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bulletThe Federal Public Defender's Office for the Central District of Illinois provides its own Listserv email service. By subscribing to this free service, you will receive email notification of recent decisions of the Seventh Circuit and United States Supreme Court, important legislative changes, Administrative Office of the United States Courts announcements, and other issues of interest to CJA Panel Attorneys and federal criminal defense practitioners. You may also post messages or questions to other members of the group, subject to review by the Listserv Administrator, as well as reply to the posts and questions of other group members.

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bulletUpdated 4/25/14 7th Cir. Criminal Case Summaries by Topic:  August 2013 through Present
bulletUpdated 4/25/14 Issues Currently Pending In Criminal Cases in the Seventh Circuit
bulletUpdated 4/25/14: List of Criminal Issues Currently Pending in the U.S. Supreme Court
bulletUpdated 4/25/14:List of Seventh Circuit "Crime of Violence" and "Violent Felony" Cases
bullet 7th Circuit Criminal Case Summaries Organized by Topic:  August 2012 through July 2013
bullet Handbook for Criminal Appeals in the Seventh Circuit, Second Edition:  This updated handbook authored by our office is a guide for any lawyer litigating a criminal appeal in the Seventh Circuit.  It contains a step-by-step guide to the appellate process, from the filing of the notice of appeal to seeking certiorari in the United States Supreme Court and CJA voucher submission.  In addition to the ten chapters on all aspects of criminal appellate practice in the Seventh Circuit, there are also 40 sample motions and 15 sample letters frequently used by lawyers on appeal. 

 

Latest Seventh Circuit and Supreme Court Criminal Case Summaries

 

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Cases from 4/12/14 through 4/25/14

The district court correctly denied a challenge to a protective sweep after a hostage situation with an armed defendant.  United States v. Henderson, No. 13-2843. Mr. Henderson was charged with being a drug user in possession of firearms after law enforcement received information that he was holding a woman against her will in his home.  After getting the woman out of the home and arresting Mr. Henderson, officers conducted a protective sweep of the home and saw the remnants of a marijuana grow operation and firearms in plain view.  Mr. Henderson challenged the protective sweep of his home.  He claimed the protective sweep was unreasonable because there were no articulable facts that his house harbored an individual who posed a threat to those on the scene after he exited.  The Court of Appeals held the district correctly found there were specific and articulable facts to conclude the officers faced a dangerous situation without a protective sweep - there was a report of a hostage situation, an individual being held by a person with a gun, the officers demanded Mr. Henderson come out of the house for an hour before he did, all of the doors on the house were locked, and the house was two stories which was large enough for others to hide.  The Court also found the duration and the scope of the sweep were reasonable because the officers entered soon after detaining Mr. Henderson and the sweep lasted no more than five minutes.

The Court of Appeals joined its sister circuits in hold that the jury need not be unanimous on each specific fraudulent act in a wire or mail fraud charge, unanimity is only required on the elements of the offense.  United States v. Daniel, No. 13-2399. Daniel was charged with wire fraud and mail fraud after participating in a mortgage fraud scheme.  He argued on appeal that the district court erred by failing to instruct the jury that they were required to reach an unanimous verdict as to a specific fraudulent act or representation pursuant to Pattern Criminal Jury Instruction 4.04.  The Court of Appeals disagreed and held that while a jury’s unanimity is required in regard to each principal element of a criminal offense, a federal jury need not always decide unanimously which of several possible sets of acts make up a particular element of the offense.  The Court agreed with three of its sister circuits who have held that a single false representation or omission used to execute a fraudulent scheme is properly characterized as a means to executing the scheme, not one of the elements of the mail or wire fraud offense.

The Court of Appeals affirmed the defendant’s collateral challenge to his prior removal order because he had not met any of the elements required to attack the removal.  United States v. Alegria-Saldana, No. 13-1607.  Mr. Alegria-Saldana entered a conditional guilty plea to a charge he illegally reentered the United States after a previous removal and maintained the charges should be dismissed based on due process violations in the underlying removal order.  A defendant may collaterally attach the removal order in a criminal proceeding by showing (1) exhaustion of administrative remedies; (2) unavailability of judicial review during the removal process; and (3) fundamental unfairness of the removal order.  Mr. Alegria-Saldana failed to meet the elements.  First, he failed to exhaust his administrative remedies by failing to appeal from the order of removal after being told of his right to appeal.  In addition, he had not met the other two elements.

This case is a good discussion of immunity and proffer agreements and the interplay between such agreements with the state authorities and with the federal authorities.  United States v. Bryant, No. 13-1578. Bryant was a gang leader who decided to become an informant for the government to avoid a mandatory life sentence.  He obtained immunity from the direct use of statements given to the federal government under their agreement, though not from federal use of any admissions he made in assisting state law enforcement.  The agreement he had with the state authorities provided that his statements would not be used against him in “any criminal prosecution.”  Bryant provided information to state authorities that he played a central role in a triple murder.  The state shared these statements with federal prosecutors who used the statements to convict him of three counts of murder.  Bryant claimed the use of his statements to state authorities violated his contractual and constitutional rights.  The Court of Appeals disagreed.  The Court rejected his theory that his federal immunity agreement included the right not to be prosecuted by the United States with the statements he gave the state authorities.  The Court also rejected the notion that the promise in the state agreement that his statements would not be used against him in any criminal prosecution bound the federal authorities as well.

The Court affirmed the convictions and sentences of several defendants and found the district court did not err in denying their severance motions.  United States v. Farano, et al., Nos 12-3007, 12-3178, 12-3180, and 12-3276.  The defendants were charged with mail and wire fraud, money laundering, and theft of government funds.  The charges stemmed from an elaborate real estate financing fraud scheme in Chicago during the housing bubble of the early 2000s.  The defendants argued their cases should have been severed from each other but the Court said the situation was merely one of “mutual antagonism, finger-pointing, and other manifestations or characterizations of the effort of one defendant to shift the blame from himself to a codefendant” under Zafiro case.  Those things “neither control nor illuminate the question of severange.”  The Court also discussed at length the application of the role enhancement guidelines (§ 3B1.1) and the Application Note 4 to the guideline.  The Court questioned the efficacy of using the Note 4 factors to make the determination as to whether a defendant played a leadership role in the offense where many of the factors are vague, repetitive, and not weighted.  The Court also affirmed the amount of loss calculation and the restitution imposed.

The Court of Appeals affirmed the district court’s denial of a second reduction under 18 U.S.C. § 3582(c) where the second reduction would bring him below the applicable career offender guidelines.  United States v. Stevenson, No. 12-3108.  Stevenson twice sought a sentence reduction under 18 U.S.C. § 3582(c) because of the retroactive changes to the crack cocaine guidelines.  The district court granted the first motion but denied the second because further reduction would bring his sentence below the guidelines sentence imposed on career offenders like Stevenson. The Court affirmed the district court and noted that this case was one of the unusual cases in which the original offense level for the offense of conviction was higher than the applicable career offender offense level.  While the first reduction did not get him below the career offender level, the second would have.  The Court of Appeals held that a second reduction would not be consistent with the Commissions policy statements.

 

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Cases from 4/5/14 through 4/11/14

Supreme Court Activity

The Supreme Court has not granted certiorari in a criminal case and did not issue an opinion in a criminal case since the last update.  For a complete list of all criminal issues pending before the Supreme Court, click HERE.

Seventh Circuit Activity

The Seventh Circuit issued precedential opinions in several criminal cases since the last update, as summarized below.

The summaries from the last year (August 2012 through July 2013), categorized by topic with a “Table of Contents,” is available HERE.  Any new summaries will go into a new categorized document available HERE. 

The Court of Appeals found that the district court did not violate the Confrontation Clause by admitting recordings of prison telephone calls without the testimony from the technician who prepared the CD of the recordings at trial.  United States v. Vitrano, No. 13-2912. Vitrano appealed his convictions for fraud and perjury stemming from his actions during a federal prosecution for being a felon in possession of a firearm.  He filed a petition under 28 U.S.C. § 2255 claiming his sentence should be reduced because his business partner had found a discharge certificate from a conviction for reckless endangerment.  If the certificate were valid, one of his predicate convictions for Armed Career Criminal Act purposes would be purged and he would not have been an Armed Career Criminal.  However, the certificate was fake and Vitrano was charged with perjury, threatening a witness, and attempting to corruptly influence official proceedings.  He was convicted after a jury trial and claimed on appeal that the district court violated his rights under the Confrontation Clause by admitting his prison phone calls to his partner without calling the technician who pulled the phone calls.  He argued the prison technician who prepared the CDs containing the phone calls should have been called to testify but failed to identify what the technician did or said that was testimonial hearsay.  The Court of Appeals held that preparing an exhibit for trial (the CDs containing the phone call recordings) is not in itself testimonial.  Therefore, there was no Confrontation Clause violation.

The Court of Appeals held Donelli waived her challenge to the procedural reasonableness of her sentence when she failed to object to the district court’s failure to consider her mental illness at sentencing.  United States v. Donelli, No. 13-2548.  Donelli appealed her prison sentence for wire fraud and tax evasion claiming the district court made a procedural error by failing to address her mental illness which Donelli labeled her “principal argument in mitigation” on appeal.  The Court of Appeals rejected her argument finding that a “brief mention” of her mental illness at sentencing was not enough to require a response from the district court.  The Court found that first, she failed to present the fact of her diagnosis as a principal argument in mitigation relevant to her sentence.  The fact of the diagnosis was mentioned at sentencing but there was no conclusion or suggestion that the illness was a contributing factor in Donelli’s crimes.  Second, the Court held that she waived her claim of a Cunningham procedural error by telling the district court at the close of her sentencing hearing that she had no objection to her sentence apart from the fact that the sentence was above the guideline range.  The Court noted that in Garcia-Segura, it encouraged district courts to ask the question asked by the district court at the end of this sentencing hearing - whether the attorneys required any further elaboration of the reasons for the sentence.  Donelli did not object to the district court’s failure to consider her mental health diagnosis and was foreclosed from raising the issue on appeal.  The Court also held that Donelli’s general objection to the above-guidelines nature of the sentence was not enough to preserve the procedural error because that objection went to the substantive reasonableness of the sentence, not the procedural reasonableness.

The Court of Appeals affirmed an enhancement for being a manager or supervisor in a cocaine conspiracy where the defendant supplied drugs, secured a van, and made threats to other co-conspirators.  United States v. Ruelas-Valdovinos, No. 12-2685.  Ruelas-Valdovinos challenged the district court’s assessment of a three level upward adjustment for his role as a supervisor or manager in a cocaine distribution conspiracy.  The Court of Appeals affirmed.  The Court stated that supplying drugs, by itself, does not warrant the upward adjustment under § 3B1.1.  However, the Court found that Ruelas-Valdovinos did more than just supply drugs - he made phones to co-conspirators and made threats against them, supplied a van for transporting cocaine, and showed a co-conspirator the trap compartment in the van for hiding drugs.  He also handled another co-conspirator’s work while he was in Mexico, and recruited a co-conspirator to join him.  The Court held the district court did not err by finding that Ruelas-Valdovinos was a supervisor or manager in the conspiracy.

The Court of Appeals affirmed May’s enhancement for an aggravating role in the offense because he supervised another member of the conspiracy.  United States v. May, No. 13-2799. May appealed his sentence for conspiracy to distribute crack cocaine and challenged the district court’s assessment under § 3B1.1 for his aggravating role in the offense and refusal to award safety valve relief.  The Court of Appeals held that the district court’s decision was well-founded because May supervised another member of the conspiracy, set the price and quantity of drugs, obtained cocaine from his supplier, instructed the other member on delivery and sales, and kept more of the proceeds.  Because he received an aggravating role enhancement, he also did not receive safety valve consideration.  The fact that he only supervised one other person did not allow the safety valve reduction to be applied to him.

The Court of Appeals clarified the standards used in evaluating Anders briefs filed by defense counsel.  United States v. Bey, No. 13-1163.  In a rare published opinion after the filing of an Anders brief, the Court of Appeals further defined two terms or phrases that are commonly used in decisions from Anders briefs.  The first was the meanings of the terms “frivolous” and “nonfrivolous,” which the Court defined as issues “so clearly blocked by statute, regulation, binding, or unquestioned precedent, or some other authoritative source of law that they can be rejected summarily.”  The Court also expanded on the phrase “facially adequate” when used to describe the attorney’s Anders brief.  By “facially adequate,” the Court means “the brief appears to be a competent effort to determine whether the defendant has any grounds for appealing [and] that the issues discussed in the brief are the only serious candidates for appellate review.”  The Court stated the language should be “Counsel has submitted a brief that explains the nature of the case and addresses the issues that a case of this kind might be expected to involve.  Because the analysis in the brief appears to be thorough, we limited our review to the subjects that counsel has discussed, plus any additional issues that the defendant, disagreeing with counsel, believes have merit.”

 

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Cases from 3/29/14 through 4/4/14

Supreme Court Activity

The Supreme Court has not granted certiorari in a criminal case and did not issue an opinion in a criminal case since the last update.  For a complete list of all criminal issues pending before the Supreme Court, click HERE.

 

Seventh Circuit Activity

The Seventh Circuit issued precedential opinions in several criminal cases since the last update, as summarized below.

The summaries from the last year (August 2012 through July 2013), categorized by topic with a “Table of Contents,” is available HERE.  Any new summaries will go into a new categorized document available HERE. 

Sandoval’s sentence was affirmed where he obstructed justice, failed to accept responsibility, and did not qualify for safety valve relief.  United States v. Sandoval, No. 13-3050.  Sandoval pled guilty to attempting to possess 20 kilograms of cocaine.  He appealed the district court’s imposition of the obstruction of justice enhancement, the denial of a reduction for acceptance of responsibility, and the denial of safety-valve relief.  The Court of Appeals affirmed holding that Sandoval obstructed justice by using an alias at his arrest and throughout the proceedings thereby concealing his status as an illegal alien in the United States and potentially concealing his significant criminal history.  Furthermore, this was not an extraordinary case were a defendant who receives obstruction of justice can still receive a reduction for acceptance of responsibility because Sandoval’s factual account of the offense was minimal.  Likewise, during his safety valve interview, Sandoval provided numerous implausible or false assertions.  The district court correctly denied safety valve relief.

The Court of Appeals affirmed Causey’s convictions and sentences for fraud related to real estate scheme.  United States v. Causey, No. 13-1321. Causey was part of a conspiracy to commit fraud involving real estate borrowers, investors, and lenders.  He was convicted after a jury trial and raised multiple issues on appeal.  He first argued the district court improperly admitted photographs taken of the houses around the time of trial rather than at the time of the sale.  The Court of Appeals rejected this argument because the photographs gave the jurors a sense of the size, location, and style of the house, and the jurors were repeatedly reminded when the pictures were taken.  Second, Causey argued the district court erroneously admitted evidence of a fraudulent sale that took place outside of the conspiracy.  The Court held the evidence was properly admitted because it tended to prove Causey’s intent to defraud and knowledge of the scheme.  Third, a defense witness’s testimony was properly excluded because the witness had no personal knowledge of the transactions and was asked about industry norms despite the fact that the witness was not qualified as an expert.  Fourth, the enhancement for being an organizer or leader in the offense was affirmed because Causey was responsible for recruiting the buyers and exercised control over them.

The Court of Appeals affirmed the district court’s restitution order and refusal to apply the complexity exception to the MVRA.  United States v. Malone, No. 13-2432.  Malone is a cattle farmer who got in over his head when the cost of running his cattle business exceeded its income.  He kited checks and the started selling nonexistent cattle to O’Hearn.  Malone pled guilty to bank fraud and money laundering.  He was ordered to pay restitution to O’Hearn and challenged the calculation of the restitution on appeal.  At some point during the scheme, O’Hearn took the law into his own hands and went to Malone’s feedlot and tool an undetermined number of cattle.  Malone argued on appeal that the court should not have ordered restitution to O’Hearn because he had already received full recovery from the cattle he took, from fees he owed Malone, and from liens O’Hearn had on Malone’s property.  The district court imposed restitution of $285,000, the difference between the $400,000 O’Hearn paid for nonexistent cattle and the $115,000 Malone paid him as a refund.  Malone relied on a narrow exception to the MVRA’s mandatory restitution in cases where determining restitution is too complex.  The Court of Appeals held, however, that the district court correctly understood her obligation to order restitution and did not abuse her discretion in declining to apply the complexity exception.  This was primarily because calculation of restitution in this case was simple and involved consideration of only two things - the property O’Hearn lost or its value and the value of any property returned.  The Court held that the cattle O’Hearn took, the services O’Hearn had not paid Malone, and the liens held by O’Hearn were irrelevant to restitution because they were not the same type as the property lost.

The Court of Appeals considered the FSA challenges to five defendants’ sentences and found the error in all but one case harmless.  United States v. Long, et al., Nos. 11-3888, 12-1048, 12-1267, 12-1538, & 12-2665.  The five defendants in this appeal were part of a conspiracy to distribute cocaine on the South Side of Chicago.  All of them argued on appeal that the district court improperly determined the applicable mandatory minimum sentence, violating the Fair Sentencing Act, the Fifth Amendment, the Sixth Amendment, or some combination thereof.  When the defendants were sentenced, the law of the circuit required district courts to apply the lower, pre-FSA thresholds to any defendant who was convicted for conduct occurring before the FSA was passed.  The Supreme Court’s opinion in Dorsey changed that and held that the FSA applied to any defendant sentenced after the FSA regardless of when the conduct occurred.  All of the defendants in this case were sentenced after the FSA was enacted.  However, the Court of Appeals held that the error in every defendant’s case, except for one, was harmless.  In one case, the district court said it would have imposed the same sentence regardless of the FSA which rendered the error harmless.  In the others, the Court held that an Alleyne issue will fail on plain error review if a properly instructed jury would have found the defendant guilty of distributing the requisite threshold of quantities of narcotics.  The Court also held that Alleyne did not change the exception originally recognized in Almendarez-Torres for prior convictions.

The Court of Appeals affirmed enhancements for role in the offense and obstruction of justice for the defendant’s participation in a conspiracy to commit arson.  United States v. Hargis, No. 12-2153.  Hargis solicited another person to burn down her house so that she could collect a settlement from her insurance company.  Hargis was charged with and pled guilty to conspiracy to use fire to commit wire fraud.  On appeal, she challenged the district court’s assessment of enhancements for obstruction of justice and her role in the offense.  Regarding the role in the offense, Hargis argues the district court relied on only one factor - the fact that she had recruited the other individual to commit arson.  However, the Court found the district court made a “commonsense judgment about the defendant’s relative culpability” and correctly found that Hargis led the conspiracy.  Hargis conceived the plan to burn down her house and collect the insurance, recruited the other individual, told him which day to commit the arson, planned to keep most of the proceeds, inflated her insurance claims to maximize her profits, filed a frivolous lawsuit against the insurance company, and lied under oath during a deposition.  This was plenty evidence to find she had an aggravating role in the offense.  Regarding the obstruction of justice, the district court based the finding on Hargis’s original change of plea hearing, which did not result in a guilty plea, where she told the district court she had told the other individual she had changed her mind and told him not to burn down the house.  At her second, successful change of plea hearing, Hargis admitted her actual participation in the offense.  The Court of Appeals agreed with the obstruction enhancement holding that if her testimony at her original change of plea were to be believed, Hargis could have asserted a withdrawal defense to the charges.  As a result of her lies, the court and the government prepared for trial, which was enough to support the enhancement.

 

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Cases from 3/22/14 through 3/28/14

Supreme Court Activity

The Supreme Court has not granted certiorari in a criminal case and issued on opinion in a criminal case since the last update.  For a complete list of all criminal issues pending before the Supreme Court, click HERE.

United States v. Castleman, No. 12-1371.  The question before the Court was whether Castleman’s state conviction for “misdemeanor domestic assault,” arising out of an incident involving the mother of his child, qualifies as a “misdemeanor crime of domestic violence” under federal law, thereby prohibiting him from having a gun.  The Court held that it does.  The pervasiveness of domestic violence, combined with the danger created when guns and domestic violence mix, was what prompted Congress to enact the gun prohibition in 18 U.S.C. § 922(g)(9).  In particular, the Court explained, Congress wanted to “close a dangerous loophole” in prior restrictions on gun possession that often resulted when perpetrators of domestic violence are convicted of misdemeanors, rather than felonies.  The case turned on the meaning of the phrase “use . . . of physical force” in Section 922(g)(9):  is it limited to “violent force,” or does it instead include crimes involving any physical force?  In holding that it is the latter, the Court relied heavily on its 2010 decision in Johnson v. United States, in which the question before the Court was whether a conviction for battery constituted a “violent felony” for purposes of the Armed Career Criminal Act.  In disposing of that case, the Court noted that, “at common law, the element of force in the crime of battery was ‘satisfied by even the slightest offensive touching.’”  That definition of force, the Court held today, “fits perfectly” in Castleman’s case:  not only is it consistent with what Congress might have intended in defining a “misdemeanor crime of domestic violence,” but many forms of domestic violence would not, in other contexts, be regarded as especially “violent.”  That conclusion, the Court added, is bolstered by the status of state laws when Congress enacted Section 922(g)(9).  If offensive touching were not regarded as “force,” Section 922(g)(9) would not have applied in ten states, making up thirty percent of the nation’s population, at all.  For the complete summary, please click for SCOTUSblog.

Seventh Circuit Activity

The Seventh Circuit issued precedential opinions in several criminal cases since the last update, as summarized below.

The summaries from the last year (August 2012 through July 2013), categorized by topic with a “Table of Contents,” is available HERE.  Any new summaries will go into a new categorized document available HERE. 

The Court of Appeals affirmed the defendants RICO Conspiracy convictions and sentences.  United States v. Volpendesto, et al., Nos. 11-3022, 12-1180, 12-1656.  The defendants were convicted of various offenses relating to a video gambling criminal enterprise.  After a six-week jury trial, the jury returned guilty verdicts on all counts.  On appeal, the defendants raised numerous issues, including the sufficiency of the evidence and evidentiary issues.  The Court of Appeals held the evidence was sufficient to convict all three defendants and the district court did not err in admitting statements of a codefendant against another codefendant. The Court also rejected challenges to the district court’s limiting of cross-examination, the admission of impermissible character evidence, and the district court’s RICO conspiracy jury instructions. Finally, the Court affirmed the defendants’ sentences.

The Court of Appeals held the government did not violate Brady where the government did not possess the evidence requested and the defendant failed to exercise diligence in obtaining the evidence from the possessing party.  The Court also rejected a buyer-seller instruction and a restitution challenge.  United States v. Walker, No. 13-2145.  Walker was involved in a mortgage fraud scheme encompassing at least 10 different loans and seven different properties.  Walker raised three issues on appeal.  First, he argued the government violated Brady by failing to provide him with evidence seized during a state investigation.  The Court held he had failed to prove a Brady violation because the evidence was in the control of the government and he failed to exercise reasonable diligence in obtaining the evidence from the state police department after he learned it was in their possession.  Second, Walker argued the district court should have given a buyer-seller jury instruction. The Court disagreed holding that the existence of a mere buyer-seller relationship is not a defense to the scheme-to-defraud element of wire fraud.  Finally, Walker challenged the calculation of restitution.  However, he failed to object to the restitution calculation in the district court.  In addition, he failed to produce any evidence contradiction the government’s method of calculating loss, which involved subtracting the sale price after the mortgage company recovered the property from the amount of the loan.  This was a common method of determining restitution in these types of cases.

While calling the harmless analysis of Brady violations into question, the Court of Appeals affirmed on the issue finding the errors harmless.  United States v. Morales, Nos. 12-3558 & 13-1103.  Morales was charged with a vast mail fraud scheme.  On appeal, he alleged the government violated Brady by failing to disclose two possibly exculpatory emails from the agent to the government until after trial.  The Court of Appeals first addressed whether the evidence at issue must be admissible.  The Court agreed with view of the majority of the circuits that rejected a rule that restricts Brady to formally admissible evidence.  However, in light of the strength of the evidence against Morales, the emails did not undermine the Court’s confidence in the jury’s verdict.  The Court held that the district court did not err when it denied the motion for new trial.  Importantly, the Court opened with this statement: “More than 50 years ago, the Supreme Court announced in Brady that prosecutors have a duty to turn over upon request any material evidence that is favorable to the defense.  One would think that by now failures to comply with this rule would be rare.  But Brady issues continue to arise.  Often, non-disclosure comes at no price for prosecutors, because courts find that the withheld evidence would not have created a reasonable probability of a different result.  We must leave for another day a closer examination of the incentive structure created by Brady’s harmless error exception, because the case before us is another in which the Brady violations do not drive the result.”

The Court of Appeals upheld the district court’s definition of “maliciously” in the jury instructions in an arson case.  United States v. Grady, No. 13-1390. Grady was convicted of arson and intentionally damaging the property of a facility providing reproductive health services.  He argued on appeal that the district court erred in defining the term “maliciously” in the jury instructions.  The court instructed the jury that the term meant acting intentionally or with deliberate disregard of the likelihood that damage or injury will result.  The Court of Appeals upheld this definition distinguishing United States v. McBride which held the definition of maliciously included the phrase “to do a harmful act.”  The Court stated that this language did not create the need for a more specific jury instruction.

 

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Cases from 3/15/14 through 3/21/14

Supreme Court Activity

The Supreme Court has not granted certiorari in a criminal case and did not issue opinions in criminal cases since the last update.  For a complete list of all criminal issues pending before the Supreme Court, click HERE.

Seventh Circuit Activity

The Seventh Circuit issued precedential opinions in several criminal cases since the last update, as summarized below.

The summaries from the last year (August 2012 through July 2013), categorized by topic with a “Table of Contents,” is available HERE.  Any new summaries will go into a new categorized document available HERE. 

