An attorney for imprisoned wildlife showman and onetime big cat trader Joseph Maldonado-Passage, better known as Joe Exotic, got into a bit of a procedural jam with multiple appellate court judges during oral argument in Denver, Colorado on Thursday.
Atlanta, Georgia-based criminal defense attorney Molly Parmer began Exotic’s case-in-chief before the U.S. Court of Appeals for the 10th Circuit.
“The district court imposed both an unconstitutional and an unreasonable sentence,” Parmer argued. “And, despite the government’s contentions to the contrary, it is solely Mr. Maldonado’s sentence that forms the basis of this appeal.”
“It is his sentence that is multiplicitous, thereby violating the Double Jeopardy Clause of the U.S. Constitution,” the defense attorney continued. “And it is his sentence that is both procedurally and substantively unreasonable.”
U.S. Circuit Judge Carolyn B. McHugh took issue with how Parmer had briefed the case – contrasting a filed motion with the day’s argument.
“The district court ruled on two grounds and you only addressed one of them…don’t you lose?” the judge flatly asked.
“It is at his sentencing hearing where I objected to the counts running consecutively where we have the due process issue,” Exotic’s attorney responded. “Because the Due Process Clause provides you cannot be punished twice for the same offense.”
Parmer and McHugh went back and forth like this for several minutes before a similar scene unfolded with another judge.
A bit of backstory is necessary to understand the source of the confusion during oral argument.
In 2019, Exotic was convicted of multiple federal crimes including nine counts of violating the Endangered Species Act, eight counts of falsifying wildlife records, and two counts for attempting to hire a hitman to murder his arch-rival, Carole Baskin.
He was initially sentenced to 22 years in federal prison.
In July 2021, the 10th Circuit determined the trial judge incorrectly calculated the defendant’s sentence. Earlier this year, the trial judge recalculated and reduced Exotic’s sentence by exactly one year.
Exotic’s attorneys, who have changed over time, are now arguing on multiple fronts. On Thursday, Exotic’s team sought to dispute the way the trial judge re-sentenced their client. The court, however, was largely concerned with issues which Exotic’s current team says were not sufficiently raised and preserved by prior counsel.
When her motion was filed, Parmer clarified, she “technically asked for merger” and not a dismissal – which the trial court declined.
The attorney went on to stress that what is really at stake is the trial court’s final order running two of Exotic’s convictions consecutively. The defense attorney added that the district court judge, before re-sentencing, directly solicited argument from her on that specific issue.
That explanation didn’t quite help.
“I think you misunderstand my question,” McHugh interjected. “My question is about what you argued to us, not what you argued to the district court. As I understand the district court’s ruling, there were two grounds, and the way it was briefed to us, there was only argument on one of those grounds.”
Parmer tried to state her client’s case again.
“We have briefed, your honor, the multiplicitous nature of counts one and two,” she explained. “We are arguing that the district court’s re-sentencing hearing – the order that the district court fashioned on January 28th of 2022 – imposed an unconstitutional sentence.”
“It was the court’s imposition of consecutive sentences on counts one and counts two that has resulted in a sentence that violates the U.S. Constitution and the Double Jeopardy Clause of the 5th Amendment,” Parmer added later on.
But McHugh was not moved and the judge further clarified her own position on the procedural posture of the case by saying the trial court also ruled separately that Exotic’s team made an argument beyond the bounds of the mandate issued by the 10th Ciircuit in July 2021.
“It’s only before the court if you argued it to this court,” she said. “So, what you argued to the district court isn’t answering my question about whether, in your opening brief, you challenged both grounds of the district court’s decision.”
To which Parmer replied: “What I challenged in my opening brief is the sentence. It is the order that was entered on January 28th, 2022. That is what I have been challenging throughout all of our appellate litigation.”
U.S. Circuit Judge Bobby R. Baldock eventually spoke up to try and approach the court’s concerns from a different angle.
“This court sent it back for grouping – that’s the issue that we had in that case – it comes back for the district court to group,” the judge said. “Did the district court group it? Group the sentencing?”
“Yes,” Parmer conceded. “The district court grouped counts one and counts two.”
To which the judge replied: “So, what’s left? She keeps asking you on the mandate; the district court did what we said to do. Anything beyond that is what? A violation of the mandate of the court.”
