UNITED STATES OF AMERICA

v.

GLENVERT GREEN,

Appellant

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Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 4-16-cr-00259)

District Judge: Honorable Matthew W. Brann

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Submitted Under Third Circuit L.A.R. 1.2

January 18, 2018

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Before: AMBRO, RESTREPO, and FUENTES, Circuit Judges

(Filed: April 10, 2018)

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OPINION*

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RESTREPO, Circuit Judge

Appellant Glenvert Green appeals the District Court’s ruling prohibiting the cross-

*

This disposition is not an Opinion of the full Court and, pursuant to I.O.P. 5.7,

does not constitute binding precedent.

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examination of the victim at Green’s sentencing hearing. We will affirm.

I

In March of 2016, Green was incarcerated at United States Penitentiary

Allenwood in White Deer, Pennsylvania. On March 9, 2016, Green left his housing unit

but remained in the “sally port,” an area through which inmates enter and exit the unit.

Green waited until Senior Officer Jacqueline Showers, a federal Bureau of Prisons

correctional officer, entered the sally port to monitor the metal detector. Once Officer

Showers and Green were alone and standing within feet of one another, Green exposed

his penis and began to masturbate. While doing so, he made sexual remarks to the

officer. Officer Showers ordered him to stop, but Green refused and continued his

conduct until Officer Showers radioed for assistance.

On December 20, 2016, Green pled guilty to indecent exposure, pursuant to the

Assimilated Crimes Act, 18 U.S.C. § 13, in violation of Pennsylvania law, 18 Pa. C.S. §

3127.

On May 11, 2017, the District Court sentenced Green to 21 months’

imprisonment, to be served consecutively to his current sentence. At the sentencing

hearing, Officer Showers elected to give a victim impact statement on the record.

Defense counsel sought to cross-examine her and the Government objected. After

hearing argument from both parties, the District Court found that the questions proffered

by Green’s counsel would not elicit relevant testimony and sustained the objection.

On appeal, Green argues that the Court’s ruling prohibiting the cross-examination

of Officer Showers after her victim impact statement violated the Confrontation Clause

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and Green’s due process rights. As a result, he asks us to vacate the judgment of

sentence and remand his case for a new sentencing hearing.

II

The District Court had jurisdiction under 18 U.S.C. § 3231, and we have

jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We review constitutional

claims de novo, except where, as here, the issues were not raised in the court below. In

these instances, we review such claims for plain error. Government of Virgin Islands v.

Vanterpool, 767 F.3d 157, 162 (3d Cir. 2014) (citing United States v. Marcus, 560 U.S.

258, 262 (2010)). “A plain error that affects substantial rights may be considered even

though it was not brought to the court’s attention.” Fed. R. Crim. P. 52(b). Appellate

courts may correct unpreserved error only when (1) there is an “error,” (2) that is “plain,”

(3) that affects the complaining party’s “substantial rights,” and (4) that “seriously

affect[s] the fairness, integrity or public reputation of judicial proceedings.” United

States v. Olano, 507 U.S. 725, 736 (1993) (citing Connor v. Finch, 431 U.S. 407, 421

n.19 (1977)).

III

Pursuant to the Crime Victims’ Rights Act (CVRA), victims have “[t]he right to

be reasonably heard at any public proceeding in the district court involving release, plea,

sentencing, or any parole proceeding.” 18 U.S.C. § 3771(a)(4); see also Fed. R. Crim. P.

32(i)(4)(B) (“Before imposing sentence, the court must address any victim of crime who

is present at sentencing and must permit the victim to be reasonably heard.”). “Under the

CVRA, courts may not limit victims to a written statement.” United States v. Vampire

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Nation, 451 F.3d 189, 197 n.4 (3d Cir. 2006). At the sentencing hearing, Officer

Showers elected to testify to the impact Green’s conduct had on her mental state, both at

home and in the workplace.

Green argues first that the Court’s ruling to prohibit the cross-examination of

Officer Showers violated the Confrontation Clause. He acknowledges, however, that the

law is settled that the Confrontation Clause does not apply in the sentencing context. See

United States v. Robinson, 482 F.3d 244, 246 (3d Cir. 2007) (“Both the Supreme Court

and this Court of Appeals have determined that the Confrontation Clause does not apply

in the sentencing context[.]”); United States v. McGlory, 968 F.2d 309, 347 (3d Cir.