The district court appropriately assessed the five level enhancement for sexually abusing a minor based on the minor’s testimony which, despite a few discrepancies, was reasonably reliable.  United States v. Houston, No. 13-2713.  Houston was sentenced for possessing and transporting child pornography and argued on appeal that the district court erred in applying a five level increase under § 2G2.2(b)(5) based on the finding that he sexually abused a minor.  He argued the statements of the child victim were inconsistent and unreliable.  The Court of Appeals disagreed.  While there were some discrepancies in the evidence presented by the government about the sexual abuse, the district court was within its discretion.  Minor discrepancies are not a basis for finding clear error and the district court was reasonable in finding the child’s statements sufficiently reliable. 

The Court of Appeals remanded for new trial finding the district court improperly allowed the government to cross-examine the defendant on alleged false statements that it had no good faith basis for believing were actually false.  United States v. Abair, No. 13-2498.  Abair was purchasing a home in Indiana and two weeks prior to closing, she learned her bank in Russia would not wire the money for the purchase price of the house.  To cover the money before closing, she withdrew a few hundred dollars at a time at ATMs and depositing the cash into her Indiana bank.  She was charged with violating the currency structuring provisions of 31 U.S.C. § 5324(a)(3) and was convicted after a jury trial.  She agreed to sell her home and to forfeit the proceeds to the government.  The Court of Appeals held that the district court erroneously applied Federal Rule of Evidence 608(b) by allowing the government to cross-examine her about alleged false statements on a tax return and student financial aid applications, neither of which were at issue in the trial.  The government lacked a good faith basis for believing that Abair lied on the tax and financial aid forms and impermissibly asked a serious of accusatory and prejudicial questions about them under Rule 608(b).  Regarding the forfeiture issue, the Court declined to make any specific findings because the matter was being remanded for new trial, but noted there was no evidence Abair had been involved in the wide range of wrongdoing justifying the forfeiture of her home’s entire value to the government.

The Court of Appeals rejected the defendant’s challenge to the district court’s denial of his § 3582 motion because a sentence cannot be reduced under § 3582 if the sentence was based on a mandatory minimum.  United States v. Johnson, No. 13-2732.  Johnson pled guilty to possessing crack cocaine with intent to distribute in 2011.  He was sentenced to a below mandatory minimum sentence based on his assistance to the government.  He initially requested a sentence reduction under 18 U.S.C. § 3582(c)(2) after changes were made to the crack cocaine guidelines in 2011.  The district court denied his motion.  In 2013, he filed a second request.  The district court denied his motion because it was an impermissible second or successive motion for reduction of sentence and because Johnson did not qualify for the reduction.  The Court of Appeals affirmed holding that the § 3582 motion could not success because a sentence cannot be reduced under § 3582(c)(2) if it was based on a statutory minimum, citing United States v. Poole.  Rejected Johnson’s arguments to the contrary, the Court held the statutory minimum is part of the “applicable guidelines range” and therefore, the 2011 amendments to the guidelines did not change the analysis.  This opinion falls on one side of a Circuit split and our office is planning on filing a cert. petition.

The government did not constructively amend the indictment when it introduced tax returns that were filed within the time period alleged in the indictment.  United States v. Phillips, No. 12-2532.  Phillips and her husband were convicted at a jury trial for a tax fraud scheme for filing fraudulent tax returns in 2009 and 2010.  Phillips appealed and argued the government constructively amended the indictment by introducing additional tax returns at trial that were not specifically covered under the indictment.  The Court of Appeals disagreed because the indictment could have been read to include all of the tax return.  The indictment alleged a conspiracy to submit false and fraudulent claims from March of 2009 through April of 2010.  These dates included all of the returns introduced by the government at trial.  Phillips also argued the government violated her right against self-incrimination by stating during oral argument that the Phillips would not have made all of the cash withdrawals after receiving the IRS summons if they had nothing to hide and by eliciting testimony from an agent that he “attempted” to interview her.  The Court of Appeals held this was not a violation because the government’s statements and the agent’s testimony were intended to point out suspicious conduct and timing of cash withdrawals, not comment on her silence.

 

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Cases from 3/8/14 through 3/14/14

Supreme Court Activity

The Supreme Court granted certiorari in one criminal case and did not issue opinions in criminal cases since the last update.  For a complete list of all criminal issues pending before the Supreme Court, click HERE.

Warger v. Shauers, No. 13-517.  Whether Federal Rule of Evidence 606(b) permits a party moving for a new trial based on juror dishonesty during voir dire to introduce juror testimony about statements made during deliberations that tend to show the alleged dishonesty?

Seventh Circuit Activity

The Seventh Circuit issued precedential opinions in several criminal cases since the last update, as summarized below.

The summaries from the last year (August 2012 through July 2013), categorized by topic with a “Table of Contents,” is available HERE.  Any new summaries will go into a new categorized document available HERE. 

The Court of Appeals held that a defendant can be convicted of violating § 2422(b) for adult-to-adult communications that are intended to persuade a minor to engage in criminal sexual activity and any error in admitting 404(b) evidence was harmless.  United States v. McMillan, No. 12-1348.  McMillian was convicted of one count of violating 18 U.S.C. § 2422(b) which prohibits persuading a person under the age of 18 to engage in criminal sexual activity.  McMillan argued he could not be convicted under § 2422(b) because he only had contact with father of the purported teenage girl, rather than the girl herself.  (Of course, in the end, the person he had contact with was an undercover police officer and the teenage girl did not exist.)  The Court of Appeals held the evidence was sufficient convict him because the statute extends to prosecution of adult-to-adult communications that are designed to persuade a minor to commit the forbidden acts.  The Court agreed with six other circuits that have so held, declining to read the statute as narrowly as argued by McMillan.  The statute not only prohibits actual persuasion of the minor, but also attempts to persuade and the best way to persuade a minor to commit an act is to enlist the help of a trusted friend, relative, or associate. McMillan also argued the district court erred in admitting evidence under Rule 404(b) of a sexually explicit email exchange he was having with “Kellie” who was another fictional person portrayed by the undercover police officer.  The Court noted that it is currently considering whether the existing 404(b) test should be retained or if some other test would be preferable in United States v. Gomez, No. 12-1104, a case that was heard en banc in June of 2013 but has not yet been decided.  Although it could have held decision in McMillan’s case until Gomez was decided, the Court determined it would not make a difference in the outcome because any error was harmless under either test at issue in Gomez.  The 404(b) evidence about “Kellie” was limited in nature and directly relevant to issues put in front of the jury by McMillan himself.

Motions to reconsider must be filed within 14 days of the entry of the order being challenged and defendants only get the benefit of one sentencing reduction per retroactive amendment of the sentencing guidelines.  United States v. Beard, No. 13-2871.  Beard appealed from the district court’s order denying his motion to reconsider the rejection of his request for a sentence reduction under 18 U.S.C. § 3582(c)(2).  While the Federal Rules of Criminal Procedure do not mention a motion for reconsideration, the Court of Appeals has recognized as a matter of general practice that a motion to reconsider in a criminal prosecution is proper if filed in time.  “In time” means the same 14-day period that applies to other motions that suspend the time for taking an appeal under Federal Rule of Appellate Procedure 4(b).  Beard’s motion to reconsider was filed 16 days after the district court denied his request and was therefore untimely. Furthermore, the district court could not have granted Beard’s original request for a reduction under § 3582(c)(2) because he had already received one reduction under the statute and “prisoners have only one bite at the apple per retroactive amendment to the sentencing guidelines.”

The Court of Appeals held the search warrant application “lacked certain details” but the officer was entitled to rely on it under the good faith exception and the district court did not err in considering evidence of the defendant’s prior drug conviction in a bench trial where the evidence was otherwise overwhelming.  United States v. Reed, No. 12-3701.  Reed was convicted following a bench trial of possession with intent to distribute heroin, possession of a firearm by a felon, and possession of a firearm in furtherance of a drug trafficking crime.  On appeal, he argued there was no probable cause to issue the warrant that led to the discovery of certain evidence used against him at trial.  He also argued the district court abused its discretion by allowing the government to present evidence of his prior conviction for heroin possession.  As to the first issue, the Court of Appeals determined it did not need to determine whether there was probable cause to issue the warrant because the officer acted in good faith reliance on the warrant.  Although the warrant application “lacked certain details,” the information was only three days old, specified that the informant had provided reliable information in the past and was familiar with the controlled substance at issue, and had personally seen drugs at the location to be searched.  The Court held there was enough in the warrant application for the officer to reasonably rely on the court’s issuance of the warrant.  Secondly, the Court found the admission of the details about Reed’s prior drug conviction was not error.  The trial was a bench trial, making the admission of potentially inadmissible evidence less prejudicial because district courts routinely disregard improper argument and inadmissible evidence.  The district court only mentioned the evidence once on the record and, considering the overwhelming evidence of guilt, any error was harmless.

 

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Cases from 3/1/14 through 3/7/14

Supreme Court Activity

The Supreme Court did not grant certiorari in any criminal cases and issued opinions in criminal cases since the last update.  For a complete list of all criminal issues pending before the Supreme Court, click HERE.

Kaley v. United States, No. 12-464.  When challenging the legality of a pre-trial asset seizure under 21 U.S.C. § 853(e)(1), a criminal defender who has been indicted is not constitutionally entitled to contest a grand jury’s determination of probable cause to believe that he committed the crimes charged.

Rosemond v. United States, No. 12-895.  For purposes of “aiding and abetting” liability under 18 U.S.C. § 924(c), which prohibits using or carrying a firearm “during and in relation to any crime of violence or drug trafficking crime,” the government must show that the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission.  The Court vacated the decision below and remanded the case because the trial court failed to instruct the jury that the defendant have “advance knowledge” - that is, knowledge sufficiently in advance to have some “realistic opportunity to commit the crime” - that the gun would be used or carried.

United States v. Apel, No. 12-1038.  For purposes of 18 U.S.C. § 1382, which makes it a crime to re-enter a “military installation” after having been ordered not to do so, a portion of an Air Force base that contains a designated protest area and an easement for a public road qualifies as a “military installation.”

Seventh Circuit Activity

The Seventh Circuit issued precedential opinions in several criminal cases since the last update, as summarized below.

The summaries from the last year (August 2012 through July 2013), categorized by topic with a “Table of Contents,” is available HERE.  Any new summaries will go into a new categorized document available HERE. 

The Court of Appeals reversed and remanded the district court’s involuntary medication order finding the court failed to make adequate findings under Sell.  United States v. Debenedetto, No. 13-3281.  Mr. Debenedetto was determined to be incompetent to stand trial.  The evaluating psychiatrist concluded he would require involuntary treatment with psychotropic medications to restore his competency.  The district court granted the request for involuntary medication and Mr. Debenedetto appealed.  The Court of Appeals reversed and remanded holding that the hearing and written findings of the district court did not constitute adequate compliance with Sell v. United States.  The district court must make the following findings under Sell: (1) determined that important government interests are at stake; (2) the medication is substantially likely to render the defendant competent to stand trial and is unlikely to have side effects that will interfere significantly with the defendant’s ability to assist counsel; (3) involuntary medication is necessary to further those interests and less intrusive treatments are unlikely to achieve the same results; and (4) the administration of the drugs is medically appropriate.  The court failed to make findings regarding the government interests at stake and that the medication was necessary and whether there were less intrusive means.

The Court of Appeals rejected a challenge to the government’s expert on the interstate commerce prong of a felon in possession charge.  United States v. Brownlee, No. 13-2745.  Mr. Brownlee was convicted of being a felon in possession of a firearm and challenged the expert testimony regarding the element that the gun had been shipped or transported in interstate or foreign commerce.  An ATF agent testified to that element that she determined the gun in this case had been manufactured by a plant in Connecticut by speaking with the plant manager.  Mr. Brownlee challenged the testimony on appeal as hearsay and lacking in detail.  The Court of Appeals rejected the challenges holding that in the absence of meaningful cross-examination or contrary evidence, the testimony was enough to justify a reasonable jury in finding the gun had been manufactured outside of Indiana.  As to the hearsay challenge, the Court held that an expert is permitted to rely on any evidence that witnesses in that area of expertise customarily rely on.

The Court of Appeals rejected Mr. Brown’s challenge to evidence presented from a GPS monitor that was collected prior to the Supreme Court’s decision Jones.  United States v. Brown, No. 11-1565.  A jury convicted Mr. Brown of conspiracy to distribute cocaine.  At trial, the government introduced evidence from a GPS monitor attached to a car (not a car belonging to Brown) in 2006.  Mr. Brown argued that using GPS location services is reasonable only with the support of a warranted issued on a finding of probable cause after United States v. Jones, 132 S. Ct. 945 (2012).  The Court of Appeals bypassed addressing any extension of Jones holding that “it would be inappropriate to use the exclusionary rule to suppress evidence derived from this GPS locator before the Supreme Court’s decision in Jones.  Until then, precedent would have led reasonable officers to believe that using GPS to track a car’s location was not a search.

The Court of Appeals upheld the district court’s refusal to order a second competency evaluation but remanded for resentencing after a Peugh error.  United States v. Woodard, No. 12-3363.  On appeal, Ms. Woodard argued the district court abused its discretion by not ordering a second competency evaluation.  Because the district court reached a reasonable conclusion after it reviewed a previous psychological evaluation, considered the advice of two mental health professionals, and considered Ms. Woodard’s interactions with her attorney, the Court of Appeals concluded the district court did not abuse its discretion.  In addition, Ms. Woodard argued she did not knowingly and voluntarily plead guilty, a review of the record showed that she did and that no red flags were raised that would have alerted the district court to the contrary.  Finally, the Court of Appeals found the district court violated the ex post facto clause at sentencing by using the wrong version of the sentencing guidelines under Peugh and reversed and remanded for resentencing.

The Court of Appeals vacated Poulin’s sentence finding the district court failed to consider his principal argument in mitigation and vacated two conditions of supervised release because they were not adequately supported by the record. United States v. Poulin, No. 13-1592. Poulin argued the district court failed to consider his “principal mitigating argument” that 70% of federal judges responding to a Sentencing Commission survey stated they believed the guidelines ranges for sex offense cases involving only possession or receipt of child pornography were extreme.  The district court made a passing comment about the argument and indicated it may not have understood the argument.  The Court of Appeals held the district court failed to adequately consider the issue.  This issue was not “so weak as to not to merit discussion” and is a valid argument.  Therefore, the district court was required to consider it and provide reasons for explaining his rejection or acceptance of it.  This was also not a situation where the judge clearly implicitly considered the argument.  Therefore, the Court of Appeals vacated Poulin’s sentence and remanded for resentencing.  The Court also vacated two special conditions of supervised release, the prohibition of unsupervised contact with minors and the prohibition of accessing and possessing adult pornography.  The Court followed its recent decision in United States v. Shannon and held the record lacked adequate explanation of why the conditions were necessary and related to the offense.

Statements made by jurors regarding Torres-Chavez’s failure to testify at trial in a subsequent venire questioning could not be introduced to attack the Torres-Chavez’s conviction.  United States v. Torres-Chavez, No. 13-1340.  Torres-Chavez was convicted following a jury trial of drug conspiracy.  He challenged the district court’s admission of testimony of his prior bad acts and argued the district court erred by determining jurors’ statements in an unrelated case did not prove they were biased.  As to the first issue, the Court of Appeals rejected his argument that the government had not proven the prior bad acts by a preponderance of the evidence based on the testimony of the eyewitness which is enough proof.  As to the second issue, several jurors who served on Torres-Chavez’s jury were placed in a venire in another trial shortly after they found Torres-Chavez guilty.  The jurors stated they might have had some problems with the fact that Torres-Chavez did not testify.  Federal Rule of Evidence 606(b) generally prohibits use of juror statements during an inquiry into the validity of a verdict.  The rule prohibits any evidence regarding the effects of something on the jurors’ mental processes.  Because the statements in this case concerned only “intrajury influences on the verdict during the deliberative process” they were prohibited by Rule 606(b)(1).

The Court of Appeals rejected the defendants’ arguments regarding withdrawing from their guilty pleas and plea agreements and found no error in sentencing.  United States v. Hallahan, Nos. 12-3748, 12-3750, 12-3781, & 12-3787.  Nelson and Janet Hallahan pled guilty pursuant to written plea agreements containing appeal waivers to two counts of conspiracy based on mail and bank fraud that caused more than $1,000,000 in loss.  After pleading guilty, they fled the district and remained on the run for 12 years.  When they returned, they pled guilty to the additional counts of failing to appear at sentencing without a plea agreement.  Janet filed a motion to withdraw from her plea and plea agreement arguing all of the benefits she was set to receive from entering into the appeal were lost.  The district court summarily denied her motion to withdraw from her plea on the ground of laches because the government would suffer prejudice from the 12 year delay if the motion were granted and the delay was caused by her own decision to flee the district.  Janet argued the district court erred in failing to address her motion to withdraw from the plea agreement.  The Court of Appeals affirmed because “the plea agreement and the plea are bound up together” and the same standard of withdraw applies to both.  Because Janet failed to offer any separate reason for withdrawal of her plea agreement, the district court need not provide a different ruling on that issue where it is clear the outcome would be the same.  Both Nelson and Janet argued their appeal waivers were invalid because the government breached the plea agreements by failing to recommend sentences at the low end of the guidelines range.  The Court held that the government was no longer bound by the plea agreement because the defendants breached it by absconding and failing to appear for sentencing.  This is an “implied but obvious term of any plea agreement.”  The Court also rejected their claims the district court should have used the guidelines in effect at the time they committed their fraud offenses based on the “one book rule” and the fact that the 2012 guidelines applied to the failure to appear charge which was grouped with the fraud charges.

 

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Cases from 2/22/14 through 2/28/14

Supreme Court Activity

The Supreme Court did not grant certiorari in any criminal cases and did not issue any opinions in criminal cases since the last update.  For a complete list of all criminal issues pending before the Supreme Court, click HERE.

Hinton v. Alabama, No. 13-6440.  The Supreme Court vacated the Alabama court’s judgment and remanded this case for reconsideration of whether Hinton’s trial attorney’s deficient performance was prejudicial.  Hinton was charged in two murders that he was linked to through firearm and bullet comparison evidence.  The trial court mistakenly assumed the limit on funds available for experts was $1,000.  In fact, the law had been changed prior to the offenses to provide for reimbursement of reasonable expenses for experts.  Defense counsel did not challenge the trial court’s findings of the $1,000 cap and found only one expert to testify regarding the firearm and bullet evidence.  Needless to say, the expert who testified was not helpful and swiftly discredited by the state. 

Fernandez v. California, No. 12-7822.  The Court’s decision in Georgia v. Randolph, holding that the consent of one occupant is insufficient to authorize police to search a premises if another occupant is present and objects to the search, does not apply when an occupant provides consent well after the objecting occupant has been removed from the premises.

Seventh Circuit Activity

The Seventh Circuit issued precedential opinions in several criminal cases since the last update,

The summaries from the last year (August 2012 through July 2013), categorized by topic with a “Table of Contents,” is available HERE.  Any new summaries will go into a new categorized document available HERE. 

The Court of Appeals, over a dissent, declined to remand for resentencing where the district court failed to adequately address the defendant’s mitigation argument but the record provided obvious reasons for the court imposing the above-guidelines sentence.  United States v. Castaldi, Nos. 10-3406 & 12-1361.  Castaldi committed a long-term Ponzi scheme that collapsed in 2008 causing losses of $40 million.  Before the collapse, Castaldi hired a lawyer and turned himself in to the government, disclosing all of the specifics about the scheme.  Castaldi received the maximum sentence of 20 years on a mail fraud count and three years on a tax charge, a sentence which was 50% longer than the high end of the guidelines range.  He argued on appeal that the district court failed to adequately consider his argument in mitigation that he told the government about his scheme and cooperated with its investigation.  While the district court’s lack of findings gave the Court of Appeals “pause under United States v. Cunningham,” the Court noted it has “made clear that a judge imposing sentence ‘need not belabor the obvious’ or be explicit where anyone acquainted with the facts would have known without being told why the judge did not accept the argument.”  This was true in Castaldi’s case because the sentencing transcript showed the district court was well aware of all of the mitigation arguments, including Castaldi’s cooperation, and gave thoughtful and individualized consideration to the case.  The Court noted that this type of issue is one of the most frequently raised in this circuit regarding sentencing.  Judge Rovner dissented from the majority opinion on this issue, indicating she did not believe the district court’s thinking on the point was so obvious to negate the need for a remand.  She pointed out the difference between being “aware” of an argument and “meaningfully considering it.”  In her opinion, the latter was lacking in this case.

The Court of Appeals held that the Indiana felony of battery in the presence of a child constituted a violent felony under the residual clause of the ACCA.  United States v. Johnson, No. 13-3172.  Johnson was convicted of being a felon in possession of a firearm and the district court determined he was an Armed Career Criminal and imposed a mandatory minimum sentence of 180 months.  He argued on appeal that his conviction in Indiana for battery in the presence of a child should not be counted as a violent felony under the ACCA.  Relying on United States v. Sykes, the Court held that domestic battery is at least as dangerous to purse snatch or attempted burglary and is properly classified as a violent felony under the residual clause of § 924(e)(2)(B)(ii).

The Court of Appeals remanded two defendants’ sentences under Peugh, but limited the scope of the remand slightly despite the fact the government asked for a Paladino remand.  United States v. Adams, et. al, Nos. 12-2125, 12-2379, 12-2759, & 12-2975.  Hunter, Adams, Gill, and Bostic were convicted as part of a heroin conspiracy.  Hunter attempted to challenge the district court’s denial of his motion to suppress and argued that he had reserved the right to do so in his plea declaration.  However, as the Court noted, any reservation of the right to challenge a motion to suppress on appeal after a guilty plea must be agreed to by the defendant and the government and approved by the district court.  Hunter failed to do this and therefore, the issue was not considered.  The Court of Appeals also held that district court erred by enhancing Gill’s and Bostic’s offense levels for maintaining a stash house because the guideline provision was not in effect during the commission of their offenses, a remand pursuant to Peugh v. United States.  The parties agreed there was a Peugh error but disagreed as to the scope of the remand.  The government argued the scope should be limited solely to the correction of the guidelines error.  The defendants, however, argued the remand should be for a full resentencing hearing.  The Court of Appeals did not agree with the government’s suggestion of a Paladino remand but granted “a second type of limited remand, where the appellate court returns the case to the trial court but with instructions to make a ruling or other determination on a specific issue or issues and do nothing else.”  Therefore, the cases were remanded with instructions to correct the guidelines range and allow the district court to make the determination whether to allow additional evidence and findings on the § 3553(a) factors.

The Court of Appeals rejected the defendant’s challenges to the district court’s credibility findings on a motion to suppress.  United States v. Peters, No. 12-3830.  Peters challenged the district court’s denial of his motion to suppress evidence found after the stop and search of his vehicle.  He argued the police officer’s testimony was too vague and conclusory to support a finding of a traffic violation and to support the testimony about the smell of marijuana coming from the car.  The Court of Appeals rejected his challenges and found that the district court’s findings were supported by the record.

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Cases from 2/15/14 through 2/21/14

Supreme Court Activity

The Supreme Court did not grant certiorari in any criminal cases and did not issue any opinions in criminal cases since the last update.  For a complete list of all criminal issues pending before the Supreme Court, click HERE.

Although the Court did not issue any additional opinions, it did order further briefing in Paroline v. United States after defense counsel suggested that the Court’s recent decision in Burrage v. United States applies to the issues presented in Paroline.  Burrage held that the enhanced punishment for selling heroin to an individual who dies after using the drug can only be imposed if prosecutors prove that the one drug which was sold was the actual cause of death.

Paroline raises a challenge to the government’s repeated requests for restitution in child pornography cases where there is an identifiable victim and exactly how much restitution can be ordered in such cases where the loss is the “proximate result” of the individual’s use of child pornography.

Seventh Circuit Activity

The Seventh Circuit issued precedential opinions in several criminal cases since the last update, as summarized below.

The summaries from the last year (August 2012 through July 2013), categorized by topic with a “Table of Contents,” is available HERE.  Any new summaries will go into a new categorized document available HERE. 

In an issue of first impression in this Circuit, the Court of Appeals held the amended version of § 3583(e)(3) eliminated the credit for terms of imprisonment resulting from prior revocation in second or subsequent revocations. United States v. Perry, No. 13-2182.  Perry was serving his term of supervised release after his conviction for possession of child pornography.  At the revocation hearing, he admitted possessing images of child pornography.  The probation officer stated in the report that Perry was subject to the statutory minimum sentence of five years under 18 U.S.C. § 3583(k).  Perry appealed the sentence he received upon violation of his term of supervised release for the second time.  The district court imposed a five year term of imprisonment followed by a 10 year term of supervised release.  The court also imposed four new conditions of supervised release that were not mentioned at the revocation hearing.  Perry argued he should not have been subjected to the five year mandatory minimum sentence in new version § 3583(k) because the version in effect at the time of his original offense only authorized a maximum sentence of two years.  The Court of Appeals agreed, vacated the sentence, and remanded with instructions to the district court to sentence him to no more than two years.  The Court also considered whether prior terms of imprisonment count towards the maximum sentence a district court can impose for subsequent violations of supervised release.  Perry argued his sentence on the second revocation was limited to 21 months, rather than two years, because he had served three months in prison on a previous revocation.  In an issue of first impression in this circuit, the Court of Appeals held that the 2003 amendments to § 3583(e)(3) eliminated the credit for terms of imprisonment resulting from prior revocation.  In doing so, the Court agreed with all of the other circuits who have decided the issue.  The Court also remanded the conditions of supervised release that were included in the judgment but not mentioned at the revocation hearing and allowed the district court to impose any conditions it sees fit.

The Court held that the exclusionary rule does not apply at sentencing and refused to recognize an exception for egregious violations of the Fourth Amendment.  United States v. Sanders, 13-1301.  Upon Sanders’s motion to suppress, the district court concluded the warrant used to search his home was invalid and the evidence seized from his home could not be used against him at trial.  However, the government used the seized evidence against him at sentencing as relevant conduct.  The Court of Appeals has previously held that the exclusionary rule does not apply at sentencing hearings.  Sanders asked the Court to consider the question of whether an “egregious” violation of the Fourth Amendment justified suppression of evidence at sentencing.  The Court declined to adopt the egregious exception.

