Sentencing and the Fifth Amendment

Article excerpt

United States v. Mitchell, 122 F.3d 185 (3d Cir. 1997), petition for cert. filed, No. 97-7541 (U.S. Jan. 13, 1998).

In United States v. Mitchell,(1) the Third Circuit asked whether the Fifth Amendment privilege against compelled self-incrimination applies at sentencing in noncapital cases. Earlier understandings of the privilege held that upon conviction "criminality ceases; and with the criminality the privilege."(2) But in Estelle v. Smith,(3) the Supreme Court apparently rejected this established principle, at least in the context of capital cases, by holding the privilege applicable to the penalty phase of a capital murder trial.

The Smith Court, however, did not decide the applicability of the Fifth Amendment at sentencing for noncapital crimes. In Mitchell, the Third Circuit articulated a theory of the Fifth Amendment that would limit application of the privilege at sentencing. This Case Note argues that the Mitchell court's interpretation of the Fifth Amendment provides a significantly improved test for applying the privilege against self-incrimination in the sentencing context.

I

Amanda Mitchell pied guilty to engaging in a conspiracy to distribute cocaine, but reserved the right to contest the amount of cocaine she distributed.(4) At her sentencing, she provided no evidence and did not testify to rebut proof that she sold more than five kilograms of cocaine.(5) She was sentenced based on a determination that she distributed almost thirteen kilograms.(6) The district court took Mitchell's silence at sentencing into account in making its findings.(7)

The Third Circuit affirmed, holding Mitchell unprotected by the privilege against compelled self-incrimination at sentencing.(8) The Mitchell court found Third Circuit precedent to stand for the proposition that a defendant retains a Fifth Amendment right with respect to conduct for which she has not yet been convicted.(9) The court distinguished cases from other circuits that appeared to contradict Mitchell's holding, finding that in most of those cases, "the [already convicted] witness could have been subject to prosecution for other crimes as a result of the compelled testimony."(10) Reasoning that a defendant cannot invoke the privilege against self-incrimination with respect to crimes for which she has already been incriminated,(11) the court argued that a convicted defendant no longer enjoys Fifth Amendment protection with respect to the crime of conviction, although she would still be protected against being forced to testify about acts of "independent criminality" for which she might be prosecuted in the future.(12) In other words, the Third Circuit held, the privilege "is not implicated by testimony affecting the level of sentence."(13)

II

The Third Circuit's "independent criminality" test is in tension with, but does not run afoul of, the Supreme Court's opinion in Estelle v. Smith.(14) In holding the privilege against self-incrimination applicable to the penalty phase of Smith's capital murder trial, the Supreme Court found "no basis to distinguish between the guilt and penalty phases of respondent's capital murder trial so far as the protection of the Fifth Amendment privilege is concerned"(15) Although in tension with this holding,(16) Mitchell does not violate any rule laid down by the Supreme Court. The Smith Court rejected the prosecution's argument that the Fifth Amendment can never apply at sentencing. But it did not hold that the privilege always applies at sentencing. The Court instead adopted an exposure-based standard for applying the privilege: "`[T]he availability of the [Fifth Amendment] privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites.'"(17) Under this standard, the privilege should apply at trial and at capital sentencing--when a defendant's "exposure" is at its highest--but not necessarily at noncapital sentencing. …