1992) (“The Sixth Amendment’s confrontation clause does not apply to sentencing

hearings and reliable hearsay is generally admissible. . . .”); United States v. Kikumura,

918 F.2d 1084, 1099-1100 (3d Cir. 1990) (holding that the Confrontation Clause applies

at trial, not sentencing). Because Green did not have the right to confront Officer

Showers at his sentencing, the claim that he was deprived of the opportunity to do so

does not pose a viable ground for relief.

The assertion that Green’s due process rights were violated by the District Court’s

ruling to prohibit cross-examination is similarly unfounded. The Due Process Clause

requires that victim impact statements must have some “minimal indicium of reliability

beyond mere allegation” to be admissible at sentencing hearings. Robinson, 482 F.3d at

246 (quoting Kikumura, 918 F.2d at 1102); see also United States v. Paulino, 996 F.2d

1541, 1547 (3d Cir. 1993) (“[T]he introduction of evidence at sentencing is subject to [a]

due process standard of reliability.”) Green does not contend that Officer Showers’

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testimony was insufficiently reliable to be properly considered by the District Court in

imposing sentence. He instead asserts, without citation to legal authority, that his due

process rights entitled him to cross-examine the victim because she testified to the

circumstances of the offense. This assertion, however, is refuted by controlling law. See

Williams v. New York, 337 U.S. 241, 250-51 (1949) (holding that consideration of

information supplied by witnesses at sentencing who are not subject to cross-examination

did not violate Due Process Clause); U.S. ex rel. Gerchman v. Maroney, 355 F.2d 302,

309 (3d Cir. 1966) (“It is undoubtedly true that the guarantee of the right of confrontation

and cross-examination does not apply to sentencing pursuant to a criminal conviction.”)

Accordingly, because Green is unable to show a violation of the Confrontation

Clause or his due process rights, we will affirm the sentence of the District Court.

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Case 4:16-cr-00259-MWB Document 44 Filed 05/26/17 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA,

v.

No. 4: l 6-CR-00259

(Judge Brann)

GLENVERT GREEN,

Defendant.

CERTIFIED SUPPLEMENT TO THE RECORD

MAY26,2017

Federal Rule of Appellate Proc�dure 10(e)(2)(B) provides that if"anything

material to either party is omitted from or misstated in the record by error or

accident, the omission or misstatement may be corrected and a supplemental

record may be certified and forwarded ... by the district court before or after the

record has been forwarded." Such supplementation is reserved to the district

court's discretion. United States v. Oliver, 278 F.3d 1035, 1042 (10th Cir. 2001).

This certification supplements my oral ruling that disallowed the Defendant

from cross-examining at sentencing the female victim to whom he had indecently

exposed himself.Because the request to cross-examine the victim was made for the

first time at sentencing, I was previously unable to memorialize a comprehensive

statement of my reasoning for the record.

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The Confrontation Clause of the Sixth Amendment to the United States

Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses against him." The Confrontation

Clause is inapplicable at the sentencing stage, because "the pwpose of any

sentencing hearing ... is to determine the proper punishment to be imposed on a

criminal wrongdoer, not to determine whether a defendant should be convicted of

the charged crime." United States v. Hammer, 564 F.3d 628, 6 34 (3d Cir. 2009).

As the late Honorable Ruggero J.Aldisert,writing for the United States

Court of Appeals for the Third Circuit in United States v. Robinson, explained:

"The law on this issue is well settled. Both the Supreme Court and our Court of

Appeals have determined that the Confrontation Clause does not apply in the

sentencing context." 482 F.3d 244, 246 (3d Cir. 2007). In fact, the Supreme Court

of the United States has held that "an unswom statement of the details of the

crime" made at sentencing does not "deprive petitioner of fundamental fairness or

of any right of confrontation or cross-examination." Williams v. State of

Oklahoma, 358 U.S. 576,58 3 (1959).Neither is due process violated when a

sentencing court considers "information about the convicted person's past life,

health, habits, conduct, and mental and moral propensities" that is "obtained

outside the courtroom from persons whom a defendant has not been permitted to

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confront or cross-examine." Williams v. People ofState ofNew York, 337 U.S.