The Court held that the district court did not commit error when it struck the sole Hispanic member of the jury when it was discovered he was not proficient enough in English to serve as a juror without an interpreter.  United States v. Pineda, No. 12-3517.  Pineda argued the district court erred when it struck the sole Hispanic member of the jury for cause and replaced him with an alternate during the trial.  The court originally empaneled a jury containing the Hispanic juror who had only a basic understanding of the English language.  The court later dismissed the juror after determining he did not possession the requisite English proficiency to serve as a juror without an interpreter.  The Court of Appeals held this was a legitimate basis for removing a juror under Federal Rule of Criminal Procedure 24 which provides for the removal and replacement of jurors who become or are found to be unable or disqualified to perform their duties.

 The Court of Appeals affirmed the district court’s decision to allow evidence of gang affiliation at trial.  United States v. Molton, No. 13-2525.  Molton claimed the district court erred in allowing evidence of his gang affiliation to be presented at trial.  The Court of Appeals upheld the court’s decision finding that gang membership was relevant to multiple aspects of the case including the “overarching factual scenario at issue, Molton’s presence at the scene, and why he would have a rifle.”  Molton also challenged the sufficiency of the evidence as to whether he knowingly possessed a firearm on the date in question.  He argued that no one saw him possess a firearm and the government’s case only consisted of circumstantial evidence.  The jury credited the witnesses and the Court of Appeals found there was sufficient circumstantial evidence to support the conviction.

The Court of Appeals affirmed the district court’s calculation of the amount of  loss based on the amount of money the defendant put at risk.  United States v. Dachman, No. 13-2353.  Dachmen pled guilty to 11 counts of wire fraud for stealing funds elderly individuals had invested in his three companies.  On appeal, he argued the district court erred by denying him a reduction of acceptance of responsibility, in calculating the loss amount by failing to credit him for expenditures incurred by his businesses, and impose an unreasonable sentence because of Dachmen’s severe medical issues.  The Court of Appeals affirmed holding the district court appropriately determined the amount of loss to be the entire pool of funds Dachmen put at risk of loss.  The Court also affirmed the denial of acceptance of responsibility because he failed to fully accept responsibility by stating that he “never intended to defraud or harm anyone” and that he had “the absolute right to set his own salary and he took fees in advance” of Medicare payments.  Finally, the Court held the district court adequately considered Dachmen’s medical issues when imposing a sentence.

The district court erred when it informed the parties it would only consider evidence of unwarranted disparities presented on a “nationwide basis.”  United States v. Prado, 12-3762.  At the sentencing hearing, Prado attempted to present evidence of sentences received by other defendants charged in the same criminal scheme as he was, Operation Tow Scam.  The district court prevented either Prado or the government from speaking about unwarranted disparities between similarly situated defendants in the same district, stating that unwarranted disparity arguments must be presented on a “nationwide basis.”  The Court of Appeals held the district court erred because it did not realize that it had the discretion to deviate from the United States Sentencing Guidelines and could consider others’ individual sentences when deciding what sentencing to impose on Prado.  Therefore, the Court reversed the district court and remanded the matter for resentencing.

The Court of Appeals held the district court’s total ban on all sexually explicit material was overbroad and not supported by findings or explanation.  United States v. Shannon, No. 11-3794.  While on supervised release for possessing child pornography, Shannon violated the conditions of supervised release by attaching a web camera to his computer without prior permission and viewing several websites involving sexually explicit images of girls that looked underage.  The district court revoked Shannon’s term of supervised release.  Shannon argued on appeal that the district court’s imposition of a total ban on the possession of sexually explicit material was improper.  The Court of Appeals held that, in light of the lack of findings or explanation for the lifetime ban on the possession of all sexually explicit material, the condition was vacated and remanded to the district court.  The special condition appeared to apply to all materials containing depictions of sexually explicit conduct, even if the depictions are not visual ones.  The Court also left for another day the question of whether Federal Rule of Criminal Procedure 51 requires a defendant to object to a sentence after it is imposed to preserve the argument for appeal.

 

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Cases from 2/8/14 through 2/14/14

Supreme Court Activity

The Supreme Court did not grant certiorari in any criminal cases and did not issue any opinions in criminal cases since the last update.  For a complete list of all criminal issues pending before the Supreme Court, click HERE.

Seventh Circuit Activity

The Seventh Circuit issued precedential opinions in several criminal cases since the last update, as summarized below.

The summaries from the last year (August 2012 through July 2013), categorized by topic with a “Table of Contents,” is available HERE.  Any new summaries will go into a new categorized document available HERE. 

A full remand for resentencing is required after Peugh because the error amounted to a miscalculation of the guidelines.  United States v. Williams, No. 13-1260.  While Williams’s case was on appeal, the Supreme Court decided Peugh v. United States, which overruled this Court’s holding in United States v. Demaree that the ex post facto clause no longer applied to the sentencing guidelines.  Williams argued on appeal that his sentence should be vacated and remanded for a full resentencing under Peugh.  The government argued the Court of Appeals should only issue a limited remand to ask the district court whether it wished to resentence Williams.  The Court of Appeals ordered a full remand holding that while a limited remand is appropriate in some circumstances, it was not appropriate in this case because the guidelines were incorrectly calculated.  Therefore, a full remand was required.

Where the defendant raised an argument regarding the motion to suppress for the first time on appeal, his claim could not succeed because he failed to argue both plain error and good cause for failing to make the argument in the district court.  United States v. Riney, No. 13-1491.  Riney challenged the district court’s factual findings in denying his motion to suppress.  The Court of Appeals found no error in the district court’s factual findings, which are entitled to a great deal of deference.  Riney also argued the police officers lacked reasonable suspicion to stop and search him, an argument he raised for the first time on appeal.  Because the issue had not been raised below, Riney had to show both plain error and good cause for failing to make the argument in the district court.  The Court of Appeals held that because Riney failed to argue on appeal that he had good cause for failing to make the argument below, his argument would fail on that basis alone.  However, even if he could overcome that threshold, there was no evidence the district court plainly erred by finding there was reasonable suspicion to conduct a brief investigatory stop.  The Court of Appeals further affirmed the two level enhancement for obstruction of justice based on Riney’s false affidavit submitted to the district court in support of his motion to suppress.

The Court of Appeals upheld the district court’s denial of a motion to suppress and found the information in the affidavit was not stale, was corroborated, and was not based on a false statement.  United States v. Sutton, No. 13-1298.  Sutton filed a motion to suppress claiming the search warrant was based on stale information, the confidential informant’s information was uncorroborated, and the affidavit supporting the warrant was reckless and contained a false statement.  The Court of Appeals held that the warrant was supported by probable cause, it contained sufficient specificity to establish Sutton was in possession of an ounce of cocaine, it was sufficiently corroborated by the officers, and it was not based on stale information.  The Court held that the one to ten day time period between the time the confidential informant witnessed Sutton in the apartment with cocaine and the execution of the search warrant did not make the information stale.

The Court of Appeals held an enhancement for committing a sex offense while under failure to register status was improper where the evidence did not support the finding of such offense under state law.  United States v. Johnson, No. 13-1531.  Johnson was convicted of failing to register as a sex offender.  At his sentencing hearing, the government asserted he should receive an enhancement under § 2A3.5(b)(1)(A) for committing a sex offense while in failure to register status.  The alleged sex offense relied on by the government was Johnson’s alleged sexual assault of his former girlfriend, S.W.  S.W. testified at the sentencing hearing that although she did not want Johnson to perform oral sex on her on the date in question, he did so anyway but did not use force.  For the purposes of the guideline, a sex offense includes a criminal offense that has an element involving a sexual act or sexual contact with another.  Because this offense happened in Illinois, Illinois law controlled.  Under Illinois law, a criminal sexual assault occurs when a person “commits an act of sexual penetration” and “uses force or threat of force.”  Although other states do not require force to be used or threatened, Illinois does.  Because S.W.’s testimony did not support the requisite force or threat of force necessary, the enhancement under § 2A3.4(b)(1)(A) was improper.

The Court of Appeals held that a restoration of rights letter after a defendant’s release from prison on one felony does not apply to all past felonies and that a 911 call can be admitted as excited utterances under Rule 803(2).  United States v. Boyce, No. 13-1087.  Boyce was charged with being a felon in possession of a firearm.  A prior felony is not a predicate offense if the defendant has been pardoned or has had civil rights restored unless the restoration of civil rights expressly provides that the person may not possess firearms.  Boyce argued his civil rights had been restored by letter after February 6, 1997, informing him of the restoration of his right to vote and to hold state office.  The letter Boyce received was identical to the form letter in Buchmeier v. United States.  However, Boyce’s letter did not completely restore his civil rights because it did not restore his rights on all of his previous felonies, just on the unlawful use of a weapon felony.  Restoration of rights is done conviction by conviction, not wholesale by one letter as held in United States v. Burnett. The Court of Appeals also held that Boyce’s girlfriend’s 911 call was properly admitted at trial as the girlfriend’s excited utterances under Federal Rule of Evidence 803(2).

The Court of Appeals rejected the defendant’s various arguments that the government had breached the plea agreement.  United States v. Gale Rachuy, No. 12-1376.  Rachuy raised several arguments on appeal regarding the government’s breach of the plea agreement.  First, Rachuy argued the government breached the plea agreement by referencing his lengthy criminal history. But the government did not breach the agreement because it had to reference Rachuy’s criminal history in order to justify an above Guideline range sentence. Second, he argued that the government failed to recommend that his loss amount be based solely on the checks used to purchase the vehicles charged in the superseding indictment. However, the government did not breach the deal because it was authorized, per the agreement, to include in the loss calculation any relevant bad checks drawn on the accounts that Rachuy used to steal cars. Third, he contended that the government breached the agreement by opposing his request for the return of his property. The government did not breach the agreement because it did not “oppose” his motion in the formal sense, but simply reminded the court that it did not have the power to command local and state authorities to release Rachuy’s property. Fourth, he claimed that the district court abused its discretion by failing to hold an evidentiary hearing on his request for the return of his property. But the district court was not required to hold a hearing because his motion improperly asked the court to exceed its jurisdiction, and the court properly dismissed the complaint on jurisdictional grounds. Finally, Rachuy asserted that the district court failed to give him credit, pursuant to U.S.S.G. § 5G1.3(b)(1), for time served on a sentence for a related state conviction. However, Rachuy was not eligible to be sentenced under § 5G1.3(b)(1) since he did not meet the statute’s requirements.

 

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Cases from 2/1/14 through 2/7/14

Supreme Court Activity

The Supreme Court did not grant certiorari in any criminal cases and did not issue any opinions in criminal cases since the last update.  For a complete list of all criminal issues pending before the Supreme Court, click HERE.

Seventh Circuit Activity

The Seventh Circuit issued precedential opinions in several criminal cases since the last update, as summarized below.

The summaries from the last year (August 2012 through July 2013), categorized by topic with a “Table of Contents,” is available HERE.  Any new summaries will go into a new categorized document available HERE. 

In a health care fraud case, the Court of Appeals found the district court properly admitted summary charts as evidence and the government provided expert testimony proving Chhibber ordered and billed for unnecessary tests.  United States v. Chhibber, No. 12-2728.  Chhibber was a doctor on the south side of Chicago who was charged with health care fraud for ordering a large volume of unnecessary tests for his patients who had insurance or were covered by Medicare.  He argued on appeal that the district court improperly admitted four summary charts into evidence.  The Court found the evidence was properly admitted because they were based on accurate numbers from his billing and medical records and the government provided testimony from another physician to provide an adequate basis for comparison of the information in the summary charts.  He also argued the government should have been required to present expert testimony to prove the tests he ordered were not medically necessary.  The Court found that it need not decide as a matter of law whether expert testimony is required on the issue of medical necessity because the government provided expert testimony regarding whether the tests were justified.

Despite the prosecutor’s improper vouching during closing argument, the Court of Appeals affirmed Alexander’s conviction because any error was harmless in the face of overwhelming evidence.  United States v. Alexander, No. 12-3498.  Alexander argued on appeal for the first time that the prosecutor improperly vouched for the credibility of a key government witness during closing argument.  The Court of Appeals held that the prosecutor’s statements that the testifying officer had “no incentive to falsely implicate the defendant” and would not violate the law were improper vouching.  However, the Court concluded the trial was not so unfair that Alexander would have been acquitted but for the error.  The Court was confident Alexander would have been convicted based on the overwhelming evidence of his guilt and therefore found any error was harmless. 

The Court of Appeals rejected Johnson’s argument that the photo line-up used in his case was unduly suggestive and fined his attorney $2,000 for violating Circuit Rule 30(d). United States v. Johnson, No. 13-1350.  Johnson argued the photo line-up used in his case was unduly suggestive because it was shown to the witness as an array of six photographs rather than individual photographs shown sequentially.  The Court of Appeals rejected that argument.  The bulk of this opinion, however, discusses defense counsel’s failure to comply with Circuit Rule 30 regarding the contents of the appendix.  Circuit Rule 30(a) requires the appellant’s appendix to contain “any opinion, memorandum of decision, findings of fact and conclusions of law, or oral statement of reasons delivered by the trial court . . . upon the rendering of that judgment.”  Circuit Rule 30(b)(1) requires the appendix to include “any other opinions, orders, or oral rulings in the case that address the issues sought to be raised.”  Defense counsel included the written order denying Johnson’s motion to suppress and represented in his Rule 30 certification that all required materials were included in the appendix.  However, it became apparent from the government’s brief and the Court of Appeals’ further investigation, that the district court had made an oral ruling on the motion as well.  Defense counsel not only failed to include the oral ruling in the appendix but also failed to order the transcript from the hearing where the oral ruling was made.  The Court of Appeals ordered defense counsel to pay a $2,000 sanction for his intentional violation of Circuit Rule 30(d). 

 

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Cases from 1/25/14 through 1/31/14

Supreme Court Activity

The Supreme Court did not grant certiorari in any criminal cases but did issue one opinion in a new criminal case since the last update.  For a complete list of all criminal issues pending before the Supreme Court, click HERE.

Burrage v. United States, No. 12-7515.  The Supreme Court held that if a drug user dies or is seriously injured after taking in multiple substances, a dealer who supplied one of the items can get an enhanced sentence only if that one drug was the actual cause of the death or injury.  The decision in Burrage v. United States flatly rejected the government’s argument that it would be enough if that one drug played a role in the result, even though it did not itself cause that outcome.

Seventh Circuit Activity

The Seventh Circuit issued precedential opinions in several criminal cases since the last update, as summarized below.

The summaries from the last year (August 2012 through July 2013), categorized by topic with a “Table of Contents,” is available HERE.  Any new summaries will go into a new categorized document available HERE. 

The Court of Appeals upheld an obstruction of justice enhancement where the defendant committed perjury at trial.  United States v. Stenson, No. 13-1329.  Stenson was charged with being a felon in possession of a firearm.  At trial, he testified that he had not possessed a firearm the day in question and instead of throwing a gun under a car when confronted by police officers, he had thrown his cell phone.  The district court assessed an enhancement for obstruction of justice based on Stenson’s perjury at trial.  The Court of Appeals upheld the enhancement finding that it was not an unconstitutional infringement on his right to testify and that the enhancement was correctly applied where a defendant takes the stand and tells a story falsely regarding a material matter.  

The Court of Appeals held the district court violated Rule 32.1(b)(2)(C) by failing to conduct a balancing test when admitting hearsay evidence.  United States v. Jordan, No. 13-1488.  Jordan was released from federal prison and began serving his term of supervised release.  The probation officer filed a petition to revoke his supervised release because he had, among other things, been arrested and charged with possession of marijuana.  At the revocation hearing, the government relied primarily on the police officer’s report when proving possession of marijuana with intent to distribute.  Jordan objected on hearsay grounds based on Federal Rule of Criminal Procedure 32.1(b)(2)(C) and the Fifth Amendment.  The district court denied the objection with no further findings.  The Court of Appeals the district court violated Rule 32.1(b)(2)(C) by failing to apply the balancing test when admitting hearsay evidence under the rule.  The Seventh Circuit joined all of the other circuits in holding that the district court must “balance the person’s interest in the constitutionally guaranteed right to confrontation against the government’s good cause for denying it.”  The Court further rejected the government’s arguments that any error was harmless because the police report was reliable.  The Court held that reliability cannot be the only question raised in an “interest of justice” analysis under Rule 32.1(b)(2)(C).

The Court of Appeals held the appeal waiver in the defendant’s plea agreement prevented him from raising a challenge on appeal based on a change in the law.  United States v. Vela, No. 13-1494.  Vela entered into a written plea agreement with the government which contained a waiver of his rights to appeal, except in very limited circumstances.  He also agreed to be sentenced using the guidelines in effect at the time of sentencing despite the fact that the guidelines in effect at the time he committed his crime would have resulted in a lower guidelines.  This latter agreement was based on the Seventh Circuit’s decision in Demaree which held the Ex Post Facto clause did not apply to the sentencing guidelines after Booker.  While Vela’s appeal was pending, the Supreme Court decided Peugh which overturned Demaree.  Vela sought the benefit of the Peugh decision on appeal despite the appeal waiver.  The Court of Appeals held that Vela’s appeal waiver prevented him from raising an issue on appeal based on a change in the law.

The Court of Appeals held (1) an appeal waiver does not bar an argument that a special condition of supervised release is unconstitutionally vague on due process grounds and (2) the special condition preventing the defendant from viewing pornography or sexually stimulating material was vague and was vacated.  United States v. Adkins, Nos. 12-3738 & 12-3739.  In a procedurally complicated case involving a jury trial on drug and firearm charges and a guilty plea on child pornography charges, the Court of Appeals affirmed on all issues except for one.  Adkins’s plea agreement contained a waiver of his right to appeal his conviction, sentence, and restitution imposed by the district court.  He challenged a special condition of his supervised release and argued first that challenges to conditions of supervised release are outside the scope of appeal waivers.  The Court of Appeals denied that issue finding, as it has found in other cases, that the word “sentence” in appeal waivers pertains to both the sentence of imprisonment and the term of supervised release, including the conditions of supervised release.  However, the Court agreed with Adkins on his second argument around the appeal waiver and held that an appeal waiver cannot preclude review of an obvious due process violation on account of vagueness.  The Court went on to hold that the special condition providing that he “shall not view or listen to any pornography or sexually stimulating material or sexually oriented material or patronize locations where such material is available” is unconstitutionally vague.

 

The Court of Appeals held the elderly owner of the home where Richards stayed had the mental capacity to consent to a search of the house and Richards’s bedroom.  United States v. Richards, No. 12-3763.  Richards challenged the search of the home where he stayed based on the consent of the owner, Rawls.  He argued Rawls lacked authority to consent to the search of Richards’s bedroom and that exigent circumstances justified the officers’ protective sweep of the bedroom.  The Court of Appeals disagreed and held that Rawls had the requisite mental capacity to voluntarily consent to the request to search.  Even though Rawls was 86 years old and had trouble walking, there was no indication he was mentally unable to consent.  Because Rawls had authority to consent to the search of his house and Richards’s bedroom, the Court did not reach the issue of whether exigent circumstances justified the search.

 

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Cases from 1/18/14 through 1/24/14

Supreme Court Activity

The Supreme Court granted certiorari in two cases but did not issue opinions in any new criminal case since the last update.  For a complete list of all criminal issues pending before the Supreme Court, click HERE.

Whether evidence admitted at petitioner’s trial was obtained in a search of petitioner’s cell phone that violated petitioner’s Fourth Amendment rights?  Riley v. California, No. 13-132.

Whether the Fourth Amendment permits the police, without obtaining a warrant, to review the call log of a cell phone found on a person who has been lawfully arrested?  United States v. Wurie, No. 13-212.

Seventh Circuit Activity

The Seventh Circuit issued precedential opinions in several criminal cases since the last update, as summarized below.

The summaries from the last year (August 2012 through July 2013), categorized by topic with a “Table of Contents,” is available HERE.  Any new summaries will go into a new categorized document available HERE. 

The Court of Appeals reversed and remanded for resentencing where the district court’s explanation for imposing a within-guidelines sentence was terse and did not reflect an individual assessment of the case.  United States v. Washington, No. 13-1468.  Mr. Washington pled guilty to attempting to possessing cocaine with intent to distribute and was sentenced to a within guidelines range sentence of 97 months.  When imposing sentence, the district court only stated he had considered all of the 18 § 3553(a) factors and that the crime was serious.  The Court of Appeals held this truncated finding was not a meaningful explanation of why 97 months was an appropriate sentence in this case. The court’s terse remarks did not reflect an individualized assessment based on the facts presented and the record was too thin for a meaningful review of the sentence.  Although Washington only made “stock” arguments in mitigation, the Court held that even when faced with only stock arguments, the district court may not presume a within-guidelines sentence is reasonable.

The Court of Appeals issued a limited remand allowing the district court to exercise its discretion to adjust the defendant’s sentence for time served in federal custody that was not credited by the BOP.  United States v. Whitlow, No. 13-1347.  This appeal was a second direct appeal after a remand for resentencing for Dorsey v. United States.  At the resentencing hearing Whitlow argued for a sentence below the newly-calculated guidelines range arguing, among other things, that (1) the requested sentence would be twice as long as any prior sentence he had received; (2) the career offender guideline is defective; (3) he should receive credit on his sentence to correct a miscalculation by the Bureau of Prisons of the time he spent in federal custody while serving time on a state sentence.  On appeal, Whitlow argued the district court failed to address these arguments in mitigation.  The government argued he waived the first two by failing to raise them during his first sentencing hearing or on the first direct appeal but agreed the district court misapprehended its discretion to adjust the sentence based on the BOP’s miscalculation.  The Court of Appeals rejected the first two arguments finding that the district court considered Whitlow’s request for consideration regarding the length of his prior sentences and his arguments that the career offender guidelines were defective.  However, the Court agreed the district court misunderstood its discretion to credit time served when the BOP refused to do so and issued a limited remand giving the district court the opportunity to exercise its discretion to adjust Whitlow’s sentence.

The district court did not abuse its discretion by considering the defendant’s prior arrests not resulting in conviction where the arrests were for crimes similar to the instant offense and the defendant admitted drug dealing had been his sole livelihood.  United States v. Drain, No. 12-3684.  Drain had multiple felony convictions and even more prior arrests that did not result in convictions.  During the sentencing hearing, the district court considered not only his history of convictions, but the multiple arrests that had not resulted in convictions when imposing an above-guidelines sentence.  Drain argued on appeal that the policy statement in § 4A1.3(a)(3) prevents the district court from relying on prior arrests when imposing an upward departure.  The Court of Appeals disagreed and held that Drain’s prior arrest record was fair game for consideration because the arrests were similar to the offense of conviction, which was a reliable indicator of a pattern of criminality and of a risk of recidivism.  Drain’s admissions to the district court at the sentencing hearing that drug dealing had been his sole livelihood and drug use had been an “every day pursuit” also made his prior arrests relevant in the sentencing consideration.    

In case involving the production of child pornography, the Court of Appeals held the commerce element of the charge may be proven by showing the devices used to store the pornography produced by the defendant were manufactured in international or interstate commerce.  United States v. Foley, No. 13-1386.  Foley was charged with three counts of producing child pornography and convicted after a jury trial.  He argued on appeal that the district court erred by denying his motion for judgment of acquittal based on his argument that the government failed to prove the commerce element of the charges.  The government relied on evidence that the hard drives Foley had used to store the images he produced with a video camera were manufactured in Thailand and China.  Foley asserted the only the camera was used in the actual production of the pornography and the hard drives were not used until after the production was complete.  The Seventh Circuit disagreed holding Congress intended the commerce element of child pornography to have a broad definition and storage of a visual image on a hard drive for later retrieval is part of the process of producing under the statutory definition.  The Court of Appeals also held the district court did not err in admitting testimony of Foley’s prior sexual assault of a young male under Federal Rule of Evidence 413, which allows the introduction of past sexual offenses in sexual assault cases. Although he was not charged with sexual assault, his charges for production of child pornography would fit the definition of sexual assault under Rule 413(d)(1).

In an appeal raising various trial and sentencing issues, the Court of Appeals rejected all of the defendant’s arguments regarding an agent’s testimony and found the defendant’s sentence was not unreasonable.  United States v. Cheek, No. 12-2472.  Cheek was charged with conspiracy to possess and distribute crack cocaine and marijuana.  He was convicted after a jury trial and sentenced to 576 months in prison.  The Court of Appeals held the district court did not plainly err when it admitted an agent’s testimony about the meaning of code words and when it permitted the government to provide the jury with transcripts containing the agent’s interpretations of various words and phrases.  The district court did not err by imposing an obstruction of justice enhancement for a letter written to Cheek’s family member discussing the testimony against him.  The district court’s failure to comply with 21 U.S.C. § 851(b) was harmless error and his sentence was not unreasonable.     

 

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Cases from 1/11/14 through 1/17/14

Supreme Court Activity

The Supreme Court neither granted certiorari nor issued opinions in any new criminal case since the last update.  For a complete list of all criminal issues pending before the Supreme Court, click HERE.

Seventh Circuit Activity

The Seventh Circuit issued precedential opinion[s] in a criminal case since the last update, as summarized below.

The summaries from the last year (August 2012 through July 2013), categorized by topic with a “Table of Contents,” is available HERE.  Any new summaries will go into a new categorized document available HERE. 

The Court of Appeals rejected the defendant’s request to overrule its decisions allowing repayment of buy money as a condition of supervised release.  United States v. Williams, No. 13-2836.  Defendant Williams was ordered, as a condition of supervised release, to repay the government $1,200 in buy money used during its investigation of him during his term of supervised release.  The Court of Appeals first held repayment of buy money was a valid condition of supervised release in United States v. Daddato, 996 F.2d 903 (7th Cir. 1993) and has followed that reasoning ever since.  Two circuit courts have expressed disagreement with Daddato.  The Court of Appeals held that repayment of buy money serves several valid penological functions including deterrence and punishment, i.e., payback for the cost his crime imposed.  The Court stated repayment of buy money is not restitution but rather more akin to a fine or an order to perform community service. 

