Rule 32 Challenge Must Yield Different Outcome

Before you spend time and money trying to suppress evidence used in sentencing, you should probably make sure that suppressing that evidence would result in a different sentence for your client.

Gregory Prude's lawyer failed to demonstrate such foresight, and cost Prude his challenge under Rule 32 of the Federal Rules of Criminal Procedure.

Prude pleaded guilty to conspiracy to distribute and possess with intent to distribute marijuana and conspiracy to commit money laundering. At his plea hearing, Prude admitted that, from late 2006 through 2007, he supplied co-conspirator Donald Dailey and others with marijuana.

At sentencing, the district conducted an evidentiary hearing to determine the amount of marijuana that should be attributed to Prude for sentencing purposes. The district court considered following testimony:

• Artis Everman implicated Prude in at least 1,104 pounds of marijuana.
• Dailey implicated Prude in over 8,600 pounds of marijuana.
• Agent Stephen Blunk testified that a search of a van leaving the warehouse Prude used revealed approximately 1,200 pounds of marijuana. Blunk also relayed the truck drivers’ testimony from the trial of a van occupant, stating that “[t]he truck drivers indicated during their testimony that they had delivered at least four times to that warehouse” and one of the truck drivers identified Prude as being present during a prior delivery.

Relying in part on the truck drivers’ testimony from a separate hearing, the district court sentenced Prude to 100 months’ prison.

Prude challenged the inclusion of the truck drivers’ testimony via Agent Blunk on appeal to the Sixth Circuit Court of Appeals under Rule 32 of the Federal Rules of Criminal Procedure.

Under Rule 32 of the Federal Rule of Criminal Procedure, the sentencing court must disclose the information upon which it relies. Rule 32 gives the defendant “the right to review other information relied on by a court at sentencing,” and requires that the defendant have an opportunity “to comment on the probation officer’s determinations and other matters relating to an appropriate sentence.

Here, the Sixth Circuit Court of Appeals said that it was unnecessary to evaluate whether the drivers’ testimony violated Rule 32 because “the other evidence already before the sentencing judge and a part of the presentence record fully supported the judge’s ultimate finding.”

The Sixth Circuit ultimately decided that, even if there was a violation of the Federal Rules of Criminal Procedure, it did not affect Prude’s substantial rights because Prude would have received the same sentence even if the district court had only heard Dailey’s testimony.

Related Resources:

• Federal Rules of Criminal Procedure (US Courts)
• Sixth Circuit Court of Appeals Case Summaries (FindLaw)
• FindLaw’s Sixth Circuit blog (FindLaw)