That approach got to the heart of the matter – or at least led to the court and the defense discussing the merits of the case.
Parmer said the federal statute under which Exotic was sentenced “criminalizes a course of conduct” and went on to argue that the “unit of prosecution” was “a single plot to kill a single person.”
Judge McHugh took issue with that approach, saying the prior decision was focused on federal sentencing guidelines and their measure of harm, arguing that the unit of prosecution analysis was “a different test” and “not the same.”
“The prior decision did not rule on this issue,” McHugh added.
Parmer was undeterred. She argued that there was a way to “analogize the reasoning” involved in both tests.
“The grouping counts under the guidelines involves a similar analysis as does determining the unit of prosecution,” Parmer said, citing a different appellate court’s precedent on point. “They said: ‘We said, under U.S. v Wilson, that separate phone calls, which are violations of [the relevant statute] must be grouped together under the guidelines if they are connected with the murder of one individual, so, too, separate phone calls, which relate to one plan to murder one individual, constitute only one violation.'”
McHugh was still not convinced. She replied: “But that was [in the prior case] one hitman with multiple phone calls to that person to kill one person. Here, what was prosecuted, and what the jury found, were two separate plots. One with one hitman and one with another hitman that did not overlap in time.”
While Parmer reiterated that Congress intended to criminalize a course of conduct, Baldock suggested that maybe the 10th Circuit would create a circuit split by disagreeing with the Sixth Circuit.
An attorney for the U.S. Department of Justice defended the sentence imposed on Exotic and said the trial court got it right.
“The scope of the mandate, which was limited to re-sentencing, did not allow for Mr. Maldonado-Passage to challenge the multiplicity of the counts,” Steven Creager argued, saying the briefs filed in the case only attacked the “multiplicity of the counts.”
The “only remedy for a multiplicity violation,” Creager argued, was vacating the conviction, because the multiplicity of counts issue speaks to the conviction and not to sentencing after losing at trial.
Parmer took issue with that understanding of the law during her brief, 33-second-long rebuttal.
“That’s not true,” she said. “A closer reading of [the U.S. Suupreme Court precedent on point] shows that those cases where the court says you must vacate a conviction are two separate statutory codes, or two separate subsections of a code. Here, we have just one [relevant statute], and so the court can merge.”
“Vacating a conviction is only necessary if you’re dealing with multiplicitous counts that have two different statutes – implicating two separate statutes,” Parmer added before finally requesting a remand, if all else fails, based on the rule of lenity.
Exotic’s legal team took stock of the tough crowd and the twists and turns oral argument took.
“Justice is a marathon,” attorney John M. Phillips said in a statement provided to Law&Crime. “Sometimes it’s a relay race, too, where the runners before you just walked.”
Exotic’s team, he said, planned to file defenses based on ineffective assistance of counsel “soon.”
“Today was an attempt to explain to the appellate court that the ‘murder for hire’ was over sentenced,” Phillips continued. “Today was not the day to challenge the trial or merits.”
The statement goes on to castigate other of Exotic’s former attorneys and alleges that “so many nasty humans” have been in Exotic’s “orbit [to] take advantage,” but says his team is “working hard” to see the cancer-stricken Netflix star freed and soon.
“I believe in Joe,” the defense attorney went on. “If you read the Motion for New Trial, you will see why. That said, it was awesome to sit beside and watch Parmer Law battle today in Denver.”
After oral argument, Parmer posted a photo on Instagram alongside Phillips. Here’s what she wrote:
We aggressively, emphatically fought for @joe_exotic in oral argument before the 10th Circuit Court of Appeals today.
Post-conviction work is always complicated by the efforts of prior counsel and previous decisions in the case. Courts are happy to deny relief and not reach the merits of an argument if they can find a procedural reason to do so. This is why this work is so difficult and time-intensive. This is why the average exoneree spends over 14 years in prison before being released according to Innocence Project statistics.
Joe’s current legal team first appeared in court on his behalf this January. Since then we’ve handled a re-sentencing hearing, filed a direct appeal of his sentence, filed a motion for new trial, and today, handled oral argument on the sentencing appeal.
And we’ve only just begun.
Joe is wrongfully convicted and his sentence is unconstitutional.
If it happened to him, it could happen to anyone.
#freejoeexotic
[image via screengrab/Netflix]
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