The Court first held there was no violation of Federal Rule of Evidence 404(b) regarding introduction of prejudicial evidence where the evidence was overwhelming.  The Court then vacated and remanded for resentencing holding Cureton could not be convicted and sentenced to two § 924(c) charges based on one use of a firearm even though he committed two predicate offenses.  United States v. Cureton, No. 12-1250 & 12-1251.  Two criminal cases against Cureton were tried together.  In the first case, the government charged him with four counts of distributing crack cocaine and one count of being a felon in possession of a firearm.  In the second case, he faced charges of interstate communication of a ransom request, attempted extortion, and two counts of possession of a firearm in furtherance of a crime of violence.  Cureton first argued the jury should not have been allowed to hear evidence that he took $9,500 at gunpoint from his drug customers on June 12, 2010.  He was not charged with any crimes relating to that date and argued the evidence improperly suggested he had a propensity for violence and for selling drugs in violation of Rule 404(b).  The Court of Appeals held that, although the evidence was likely improper, any error was harmless because the evidence against Cureton was overwhelming.  Cureton argued secondly that he should not have been convicted twice under 18 U.S.C. § 924(c)(1) based on a single use of a firearm.  The government requested he receive two § 924(c)(1) offenses based he used the gun during two crimes of violence: (1) the interstate communication of a ransom request, and (2) attempted extortion.  However, the crimes of violence were premised on the exact same conduct that occurred simultaneously - the telephone calls to the relatives of his victim demanding money for her release and his single use of a firearm by pointing it at the victim.  The Court of Appeals held that because Cureton only used the firearm once in the simultaneous commission of two predicate offenses, he could only be convicted of one violation of § 924(c).

The Court of Appeals declined to extend Alleyne to require the government to prove all drug quantities beyond a reasonable doubt for guidelines purposes.  United States v. Valdez, No. 13-1811.  Valdez pled guilty to possessing heroin with intent to distribute and admitted responsibility for a total of 700 grams of the drug.  However, the government contended he was responsible for between three and ten kilograms of heroin.  Valdez argued, based on Alleyne v. United States, 133 S. Ct. 2151 (2013), that the government should have to prove the amount of drugs beyond a reasonable doubt to support all drug quantity determinations under the sentencing guidelines.  The Court of Appeals rejected this argument because the Supreme Court in Alleyne, specifically stated that the ruling did not “mean that any fact that influences judicial discretion must be found by a jury.”  The Court also rejected the argument that the informant’s statements regarding the amount of drugs was unreliable.

When determining whether a prior conviction is a serious drug offense for Armed Career Criminal purposes, the Court of Appeals held the fact that the defendant could only receive 7½ years in prison for the actual offense (but could serve an additional five years in prison based on violations of supervision) meant the prior offense was not a serious drug offense carrying a sentence of 10 years or more.  United States v. Spencer, No. 13-2622.  Spencer pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g).  The district court concluded he was an Armed Career Criminal under 18 U.S.C. § 924(e).  Spencer argued that one of the three convictions relied upon by the district court was not a “serious drug offense” under the statute.  Spencer was convicted under Wis. Stat. § 961.41(e)(1) which prohibits the manufacture or delivery of methamphetamine.  It is a Class F felony and the maximum punishment for a Class F felony is 12½ years in prison.  But for felonies committed in 2000 and later, as in this case, the judge must impose a bifurcated sentence that consists of a term of confinement in prison followed by a term of extended supervision.  For a Class F felony, the longest permissible term of confinement in prison is 7½ years.  Once released on extended supervision, the defendant may be returned to prison for violating conditions of supervision, up to 12½ years.  The government argued because the statutes allowed for a defendant to serve up to 12½ years including time spent for violating supervision, the offense should count as a “serious drug offense” which requires the offense to be one where the defendant could receive a maximum sentence of 10 years or more.  The Court of Appeals agreed with Spencer and held that post-sentencing events that affect how long a person spends in prison do not change the maximum term of imprisonment as that term is customarily used.  Because the highest sentence a defendant could receive was 7½ years, this conviction was not correctly used as a predicate for Armed Career Criminal status.  The Court reversed and remanded Spencer’s sentence.

 

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Cases from 12/31/13 through 1/10/14

Supreme Court Activity

The Supreme Court neither granted certiorari nor issued opinions in any new criminal case since the last update.  For a complete list of all criminal issues pending before the Supreme Court, click HERE.

Seventh Circuit Activity

The Seventh Circuit issued precedential opinion[s] in a criminal case since the last update, as summarized below.

The summaries from the last year (August 2012 through July 2013), categorized by topic with a “Table of Contents,” is available HERE.  Any new summaries will go into a new categorized document available HERE. 

In a case where the government presented testimony from a law enforcement witness that contained both lay and expert testimony, any error in presenting the expert testimony was harmless.  United States v. Brown, No. 13-2223 & 11-3864.  Brown and Jones were co-participants in a bank robbery and, in the course of their flight from the bank, a dye pack exploded in Brown’s pants causing burns.  The government presented evidence from an agent who was familiar with dye packs used by banks who testified both to facts regarding the instant offense and to opinions regarding the use of dye packs in general.  The Court of Appeals held that the testimony regarding the use of dye packs generally, including that the packs were all manufactured by the same company, could be set to detonate within 10 to 30 seconds of exiting the bank, burned at 400 degrees, and that timers were set according to the bank’s surrounding environment, was based on technical, specialized knowledge.  Therefore, the government should have qualified the agent as an expert.  However, the error was harmless because Brown could not show the error was prejudicial to him.

The district court correctly instructed the jury regarding the government’s burden of proving the type of asbestos involved in the offense. United States v. O’Malley, No. 12-2771.  O’Malley appealed from his conviction for removing, transporting, and dumping asbestos-containing insulation.  He argued the jury instructions should have required the government to prove he knew the asbestos in this case was one of the six forms of regulated asbestos.  However, the Court of Appeals upheld the district court’s instructions on scienter were proper.  The district court gave a definition for regulated asbestos-containing material which was separate from the instruction charging the government with proving the activity involved more than a certain amount of regulated asbestos-containing material.  Therefore, the scienter requirement was separate from the requirement that the government prove the asbestos was one of the regulated types.

The district court did not err in refusing to hold a Franks hearing where the defendant failed to point to any false or misleading statements in the warrant affidavit.  United States v. Currie, No. 12-1666. Currie pled guilty to charges that he conspired to distribute 50 grams or more of crack cocaine.  Currie argued the district court erred by denying his motion to suppress evidence without conducting an evidentiary hearing.  The Court of Appeals held that the district court did not err by failing to hold a Franks hearing because Currie failed to identify any fact in the warrant affidavit that was false or misleading.  In addition, the Court of Appeals ordered  a limited remand for purposes of ascertaining whether the district court would be inclined to sentence Currie differently knowing that Currie is subject to the lower statutory minimum term of five years as provided by the Fair Sentencing Act.

A defendant is not eligible for the safety valve reduction where he repeatedly was untruthful in safety valve debriefings and never told the whole truth regarding his involvement in the offense.  United States v. Acevedo-Fitz, No. 13-2424.  Acevedo-Fitz pleaded guilty to conspiracy to possess heroin with intent to distribute and was subject to a mandatory minimum sentence of 120 months.  The district court concluded he was ineligible for safety valve consideration because he had lied during several debriefings.  Acevedo-Fitz argued on appeal that, even though he had lied, he told the truth shortly before sentencing and should have been given the safety valve reduction.  This standard has been accepted by several other circuits including the D.C. Circuit, the Fourth Circuit, and the Ninth Circuit.  The Court of Appeals held that he forfeited any entitlement to the safety valve by attempting to secure that benefit through deception.  Furthermore, the district court’s finding that he never told the entire truth was supported by the record and was enough to affirm the sentence.

Defendant’s claim of ineffective assistance of counsel must fail where there is no proof in the record to support the claim.  United States v. Flores, No. 13-2276.  Flores was charged and convicted of illegal reentry, drug trafficking, and a gun charge.  Flores argued on appeal that his attorney furnished ineffective assistance of counsel by telling the jury at trial that he had distributed cocaine after illegally reentering the United States.  However, the Supreme Court in Florida v. Nixon held that it was not ineffective for an attorney to concede guilt on some charges as part of an effort to make the defense at trial more credible if the attorney alerts the defendant to the strategy.  The problem with Flores’s argument was that he had no proof in the record that his attorney did not tell him of the strategy.  The Court of Appeals engaged in a lengthy discussion of why it is usually imprudent to raise ineffective assistance of counsel claims on direct appeal.    

The district court did not err in refusing to allow the defendant to impeach a co-defendant with a prior conviction.  United States v. Rucker, No. 13-1297.  Rucker argued that the district court erred in not allowing him to impeach a testifying co-defendant with a prior conviction.  The Court of Appeals held that there was no error where the conviction was not within the ten year period.  Furthermore, because of the witness’s convictions in the present matter, the older conviction did not have much probative value.

The defendant is not entitled to a reduction in his offense level under § 2X1.1(b)(2) where he completed all of the preparations necessary to commit the substantive offense.  United States v. Dosen, No. 13-2223.  Dosen argued the district court erred by refusing to reduce the defendant’s guidelines range by three levels because the conspiracy to violate the Hobbs Act was not carried out.  Section 2X1.1(b)(2) entitles a defendant to such a reduction unless he or a co-conspirator completed all of the acts believed necessary for successful completion of the substantive offense or the circumstances demonstrate the conspirators were about to complete all such acts but for apprehension or interruption by some similar event beyond their control.  In this case, the conspirators completed all of the preparatory acts necessary to commit the crime.  They procured weapons and supplies, identified the drug trafficker’s truck, watched the ruck, and pursued it.  The only thing left was to actually commit the substantive offense.  Where the preparations were complete, the reduction does not apply.

 

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Cases from 12/17/13 through 12/30/13

Supreme Court Activity

The Supreme Court neither granted certiorari nor issued opinions in any new criminal case since the last update.  For a complete list of all criminal issues pending before the Supreme Court, click HERE.

Seventh Circuit Activity

The Seventh Circuit issued 6 precedential opinion[s] in a criminal case since the last update, as summarized below.

The summaries from the last year (August 2012 through July 2013), categorized by topic with a “Table of Contents,” is available HERE.  Any new summaries will go into a new categorized document available HERE. 

Nothing in the mail fraud statute requires a scheme to defraud to involve deception of the same person or entity whose money or property is the intended object of the scheme. United States v. Seidling, No. 13-1854.  The defendant was convicted after a bench trial of mail fraud, stemming from his mailing documents containing false information to small claims courts in Wisconsin and hiding the filings of the actions from the named defendants.  On appeal, the defendant argued that the elements of the mail fraud statute could not be met because he never intended the false statements and misrepresentations to be communicated to the victims.  In other words, he argued that there was no convergence between the victim’s losses and the fraudulent statements.  The Court of Appeals affirmed.  The court held that nothing in the mail fraud statute requires a scheme to defraud to involve deception of the same person or entity whose money or property is the intended object of the scheme.  Rather, the deception need only be “material,” in that it has a natural tendency to influence or is capable of influencing, the decision of the decision making body to which it is addressed.  The false communications to the small claims courts in this case met that requirement. 

Grant of judgment of acquittal granted reversed where defendant’s suspicion that bags he unloaded contained drugs and his deliberate avoidance of learning the truth of what was in the bags was enough to establish crimin al liability.  United States v. Gonzalez, No. 13-1832.  After a jury convicted the defendant of conspiring and possession of with intent to distribute more than 1000 kilograms of marijuana, the court granted the defendant’s motion for judgment of acquittal.  The government appealed.  Agents discovered several railcars of marijuana delivered to a warehouse in Chicago.  They observed individuals, including the defendant, unload bags which contained marijuana.  When agents arrested the defendant, he gave a statement indicated that he helped unload the sacks of marijuana, but he did not know what the contents of the bags were.  He did say, however, that he suspected the bags contained drugs—probably cocaine.  Given this evidence, the court gave an ostrich instruction at trial. Upon the filing of the defendant’s motion for judgment of acquittal, the court found that the government failed to prove actual knowledge.  The court acknowledged that the evidence, taken in the light most favorable to the government, certainly established that the defendant handled or saw several bricks of drugs and was suspicious as to the contents of those bricks, but the inferences drawn from those suspicions went “beyond the bounds of reasonable inference.”  The court noted that the purpose of an ostrich instruction is to inform the jury that a person may not escape liability by pleading ignorance if he knows or strongly suspects he is involved in criminal dealings but deliberately avoids learning more exact information about the nature or extent of those dealings.  Deliberately avoiding knowledge of criminal activity is the same thing as having actual knowledge of that activity.  Given this standard, the defendant’s suspicions and his deliberate avoidance of learning the truth were enough to sustain his conviction.  Accordingly, the court reversed the court’s grant of the motion for judgment of acquittal.

Allowing properly admitted child pornography evidence to go into the jury room during deliberations was not unfairly prejudicial given the centrality of the evidence to the government’s case.  United States v. Loughry, No. 13-1385.  In child pornography prosecution, the defendant argued that his convictions should be reversed because the district court sent to the jury room a binder containing properly admitted evidence of child pornography collected from his residence.  According to the defendant, the evidence recovered from his home was simply too prejudicial for jurors to examine during their deliberations.  The Court of Appeals noted that while there may be some special circumstances in which a district court would abuse its discretion by failing to exclude properly admitted evidence from the jury room on this basis, this case was not one of them.  The challenged exhibit was not unfairly prejudicial because the images and videos from the defendant’s personal collection were highly probative of his identity as the internet user who advertised and distributed the child pornography on the website central to the prosecution of the case.  The similarities between the defendant’s own child pornography and that found on the website in question made the defendant’s personal collection highly probative and justified the court’s decision to allow jurors to inspect it during deliberations.

Two level enhancement for trafficking in stolen credit cards was prohibited where the defendant was also convicted of aggravated identity theft and subject to a mandatory consecutive sentence for that offense.   United States v. Doss, No. 13-1001.  The defendant was convicted of one count of possessing with intent to use unlawfully or transfer unlawfully five or more identification documents, one count of possessing, with intent to defraud, fifteen or more counterfeit and unauthorized access devices, and one count of aggravated identity theft.  At sentencing, the court grouped the first two offenses and sentenced him to a mandatory consecutive sentence on the aggravated identity theft conviction.  On appeal, the defendant argued for the first time that the district court improperly applied an enhancement on the group counts under U.S.S.G. § 2B1.1(b)(11)(B), which resulted in an increased range on the grouped counts.  The Court of Appeals agreed, finding the error met the plain error standard.  The enhancement in question provided for a two-level enhancement if the offense involved the production or trafficking of any unauthorized device or counterfeit access device.  The defendant objected to the enhancement because he had not “produced” the credit cards forming the basis of his conviction, had not sold them, and had not “trafficked” in them.  The district court disagreed and found that he had in fact trafficked in the cards.  However, Application Note 2 to Guideline Section 2B1.6, which governs 1028A convictions, provides that no specific offense characteristics should be applied to underlying offenses of conviction for transfer, possession, or use of a means of identification where a consecutive sentence is imposed for a 1028A offense.  Given the court’s finding that the defendant trafficked in credit cards forming the basis of conviction on the first two counts, the plain language of the Application Note on precluded the enhancement.  Moreover, given that the enhancement increased the defendant’s range, the error was plain.

Protective sweep of apartment adjoining apartment designated in a search warrant justified by several specific facts which supported the sweep on the grounds of officer safety.  United States v. Starnes, No. 13-1148.  After conducting a controlled buy at an apartment, police executed a search warrant. The warrant described the premises to be searched as a “two store, two-family dwelling, white with black trim, located on the west side of the street with the numbers ‘922’ appearing on the front of the residence with lower apartment being located on the ground floor.”  The lower apartment was actually the lower level of a two-story house that had been converted from a single family residence into a two-flat.  Before executing the warrant, officers knew that a shooting had occurred at the residence a few days prior and that two aggressive pit bulls lived there.  When officers executed the warrant, they entered a small foyer which led to the upper and lower apartments.  One of the pit bulls charged the defendant from the stairs leading to the upper apartment, whereupon the officer shot and killed the dog.  He then went to the upper apartment where he conducted a protective sweep, discovering drugs in plain view and the defendant.  The defendant moved to suppress the evidence discovered during the protective sweep of the upper apartment.  In this case, there were several particularized factors which permitted the protective sweep of the upper apartment.  Specifically, officers knew a shooting had occurred just a few hours prior to the search, knew two pit bulls were at the premises, the two apartments had been carved out from a single family residence, did not know if the two units had unknown points of access, and announced their presence to everyone in the building via the gunshots fired to kill the dogs.  In these circumstances, the protective sweep was justified to ensure officer safety. 

Plain error to apply an abuse of position of trust enhancement and enhancement for committed a fraud while being a commodity pool operator.  United States v. Rushton, No. 13-1343.  In prosecution for operating a Ponzi scheme related to the operation of a commodity pool, the defendant argued that he should not have received enhancements for an abuse of position of trust and for fraud in connection with a commodity pool because the two enhancements overlapped.  The government agreed, noting that Application Note 14(c) to U.S.S.G. § 2B1.1 bars the abuse of trust enhancement in a fraud case if the enhancement for being a commodity pool operator applies. However, because the defendant did not raise the issue below, the government argued that the error was not plain.  The court, however, disagreed, finding the error to be plain and, consequently, vacated the sentence and remanded for resentencing.

 

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Cases from 12/11/13 through 12/16/2013

Supreme Court Activity

The Supreme Court granted certiorari in one new criminal case since the last update.  It did issue one new opinion in a criminal case, as summarized below. For a complete list of all criminal issues pending before the Supreme Court, click HERE.

The cert grant was in Laughrin v. United States, No. 13-316.  The issue presented is:  “Whether the government must prove that the defendant intended to defraud a bank and expose it to risk of loss in every prosecution under 18 U.S.C. § 1344.” 

According to the 10th circuit, below, the circuits are split on this issue:  the 1st, 2d and 3d require the government to prove intent to defraud a bank under both 1344(1) and 1344(2), but the 6th and 10th do not. Links to the opinion below, cert papers, and SCOTUSblog coverage can be found HERE.

Regarding the Opinion the Court issues, as summarized by Sentencing Resource Counsel, Laura Mate: 

“The Supreme Court issued a unanimous opinion written by Justice Sotomayor in Kansas v. Cheever, No. 12-609.  The question in the case was "whether the Fifth Amendment prohibits the government from introducing evidence from a court­ordered mental evaluation of a criminal defendant to rebut that defendant’s presentation of expert testimony in support of a defense of voluntary intoxication."

The Court held it does not:

‘We hold that where a defense expert who has examined the defendant testifies that the defendant lacked the requisite mental state to commit a crime, the prosecution may offer evidence from a court-ordered psychological examination for the limited purpose of rebutting the de­fendant’s evidence.’  

The Court does not think this holding changes the law, and is just an application of Buchanan v. Kentucky, 483 U.S. 402 (1987).

Perhaps the most important part of the decision is what is not decided:  whether the rebuttal testimony exceeded the scope of what is allowed by the Fifth Amendment or by the State's evidentiary rules.  Those issues are to be addressed on remand.”

Seventh Circuit Activity

The Seventh Circuit issued 3 precedential opinion[s] in a criminal case since the last update, as summarized below.

The summaries from the last year (August 2012 through July 2013), categorized by topic with a “Table of Contents,” is available HERE.  Any new summaries will go into a new categorized document available HERE. 

Court explains the law governing the admission of summary evidence and the different standards for admission of such evidence under Rule 1006 and Rule 611(a).  United States v. White, No. 11-3240.  Three defendants were convicted in a mortgage fraud scheme.  White was the mastermind who obtained financing for straw purchasers through fraudulent loan applications from homeowners on the brink of foreclosure.  Ford was the closing agent who fabricated official documents to facilitate the scheme.  Finally, Helton was an attorney who, at White’s behest, represented the homeowners during the closings where he falsely assured clients that everything was in order.  The defendants raised a slew of trial and sentencing issues, all of which the court rejected in fairly short order applying well-established law to the facts.  The only issue meriting any discussion here was the challenge to a summary chart admitted by the government, given the infrequency one sees an issue on this question in the Seventh Circuit.  The chart listed 236 property sale transactions involved in the fraud and was prepared by a government accountant who reviewed all the relevant underlying files.  In considering whether the chart was properly admitted, the court followed precedents from other circuits in clarifying the distinctions between the two main ways a party can summarize complex, voluminous documents at trial.  First, a party can introduce the information in a summary exhibit under Federal Rule of Evidence 1006, in order to “to prove the content of voluminous writings … that cannot be conveniently examined in court.” If admitted this way, the summary itself is substantive evidence—in part because the party is not obligated to introduce the underlying documents themselves. Because a Rule 1006 exhibit is supposed to substitute for the voluminous documents themselves, however, the exhibit must accurately summarize those documents. It must not misrepresent their contents or make arguments about the inferences the jury should draw from them. The other option is a pedagogical chart admitted pursuant to the court’s “control over the mode … [of] presenting evidence” under Federal Rule of Evidence 611(a). Rule 611(a) pedagogical summaries are meant to facilitate the presentation of evidence already in the record. These summaries are not substantive evidence—instead, the summaries are meant to aid the jury in its understanding of evidence that has already been admitted. For this reason, Rule 611(a) charts can be more onesided in their presentation of the relevant information.  Finally, the court noted that “[t]he lines between these two types of summary documents are easily blurred. A summary that is admissible under Rule 1006 … could properly be offered under Rule 611(a) if the supporting material has been admitted into evidence. Likewise, a chart that originally was offered as a jury aid to assist with review of voluminous underlying documents already in evidence—and which accurately summarizes those documents—alternatively could be admitted under Rule 1006 if the court concluded that the supporting documents could not be examined conveniently in court.”  In the present case, the chart was submitted as substantive evidence and allowed to go to the jury room, so it had to have been admitted under Rule 1006 and, accordingly to the court, the chart met all the requirements of the Rule and was therefore properly admitted.  NOTE:  This is one of, if not the, best case on the law governing the admission of summary evidence at trial.  Unfortunately, it is buried in a long opinion with a lot of routine issues.  The operative pages of the slip opinion are 19 through 24.

Claim that district court erred by indicating it would admit evidence of six prior felony convictions if the defendant testified were waived where the defendant did not testify.  United States v. Tucker, No. 13-1403.  Police officers found a rifle under a mattress in an apartment leased by the defendant’s mother. Tucker was convicted of possessing a firearm after a felony conviction. He appealed, arguing the evidence was insufficient to establish that he constructively possessed the rifle, and that he was denied a fair trial because the district court indicated it would admit evidence of his six prior felonies if he testified.  The court rejected both these claims.  On the sufficiency question, the court noted that there was direct evidence that the defendant admitted he was holding the gun for a friend, which was sufficient to establish constructive possession.  On the prior conviction evidence, the court noted that the defendant did not testify at trial, so his claim was waived. 

Court, even assuming improper 404(b) evidence was admitted, would not reverse where other evidence was overwhelming.  United States v. Garcia-Avila, No. 13-1313.  The defendant was charged with two counts: conspiracy to distribute and possess with intent to distribute methamphetamine and attempted distribution of methamphetamine. A jury convicted him of both counts, and he appealed arguing that the district court erred when it (1) allowed expert testimony to taint the jury and (2) admitted evidence of his prior ecstasy transactions. He also argued that the prosecution’s improper statements during rebuttal arguments unfairly prejudiced the jury.  The court of appeals affirmed.  On the expert question, a government agent testified as to the languages and usages among drug dealers.  Such testimony is permissible, especially where the expert testified only as an expert and not as a fact witness.  Regarding the 404(b) evidence concerning the defendant’s previous sales of ectasy, the court circumvented ruling on the issue because the evidence on the charges was so overwhelming as to make any claimed error harmless even if it had occurred.  Finally, on the rebuttal statements, the defendant failed to object to a lone statement he now challenged on appeal and, given the evidence in the case and the plain error standard, the issue had no hope of success.

 

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Cases from 12/02/13 through 12/10/2013

Supreme Court Activity

The Supreme Court neither granted certiorari nor issued opinions in any new criminal case since the last update.  For a complete list of all criminal issues pending before the Supreme Court, click HERE.

Seventh Circuit Activity

The Seventh Circuit issued 4 precedential opinion[s] in a criminal case since the last update, as summarized below.

The summaries from the last year (August 2012 through July 2013), categorized by topic with a “Table of Contents,” is available HERE.  Any new summaries will go into a new categorized document available HERE. 

Defendant responsible for distributing at least 150 kilograms of cocaine and 10 kilograms of heroin properly denied a minor role reduction.  United States v. Sandoval-Velazco, No. 12-3878.  The Court of Appeals rejected the defendant’s argument that he was entitled to a minor role reduction in connection with his narcotics conviction.  The defendant claimed that the district court erred in its minor role analysis by basing its decision solely on the quantity of drugs involved rather than the actual role of the defendant in the conspiracy as evaluated against his co-conspirators’ roles.  The court rejected this argument, noting that the court used the quantity of drugs for which the defendant was responsible as a gage of his relative role in the conspiracy.  The fact that the defendant was responsible for at least 150 kilograms of cocaine and at least 10 kilograms of heroin indicated that he did not occupy a “menial” role in the conspiracy as the defendant claimed. 

