FindLaw > Criminal Law Summaries > 1998 Index > Mitchell v. United States

Case: Mitchell v. United States

Issues: 1) Whether, in the federal criminal system, a defendant waives his Fifth Amendment privilege against self-incrimination in the sentencing phase of a case when he enters a guilty plea.

2) Whether a trial court may draw an adverse inference from a defendant's silence when determining facts about the crime which bear on the severity of the sentence.

Facts: Petitioner Amanda Mitchell was charged with one count of conspiring to distribute cocaine and three counts of distributing cocaine within 1,000 feet of a school or playground. She pleaded guilty to all four counts without entering into a plea agreement with the prosecutor, and she reserved the right to contest the drug quantity attributable to her under the conspiracy count at the sentencing hearing. In accepting her guilty plea, the District Judge explained the possible sentencing ranges to Mitchell and stressed that the range of punishment was complex and would be affected by the quantity of drugs involved and gave the standard Fed. R. Crim. Proc. 11 warnings to the effect that by pleading guilty she would waive various rights including her Fifth Amendment right to remain silent. At her sentencing hearing, three of Mitchell's co-defendants testified as to the frequency and amount of cocaine that she sold. Mitchell did not testify or put on evidence to rebut the government's evidence about the amount of cocaine attributable to her, but instead argued that the court should only rely on her three previously documented drug sales in determining her sentence.

The District Judge was persuaded by her co-defendant's testimony, and stated that he relied upon it in part because Mitchell did not testify to the contrary. Because she pleaded guilty, she waived her right to remain silent about the crimes, and the judge explicitly held her silence against her in determining the facts relevant for her sentencing. The Third Circuit affirmed her sentence and the Supreme Court granted certiorari to resolve a conflict in the Circuits.

Holding: A person's guilty plea does not constitute a waiver of the privilege against compelled self-incrimination during the sentencing proceedings. Further, "[t]he government bears the burden of proving facts relevant to the crime at the sentencing phase and cannot enlist the defendant in this process at the expense of the self-incrimination privilege."

Reasoning Justice Kennedy, joined by Justices Stevens, Souter, Ginsburg and Breyer delivered the opinion of the Court.

First, the Court first recognized the well-established rule that witnesses may not voluntarily testify and then later invoke their privilege against self-incrimination. "The concerns which justify the cross-examination when the defendant testifies are absent at a plea colloquy, however." A defendant who pleads guilty does not introduce issues and questions about the offense, but rather removes certain matters from dispute, and thus is unlikely to mislead the court through selective disclosure.

Second, the Court addressed Federal Rule of Criminal Procedure 11(c)(3), which requires the District Court to ensure the defendant understands that she is waiving the right to a jury and the right to remain silent before the court will accept her guilty plea. The Court held that "[t]he purpose of Rule 11 is to inform the defendant of what she loses by forgoing the trial, not to elicit a waiver of the privilege for proceedings still to follow. A waiver of a right to trial with its attendant privileges is not a waiver of the privileges which exist beyond the confines of the trial." While a defendant who chooses to remain silent at a plea colloquy may not be able to provide the District Judge with the factual basis necessary to accept her plea, "Rule 11 does not prevent the defendant from relying upon the privilege at sentencing."

The Court accepted the proposition that there is no basis for asserting the privilege against self-incrimination where no further incrimination is possible. The privilege is not extinguished upon entry of a guilty plea, however, because until her sentence is imposed, the defendant's opportunity for incrimination remains intact and she may have a legitimate fear of adverse consequences from her testimony.

Further, a sentencing proceeding is part of the "any criminal case" contemplated in the Fifth Amendment, thus the protections afforded by the Amendment apply equally to sentencing.

The Court refused to fashion a sentencing phase exception to "[t]he normal rule in a criminal case," enunciated in Griffin v. California, 380 U.S. 609 (1965), forbidding any negative inference from a defendant's failure to testify.

Other Opinions: Justice Scalia, joined by Chief Justice Rehnquist and Justices O'Connor, and Thomas, filed a dissenting opinion, and Justice Thomas also filed a separate dissenting opinion. Justice Scalia agreed with the majority that Mitchell retained her Fifth Amendment privilege against self-incrimination at her sentencing proceedings. He rejected, however, the holding that no adverse inferences could be drawn from Mitchell's failure to testify at sentencing. Finding Griffin v. California textually and historically unsound, Scalia would not extend the Griffin line any further. Justice Thomas, agreeing with Justice Scalia's textual and historical analysis, "would be willing to reconsider" Griffin and its progeny in an appropriate use. "[S]tare decisis is 'at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions.'"

Comment: The majority expressed no view on the question of "[w]hether silence bears upon the determination of a lack of remorse, or upon acceptance of responsibility for purposes of the downward adjustment provided in § 3E1.1 of the United States Sentencing Guidelines."