On Appeal from the United States District Court for the District of New Jersey; D.C. Cr. No. 88-00166.
Robert E. Cowen and Nygaard, Circuit Judges and Pollak, District Judge.*fn* Pollak, District Judge, dissenting.
The principal question presented by this appeal is whether the failure of the district court to grant defendant Yu Kikumura a continuance until the attorney of his choice could be present at his resentencing proceeding constituted a denial of his right to counsel in violation of the Sixth Amendment of the U.S. Constitution. In addition, Kikumura argues that the district court violated his due process rights by taking into consideration his intent to kill in the absence of a conviction for attempted murder when it resentenced him for his conviction under 18 U.S.C. § 844(d) (1988). He also argues that the district court should have required proof beyond a reasonable doubt of all material facts at the original sentencing and erred in failing to apply the Confrontation Clause standard of admissibility to an affidavit containing hearsay which was introduced at the sentencing proceeding. We find all of the defendant's claims to be without merit and we will affirm.
I. A. The Original District Court Proceedings
On November 28, 1988, after a bench trial on stipulated facts, Kikumura was convicted of numerous counts of interstate transportation of explosive devices and passport offenses, including a charge that he violated 18 U.S.C. § 844(d) which prohibits the transportation of any explosive in interstate commerce "with the knowledge or intent that it will be used to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or real or personal property." At the bench trial, Kikumura stipulated that he transported the explosives with the knowledge and intent that they be used to damage or destroy property. However, he refused to stipulate to that part of the statutory language providing that he transported explosives with the knowledge and intent that they be used to "kill, injure, and intimidate one or more individuals."
At the time of the stipulation, the prosecution made it clear that the stipulation's purpose was limited to the trial and would not prevent the government from seeking to prove intent to cause death, injury or intimidation at sentencing. When the court asked Kikumura directly if he understood that the stipulation limitation would not apply at sentencing, he stated that that was his understanding.
When Kikumura appeared before the district court for sentencing on February 7, 1989, the government offered expert testimony as to the nature of the bombs found in Kikumura's automobile at the time of his arrest. The expert opined that, if detonated, the devices found would have injured or killed people and could, in fact, have caused mass casualties. Kikumura did not object to the introduction of this testimony.
He did, however, argue that the government should be required to prove the relevant facts at sentencing by clear and convincing evidence rather than by the mere preponderance standard which is usually required at a criminal sentencing. He also argued that a confidential informant's affidavit, submitted by the government, should not be admitted because it contained hearsay. The trial court rejected both of these arguments but found that the government's proof did, in fact, satisfy the clear and convincing evidence standard and that the hearsay statements in the affidavit were sufficiently reliable to merit admission.
At sentencing the district court found that Kikumura intended to cause multiple deaths and injuries and imposed an unstructured upward departure from the applicable sentencing guideline range of between twenty-seven and thirty-three months to an aggregate sentence of thirty years imprisonment.
B. Kikumura's First Appeal
In his first appeal to this court, Kikumura raised three separate arguments. First, he challenged the district court's finding that his bombs were intended to kill people as being clearly erroneous. Second, he argued that the district court was barred by the sentencing guidelines from an upward departure in his case because the guidelines already took into consideration all aspects of his criminal activity. Third, he argued that even if departure was permissible under the guidelines, the extent of the departure taken was unreasonable.
We rejected Kikumura's first two arguments in United States v. Kikumura, 918 F.2d 1084 (3d Cir. 1990) (" Kikumura I "). However, while we upheld the trial court's finding that Kikumura intended to kill people, we found that Kikumura was entitled to greater protection than that afforded by the preponderance of the evidence standard usually applied at sentencing proceedings. We held that a district court contemplating a substantial upward departure must require proof of the facts by clear and convincing evidence, noting that Kikumura had requested no higher standard of proof than clear and convincing evidence. Id. at 1101. We also found that when a district court makes a substantial upward departure from the applicable guideline range, hearsay statements cannot be admitted at sentencing unless the other evidence adduced indicates that the hearsay statements are "reasonably trustworthy." Id. at 1103. We rejected Kikumura's argument that the district court must engage in full-blown Confrontation Clause*fn1 analysis when presented with hearsay at sentencing. Id. at 1102. We did, however, accept Kikumura's third argument that the extent of the district court's departure was unreasonable. We determined that the unstructured upward departure was contrary to the spirit of the Sentencing Reform Act, Id. at 1110-11, and concluded that the applicable guideline range in Kikumura's case was 210 to 262 months. Id. at 1119. As a result, we vacated the sentence of the district court and remanded the case with instructions that the district court resentence Kikumura consistent with our opinion. Id.
C. Resentencing Proceeding After Remand
On March 1, 1991, Kikumura appeared before the district court for resentencing. His court-appointed counsel requested an adjournment, stating that Kikumura had been in contact with a private attorney and wanted that attorney to appear on his behalf at the resentencing proceeding.*fn2 The district court denied the motion for a continuance, noting that Kikumura had known for four months that he was to be resentenced and would need an attorney, and pointing out that he had already been granted two continuances for the resentencing. The court rejected Kikumura's argument that his failure to appear with his new attorney was the result of being held in a maximum security prison, opining that Kikumura had "more than ample time to obtain counsel."*fn3 App. at 6.