Before a statement against penal interest is admissible as an exception to the hearsay rule, the proponent of the statement must present some corroboration as to the trustworthiness of the statement, as opposed to corroboration that the statement was simply made.  United States v. Henderson, No. 13-1736.  In prosecution for being a felon who possessed a firearm, the defendant’s theory of defense at trial was that he never possessed the firearm in question.  On appeal, the defendant argued that the district court abused its discretion in excluding an out-of-court statement of an unavailable declarant regarding the gun in question.  The owner of the van (Rosado) in which the gun was discovered while the defendant was driving it gave a statement to police that when he visited another individual who was with the defendant in the van at the time of his arrest (Rogers), Rogers said that he just found the gun and kept it, brought it into the van, and was going to take it to the residence which he shared with Rosado.  The defendant naturally sought to introduce this statement at trial, arguing it was a statement against penal interest under Rule 804(b)(3), but the government moved to exclude Rosado’s testimony about what Roger’s allegedly said as hearsay.  The court granted the government’s motion, finding the statement itself incredible on its fact, that the totality of the circumstances indicated that the statement was made to help the defendant out, and that there was no corroborating evidence to suggest that the statement was trustworthy as required by rule 804(b)(3).  The Court of Appeals noted that the rule’ corroboration requirement reflects a long standing concern that a criminal defendant might get a pal to confess to the crime the defendant was accused of, the pal figuring that the probability of his actually being prosecuted either for the crime or for perjury was slight.  The Rule does not require that the proffered statement itself be clearly corroborated; the Rule requires only that corroborating circumstances clearly indicate the trustworthiness of the statement.  Here, this requirement could not be met.  First, the statement itself was implausible, suggesting that Rogers just happened to find a loaded gun.  This implausibility is buttressed by the fact that officers found the gun wedged in the driver’s seat.  It would make little sense for Rogers, the passenger, to place the gun there.  Finally, there was no other evidence, such as fingerprints, to corroborate any part of Roger’s statement.  Therefore the statement was properly excluded.  NOTE:  This is a rare case that discusses the requirements for introducing statements against penal interest, with a very thorough, well-reasoned analysis.  This is the place to start if you have this issue.

A post-trial crime committed against a defendant by his attorney in a criminal case does not automatically and retrospectively create a conflict of interest.  Re v. United States, No. 11-3714.  Upon consideration of the denial of a 2255 petition in a Hobbs Act prosecution, the Court of Appeals rejected the petitioner’s claims that his trial and appellate counsel were ineffective.  He argued that trial counsel was ineffective because he stole from the petitioner.  Specifically, defense counsel was assisted by the petitioner’s divorce lawyer, O’Donnell.  Three weeks after the jury returned its verdict, the petitioner sold a warehouse.  The proceeds from the sale were put in escrow, which O’Donnell then embezzled.  The petitioner claimed that the crime showed a conflict of interest which required a new trial without a showing of prejudice.  The district judge held that a post-trial crime by a lawyer against his client does not spoil the trial as a matter of law; prejudice must be shown.  Because O’Donnell only played a peripheral role in the criminal trial, no prejudice could be shown.  The Court of Appeals agreed, noting that lead counsel was unconflicted.  Moreover, no court has held that a post-trial crime by a lawyer against his client automatically and retroactively spoils the trial. Regarding appellate counsel, the petitioner argued that his appellate counsel failed to raise an argument challenging his conviction.  Specifically, the defendant argued that the indictment did not allege, and the jury did not find, that the victim of the petitioner’s Hobbs Act violation handed over any money or property after being beaten and threatened.  However, the court held that the Hobbs Act speaks of obtaining property “from another”; it is not limited to the victim. There was sufficient evidence to show that the petitioner did seek to gain property through his Hobbs Act violation; just not from the victim.  That was sufficient to meet the requirements of the Act, and appellate counsel was therefore not ineffective for failing to raise the issue on appeal. 

A defendant who elects to testify to ameliorate the effects of what he believes to be an evidentiary error on the part of the trial judge is not “compelled” to testify under the Fifth Amendment due to the error; the defendant has the option of remaining silent and seeking appellate correction of the evidentiary error.  United States v. Caira, No. 12-2631.  The defendant was convicted after a jury trial of conspiracy to commit murder of a United States official after he plotted to have the prosecutor and DEA agent in his felony drug trial murdered.  On appeal, the defendant argued that his Fifth Amendment right not to be compelled to testify against himself was violated at trial.  He also challenged the jury instructions in his case.  The defendant challenged the admission of some hearsay statements he made, arguing that their introduction at his trial was tantamount to compelled testimony, for he took the stand in order to address his hearsay statements admitted over his objection.  The Court of Appeals, however, noted that the link between an evidentiary error and a constitutional violation cannot be so readily drawn.  There is no compulsion as the Fifth Amendment uses that concept where a defendant retains the option of standing on his right not to testify and seeking appellate correction of the evidentiary ruling.  Although the defendant in this case elected to elected to testify, rather than stand silent, that was a tactical choice he made; it was not compulsion.  The defendant had a difficult choice, but a choice nonetheless.  Regarding the instructional errors, the defendant made no objection to the instructions at trial, so the district court was easily affirmed under the plain error standard. 

 
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Cases from 11/19/13 through 12/02/2013

Supreme Court Activity

The Supreme Court neither granted certiorari nor issued opinions in any new criminal case since the last update.  For a complete list of all criminal issues pending before the Supreme Court, click HERE.

Seventh Circuit Activity

The Seventh Circuit issued 4 precedential opinion[s] in a criminal case since the last update, as summarized below.

The summaries from the last year (August 2012 through July 2013), categorized by topic with a “Table of Contents,” is available HERE.  Any new summaries will go into a new categorized document available HERE. 

Court adequately considered principal, non-frivolous argument in mitigation where it expressly rejected the argument when imposing sentence.  United States v. Starko, No. 13-1217.  In prosecution for production of child pornography, the defendant argued his 360 month sentence was procedurally unreasonable because the district court failed to address one of his principal, non-frivolous arguments in support of a lower sentence.  At sentencing, the defendant argued for a below-guidelines sentence principally because of his client’s mental illness, which he supported with a report done by a defense psychiatrist. When imposing sentence, the court specifically, noted that it doubted whether the defendant’s mental illness excused his conduct.  Given that the district court expressly noted it was rejecting the defendant’s argument for a lower sentence based upon mental illness, no procedural error occurred. 

Arson of property other than a building (Wis. Stat. § 943.03) is a “violent felony” for ACCA purposes.  United States v. Misleveck, No. 13-1855.  After being sentenced as an armed career criminal, the defendant argued that his prior conviction for arson (Wis. Stat. § 943.03) was not a “violent” felony within in the meaning of the ACCA.  The Wisconsin statute at issued, entitled “Arson of property other than building” provides that “whoever, by means of fire, intentionally damages any property of another without the person’s consent, if the property is not a building and has a value of $100 or more,” commits the offense in is subject to a maximum penalty of 3.5 years.  Applying the categorical approach, and after a lengthy, somewhat convoluted analysis, the court concluded that the offense did qualify as a violent felony.  NOTE:  The analysis in this case is rambling and at times self-contradictory, but the bottom line is clear.  For a complete list of cases in the Supreme Court and Seventh Circuit addressing what is or is not a “violent felony” or “crime of violence,” click HERE.  

District judge not disqualified from presiding over illegal re-entry prosecution where, although he was an INS employee when the defendant was originally deported, the judge at that time did not actually participate in the deportation proceedings.  United States v. Lara-Unzueta, No. 13-1069.  In prosecution for illegal re-entry, the court rejected the defendant’s argument that the trial judge should have disqualified himself from the defendant’s motion to dismiss the indictment.  The defendant argued that because the district judge served as INS District Counsel when the defendant was first deported, and because his conviction in this case relates back to that deportation order, the judge had a role “concerning the proceeding” that subjects him to disqualification under § 455(b)(3).  The court, however, found that the judge had not served as counsel concerning “the proceeding,” as this term means the current proceeding.  The defendant’s criminal prosecution was not the same as the deportation proceedings previously conducted.  Moreover, even if the deportation proceeding could be interpreted as falling within the current proceeding, the record demonstrates that the judge did not actually participate in those proceedings. 

Defendant in halfway house had no expectation of privacy in cell phone or its contents where the rules of the house provided that a cell phone could be searched by anyone at any time for any reason.  United States v. Huart, No. 13-2075.  The defendant appealed the denial of his motion to suppress pictures found on his cell phone which he possessed while serving part of his sentence in a halfway house, but the Court of Appeals rejected the argument, holding that he had no reasonable expectation of privacy in the seized cell phone or its contents.  The rules of the hallway house prohibited the defendant from possessing a cell phone at all and, for those who were allowed to have cell phones, provided that any staff could view the contents of the phone for any reason.  During the course of a random search of the defendant’s room, a cell phone was discovered with 214 images of child pornography.  Whatever the general expectation of privacy may be in a halfway house, the rules of this particular halfway house (which the defendant signed upon entrance) clearly eliminated any expectation of privacy at all.  Accordingly, there was no basis for concluding the seizure and search of the phone’s contents was improper. 

 
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Cases from 11/09/13 through 11/18/2013

Supreme Court Activity

The Supreme Court neither granted certiorari nor issued opinions in any new criminal case since the last update.  For a complete list of all criminal issues pending before the Supreme Court, click HERE.

Seventh Circuit Activity

The Seventh Circuit issued 1 precedential opinion[s] in a criminal case since the last update, as summarized below.

The summaries from the last year (August 2012 through July 2013), categorized by topic with a “Table of Contents,” is available HERE.  Any new summaries will go into a new categorized document available HERE. 

Departures are obsolete post-Booker and only 3553(a) governs sentences outside the range—both above and below.  United States v. Curndwell, No. 13-1407.  In prosecution for wire fraud, the defendant embezzled $53 million from the city of Dixon while she served as Comptroller of the city of Dixon, Illinois.  After her guilty plea, the district court sentenced her to 235 months’ imprisonment, well above the 188 top of her range.  In departing upward, the judge relied in part on U.S.S.G. §2B1.1 Application Note 19(a)(ii), which says that a sentence may depart from the range recommended when “the offense caused or risked substantial non-monetary harm.  For example, the offense caused physical harm, psychological harm, or severe emotional trauma.”  The judge thought the citizens of Dixon suffered “psychological harm” for the revelation that a prominent office holder was a crook and had deprived the city of much needed municipal services for 20 years.  The defendant argued that only the City counted as a victim and it cannot suffer “psychological harm.”  The court first noted that the Application Note doesn’t limit psychological harm to victims.  Moreover, as the court has repeatedly held, post-Booker, departures are obsolete.  Thus the particular language of the Application not doesn’t restrict the district judge.  It is 3553(a) which governs variances, not the Guidelines.  Having disposed of that argument, the court found the sentence to be substantively reasonable. 

 
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Cases from 11/02/13 through 11/08/2013

Supreme Court Activity

The Supreme Court neither granted certiorari nor issued opinions in any new criminal case since the last update.  For a complete list of all criminal issues pending before the Supreme Court, click HERE.

Seventh Circuit Activity

The Seventh Circuit issued 1 precedential opinion[s] in a criminal case since the last update, as summarized below.

The summaries from the last year (August 2012 through July 2013), categorized by topic with a “Table of Contents,” is available HERE.  Any new summaries will go into a new categorized document available HERE. 

Loan officer involved in mortgage fraud scheme which used straw purchasers, phony appraisals, and falsified documents had his sentence properly enhanced for abuse of a position of trust and sophisticated means.  United States v. Anobah, No. 12-1276.  On appeal from a wire fraud prosecution, the defendant challenged the application of an abuse of trust and use of sophisticated means enhancement at sentencing.  The defendant was a loan officer who prepared fraudulent loan applications in “strawman” real estate deals.  Regarding the abuse of a position of trust enhancement, the defendant argued that he was no more than “a gopher, with no discretion, much less substantial discretion” within his mortgage company.  The court, however, held that the district court was justified in making the reasonable inference that his employer relied on the information presented by the defendant about the loans, given that he was its long term, licensed employee in determining whether a customer was a suitable loan risk.  On the sophisticated means enhancement, the enhancement was based upon the fact that the offense involved the use of multiple documents containing false statements, and the creation of other documents to support the false statements in the first set of documents.  The court noted that the scheme involved straw purchasers, false property assessments, verifications of information supplied by attorneys who were prosecuted for their role in the offense, numerous properties in two different states, and a lengthy scheme that evaded detection for a substantial period of time.  These facts clearly justified the enhancement.

 
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Cases from 10/26/13 through 11/01/2013

Supreme Court Activity

The Supreme Court neither granted certiorari nor issued opinions in any new criminal case since the last update.  For a complete list of all criminal issues pending before the Supreme Court, click HERE.

Seventh Circuit Activity

The Seventh Circuit issued 3 precedential opinion[s] in a criminal case since the last update, as summarized below.  Thanks to AFPD Elisabeth Pollock who did the summaries for me this week due to my being out of the office Thursday and Friday.

The summaries from the last year (August 2012 through July 2013), categorized by topic with a “Table of Contents,” is available HERE.  Any new summaries will go into a new categorized document available HERE. 

Reasonable suspicion to believe driver of a car is armed can be imputed to a passenger under some circumstances; justifying a Terry frisk; sentence vacated because boilerplate explanation of the sentence imposed was procedurally unreasonable.  United States v. Lyons, No. 12-2905.  Upon appeal after conviction for a 922(g) offense, the Court of Appeals affirmed the district court’s denial of the defendant’s motion to suppress, but vacated the sentence.  The defendant was the passenger in a car with White when officers, who knew he had a suspended license, attempted to stop the car.  White accelerated and went through two red lights before finally stopping.  Two officers then approached the car.  The officer who approached the defendant noticed that his hands were shaking and he avoided eye contact.  When the officer said he intended to frisk the defendant, he told the officer he had a gun on him.  He was then handcuffed and frisked.  The defendant argued that the officer lacked particularized suspicion to believe that the defendant was armed.  The court disagreed, noting that a display of nervousness is frequently recognized as a sign that a suspect has something to hide, including a weapon.  Moreover, the officers knew that white had recently been arrested with firearms at least twice and had just attempted to flee the police.  The defendant’s decision to associate himself with the defendant contributed to their suspicion.  The police can, in certain circumstances, impute suspicion of a vehicle’s driver to its passengers.  On the sentencing issue, the defendant argued and the government conceded that the judge sentenced the defendant to five years of supervised release under the misapprehension that five years was the statutory minimum.  In fact, it was the maximum, and therefore the sentence had to be vacated.  The defendant also argued that the district court failed to explain the reasons for its sentence.  Although the government argued the defendant waived the argument by failing to object, the court noted that the defendant never had an opportunity to object until sentence was imposed.  A defendant is not required to except to rulings by the trial judge once they are handed down.  As to the merits, the district court simply acknowledged that it had considered the PSR, the guidelines, the 3553 factors, and both sides arguments.  This boilerplate language was insufficient to explain how the court arrived at the sentence it chose.  NOTE:  This case is a good check to the trend of the Court of Appeals becoming increasingly hostile to procedural reasonableness arguments.  However, one cannot help wonder what the outcome in this case would have been had the case not been going back anyway on the error the government conceded. 

A plea of guilty mid-trial warrants denial of acceptance of responsibility at sentence.  United States v. Pilon, No. 12-3159.  On appeal from a conviction after a jury trial for fraud related to a Ponzi scheme, the defendant argued that the court erred in denying her acceptance of responsibility, in applying an abuse of trust enhancement, and ignoring mitigation arguments.  The court rejected all these arguments.  On the acceptance of responsibility issue, the defendant pleaded guilty mid-trial, after several witnesses had already testified.  The court noted that the precedents are clear that not accepting responsibility until the eleventh hour is sufficient reason for a district court to deny the reduction, and the defendant was well past the eleventh hour.  On the abuse of trust issue, the court (reviewing for plain error) found that the defendant held herself out to victims as operating and controlling the companies that offered the investment programs that were part of the Ponzi scheme, represented that she made money for other individuals through the programs, and promised that if investors would invest the necessary funds then she would provide them with astronomical returns.  The victims placed their money in her hands and their faith in her management of the programs.  This faith was akin to the trust placed in any investment manager or broker’s management of investments and was sufficient to constitute an abuse of a position of trust when she breached that trust.  Finally, the court concluded that the district court adequately considered the arguments in mitigation and the sentence was substantively reasonable. 

Defendant who would have insisted on going to trial was not prejudiced by any error of counsel in advising the defendant regarding plea offers.  Foster v. United States, No. 12-1961.  On appeal after denial of a 2255 petition based upon ineffective assistance of counsel, the Court of Appeals affirmed.  The defendant was charged with distributing and conspiracy to distribute crack.  Against the advice of counsel, the defendant rejected two plea offers which would have resulted in a sentence of 20 years.  The day before trial, the government filed an 851 notice, increasing the defendant’s minimum to 20 years.  Counsel neither anticipated that this would be a possibility nor advised the defendant of it. At trial, the defendant was acquitted on the conspiracy charge but convicted on the distribution charge.  He was sentenced to 20 years, the mandatory minimum.  The defendant argued that counsel was ineffective for failing to realize an 851 notice could have been filed.  Both the district court and the court of appeals rejected this argument, noting that counsel informed the defendant of both proposed plea agreements and explained the benefits of them, that the defendant refused to accept the drug weight and weapon enhancement required by both proposed plea agreements, and the defendant clearly stated that he viewed a twenty year sentence as being practically the same as a life sentence.  Resolving the case on the prejudice prong, the record made clear that the defendant would rejected any plea offer for 20 years, regardless of whether the government would file an 851 notice or not.  Moreover, the sentence he ultimately received was the same as the sentence offered by the government in the plea agreements, so the defendant was no worse off for having gone to trial. 

 
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Cases from 10/19/13 through 10/25/13

Supreme Court Activity

The Supreme Court granted certiorari in two new criminal case since the last update.  For a complete list of all criminal issues pending before the Supreme Court, click HERE.

Robers v. United States, No. 12-9012

“Whether a defendant--who has fraudulently obtained a loan and thus owes restitution for the loan under 18 U.S.C. § 3663A(b)(1)(B)--returns ‘any part’ of the loan money by giving the lenders the collateral that secures the money?”

Hall v. Florida, No. 12-10882

“Whether the Florida scheme for identifying mentally retarded defendants in capital cases violates Atkins v. Virginia?”

Seventh Circuit Activity

The Seventh Circuit issued 4 precedential opinion[s] in a criminal case since the last update, as summarized below.  Thanks to AFPD Elisabeth Pollock who did the summaries for me this week due to my being out of the office Thursday and Friday.

The summaries from the last year (August 2012 through July 2013), categorized by topic with a “Table of Contents,” is available HERE.  Any new summaries will go into a new categorized document available HERE. 

The Government does not need to prove beyond a reasonable doubt that a defendant knew or intended for his conduct to affect interstate commerce in order to find him guilty of sex trafficking. United States v. Sawyer, No. 12-1912. In prosecution for sex trafficking, the defendant challenged the sufficiency of the evidence, arguing that the Government should have been required to prove that he knowingly or intentionally affected interstate commerce when he forced minor females to act as prostitutes on his behalf.  The Court of Appeals rejected the argument, finding that the interstate commerce element merely establishes a basis for Congress’s power to legislate and is not subject to any mens rea requirement such as knowledge or intent.  This holding is consistent with several prior cases in this Circuit, all finding that interstate and foreign commerce elements in other criminal statutes have no mens rea requirements. 

A district court need not provide any additional explanation for a restitution order where the amount of restitution mirrors the amount of actual loss from the Presentence Report, and no specific objection is made to the amount of restitution.  United States v. Berkowitz, No. 13-1349. In prosecution for tax fraud, the Court of Appeals rejected defendant’s challenge to the amount of restitution.  The defendant argued that the district court did not adequately explain its reasons for imposing restitution of approximately $4 million, but the Court disagreed, finding that a restitution award is proper so long as it is linked to the actual loss suffered by victims, either as a direct result of defendant’s conduct or as a result of the actions of defendant’s co-conspirators.  Because the award in this case was directly related to losses resulting from the defendant’s actions or the actions of those he controlled or worked with regularly, the amount of restitution was proper.  Additionally, the district court was not required to make any additional findings specific to restitution after it adopted the findings of the presentence report, where there was no objection to restitution and the presentence report’s calculation of both actual loss and restitution were limited to losses directly related to the defendant’s actions or the actions of his co-conspirators. 

Application Note 3(E) to U.S.S.G. § 2B1.1 requires that in order to receive a setoff against the total amount of loss where a defendant voluntarily returns money to a victim, the refund must occur before the offense was detected. United States v. Philpot, No. 13-1465. In prosecution for mail fraud and theft from a federally funded program, the Court of Appeals affirmed the conviction and sentence of the defendant.  Defendant was the Lake County (IN) County Clerk, and was accused of illegally taking bonuses from a federally-funded incentive program without proper approval from the County Board.  On appeal, defendant argued several issues, including: 1) that the district court erred in denying his motions to transfer venue and dismiss the indictment; 2) that his conviction should be overturned for insufficient evidence; 3) that he is entitled to a new trial due to the prosecutor’s improper closing argument; 4) that he is entitled to a new trial due to the district court giving an improper jury instruction; and 5) that his sentence was improperly calculated based on an incorrect amount of loss.  The Court of Appeals rejected each argument, finding as follows: 1) press coverage that pre-dated the trial by more than a year and was factual in nature did not warrant a change of venue; 2) even if the Government did knowingly present false evidence to the grand jury, the conviction by a petit jury rendered any error harmless; 3) viewing the evidence in the light most favorable to the Government, a rational jury could have concluded that the defendant knowingly violated the law; 4) any improper statements made during closing argument by the prosecutor did not prejudice the defendant; 5) the jury instruction given by the district court was proper; and 6) the amount of loss was properly calculated.  Defendant had argued that because he returned the illegally-obtained bonus money to Lake County voluntarily, he should have received a credit against the total amount of loss.  The Court of Appeals disagreed, finding that Application Note 3(E) to § 2B1.1 provides that any loss created by the offense shall be reduced by the amount of money returned by the defendant to the victim before the offense was detected, i.e. before the victim knew or should have known about the loss.  The time of detection is the earlier of two events: 1) the time when the offense was discovered or 2) the time when the defendant knew or should have known that the offense was about to be detected.  In the present case, because Lake County’s attorney, and therefore Lake County, knew about the loss before the defendant paid it back, the setoff did not apply and the amount of loss was appropriately calculated.  

District court's reliance on independent audit to calculate amount of loss was appropriate where the audit constituted a reasonable estimate of the loss and satisfied the burden of proof by a preponderance of the evidence.  United States v. Orillo, No. 12-3128. In prosecution for healthcare fraud and paying kickbacks to physicians for patient referrals under a federal healthcare program, defendant challenged the loss calculation that led to her sentencing range.  Specifically, she argued that the special audit that was performed to determine the total amount of overpayments made to her company by Medicare did not attribute specific amounts to her criminal conduct, and claimed that some of those amounts could have resulted from human error and should not have counted against her.  The Court of Appeals disagreed, finding that amount of loss is properly proven by any method which renders a reasonable estimate of the loss.  Where the Government's evidence indicated a pattern of improper coding to receive overpayments, and defendant presented no specific evidence of human error, the loss calculation was appropriate. 

 
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Cases from 10/12/13 through 10/18/2013

Supreme Court Activity

The Supreme Court granted certiorari in one new criminal case since the last update.  For a complete list of all criminal issues pending before the Supreme Court, click HERE.

Abramski v. United States, No. 12-1493

“ (1) Whether a gun buyer’s intent to sell a firearm to another lawful buyer in the future a fact is ‘material to the lawfulness of the sale’ of the firearm under 18 U.S.C. § 922(a)(6); and (2) whether a gun buyer’s intent to sell a firearm to another lawful buyer in the future is a piece of information ‘required . . . the be kept’ by a federally licensed firearm dealer under Section 924(a)(1)(A)?”

Seventh Circuit Activity

The Seventh Circuit issued 1 precedential opinion[s] in a criminal case since the last update, as summarized below.

The summaries from the last year (August 2012 through July 2013), categorized by topic with a “Table of Contents,” is available HERE.  Any new summaries will go into a new categorized document available HERE. 

District court may not substantively change a sentence or the rationale thereof via a statement of reasons entered after the notice of appeal is filed.  United States v. Brown, No. 12-3313.  In prosecution for various fraud offenses, the Court of Appeals rejected the defendant’s argument that his above-the range sentence was improper where the court did not provide him notice of its intent to upwardly depart pursuant to Federal Rule of Criminal Procedure 32(h).  At sentencing, the judge varied upward to 60-months imprisonment from a top-of-the-range sentence of 27, noting that the guideline range was far too low given the scope and nature of the defendant’s fraud.  Several weeks later without warning (and after the Notice of Appeal had been filed), the judge entered a written “statement of reasons” which provided much more detail than the court provided in open court.  In that statement, the court applied a “departure” analysis to justify the above-the-range sentence.  On the notice issue, the court first noted that “the old regime of departures is defunct,” and Rule 32(h) does not apply to variances.  Thus, although the judge used the language of “departures” in the statement of reasons, what he really did was vary upward which does not fall within the requirements of Rule 32(h).  More importantly, because the statement of reasons was filed after the notice of appeal, the court lacked any power to alter the sentence.  The court’s attempt to basically recalculate the guideline range through its departure analysis was a nullity because the court lacked jurisdiction to make the change.  Finally, looking to the court’s oral statements alone, the upward variance was substantively reasonable and adequately explained in this case.  NOTE:  First, the language of “departures” still creeps into judicial opinions and pleadings.  Never use that word—it’s always a variance.  Second, use this case when a judge tries to clean up his or her record at sentencing after the fact through the statement of reasons.  This is certainly not the first time this has happened, and it won’t be the last. 

 
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Cases from 10/05/13 through 10/11/2013

Supreme Court Activity

No new grants of certiorari or opinions since the last update.  For a complete list of all criminal issues pending before the Supreme Court, click HERE.

Seventh Circuit Activity

The Seventh Circuit issued __ precedential opinion[s] in a criminal case since the last update, as summarized below.