241,245 (1949).

In addition,a confrontation violation cannot lie on the facts of this case,as

no relevant portion of the victim's testimony was based upon hearsay. To the

contrary, the victim's testimony was comprised of firsthand statements not offered

for the truth of the matter asserted,admissions by the Defendant, and

characterizations of then-existing mental or emotional states of mind-each of

which is shielded from the bar on hearsay by Federal Rules of Evidence 80l(c),

801(d)(2)(A),and 803(3), respectively.

A review of the rule governing sentencing hearings is instructive. Federal

Rule of Criminal Procedure 32(i)(4)(B) mandates that "[b]efore imposing sentence,

the court must address any victim of the crime who is present at sentencing and

must permit the victim to be reasonably heard." "This sensible process helps the

court gauge the effects of the defendant's crime not only on the victim but on

relevant communities. It also may act as a catharsis,facilitating quicker dissipation

of bitterness over the assault on the victim's dignity." United States v. Smith, 893

F. Supp. 187, 188 (E.D.N.Y. 1995).

Speaking to Rule 32's justifications, the Supreme Court has likewise

observed that "consideration of the harm caused by the crime . . .is [ ] a measure of

the seriousness of the offense." Payne v. Tennessee, 501 U.S. 808,820 (1991),and

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in 2016, the Third Circuit interpreted a parallel provision of Rule 32 to forbid

cross-examination of a defendant during his allocution, as such questioning would

"subvert the policy goals of Rule 32.'' United States v. Moreno, 809 F.3d 766, 778

(3d Cir. 2016) (Fisher, J.).

Practically speaking, I also believe that defense counsel's request marks the

first step down a troubling path. If defendants who have pled guilty to indecent

exposure are permitted to question their victims at sentencing, what distinction

might be drawn in future cases involving, for instance, rape or child predation? Cf

FED. Rs. Evm. 412-13; Gov't of Virgin Islands v. Scuito, 623 F.2d 869, 875-76

(3d Cir. 1980) ("The principal purpose of [Rule 412] is, as its legislative history

demonstrates, ... is to prevent the victim, rather than the defendant, from being put

on trial."). A rule that strictly cabins adversarial examination during victim impact

testimony thus prioritizes truth and courage over intimidation.

Importantly, defense counsel also made a corresponding offer of proof on

the record when her examination was challenged by counsel for the United States.

I reiterate what I stated in open court: the scope of Defendant's desired

examination was confmed to prior knowledge and remedial measures on the part of

the Bureau of Prisons-matters, which although questionable here, fall well

beyond our task at sentencing. Because those lines of inquiry speak to criminal

liability in the first instance, I excluded them. Even then, however, whether the

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Defendant exposed himself in the most secure facility or the least fortified is in my

view minimally probative of guilt or innocence.

Finally, any deprivation suffered by the Defendant was hannless. As the

transcript of the proceeding reveals, the heinous nature of the offense conduct was

readily apparent from the facts to which Mr. Green admitted at his change of plea

hearing. The Third Circuit explained in Moreno that "erroneous admission of

testimonial hearsay in violation of the Confrontation Clause is simply an error in

the trial process itself that we may affirm if the error was harmless.'' 809 F.3d at

774. This is particularly true if"the statements were of limited importance to the

government's case,'' and the case ''was, as a whole, very strong." Id.

Although I appreciated the victim's willingness to speak to me, the twenty­

one month sentence imposed was reached independent of her personal

observations or their evidentiary propriety. See United States v. Calabretta, 831

F.3d 128, 148 (3d Cir. 2016) (Fisher, J., dissenting) ("A district court will now be

required to specifically say, no matter what happens in the future, the sentence

imposed is the only sentence it would give within its discretion.").

*

*

*

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I recognize that a district court in this Circuit has the responsibility to

prevent "inadmissible evidence and highly inflammatory statements" from ''rolling

in unimpeded" in open court. United States v. Moore, 315 F.3d 259 (2004) (Barry,

J.), and I believe that my ruling on this issue was calculated to avoid such error.

Pursuant to Federal Rule of Appellate Procedure 10(e)(2)(B), I hereby

certify that the preceding information is material to either party and should be read

to supplement the record at sentencing.

United States District Judge

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