When the district court asked the parties if there were any issues that needed to be resolved prior to imposing a new sentence consistent with our opinion in Kikumura I, Kikumura's counsel raised the argument that a conviction under 18 U.S.C. § 844(d) "was too slender a reed on which to support consideration at sentencing of the specific intent to commit murder."*fn4 App. at 9 (quoting Kikumura I, 918 F.2d at 1101). The district court found that Kikumura had waived this claim by agreeing to submit to a trial on stipulated facts with the knowledge that the government would be free to prove additional facts as to specific intent to murder at sentencing. The court also rejected a request by the government that it consider grounds for an upward departure other than those set forth in Kikumura I.
Finding that no new issues were before it requiring further consideration, the district court imposed a sentence of 262 months, a three-year term of supervised release, and a special assessment of $600. The court noted that the new sentence was based on the factual and legal reasons set forth in our opinion in Kikumura I, as well as on its own factual findings. Kikumura thereafter filed this appeal. Subject matter jurisdiction over this matter was properly invoked by the district court pursuant to 18 U.S.C. § 3231 (1988). Our jurisdiction is predicated on 18 U.S.C. § 3742 (1988) and 28 U.S.C. § 1291 (1988).
Kikumura raises a number of arguments in this second appeal. First, he argues that his conviction under 18 U.S.C. § 844(d) was "too slender a reed" to support consideration at the sentencing of his specific intent to commit multiple murder when he had not been convicted of that crime. He contends that the court could not permissibly consider his intent to kill at sentencing without affording him the "entire panoply of rights" that apply at trial. Appellant's Brief at 13.
This claim is not properly before us for two reasons. First, Kikumura explicitly waived any objection to the government's introduction of evidence of his intent to kill at sentencing. Prior to the bench trial, Kikumura agreed that the government would be free to introduce whatever evidence it deemed appropriate at the sentencing proceeding. Furthermore, when the government did introduce evidence of his intent to kill at the sentencing proceeding, Kikumura did not object and thus failed to preserve the issue for appeal.*fn5 As held in Kikumura I, generally we will not consider an issue on appeal that the parties failed to present in the court below. Kikumura I, 918 F.2d at 1101; Flick v. Borg-Warner Corp., 892 F.2d 285, 287 (3d Cir. 1989); Painters of Philadelphia Dist. Council No. 21 Welfare Fund v. Price Waterhouse, 879 F.2d 1146, 1153 (3d Cir. 1989); Newark Morning Ledger Co. v. United States, 539 F.2d 929, 932 (3d Cir. 1976).
The upward departure in sentencing based on Kikumura's intent to kill also is not properly before the court because upon remand of a case for further proceedings after a decision by the appellate court, the trial court must "proceed in accordance with the mandate and the law of the case as established on appeal." Bankers Trust Co. v. Bethlehem Steel Corp., 761 F.2d 943, 949 (3d Cir. 1985). The trial court must "implement both the letter and the spirit of the mandate, taking into account the appellate court's opinion and the circumstances it embraces." Id.
In Kikumura I, we explicitly authorized the district court to impose an upward departure for Kikumura's intent to kill. Kikumura I, 918 F.2d at 1109 ("We hold that none of the offense guidelines under which Kikumura was sentenced adequately takes into consideration Kikumura's intent to commit murder. Thus, we conclude that an upward departure was legally permissible . . . . "). We remanded the case with the mandate that the district court "resentence Kikumura consistent with this opinion." 918 F.2d at 1119. The district court, on remand, was bound to follow that mandate; it had no authority to reconsider the issue. A.S. Kreider Co. v. United States, 117 F.2d 133, 135 (3d Cir. 1940) (district court precluded from reconsidering on remand matters decided by court of appeals), rev'd on other grounds, 313 U.S. 443, 61 S. Ct. 1007, 85 L. Ed. 1447 (1941). Therefore, law of the case governs this issue and it is not properly before us.
Next, Kikumura contends that factual findings at a sentencing proceeding must be supported by proof beyond a reasonable doubt and that hearsay may only be admitted at sentencing if it satisfies the Confrontation Clause.*fn6 He asserts that we did not specifically consider the appropriateness of the reasonable doubt standard at sentencing in Kikumura I and therefore may now pass on this "fundamental claim." Kikumura acknowledges that we reached a decision with respect to the standard of admissibility of hearsay in Kikumura I,*fn7 but urges us to reconsider that holding in his present appeal.
Although neither party raised the issue of the appropriate standard of proof at sentencing in Kikumura I, we reached that issue because Kikumura had asked us to review findings of fact, an exercise that required us to determine what standard of proof the factfinder should have applied. 918 F.2d at 1101. As we noted in Kikumura I, it was Kikumura himself who urged that the district court adopt the clear and convincing evidence standard rather than the preponderance of the evidence standard at the first sentencing proceeding. Since he did not argue that the reasonable doubt standard was ...