The summaries from the last year (August 2012 through July 2013), categorized by topic with a “Table of Contents,” is available HERE.  Any new summaries will go into a new categorized document available HERE. 

Illinois offense of aggravated discharge of a firearm under 720 Ill. Comp. Stat. § 5/24-1.2(a)(1) (discharging a firearm into an occupied building) is a “crime of violence.  United States v. Womack, No. 12-3877.  In prosecution for crack cocaine offenses, the Court of Appeals the court of appeals rejected the defendant’s challenges to his sentence.  The defendant first argued that the district court committed procedural error by failing to properly address his mitigating argument for a downward variance based on the concept of “progressive punishment.”  Specifically, the defendant argued that the defendant had spent only 6-months in jail prior to his conviction in the present case, yet was facing a 262-month sentence.  Given the minimal time the defendant had spent in custody previously, the defendant argued that his punishment should be “progressive,” to the extent that such a lengthy sentence should not be imposed when a shorter sentence may be sufficient to serve the goals of sentencing.  Looking to the court’s statements at sentencing, the Court of Appeals concluded that although the district court did not use the words “progressive punishment,” it did in fact consider the defendant’s short period of incarceration prior to the present offense, which was sufficient.  Second, the defendant argued that his 1992 conviction for the Illinois offense of aggravated discharge of a firearm was not a “crime of violence.”  The defendant was convicted under subsection (a)(1) of 720 Ill. Comp. Stat. § 5/24-1.2, which criminalizes discharging a firearm at or into a building he or she knows or reasonably should know to be occupied and the firearm is discharged from a place or position outside that building.  The court noted that it had already characterized the offense as a crime of violence in the immigration context.  Noting that “crime of violence” is defined slightly differently by the Guidelines than in the Immigration and Naturalization Act, the relevant language in this case was the same.  The court also noted that it had previously held that a conviction under subsection (a)(2) of the statute was a crime of violence, said subsection criminalizing discharging a firearm in the direction of another person or in the direction of a vehicle he or she knows or reasonably should know to be occupied by a person.  NOTE:  The Seventh Circuit has now held that both subsections (a)(1) and (a)(2) of the Illinois aggravated discharge of a firearm statute constitute crimes of violence.  For a complete list of Seventh Circuit and Supreme Court opinions on what offenses constitute crimes of violence of violent felonies, click HERE.

Court at sentencing adequately considered the defendant’s argument for a variance that the filing of an 851 notice in his case created an unwarranted disparity.  United States v. Spiller, No. 13-1459.  In prosecution for crack cocaine offenses, the defendant challenged his sentencing, arguing that the district court failed to adequately consider his argument that the government’s filing of an 851 enhancement to his mandatory minimum sentence created an unwarranted disparity.  The court in very short order concluded that the comments made at sentencing indicated the court adequately considered this argument. 

District court erred in applying a trafficking and “another felony offense” enhancement in a 922(g) case where both enhancements were premised upon the same conduct—trafficking—as prohibited by Application Note 13(D) to section 2K2.1.  United States v. Johns, No. 12-3525.  In prosecution for possession of a firearm by a felon, the court held that the district court improperly enhanced the defendant’s sentence under U.S.S.G. § 2K2.1(b)(6)(B) (possession of a firearm “in connection with” another felony offense.  Application Note 13(D) provides that if a defendant used or transferred a firearm in connection with another felony offense “(i.e., an offense other than a firearms possession or trafficking offense) the enhancement should apply.  In this case, the district applied both the trafficking and “another felony offense” enhancements.  The court of appeals concluded that because the “another felony offense” enhancement was based upon the trafficking, both enhancements were improperly premised on the same conduct.  The government argue that application of the other felony offense enhancement was nonetheless proper because Johns transferred the firearms to a CI in connection with felonies other than the trafficking offense, including the sale of crack cocaine and illegal gang activity. The court concluded, however, that although Johns may have discussed such things with the CI when he transferred the firearms, the district court did not find that Johns transferred a firearm in connection with any such felonies and that is a factual determination “for the district court to make in the first instance.”  Accordingly, the court vacated and remanded for sentencing.

 
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Cases from 09/28/13 through 10/04/2013

Supreme Court Activity

The Supreme Court has begun its new term and has already granted certiorari in two criminal cases, the issues in those cases set forth below.  For a complete list of all criminal issues pending before the Supreme Court, click HERE.

United States v. Castleman, No. 12-1371.  Whether the respondent’s Tennessee conviction for misdemeanor domestic assault by intentionally or knowingly causing bodily injury to the mother of his child qualifies as a conviction for a “misdemeanor crime of domestic violence” under 18 U.S.C. § 922(g)(9). 

Navarette v. California, No. 12-9490.  Does the Fourth Amendment require an officer who receives an anonymous tip regarding a drunken or reckless driver to corroborate dangerous driving before stopping the vehicle? 

Seventh Circuit Activity

The Seventh Circuit issued 2 precedential opinion[s] in a criminal case since the last update, as summarized below.

The summaries from the last year (August 2012 through July 2013), categorized by topic with a “Table of Contents,” is available HERE.  Any new summaries will go into a new categorized document available HERE. 

District court improperly held counsel in direct contempt in a summary proceeding where the court had to rely on extrinsic evidence to conclude the lawyer’s conduct was contemptuous.  United States v. Britton, No. 12-3711.  Upon a finding of direct contempt related to a lawyer’s failure to appear at a hearing before the district court, the court vacated the contempt finding and remanded for further proceedings.  Defendant’s counsel failed to appear at a hearing and did not contact the court.  The court then set a “show cause” hearing.  Counsel requested a continuance of that hearing, noting in his request that he had a hearing scheduled in a state court matter which conflicted with the district court’s setting.  The court denied the motion and at the “show cause hearing,” the government noted that the case for which counsel cited a conflict did not have him as counsel of record and that no hearing was set in the matter, in any event, on the date claimed by counsel.  At the show cause hearing, the court found counsel in direct contempt and remanded him to the custody of the U.S. Marshalls for 48 hours.  Counsel filed an appeal and an emergency motion for release pending appeal, which the Seventh Circuit granted.  On appeal, the court noted that Federal Rule of Criminal Procedure 42(a) establishes procedures for indirect contempt and Rule 42(b) allows for summary contempt procedures in cases of direct contempt.  In order to proceed under Rule 42(b), the contempt must appear in the judge’s presence and the “judge saw or heard the contemptuous conduct.”  If the judge had to rely on extrinsic evidence to make a contempt finding, summary procedures are inappropriate.  In this case, none of counsel’s conduct satisfied the requirements of summary adjudication.  The failure to appear did not occur in the courts actual presence, and the statements purported to be false didn’t either.  Moreover, the judge could only consider counsel’s conduct to be contemptuous after considering extrinsic evidence—a fact which converted the proceeding to a 42(a) proceeding.  As for a remedy, the court remanded for proceedings consistent with Rule 42(a).  NOTE:  A rare case on contempt by counsel; one none of us will hopefully ever need to cite or rely upon. 

District court properly applied leadership enhancement.  United States v. Zuno, No. 12-1501.  In prosecution for drug distribution offenses, the district court rejected the defendants’ claim that their sentences were improperly enhanced for being leader/organizers, arguing that their offense did not involve five or more participants.  The court however, in a fact specific review of the case, found that there were clearly at least five individuals involved in the offense, which supported the enhancement. 

 
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Cases from 09/21/13 through 09/27/2013

The Seventh Circuit issued 2 precedential opinion[s] in a criminal case since the last update, as summarized below.

The summaries from the last year (August 2012 through July 2013), categorized by topic with a “Table of Contents,” is available HERE.  Any new summaries will go into a new categorized document available HERE. 

An officer performing a Terry stop may not automatically frisk the individual subject to the stop; rather, to do so, the officer must have some articulable suspicion that the subject is “armed and dangerous.” United States v. Williams, No. 12-3864.  Upon consideration of the denial of a motion to suppress, the Court of Appeals in a divided opinion reversed, finding that a police officer lacked reasonable suspicion to perform a pat down.  On the night of March 21, 2012, City of Fitchburg police officers responded to an anonymous 911 call reporting a group of twenty-five individuals acting loudly and displaying hand guns in a parking lot. Upon arriving at the scene, the officers observed something different: a smaller group of individuals, none of whom appeared to be acting inappropriately. The officers approached this group, which had begun to disperse slowly. For no apparent reason, one of the officers singled out the appellant, Andre Williams, and performed a frisk. Mr. Williams began to resist the frisk and tried to escape, but was ultimately restrained. Thereafter, the officers searched his body and found both a handgun and several ‘ecstasy’ pills. Mr. Williams was arrested and charged with being a felon in possession of a firearm. He moved to suppress the evidence seized from him, but the district judge ultimately denied his motion.  Although Judge Stadtmueller, writing for the majority, found that the initial stop was reasonable.  However, Judge Hamilton declined to joining this portion of the opinion, finding that it was not only unnecessary to the opinion, but a closer call the Judge Stadtmueller’s opinion made it out to be.  Both judges, however, agreed that the frisk was unconstitutional, although Judge Ripple dissented.  The majority first noted that a frisk should only be allowed when the officer can point to articulable facts that would establish a separate and specific condition that the detainee has a weapon or poses some danger.  In other words, an officer performing a Terry stop may not automatically frisk the individual subject to the stop; rather, to do so, the officer must have some articulable suspicion that the subject is “armed and dangerous.”  The government asserted that the following facts supported Officer Jesberger’s decision to frisk Mr. Williams: the fact that the group, in general, avoided eye contact with the officers and started to move away from the area upon the officers’ arrival; the fact that Mr. Williams, in particular, had his hands in his pocket or near his waistband, avoided eye contact, and began to move away from the area; the fact that this all occurred in a high crime area; and the fact that the police were responding to a 911 call reporting weapons.  The court concluded that none of these facts, alone or together, amounted to a suspicion that the defendant was armed and dangerous.  Most people, when confronted by a police officer, are likely to act nervous, avoid eye contact, and even potentially shift their bodies as if to move away from the area, thus making such behaviors of very little import to a reasonable suspicion determination.  Moreover, although a high crime area is a factor, the other facts were so weak as to be unsavable by this factor.  Finally, the general response to the 911 gun about guns was not enough to point any suspicion on the defendant in particular, given that the caller gave no particulars as to people and the facts were considerably different on the scene than provided by the caller.  NOTE:  This is a fabulous case drawing an important distinction between stop and frisk, something that is too often blurred.  Moreover, Judge Hamilton’s analysis of the stop question in light of the Supreme Court’s Second Amendment precedents is particularly interesting and helpful.  There is a lot to use in this opinion for future motions to suppress. 

Court discussed the elements of a “theft of trade secrets” offense.  United States v. Jin, No. 12-3013.  In prosecution for theft of trade secrets and economic espionage (18 U.S.C. §§ 1831, 1832), the defendant was acquitted of economic espionage but convicted of theft of trade secrets. She challenged both her conviction and sentence.  The defendant, an employee of Motorola, worked in China for a period of time and eventually sought a job there with a company which develops telecommunications technology for the Chinese armed forces.  After returning to the United States for a short period of time, she downloaded thousands of internal Motorola documents, all stamped proprietary, disclosing details of certain technology.  The government’s case was predicated on three of the documents.  Although the documents contained “trade secrets” as defined in the ordinary sense, the particular statute contains an element that “the information derives independent economic value, actual or potential, from not being generally known to the public.”  The statute also defines “theft” such that the defendant must steal the trade secret for the purpose of conferring an “economic benefit on anyone other than the owner thereof, intending or knowing that the offense will injury the owner of that trade secret.”  The defendant argued that the government failed to establish either of these elements.  The technology in question was a “push to talk” technology, which allowed a phone to be used like a walkie talkie.  Because the technology has largely been replaced by other technology, the defendant argued that its commercial value was rapidly declining and Motorola could therefore not be harmed.  The court noted, however, that the defendant had to know that Motorola would have had to take countermeasures once the theft was discovered, the Chinese company could copy their technology with the secrets and steal customers, and Motorola had taken elaborate steps to keep the information secret.  Moreover, the government is not required to prove that the owner of the secret actually lost money; it is enough to show the potential for it.  The elements of the statute were therefore met.  The court also rejected the defendant’s challenges to her sentence.  NOTE:  A unique case in that it discusses a statute we rarely see, but, for the same reason, probably not worth reading.

 
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No new case from 09/14/13 though 09/20/2013

 
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Cases from 09/07/13 through 09/13/2013

The Seventh Circuit issued 7 precedential opinion[s] in a criminal case since the last update, as summarized below.

The summaries from the last year (August 2012 through July 2013), categorized by topic with a “Table of Contents,” is available HERE.  Any new summaries will go into a new categorized document available HERE. 

Providing someone a counterfeit identification document with their own identifying information is not an identity theft offense (1028A), but rather is an identity fraud offense (1028).  United States v. Spears, No. 11-1683.  The Court of Appeals, sitting en banc, held that Section 1028A (aggravated identity theft) uses “another person” to refer to a person who did not consent to the use of the “means of identification.”  The defendant made a counterfeit handgun permit for Tirsah Payne, who could not obtain a legitimate permit.  She then used the fake credential—which contained her own name and birthdate—when trying to buy a gun.  The defendant was convicted of aggravated identity theft, which provides that anyone who, in connection with a list of other crimes, “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall” commits the offense.  The defendant argued that a permit is not a “means of identification”; only intangible details such as names and Social Security numbers meant the definition.  Moreover, the defendant maintained that he did not “transfer” anything “to another person” because he Payne used her own name and birthdate; no information was stolen from, or transferred to, anyone who did not consent.  According to the defendant, the phrase “without lawful authority” helps to show that “transfer” and “another person” refer to a victim rather than to persons who consent to the transaction.  The panel rejected these arguments, as did the Court en banc.  Nothing in ordinary usage or the statute limits the phrase “means of identification” to intangible information.  A document containing personal information, such as the permit in this case, falls within the definition.  On the “another person” question, from Payne’s perspective, the card she received did not pertain to “another”; it had her own information.  This type of conduct constitutes identity fraud, not theft.  The government could have easily charged the defendant under 1028 (the identify fraud statute), but it did not.  Identify fraud prohibits precisely the type of counterfeiting that occurred in this case.  However, identity theft requires a victim whose information has been used without consent.  Accordingly, because no information was used without consent in this case, the convictions for identity theft were reversed.  NOTE:  Although the original panel opinion in this case should have put prosecutors on notice, take a careful look at you identity theft cases and make sure, in light of this case, that the underlying is identity theft instead of identity fraud

Illinois Supreme Court unreasonably applied Batson when it held that a defendant could not rely on numbers alone to make a prima facie case of discrimination where prosecutors removed all African-American through challenges from the jury.  Hooper v. Ryan, No. 12-1980.  Upon consideration of a habeas corpus petition, the Court of Appeals found that the Illinois Supreme Court unreasonably applied the law as defined in Batson.  At the defendant’s murder trial, 7 of 63 potential jurors were African-American.  All 7 were removed through peremptory and cause challenges.  The petitioner argued in the Illinois courts, and again in this appeal, that the numbers alone were sufficient to establish a prima facie case of discrimination.  The Illinois Supreme Court held that a judge is forbidden to infer a prima facie case based solely on the fact that the State has used its peremptory challenges to exclude all the black jurors from the venire.”  The Court of Appeals held that this conclusion conflicts with Batson, wherein the U.S. Supreme Court remarked that “total or seriously disproportionate exclusion of Negroes from jury venires . . . is itself such an ‘unequal application of the law . . . as to show intentional discrimination.’”  Given this error, and the fact that the prosecutor to this day has not been required to articulate any reason for a single one of its challenges to the black members of the venire, it was impossible to sustain the state court’s decision.  The case was therefore remanded to the district court for further proceedings consistent with the opinion.  NOTE:  The Court of Appeals found 3 other errors the Illinois Supreme Court made in this case, in addition to the one discussed in this summary.  Given that it has been 32 years since the original trial, the state may have a hard time producing evidence of the reasons for the challenges or, if it cannot, even retrying the defendant at this point.   

Defendant’s lack of education and poor understanding of English did not render his plea invalid where the charge was simple and the district court’s plea colloquy thorough.  United States v. Hernandez, No. 12-1719.  In prosecution for drug offenses, the Court of Appeals held that the defendant’s plea was valid and that the district court properly determined the drug quantity in his case.  Reviewing for plain error, the court first rejected the defendant’s argument that his lack of education and language fluency deprived him of the ability to understand the nature of the conspiracy charge against him.  The charge in this case was relatively simple and the district court conducted a thorough plea colloquy.  In the drug quantity issue, the court credited the testimony of a cooperating witness, which boiled down to a credibility issue which the Court of Appeals would not disturb. 

Court declines to address the scope of the defendant’s reasonable expectation of privacy in a conversation conducted in his driveway (and included in an affidavit in support of a search warrant) where the other evidence in the affidavit was sufficient to establish probable cause.  United States v. Scott, No. 12-2962.  On appeal after the denial of a motion to suppress, the Court of Appeals affirmed.  Officers found drugs and firearms at the defendant’s residence after conducting a search pursuant to a warrant.  The affidavit in support of the warrant described two controlled buys conducted at the defendant’s residence, along with one sentence describing an audio recording of a conversation between the defendant and a CI buyer which occurred in the defendant’s driveway during one of the controlled buys.  The defendant argued that the recorded driveway conversation was obtained in violation of the Fourth Amendment and that the seized evidence constituted fruit of the poisonous tree.  The Court of Appeals concluded that, even without the reference to the recorded conversation, there was sufficient evidence in the affidavit to establish probable cause.  Therefore, it did not need to reach the issue of the defendant’s reasonable expectation in his driveway.   

At sentencing, a district court is not required to address every discrete point contained in a complex, nuanced psychological report so long as the court addresses the evidence generally.  United States v. Hodge, No. 12-2458, No. 12-2458.  At the defendant’s sentencing hearing for multiple child pornography offenses, the defendant offered the testimony in mitigation of a psychiatrist.  When imposing sentence, the district court discussed some of the experts findings, but neglected to mention his contentions that the defendant’s history of sexual and psychological abuse as a child contributed to his decision to commit his offenses and that the defendant was unlikely to reoffend.  On appeal, the defendant claimed that the district court’s failure to adequately address this aspect of the expert’s testimony required resentencing.  The Court of Appeals disagreed, noting that the court discussed the expert’s conclusions at length.  Although the court ultimately drew different inferences from the expert’s testimony than the defendant urged, the district court was free to disagree with the defendant as to what inferences should be drawn from the testimony.  Although the court did not address every conclusion the expert made, a district court is not required to specifically address every discrete point contained in a complex, nuanced psychological report. 

When conducting a Rule 403 analysis concerning the introduction of images of child pornography, a trial court should view the proposed evidence before making its decision on the admissibility of the evidence.  United States v. Eads, No. 12-2466.  In a prosecution for possession and distribution of child pornography, the defendant represented himself at trial.  He stipulated that the images constituted child pornography, but he claimed that he was being framed and the images belonged to someone else.  Given this defense, the district court allowed the government to introduce several photographs and video clips of the child pornography discovered on the defendant’s home computer to show he knowingly possessed and distributed the images.  The jury also heard several telephone calls the defendant made to his wife urging her to recant her earlier statements to police and to tell them that the pornography found on his home computer was not his.  The defendant made several claims on appeal.  He first argued that the district court abused its discretion in allowing him to represent himself, but the Court of Appeals concluded that the district court adequately questioned and advised him of the risks of pro se representation.  Second, the defendant argued that his stipulation to the content of the images obviated the government’s need to actually show the jury the images at trial, said evidence violating Rule 403.  It appeared from the record that the district court did not review the images before ruling that they were admissible.  The Court of Appeals reiterated its view that “the safest course is for the court to review the contested evidence for itself in evaluating whether the potential prejudice to the defendant substantially outweighs any probative value, especially given the highly inflammatory nature of” images such as child pornography.  Having failed to view the images, the court also failed to provide an adequate explanation on the record as to why the evidence was admissible under Rule 403.  On the ultimate 403 question, however, the court avoided making a ruling on the question, finding that even if the admission of the evidence was error, the overwhelming nature of the other evidence in the case made any error harmless. 

Habeas petition dismissed where petitioner raised an argument on appeal that was never raised in the district court or presented to the state courts.  Bolton v. Akpore, No. 10-3150.  Upon consideration of a habeas corpus petition, the Court of Appeals affirmed the denial of the writ because the petitioner both failed to preserve the issue for review in the federal district court and did not present the issue in one complete round of state court review.  After the petitioner obtained a certificate of appealability, he raised for the first time on appeal an issue regarding the suggestiveness of a lineup where he was identified.  However, he neither raised this argument in the district court habeas proceedings nor in the state court review proceedings.  Accordingly, the court denied the petition on grounds of waiver and failure to exhaust state court remedies. 

 
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Cases from 08/31/13 through 09/06/2013

The Seventh Circuit issued 5 precedential opinion[s] in a criminal cases since the last update, as summarized below.

The summaries from the last year (August 2012 through July 2013), categorized by topic with a “Table of Contents,” is available HERE.  Any new summaries will go into a new categorized document available HERE. 

District court failed to make adequate drug quantity finding where it merely “split the difference” between two competing drug quantities, and Alleyne would apply on remand for statutory mandatory minimum purposes.  United States v. Claybrooks, No. 12-1413.  In prosecution for a drug conspiracy, the Court of Appeals vacated the defendant’s sentencing, finding that the court failed to make a finding concerning the amount of drugs involved in the defendant’s offense.  At sentencing, the court initially statement that “we’re pretty secure based on the testimony in going with the PSR, which is 5 to 15 kilograms” of cocaine.  But after making this statement, the court explicitly questioned the reliability of the evidence cited in the PSR used to derive that quantity, noting at length the problematic aspects of that evidence.  That problematic evidence placed the drug quantity at between 20 and 30 kilograms, whereas the jury finding on drug quantity was only 500 to 5 kilograms of cocaine.  The court ultimately stated that the PSR compromise of an amount in the middle was the “safest thing to do” in the case.  The Court of Appeals held that the sentencing court cannot simply “split the difference” between two competing drug amounts.  A court cannot simply select a number without at least some description of the reliable evidence used to support the finding and the method used to calculate it.  Finding that a remand was necessary on this question, the court also held that the sentencing court must apply Alleyne on remand.  Alleyne was decided after oral argument in this case.  Because the jurors concluded that the defendant’s drug conspiracy conviction involved only 500 to 5 kilograms of cocaine, the mandatory minimum on remand is limited to 10 years’ imprisonment, and the court cannot raise the mandatory floor based on its own determination of drug quantity.  The sentencing court is, however, still free to make any drug quantity determination appropriate for Guideline purposes.    

Court did not err in excluding evidence in a mortgage fraud prosecution of the defendants’ mortgage broker’s interaction with other clients.  United States v. Johnson, No. 11-3006.  In prosecution for mortgage fraud, the Court of Appeals affirmed the district court’s decision to exclude evidence of other borrower’s interactions with the mortgage broker they used.  They wished to introduce evidence of their broker’s prior bad acts as they related to his other clients under Federal Rules of Evidence 404(b) and 608(b).  In this case, the court concluded that the probative value of the evidence was slight.  Whether the broker had a pattern or practice of preparing fraudulent loan applications that defrauded both lenders and borrowers was not the issue at trial.  Rather, the issue at hand was whether the defendants knew that the documents they initialed and signed contained false statements. Even if the broker had a history of duping borrowers, the defendants could have still willingly conspired with him to submit their falsified applications.  Their history—not his history—was what they jury needed to determine.  NOTE:  See the en banc opinion in Phillips below. That opinion dealt with a very similar charge, and false statements to the same shady bank as in this case.  The defendants in this case, as the court noted in a footnote, however, did not make a claim that the district court erred in excluding evidence about what the mortgage broker told them—the claim made in Phillips. Rather, they only challenged the exclusion of evidence related to the broker’s interaction with other clients.  Had the defendants made the Phillips argument here, it is conceivable that they could have obtained reversals as well.  This serves as a good reminder to check and see what other issues are pending in the Seventh Circuit before you file your brief.  Those issues are set forth and categorized HERE.

Court en banc clarifies the meaning of “knowingly making any false statement . . . for the purpose of influencing in any way the action of” a bank in the mortgage fraud context.  United States v. Phillips, No. 11-3822.  Sitting en banc, the Court of Appeals clarified the meaning of “knowingly making any false statement . . . for the purpose of influencing in any way the action of” a bank in the mortgage fraud context.  The defendants were a couple who sought a home loan before the real estate bubble burst.  After applying directly to a bank for a loan and being rejected, they turned to a mortgage broker.  The broker (characterized as a “crook” by the court) steered them to a less scrupulous bank, Freemont, which eventually collapsed in the mortgage market meltdown.  Freemont specialized in making risking loans, repackaging them, and then quickly selling them off to third parties.  At trial, the court excluded evidence that the defendants wished to introduce to show that they either had not made statements they knew to be false or, though knowing the statements to be false, hadn’t made them for the purpose of influencing the bank’s action on their mortgage application.  This evidence centered around things their mortgage broker told them which, according to the defendants, indicated that some of the false statements on the application would not influence the decision of the bank.  On the issue of influencing the bank, the court noted that if a loan applicant doesn’t think his falsehood would influence the bank, it is unlikely that in making it he intended to influence the bank.  Although the mortgage fraud statute does not contain a materiality requirement, immateriality can be used as evidence that the false statement was not intended to influence the bank.  If the defendants here believed that all the bank cared about was that the applicant for a loan have a decent credit rating, they wouldn’t have thought that some of their false statements on the application really mattered.  They should have been allowed to introduce evidence which supported their theory.  Likewise, on the question of whether the defendants knowingly made false statements, the defendants wanted to introduce evidence which showed that the mortgage broker explained aspects of their application which led them to believe that their entries on the application were not false. Again, the defendants should have been able to put this theory before the jury.  Thus, the court reversed and remanded for a new trial.  Judges Easterbrook and Bauer dissented.  NOTE:  This is an important read for those defending mortgage fraud cases.  However, reading between the lines in this opinion, it is clear that central to the outcome in this case was the fact that the Bank in question was a shady one, which really did not care about the credit worthiness of those applying for loans.  The bank wanted to issue the loans, sell them, and had no real stake in whether the debtors ever repaid the loans.  Thus, it is unlikely that any false statements would have influenced the bank in issuing the loan.  Not so for legitimate banks; the reasoning in this case is unlikely to carry-over to false statements made in applications to legitimate banks. 

District court properly imposed enhancement for possession of at least 8 firearms where the finding was supported by the co-defendant’s statement.  United States v. Ghiassi, No. 12-3596.  On appeal after a conviction for being a felon in possession of a firearm, the defendant appealed his sentence, arguing that the district court erred as a matter of fact in finding him responsible for eight or more firearms and deprived him of due process by relying on his co-defendant’s testimony at sentencing to make that finding.  A co-defendant told the DEA, and repeated at sentencing, that she purchased 8 guns on behalf of the defendant.  At the defendant’s sentencing hearing, the district court relied on the co-defendant’s statement to hold the defendant responsible for 8 firearms, which triggered a 4-level increase pursuant to 2K2.1(b)(1)(B)(between 8 and 24 firearms).  Although the defendant testified that he possessed only 3 weapons, the court found that testimony incredible, which resulted in the loss of an acceptance of responsibility reduction as well.  The Court of Appeals found that the district court had ample evidence before it to support the enhancement, including the co-defendant’s statement.  The district choice was presented with a classic choice of whom to believe, and it chose not to believe the defendant—a finding that the Court of Appeals would not disturb.  NOTE:  This case should serve as a useful reminder to be careful about challenging a guideline enhancement through the use of your client’s testimony.  It was clear in the district court that there was ample evidence to support the enhancement here, and the defendant’s challenge just lengthened his sentence through the loss of acceptance of responsibility (and he was lucky not to be hit with obstruction of justice).  Having lost the credibility fight in the district court, the appeal was doomed.

Detention of defendant was reasonable where he accompanied an individual being arrested on probable cause for a violent crime, where only one officer was making the arrest in the presence of three individuals who accompanied the target of the arrest.  United States v. Howard, No. 13-1256.  On appeal after the denial of a motion to suppress evidence in a possession of a firearm by a felon and possession of crack cocaine prosecution, the Court of Appeals affirmed.  Police were staking out a location looking for a man (Johnson) for whom they had probable cause to arrest for pistol-whipping a victim in a bar.  When Johnson pulled up in a van and got out along with another man, the officer drew his weapon and ordered Johnson to stop, believing him to possibly be armed and dangerous.   Two other men then got out of the van, one being the defendant.  Being outnumbered 4 to 1, the officer pointed his gun at the defendant and ordered all four men to the ground.  When backup arrived, Johnson was arrested and handcuffed, while another of the men fled.  Crack was found in Johnson’s pocket, along with bloodstains on his shoes and jeans.  Meanwhile, another officer placed the defendant in handcuffs and frisked him for weapons.  Although this initial brief pat down found nothing, the officer who had arrested Johnson came over, not knowing the defendant had already been frisked, and frisked him again.  Finding a bulge in his pocket consistent with being drugs, he reached into the defendant’s pocket and took out drugs.  The court below found that the stop and frisk of the defendant was reasonable to protect the police offers during an unexpectedly chaotic encounter.  Considering the stop first, the court concluded the stop was constitutionally reasonable.  The police were attempting to make a dangerous arrest based on probably cause and they had a substantial interest in making the arrest safely and without interference.  While recognizing the intrusion into the defendant’s liberty was substantial, the fact that a lone officer was attempting to conduct an arrest for a violent crime with four individuals on the scene justified his need to stop all four individuals, including the defendant.  The key fact here which distinguished the case from similar cases where such a stop was found unreasonable was that the defendant the officer had probable cause to believe that Johnson was armed and dangerous.  Regarding the frisk, the court avoided ruling on the constitutionality of the frisk, noting that the inevitable discovery doctrine applied.   While the defendant was lawfully detained, the police discovered bloodstains on his clothing and then found a gun wrapped in a bloody shirt in the van.  These discoveries allowed the police to extend the duration of the detention of the defendant while they investigated the source of the blood.  Police then quickly learned that the defendant had probably had just participated in a recent armed robbery.  Therefore, having probable cause to arrest the defendant on that charge, they would have inevitably discovered the crack in his pocket as part of a search incident to arrest.   

 
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Cases from 08/24/13 through 08/30/2013

The Seventh Circuit issued 3 precedential opinion[s] in a criminal cases since the last update, as summarized below.

The summaries from the last year (August 2012 through July 2013), categorized by topic with a “Table of Contents,” is available HERE.  Any new summaries will go into a new categorized document available HERE. 

Where the evidence supports an inference that the defendant has lied, as it did here, then a comment in closing argument as to his credibility, including referring to him as a liar is a hard but fair blow, as long as the argument is made based on the evidence and not a comment as to the prosecutor’s personal opinion. United States v. Iacona, No. 12-1632.  On appeal after conviction for fraud in connection with an access device and aggravated identity theft, the court rejected a number of evidentiary challenges made by the defendant.  The defendant was in the process of purchasing a business from the victim, but before that purchase was complete, the defendant used the victim’s and her company’s information to obtain a credit card and lines of credit.  The defendant’s defense was the use of the information to obtain the credit was done without his knowledge by a secretary on her own initiative in response to his directive to obtain a low interest credit card for the business.  The defendant argued that the prosecutor engaged in prosecutorial misconduct during closing argument when he allegedly accused the defendant of being a liar.  Reviewing for plain error, the court found that the prosecutor’s statements were not improper.  Where the character and credibility of the defendant are at issue and the evidence allows the inference that the defendant has been less than truthful, the prosecutor does not err in closing argument by referring to the defendant as a liar.  Here, the testimony provided by the defendant was directly contradicted by the testimony of multiple government witnesses and physical evidence.  In each of the challenged statements, the prosecutor merely pointed out those contradictions.  This was fair commentary on the logical import of the evidence.  Where the evidence supports an inference that the defendant has lied, as it did here, then a comment in closing argument as to his credibility, including referring to him as a liar is a hard but fair blow, as long as the argument is made based on the evidence and not a comment as to the prosecutor’s personal opinion. 

Defendant’s own statements against his penal interest were reliable enough for district court to use when determining drug quantity.  United States v. Medina, No. 12-1930.  On appeal after a plea of guilty to conspiracy to distribute cocaine and possession of cocaine with intent to distribute, the defendant challenged the district court’s drug quantity calculation, arguing that the court should have required proof of drug quantity beyond a reasonable doubt and that under any standard the drug quantity evidence in his case was unreliable.  On the standard of proof issue, the court, relying on previous precedent, once again rejected a requirement for anything more stringent than a preponderance of the evidence.  On the other issue, the court found the defendant was responsible for between 15 and 50 kilograms of cocaine.  10.5 kilograms of cocaine were directly attributable to the defendant as quantities actually found in his possession.  To add another 4.5 kilograms to get to the threshold, the court needed only rely upon the defendant’s own statements regarding his drug dealing, wherein he admitted to 40 to 60 additional kilograms.  Given that the statement was the defendant’s own, and against his penal interest, the statement was sufficiently reliable for the court to use for determining the drug quantity.

Court discussed what it means to have “demonstrated ability” to carry out a threat as defined in Guideline section 2B3.2(b)(3)(B).  United States v. Hacha, No. 12-2142.  Upon consideration of appellate counsel’s motion to withdraw and Anders brief, the Court of Appeals agreed that the appeal presented no non-frivolous issues for appeal, but did make some observations when doing so.  First, the court discussed what Guideline section 2B3.2(b)(3)(B) means by “demonstrated” ability to carry out a threat of harm.  That Guideline provides a 3-level enhancement “if (i) the offense involved preparation to carry out a threat of (I) death; (II) serious bodily injury; or (III) kidnapping . . . or (ii) the participant(s) otherwise demonstrated the ability to carry out a threat . . ..”  The Defendant and his wife extorted money from his wife’s “friend” and former boyfriend, telling the friend that he had kidnapped the wife and her children unless he came up with thousands of dollars in ransom.  The court noted that the defendant here made threats, but they were threats made to his accomplice (his wife) rather than a victim. The court noted that some meaning must be given to the word “demonstrated” in the guideline, as otherwise quite harmless threats would earn the enhancement.  Surprisingly, the court could find only one published opinion addressing the meaning of “demonstrated ability” to carry out a threat.  Regardless, in this case, the defendant also indicated that after he harmed his wife and her children, he would then go after the target of the extortion and his family.  This threat was directed at a genuine victim, and the defendant knew the victim’s address and other personal information. This knowledge was close enough to the example of demonstrated ability in Note 6 where “a threat to kidnap a person accompanied by information showing study of that person’s daily routine” is enough.  NOTE:  A rare discussion of this aspect of the relevant guideline, although its precedential usefulness is questionable given that it was an aside in the grant of an Anders brief.

 
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Cases from 08/20/13 through 08/23/2013

The Seventh Circuit issued 2 precedential opinion[s] in a criminal cases since the last update, as summarized below.

The summaries from the last year (August 2012 through July 2013), categorized by topic with a “Table of Contents,” is available HERE.  Any new summaries will go into a new categorized document available HERE. 

Garden variety mistake on part of attorney is not sufficient to establish an “extraordinary circumstance” which would allow equitable tolling of the AEDPA statute of limitations.  Obriecht v. Foster, No. 08-1641.  After conviction in Wisconsin state court for various sexual assault counts involving a minor, the petitioner filed a habeas corpus petition in federal court.  Although conceding that his petition was untimely, he asked the court to deem it timely under the doctrine of equitable tolling.  The district court refused, and the Court of Appeals affirmed.  The district court originally denied the petition for failure to exhaust state remedies and informed the petitioner that he had approximately 60 days to seek state post-conviction relief to preserve the timeliness of the federal petition. The petitioner retained a lawyer to file the state court pleadings, but that lawyer erroneously believed that an extension granted in the state court proceedings extended the filing deadline in the federal case, and no state pleading was filed within the required time period.  Eventually, two years later, the petitioner filed his state claim two years later. The Court of Appeals, like the district court, concluded that the petitioner could not establish extraordinary circumstances to excuse the delay in filing the state post-conviction pleadings. Petitioner only established that his lawyers error was an unfortunate mistake, and garden variety negligence on the part of an attorney does not meet the standard.  Moreover, even if the attorney mistake could meet the legal standard in this case for allowing equitable tolling, the petitioner could not also establish that he was diligent in pursuing state court relief notwithstanding the attorney error.  Although the petitioner had some issues which possibly could excuse some of the two-year delay, the petitioner still had several opportunities to seek relief within the relevant time period, and he failed to adequately establish why he did not do so.

Petitioner could not establish prejudice for ineffective assistance of counsel claim premised on attorneys failure to challenge an allegedly overbroad time frame in the indictment where he presented no facts to support any sort of alibi defense, thereby making more specificity in the indictment unnecessary.  McElvaney v. Pollard, No. 12-2357.  After conviction in Wisconsin state court for sexually assaulting a child, the defendant filed a habeas petition alleging that his trial counsel was ineffective by failing to challenge the time period for the assault set forth in the charging documents as overly broad, and that his appellate counsel was ineffective by failing to raise trial counsel’s ineffectiveness.  The original indictment alleged a time from August 2001 to February 2002.  Trial counsel filed a motion for a more particular date, as well as a request to prohibit the state from expanding the date range at trial.  At the hearing on the motion, however, the attorney conceded that that time frame in the indictment was acceptable.  The state courts, and the federal courts, concluded that the defendant could not meet the Strickland standard because the petitioner presented no facts to establish any type of alibi defense.  As such, the broad time frame in the indictment could not have prejudiced the petitioner. 

 
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Cases from 08/10/13 through 08/19/2013

The Seventh Circuit issued 6 precedential opinion[s] in a criminal cases since the last update, as summarized below. 

The summaries from the last year (August 2012 through July 2013), categorized by topic with a “Table of Contents,” is available HERE.  Any new summaries will go into a new categorized document available HERE. 

Seventh Circuit refuses to reverse an Alleyne error under the plain error standard of review.  United States v. Kirklin, No. 12-2765.  The defendant was convicted after a jury trial of aiding and abetting an armed bank robbery and the use and carrying of a firearm during the robbery.  On appeal, the defendant first challenged the court’s instruction on aiding and abetting the offenses.  Reviewing for plain error, the court noted the defendant argued that the part of the instruction on the 924(c) charge which stated that “the government must prove that the defendant knowingly participated in the criminal activity and tried to make it succeed” fails to specify which criminal activity—the bank robbery itself or the use of the weapon in the bank robbery—the jury was required to find the defendant facilitated.  The court, however, noted that the defendant read the instruction out of context, where the instruction read in full:  “the government must prove … that the defendant knowingly aided, counseled, induced or procured the use or carrying of a firearm during and in relation to the bank robbery. The government must prove that the defendant knowingly participated in the criminal activity and tried to make it succeed.” The court did not think it was a stretch of the imagination to think that the jury understood “the criminal activity” to refer back to “the use and carrying of a firearm” in the preceding sentence. Although the new Seventh Circuit Pattern Criminal Jury Instruction explicitly distinguishes between knowledge of a gun’s use and intentional furtherance of its use within the aiding and abetting context, that does not automatically mean that the version used in the defendant’s case was plainly erroneous.  The defendant also raised a sentencing issue, arguing that his 7-year sentence on the 924(c) count should be vacated because the jury—not he judge—needed to find him responsible for brandishing the firearm before any mandatory minimum penalty could apply.  After noting that the Supreme Court’s decision in Alleye presented the precise issue as the issue in this case, the court agreed with the defendant and the government that an error occurred in this case.  The court also found that the error was “plain” and that it affected the defendant’s “substantial rights.”  However, on the fourth plain error factor of whether the error “seriously affected the fairness, integrity, or public reputation of judicial proceedings,” the court failed to exercise its discretion to order the correction of the error.  Here,the court was convicted that given the properly worded indictment and the evidence in the case, a properly instructed jury would have found the defendant guilty of the fact necessary to impose the mandatory minimum.  The evidence was very clear that the gun in question was pointed at the people in the bank.  Thus, the court declined to remand.  NOTE:  This is the first post-Alleyne decision in the Seventh Circuit.  It is clear from this decision that for unpreserved Alleyne arguments, the court has set a very high threshold for getting a sentenced vacated.  However, for those lucky enough to have preserved the issue in the district court when Alleyne was pending, the rigorous plain error standard will of course not apply.  This again is a good reminder to keep close track of issues granted for review by the Supreme Court and preserve, preserve, preserve those issues.  For a complete, up-to-date list of all criminal issues pending before the Supreme Court, click HERE.

Court synthesizes law on buyer-seller relationship and articulates that the question is based ultimately on a “totality of the circumstances” test, rather than per se rules about what facts must or must not be present in a buyer-seller situation.  United States v. Brown, No. 12-2743.  On appeal after a jury trial for a drug conspiracy, the defendant argued that he was only a customer to his suppliers, as opposed to a co-conspirator and that the court gave an incorrect buyer-seller instruction.  Addressing the instruction issue first, the court first noted the different lines of precedent on the issue and attempted to harmonize the law in the circuit on this issue.  After surveying the caselaw, the court concluded that it uses a “totality of the circumstances” approach, similar to that used in the new pattern jury instruction which deliberately uses open-ended phrasing, which encourages case-specific analysis.  Although some of the case law suggests that the court advocated a bright-line approach based on specifically dictated considerations, the court clarified the approach in the circuit by stating the following:  “The underlying question beneath all buyer-seller cases is whether there was a conspiracy. We discuss buyer-seller relationships at such length because they do not qualify as conspiracies. People in a buyer-seller relationship have not agreed to advance further distribution of drugs; people in conspiracies have. That agreement is the key. Agreements come in infinite varieties, however. Consider an analogy using contracts—another form of agreement. Every year, businesses form countless individualized contracts. This variation does not change the fact that each is still an agreement. Our approach to conspiracies must—and does—account for the similar diversity in criminal agreements. For this reason, we consider the totality of the circumstances. We take into account all the evidence surrounding the alleged conspiracy and make a holistic assessment of whether the jury reached a reasonable verdict. True, repeated consideration of similar circumstances seems to have identified a few per se rules. As discussed earlier, either a consignment arrangement, or a relationship exhibiting all three Johnson factors—multiple, large-quantity purchases, on credit—are widely accepted as sufficient proof of a trafficking conspiracy. Indeed, when either of those conditions are satisfied, a reasonable jury can make that inference. Notice, though, that we develop per se rules by watching similar situations repeat themselves—and thus seeing that the totality of the circumstances leads to the same conclusion.”  Moving to the instruction in this case, the defendant proposed an instruction which tracked exactly the new (but not yet adopted) pattern jury instruction on buyer-seller.  The government proposed a different instruction, and the court settled on the following:  “A conspiracy to distribute drugs or possess drugs with intent to distribute requires more than simply an agreement to exchange money for drugs which the seller knows will be resold. In order to establish that a defendant knowingly conspired to distribute drugs or possess drugs with intent to distribute with a person from whom the defendant bought drugs, the government must prove that, in addition to agreeing to buy drugs, the defendant further agreed to participate with the seller in an arrangement involving mutual dependence, cooperation or assistance in distributing drugs. Such an agreement may be proved by evidence showing sales on credit, in which the buyer is permitted to pay for all or part of the drugs after the drugs have been re-sold, coupled with other evidence showing mutual cooperation and an ongoing arrangement between the defendant and the seller.” The court found this language accurately summarized the law and were properly worded.  Thus, the court found no error.  NOTE:  This is a very important case in the area of buyer-seller relationships.  The Seventh Circuit has had several divergent lines of cases on this issue, and this case attempts to synthesize them all into a coherent standard.  This case is a must read in any case where buyer-seller may be an issue. 

Conditions of supervised release may be modified by court at any time, even if the defendant committed no violation of original terms; sex offender treatment can be imposed as condition of supervised release even if offense of conviction was not a sex offense so long as the conditions serves the goals of rehabilitation.  United States v. Evans, No. 12-3726.  On appeal after the modification of the terms of supervised release, the defendant argued that the district court did not have authority to modify the terms of his supervised release when he did not violate the existing terms and that the court was not authorized to impose sex-offender treatment because it was unrelated to his crimes of conviction in federal court.  After the defendant was sentenced for drug and gun offenses, he was also convicted in state court for sex offenses.  Upon learning of these convictions, the federal court modified the defendant’s terms of supervised release to require sex offender treatment programs.  On the first question, the court held that the supervised release statute allows a court to “modify, reduce or enlarge the conditions of supervised release at any time prior to the expiration of the term.”  Nothing in Section 3583(e)(2) requires a violation of existing conditions, or even changed circumstances. On the second question, the court held that sex offender treatment is reasonably related to the factors in Section 3553(a), even if the offense of conviction is not a sex offense, so long as the sexual offenses are recent enough in the defendant’s history that the goals of rehabilitation and protecting the public justify an order for treatment. The court agreed with the other circuits that have held that there must be some nexus shown between the sexual misconduct and applicability of the Section 3553(a) factors for the current offense. Had Evans’s last incident of sexual misconduct occurred in 1990, rather than 2010, the court would have had a serious possibility of abuse of discretion on its hands. It was difficult for the court to see how sexoffender therapy would suddenly be necessary twenty years later to rehabilitate Evans or to protect the public. But Evans’s sexual misconduct occurred at nearly the same time as his drug and firearm offenses. When Evans stood before the sentencing court, the sexual offenses were not a remote part of his history, but instead part of his pending, unpunished criminal conduct.  NOTE:  This decision is hard to square with the court’s recent reasoning in Goodwin.  It is even harder to understand how the opinion does not even cite Goodwin.  Where Goodwin at least strongly suggests that conditions related to sex offenders should be imposed only for sex offense convictions, this case seems to say just the opposite.  Confusing to say the least.

IRS regulation granting a retroactive extension of time to file a form indicating ownership of a foreign bank account only applied to individuals who filed the form prior to a civil or criminal investigation being launched against them and who properly claimed all their income and paid their taxes, but only failed to file the form in question.  United States v. Simon, No. 11-1837.  In prosecution for filing false income tax returns, failing to file reports of foreign bank accounts, mail fraud and financial aid fraud, the defendant raised a number of evidentiary challenges on appeal, all of which the court rejected.  In the years charged in the indictment, the defendant had signature authority over foreign bank accounts and regulations required the defendant to file with the IRS a form indicating as much by June 30 of each calendar year for such accounts during the previous calendar year.  Although the defendant conceded he did not file this form by the deadline, he claimed an IRS policy in 2009 granted retroactive extensions for filing the forms for the years in question.  After looking in depth at the various regulations, the court noted that even if it assumed solely for the purpose of the appeal that the IRS has the power to retroactively relieve criminal liability by publishing FAQs or Notices where the extensions were granted, the court held that the defendant was not in the class of persons to whom the relief was granted. The extensions only applied to those who filed their belated form before a civil or criminal investigation was launched against the defendant—a fact not present here.  A second group to whom the extension applied was for those who properly reported all their income and paid all their taxes, but only learned of their obligation to file the form in question later.  The defendant neither reported all his income nor paid all his taxes.  The court also rejected several other evidentiary challenges made by the defendant. 

Where a defendant repeatedly complains of his appointed counsel the district judge may give him an ultimatum to either work with is attorneys or represent himself. United States v. Volpentesta, No. 11-2187.  The defendant was convicted of a number of real estate and tax fraud offenses stemming from his scheme to defraud customers, subcontractors, and investors in his construction business.  The defendant first argued that the trial court erred when it denied his request to appoint a fourth new attorney to represent him.  Applying the multi-factor test applicable to such claims, the court found no error.  Because the defendant ultimately waived counsel and represented himself, he also made a claim on appeal that his waiver was not knowing and voluntary.  He argued that because the judge denied his motion for a substitution of counsel, he was basically forced to proceed pro se.  The court found, however, that where a defendant repeatedly complains of his appointed counsel the district judge may give him an ultimatum to either work with is attorneys or represent himself.  The court’s questioning on his waiver was also adequate. The defendant finally argued that the court erred in denying his motion for a 90-day continuance of his trial.  11 days before trial the court granted the defendant’s motion to proceed pro se and gave him a 3-week continuance, which the defendant claims was insufficient.  Applying the traditional multi-factor test for considering whether the denial of a motion to continue is an abuse of discretion, the court found no error

Intended loss was properly calculated even though the defendant never had a realistic chance of obtaining the loss he intended.  United States v. Rosen, No. 12-2101.  The defendant pleaded guilty to seven counts of wire fraud for his perpetration of a fairly elaborate fraud scheme, centered around the development of affordable housing in East St. Louis.  Essentially, the defendant duped the city into believing he was a developer, when he was not.    The defendant made a number of claims on appeal related to his sentence.  First, he argued that the district court erred in determining his amount of loss. The district court found that the amount of the defendant’s intended loss was $1,924,810, which was the amount of public funding the defendant sought to receive from the city in connection with his fraudulent development.  The defendant argued that this amount should not have been used, for he was never actually eligible to receive the funds from the city.  Thus, the amount used by the court was based upon speculation as to the harm the defendant might have caused had his scheme persistent to its intended conclusion.  The court naturally rejected this argument, noting that simply because the defendant’s scheme was interrupted does not change the amount the defendant intended to obtain had his scheme been successful.  The defendant also challenged a leadership enhancement, claiming that although he recruited several other people to do various tasks, he alone had decision-making control and the other individuals were essentially hired to perform specific tasks.  Thus, their involvement was too attenuated to allow for a leadership enhancement.  The court rejected this argument as well, finding that the defendant chose who was recruited, for what purposes, and solely determined each participant’s appropriate compensation.  These factors clearly supported a leadership enhancement. 

 
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Cases from 08/03/13 through 08/09/2013

The Seventh Circuit had a quiet week, with only two precedential opinion[s] in criminal cases since the last update, as summarized below. 

The summaries from the last year (August 2012 through July 2013), categorized by topic with a “Table of Contents,” is available HERE.  Any new summaries will go into a new categorized document available HERE.  Because only two cases were decided this week, only one case is included in this document, but it will of course grow in size each week. 

Grant of habeas corpus petition affirmed because trial counsel’s performance was deficient due to a failure to investigate and request a hearing as to the defendant’s fitness to stand trial.  Newman v. Harrington, No. 12-3725.   On appeal by the state after a district court’s grant of a 2254 petition based upon ineffective assistance of counsel, the Court of Appeals affirmed finding that trial counsel was ineffective for failing to conduct a sufficient investigation into the defendant’s mental capacity and to seek a fitness hearing.  The court noted that the test for fitness or competency to stand trial is whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against. As evidence of the defendant’s lack of fitness to stand trial, the defendant presented expert testimony in the state court post-conviction proceedings which indicated that the defendant had sufficient mental problems to warrant investigation and a fitness hearing.  Although that examination was retrospective and performed three years after the defendant’s trial, the Court of Appeals found that this did not render the expert’s report irrelevant—a finding the state court made.  The mere passage of time may not make a retrospective competency hearing meaningless so long as there is sufficient evidence in the record derived from knowledge contemporaneous to trial.  The expert’s opinion was also well-supported and relevant.  It was consistent with the numerous reports from psychological and educational experts over many years leading up to trial and after.  Thus, the state appellate court’s decision to find the report irrelevant was an unreasonable application of Strickland.  Moreover, the state court made an unreasonable determination of the facts, finding that the defendant was “nothing other than academically challenged and a slow learner.”  The Court of Appeals found that the clear and convincing evidence in the record established that the defendant was moderately to mildly mentally retarded.  Looking to the issue of deficient performance, defense counsel was provided a significant amount of information demonstrating the defendant’s mental disabilities.  At a minimum, with the information defense counsel had, he should have conducted a further investigation and requested a fitness hearing.  Regarding prejudice, not only did the evidence establish that at the time of trial the defendant could not understand the nature and purpose of the proceedings against him, it also established that he could not assist in his own defense.  Accordingly, he was clearly prejudiced.

The Fourth Amendment’s warrant requirement and the Warrant Clause have no extraterritorial application. United States v. Stokes, No. 11-2734.  On appeal from a conviction for traveling in foreign commerce for the purpose of engaging in a sex act with a minor, 18 U.S.C. § 2423(b), the defendant argued that a procedural mistake was made in his extradition from Thailand and the legality of a search.  The extradition error involved the Rule of Specialty, which holds that a nation securing the return of a person pursuant to an extradition treaty may prosecute the extradited person only for the crime or crimes named in the surrendering country’s extradition grant. Thailand surrendered Stokes to face a charge under 18 U.S.C. § 2423(c), which makes it a crime for U.S. citizens and lawful permanent residents to engage in illicit sexual conduct in a foreign place. Prosecutors later shifted gears and prosecuted him for violating 18 U.S.C. § 2423(b), a similar crime but not the one on which Thailand granted extradition. On a request from the American Embassy, however, the Thai foreign ministry waived the Rule of Specialty. This diplomatic action cleared the way for the government to proceed on the substitute charge, which doomed the defendant’s appeal on this issue.  The challenge to the search raised two questions: (1) whether an extraterritorial search of an American citizen by U.S. agents is subject to the Fourth Amendment’s implicit warrant requirement and the explicit requirements of the Warrant Clause; and (2) whether the search by ICE agents was reasonable. Following the Second Circuit, the Seventh Circuit held that the Fourth Amendment’s warrant requirement and the Warrant Clause have no extraterritorial application. However, the defendant was still protected by the Amendment’s touchstone requirement of reasonableness. The court concluded the search was reasonable, as the joint investigation by ICE and the Thai police produced information that certainly would have been sufficient to establish probably cause that the defendant had committed a crime and evidence of it would be found in his home.

 
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Cases from 07/26/13 through 08/02/2013

The Seventh Circuit was busy, with 14 precedential opinion[s] in criminal cases since the last update, as summarized below.  To view summaries of all Seventh Circuit criminal cases decided since August 2012 to the present, categorized by issue, click HERE.

Supreme Court’s holding in Peugh v. United States does not alter the Seventh Circuit’s holding in Hawkins v. United States that guideline errors cannot form the basis for a collateral attack.  Hawkins v. United States, No. 11-1245.  Upon denial of a petition for rehearing, the Court of Appeals explained why the Supreme Court’s decision in Peugh v. United States did not alter its conclusion in the original opinion.  In the Hawkins opinion, the court held that an error in calculating a defendant’s guidelines sentencing range does not justify postconviction relief unless the defendant had, as in Narvaez v. United States, 674 F.3d 621 (7th Cir. 2011), been sentenced in the pre-Booker era, when the guidelines were mandatory rather than merely advisory.  Peugh holds that a sentence violates the Constitution’s ex post facto clause if in calculating the defendant’s advisory guidelines range (as the judge is required to do even though he can if he wants sentence the defendant outside that range) the judge had calculated the range in effect when he sentenced the defendant, rather than when the defendant committed the crime for which he’s being sentenced, if the earlier range was lower (less punitive). 133 S.Ct. at 2088. The arguable significance of Peugh for the present case is that the Court held that an error in calculating a merely advisory guidelines range nevertheless invalidated the sentence.  The Seventh Circuit, however, distinguished Peugh.  First, Peugh involved a constitutional error under the ex post facto clause; this case involves only a guideline calculation error and no constitutional claim.  Second, the legal standard in Peugh is different.  Peugh holds that the ex post facto clause is violated when a change in law creates a significant risk of a higher sentence.  In this case in the post-conviction context, a show that the error had substantial and injurious effect of influence in determining the jury’s verdict is required.  The petitioner must show actual prejudice.  Accordingly, the court concluded that Peugh did not alter its holding in Hawkins.  Judges Rovner, Wood, Williams, and Hamilton dissented from the denial of rehearing.  NOTE:  This opinion puts the final nail in the coffin for premising collateral attacks solely on guideline calculation errors unless the Supreme Court should take up the issue on certiorariNarvaez is officially dead.

Defendant’s nonverbal action of stepping aside from doorway when asked by an officer to enter constituted implied consent for the officer to enter.  United States v. Sabo, No. 12-2700.  On appeal from the denial of a motion to suppress, the court held that the defendant’s nonverbal actions manifested his consent to a search.  Officers arrived at the defendant’s home in search of the defendant’s nephew.  When the defendant opened the door, he told them his nephew wasn’t present.  When the police said the smelled marijuana, the defendant slammed the door shut.  The officers then called the Sheriff’s office for assistance, and one of the officers who arrived knew the defendant.  When he knocked and announced his identity to the defendant, he opened the door, stood in the doorway, and blocked the sheriff’s entry.  The Sheriff asked if the defendant minded if he stepped inside to talk with him.  The defendant said nothing, but he stepped back and to the side and let the door open.  The Sheriff then entered, smelled marijuana, and notices several firearms.  Knowing the defendant was a convicted felon, he was then arrested.  The defendant argued that he never consented to the sheriff entering his home.  The court, however, concluded that the defendant’s non-verbal actions constituted implied consent under the totality of the circumstances.  Here, in response to a request to enter, the defendant stepped back with the door open.  This was nonverbal, implied consent for the officer to enter, and the motion to suppress was therefore properly denied.    

Omission of language in jury instruction limiting consideration of the defendant’s stipulation to his conviction on a prior firearms offense was to the question of whether he was a convicted felon was reversible error where the omitted language invited the jury to consider the stipulation on the question of whether he committed the possession of a firearm offense for which he was charged.  United States v. Robinson, No. 12-3874.  On appeal after conviction for possession of a firearm by a felon, the defendant raised three challenges related to the discovery of a loaded firearm in a laundry based in the home of the defendant’s grandmother where he was sleeping at the time of the police search for marijuana.  He argued first that the revolver should have been suppressed because the warrant authorizing the search was not supported by probable cause. Next, he urged that the district court should have conducted a Franks hearing to assess whether police officers knowingly or recklessly submitted false information in support of the warrant application. Finally, he contended that the court committed reversible error by refusing to give a requested limiting instruction about his prior felony conviction.  The court rejected the first two arguments, but found the last issue to constitute reversible error.  After closing arguments, the court read aloud the previously agreed-upon jury instructions. One of these instructions was a standard limiting instruction addressing Robinson’s stipulation that he had a prior felony conviction. As the written instruction (correctly) noted, the jury could consider this stipulation in its deliberations, but only for the limited purpose of assessing whether Robinson was a convicted felon, an element of a Section 922(g)(1) offense. When the court read the instruction aloud, however, it decided to omit the critical admonition that the “jury should consider this evidence only for this limited purpose.” Without this additional instruction to consider the stipulation only for the limited purpose of determining whether Robinson was a convicted felon, this charge communicated to jurors that they were permitted, and perhaps even obliged, to consider the stipulation for the purpose of determining whether Robinson possessed the firearm. A lay juror could infer that a convicted felon is more likely to carry a dangerous weapon than someone without a track record of criminal wrongdoing. This inference, however, is precisely what Federal Rule of Evidence 404(b) forbids.  The court then reviewed the evidence in the case at length, concluding that the error was not harmless.  It therefore vacated the conviction and remanded for a new trial.  NOTE:  This case is a good example of how even a seemingly minor omission of a sentence in a jury instruction can lead to reversible error.  When reviewing a case on appeal, be sure to compare and instructions to the Seventh Circuit pattern criminal instructions to identify any differences which may present an issue for appeal. 

Loaded firearm secreted, but not easily or quickly accessible, in a car where a drug deal occurred was possessed “in furtherance of” the drug crime sufficient to support a 924(c) conviction.  United States v. Brown, No. 11-2737.  The defendant was convicted of drug offenses and a 924(c) offense, having possessed a firearm in furtherance of the drug offense.  The defendant challenged the gun charge, arguing that he did not possess the firearm in connection with the drug offense because his possession of the firearm did not further the drug transaction in question.  The defendant attempted to sell drugs to a government agent and an accomplice in his vehicle.  The loaded weapon upon which the gun charge was premised was located in a secret compartment in the vehicle.  Not only was the defendant at some distance from the compartment when the transaction took place, but the compartment could be opened only by following sequence of steps that would take about half a minute to complete: start the car, press the defrost button, push down the button to open a rear window, and place a magnet close to the ignition. The hope was that this involuted procedure for opening the compartment would thwart police searches. Also the compartment couldn’t be opened unless the second row of seats was folded down and pushed forward—and the accomplice, and the undercover officer who was posing as a seller, were sitting on those seats during the transaction.  The defendant argued that he never opened the compartment and, indeed, couldn’t have during the course of the transaction.  The court found, however, that the presence of the weapon furthered the crime in various ways, such as had trouble arisen, he might have been able to get to the gun in time.  Likewise, if the if the seller snatched the bag of money and fled without giving the accomplice the drugs, the defendant might be able to grab the gun in time to give chase to the seller and threaten to shoot him.  This was enough under the statute.  NOTE:  This case goes into great detail about the meaning of “in furtherance of” in the 924(c) context.

Possession of a machinegun is not a violent felony for ACCA purposes.  United States v. Brock, No. 11-3473.  On appeal from imposition of a sentence under the ACCA, the Court of Appeals held that possession of a machinegun in not a violent felony under the Act.  The district court, relying upon United States v. Upton, 512 F.3d 394 (7th Cir. 2008), noted that the court had previously held the offense of possession of a sawed-off shotgun to be a violent felony and, extrapolating from that case, concluded that possession of a machinegun was too.  However, in light of the court’s recent decision in United States v. Miller overruling Upton, the court concluded that the reasoning in Miller applies with equal force to possession of a machinegun.  Accordingly, the court held that the offense is not a violent felony under the ACCA.  NOTE:  This is the second good opinion out of the Seventh Circuit finding possession of weapons offenses not to constitute violent felonies.  For an updated list of cases addressing violent felonies and crimes of violence in the Seventh Circuit, click HERE.

Court of Appeals provides extended, thorough analysis of Guideline Section 5G1.3, finding that district court did not err in using subsection (c) rather than (b) to sentence the defendant.  United States v. Nania, No. 12-2028.  After being convicted of state charges stemming from the abuse of minors, the defendant was convicted in federal court for child pornography offenses related to the conduct committed in the state case.  The district court ordered the sentences on the child pornography offenses to run consecutively to the state sentences.  On appeal, he argued that the district court incorrectly decided which subsection of 5G1.3 applied in his case.  Subsection (c) gives a district court broad discretion, whereas subsection (b) creates of subclass of cases in which the Guidelines affirmatively recommend the format of the defendant’s sentence.  Specifically, subsection (b) advised courts that a defendant’s prior, undischarged prison term should run concurrently with the term for the instant offense, if the conduct behind the two terms sufficiently overlaps.  Offenses meet this standard when the undischarged term has “resulted from another offense that is relevant conduct to the instant offense of conviction,” and that relevant conduct was the basis for an increase in the offense level for the offense of conviction.  The defendant argued that subsection (b) applied in his case.  The court first noted that although this Guideline section, like all the guidelines, is advisory, a court must still consider the correct guideline provisions when determining the sentence.  The court first found that the state offense was relevant conduct to the federal offense, especially since the PSR stated as much, thereby meeting the first criteria of subsection (b).  On the second question, whether the conduct underlying the state conduct led to an increase in the defendant’s offense level, the court concluded that the state conduct did not.  None of the defendant’s state counts involved videotaping any acts, the core of the conduct underlying the federal charge.  Thus, any increase in the offense level in the federal case due to the conduct charged in the state case did not result from conduct already being punished by the state.  Likewise, all the enhancements received in the federal case stemmed from particular characteristics of the federal offense only.  Accordingly, the district court did not err in referring to subsection (c), rather than (b).  NOTE:  There are several other issues related to 5G1.3 addressed in this opinion.  This is without a doubt the most thorough analysis in any opinion in the Seventh Circuit on this subject.  If you have a 5G1.3 issue in a case, this opinion is a must read.

Defendant could not establish a fair and just reason to withdraw his plea in an illegal re-entry case based upon potential ability to collaterally attack his order of removal.  United States v. Zambrano-Reyes, No. 12-1524.  After pleading guilty to illegal re-entry, the defendant moved to withdraw his plea on the eve of sentencing.  The reason he offered was that the Supreme Court’s recent decision in Judulang v. Holder, 132 S. Ct. 476 (2011), coupled with its earlier ruling in I.N.S. v. St. Cyr, 533 U.S. 289 (2001), provided a new basis for him to mount a collateral attack on his original removal. The illegal reentry statute authorizes such challenges, provided the alien can establish three points: “(1) [he] exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings . . . improperly deprived [him] of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.” 8 U.S.C. § 1326(d). The district court refused to permit the withdrawal of the plea, finding that he could not show either that the deportation proceedings improperly deprived him of the opportunity for judicial review or that the entry of the order was fundamentally unfair.  On the first question, the Seventh had held that direct review remained available for aliens wishing to challenge their deportation on constitutional grounds.  Although there was some question of whether such relief could be granted given Seventh Circuit precedent at the time, there was nothing to prevent the defendant from making the argument—the same argument which others later made with success.  Regarding the fairness of the removal order, the court declined to consider that issue in light of its holding on the first issue. NOTE:  This case provides a good discussion on the intersection between immigration and criminal law. If you have a case where you are exploring the validity of the defendant’s original deportation, it is a must (although difficult!) read. 

Arson conviction vacated where government failed to prove that the burning was “malicious.”  United States v. McBride, No. 12-3320.  After conviction via bench trial for arson stemming from the defendant’s attempt to burn down a store he owned, the Court of Appeals vacated the defendant’s conviction.  The court found the evidence on the arson charge to be “remarkably sparse.”  Although the evidence conclusively established that the defendant soaked gasoline towels in the windows of the store, light them, left, and did so because he was “tired” of running the business, the trial record was silent about the size of the store, whether it was free-standing or attached to another building, the extent of the damage caused by the fire, whether the fire department was called, and if it was called whether it responded and if so whether the firemen extinguished the fire. There was also no evidence of insurance fraud or even if the defendant actually owned the building.  The court noted that the federal arson statute punishes anyone who “maliciously damages or destroys, or attempts to damage or destroy, by means of fire . . ., any building . . . used in interstate commerce.”  The critical issue in this case was the meaning of “maliciously.”  The government defined the term to mean intending to cause damage.  Although such a definition makes sense when the damage involves harm to a third person, it does not make sense for every occasion where a fire causes damage.  If you light a fire in your fireplace, you inflict damage intentionally, but you are not acting “maliciously.”  For the statute to make sense, malicious must mean to deliberately use fire to do a harmful act.  At oral argument, the government conceded that the defendant could burn a shed containing clothing from his store without committing arson, provided he did it in a way that created no obvious dangers.  This concession doomed the government’s case because the government did not ask the court to make a finding or inference that a third party owned the building.  Without such proof and the lack of evidence regarding the fire and its effects in the record, the arson conviction could not stand.  NOTE:  It is hard to believe that an arson conviction cannot stand where there was no dispute that the defendant lit gasoline soaked rags in a building intending to burn it down.  Although somewhat difficult to figure out, the critical fact in this case seems to be the government’s failure to establish that the building was owned by a third-party.  Had that been established, the court seems to suggest that the government would have met its burden on the “malicious” part of the statute.  On the other hand, if the third-party asked the defendant to burn the place down under the facts of this case, it is hard to see how third-party ownership would make a difference. 

Under Section 2255(f)(2), lack of library access can extend the time for filing a 2255 petition depending on the facts in the case.  Estremera v. United States, No. 12-2043.  On appeal after the denial of a 2255 petition alleging ineffective assistance of counsel, the Court of Appeals held that lack of library access can toll the statute of limitations for filing such petitions.  Section 2255(f)(2), which starts a new one-year clock on “the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action.” Petitioner contended that, by the time he realized that his lawyer had not filed a petition on his behalf, he was in his prison’s “special management unit” and could not use its law library. He characterized the lack of library access as an “impediment” of the government’s creation and contends that a new one-year period began once this impediment was “removed” by restoration of access.  Joining the other circuits to consider the question, the court for the first time held that lack of library access can allow a petitioner more time under the relevant section.  However, the court noted that such a lack of access can extend the time “in principle.”  In any particular case, a petitioner must establish facts the lack of access was an impediment in fact, demonstrating things like would he have jeopardized a good claim-or advanced a bad one, closing the door to a good claim later—if he had filed without consulting a library, did he in fact ask to use the library, and did he in fact consult a library at some point before filing a petition.  Because no hearing was held in the district court on these questions, the court remanded to the district court to make the necessary factual findings. 

Departures under the Guideline provisions are obsolete post-Booker.  United States v. Townsend, No. 12-3323.  In prosecution for two bank robberies, the defendant argued that the district court erred in failing to make a downward departure under 5K2.20 due to aberrant behavior.  In rejecting this argument, the court first noted that what should by now be familiar principle that, post-Booker, talking about “departures” is obsolete.  The Guidelines are no longer binding and judges can use their own penal philosophies.  There is no point spending time on the fine details of the outdated rules limiting departures.  The court did note, however, a few instances where error might occur related to these departure policy statements.  First, a judge cannot think he is forbidden from considering something, even if such consideration was precluded by a policy statement.  Likewise, a judge cannot refuse to entertain an argument that might be precluded by a policy statement.  To avoid any issues, the court should use the 3553(a) factors, rather than the old departure policy statements in the Guidelines.  NOTE:  This case is interesting for a number of reasons.  First, the Seventh Circuit has long held that the old departure rules and policy statements in the guidelines are obsolete.  Nevertheless, the in part because the Sentencing Commission and some other circuits disagree, those policy statements are still in the guidelines, which can trip judges and lawyers up in this circuit.  My advice to you is to act as if those departure guidelines don’t exist, and remove the word “departure” from your legal vocabulary, using only “variance” instead.  We are better off without those policy statements anyway.

Defendant not entitled to wording of instruction which implied the jury could acquit the defendant even if it met its burden of proof.  United States v. Davis, No. 12-2769.  On appeal after conviction by a jury of bank robbery and witness intimidation, the defendant argued that the district court improperly instructed the jury.  The court gave the following pattern instruction on the government’s burden of proof:  “If you find from your consideration of all the evidence that the government proved both of these elements beyond a reasonable doubt, then you should find the defendant guilty. If, on the other hand, you find from your consideration of all the evidence that the government failed to prove either of these elements beyond a reasonable doubt, then you should find the defendant not guilty.”  The defendant argued that the court should use the word “must” in the last paragraph.  The district court agreed, but also substituted “should” for must in the first paragraph, drawing another objection from the defendant.  The defendant claimed that the use of “must” in the first paragraph was contrary to the jury’s inherent power to choose not to convict the Defendant.  The court, however, noted that while jury nullification is a fact, it is not a right, either of the jury or of the defendant.  Therefore, explicit instructions sanctioning such action pose too great a threat to the rule of law. 

Conviction reversed where trial court improperly excluded evidence central to the defense theory of the case.  United States v. Stern, No. 12-3663.  In prosecution of a lawyer and client for money laundering and perjury, the Court of Appeals affirmed one defendant’s conviction but reversed the other’s conviction.  Norma Leonard-Allen and Walter Stern became entangled in the financial arrangements that underlie this case during the aftermath of a lawsuit in which Stern served as Leonard-Allen’s attorney. The government charged that Stern hid some of Leonard-Allen’s assets so that she would not have to declare them in her bankruptcy proceeding. It maintained that Stern knew of Leonard-Allen’s bankruptcy when he opened certificates of deposit (CDs) with Leonard-Allen’s money, and thus that his action amounted to money laundering in violation of 18 U.S.C. § 1956(h). Leonard-Allen, it said, committed perjury in violation of 18 U.S.C. § 1623 when she testified that Stern had not referred her to her bankruptcy lawyer, contrary to her representation on a client-intake form on which she had listed “Walter Stern” as the person who referred her to the bankruptcy lawyer. Both were convicted after a jury trial.  On appeal, Leonard-Allen argues that the client intake form was subject to attorney-client privilege and should not have been admitted against either defendant. Stern argues that even if the form were not subject to attorney-client privilege, the statement in the form is inadmissible hearsay. He also argues that the court erred when it excluded as hearsay his testimony about why he purchased the CDs and when it excluded as irrelevant testimony from Leonard-Allen’s daughters. On the privilege question, the court noted that only those communications which reflect the lawyer’s thinking or are made for the purpose of eliciting the lawyer’s professional advice or legal assistance are covered by the privilege.  The form in this case did not meet that standard, being more akin to information about an attorney’s fees.  The referral statement on the form was incidental to the representation and reveals nothing confidential.  There was also no hearsay problem, as it was admissible as a statement of a party-opponent.  Stern, the attorney, also challenged the court’s exclusion on hearsay grounds of his testimony about why he went to the bank.  Stern wanted to testify about why he went to the bank on the day he purchased a CD for the co-defendant, whether he planned in advance to purchase the CD, and what he thought was the purpose of his having control over Leonard-Allen’s money.  The court first noted that it was not even apparent that the answer to these questions would have included an out-of-court statement. More importantly, even if Stern was planning to repeat something Leonard-Allen told him about why he should go to the bank and purchase the CDs, that kind of out-of-court statement is not hearsay. That is because Stern would not have been repeating the statement to establish the truth of what Leonard-Allen said. A witness’s statement is not hearsay if the witness is reporting what someone told the witness and what the witness thought she meant, and that statement is offered as an explanation of what the witness was thinking at the time or what motivated him to do something.  Moreover, the error was not harmless, as the testimony was central to Stern’s defense.  Stern maintained that he was unaware of Leonard-Allen’s bankruptcy when he purchased the CDs. He intended to support that position before the jury by explaining that Leonard-Allen asked him to hold the money in order to help her manage it. This would have explained how he might have purchased CDs with Leonard-Allen’s money without any intent to hide the money from the bankruptcy court (or anyone else). This alternate explanation would have made Stern’s defense more believable, because it would have offered the jury a theory under which Stern innocently purchased the CDs, rather than making the purchases to launder Leonard-Allen’s divorce proceeds.  Accordingly, the court remanded for a new trial.

Controlled Substances Act provides sufficient notice that “khat” falls within it coverage.  United States v. Mire, No. 12-2792.  In the first case in the Seventh Circuit addressing the controlled substance known as “khat,” the defendants were convicted after a bench trial with conspiracy to possess with intent to distribute the substances, knowingly using a place for the purposes of distributing and using the substance, and possession with intent to distribute.  Appealing only their convictions, the defendants argued first that their due process rights were violated because they were not given fair warning that possession of khat was illegal.  They argued that the Controlled Substances Act violates the Due Process Clause because the regulations do not provide sufficient notice to persons of ordinary intelligence that khat plants may contain cathinone or cathine, the substance regulated by the CSA.  Noting the argument is one of first impression in this circuit, but rejected by all other circuits that have considered it, the Seventh Circuit joined those other circuits.  Although cathinone is listed in the CSA, khat is not.  A scienter requirement, however, may mitigate a law’s vagueness, especially with respect to the adequacy of notice to the complainant that is conduct is proscribed.  Here, the statute requires actual knowledge that khat contains a controlled substance.  Thus, the defendants could not have been convicted of violating the statutes unless they had actual knowledge that khat contains a controlled substance, thereby satisfying due process.  The defendants also challenged the admission of expert testimony regarding the presence of cathinone and cathine in the khat plants tested in this case, but the court found the expert testimony to meet the Daubert standard. 

Defendant could not demonstrate prejudice of possible improper statement by prosecutor at sentencing where judges are presumed not to consider improper comments or evidence.  United States v. Stinefast, No. 12-2435.  In prosecution for possession of child pornography, the Court of Appeals rejected the defendant’s challenges to his sentence.  First, the defendant argued that the prosecution acted improperly at sentencing when it reminded the court that the defendant may have revealed prior acts of child abuse during an examination by a government psychiatric expert. Under a plain error standard, even if the comment was improper, the defendant could not show prejudice because judges often hear improper argument and other forms of inadmissible evidence that they are presumed to disregard when deciding matters of importance.  There was no reason to believe the judge considered the statement when imposing sentence.  Finally, the court rejected the defendant’s arguments that the court failed to adequately consider his argument in mitigation, noting that the district court addressed the argument at sentencing, although briefly. 

 
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Cases from 07/19/13 through 07/25/2013

The Seventh Circuit issued 5 precedential opinion[s] in criminal cases since the last update, as summarized below.  To view summaries of all Seventh Circuit criminal cases decided since August 2012 to the present, categorized by issue, click HERE.

Writ of habeas corpus issues where appellate counsel was ineffective by not raising a potentially meritorious issue and, instead, only raising a hopeless sufficiency of the evidence argument.  Shaw v. Wilson, No. 12-1628.  Upon consideration of a 2254 petition, the Court of Appeals held that the petitioner’s appellate counsel was ineffective when he briefed a hopeless sufficiency of the evidence and did not brief a well-preserved, potentially meritorious claim.  The defendant was originally charged with aggravated battery in Indiana, but the state later amended to the indictment to elevate the charge to murder some 17-months later.  His trial lawyer objected based upon an Indiana statute which limited the State’s ability to amend the indictment after a certain period of time, but the trial court rejected the argument.  On appeal, the petitioner’s new trial counsel dropped that issue and instead raised only a sufficiency of the evidence issue.  The court of appeals noted that appellate lawyers are not required to present every nonfrivolous claim on behalf of their clients—such a requirement would serve to bury strong arguments in weak ones—but they are expected to select the most promising issues for review.” For this reason, if appellate counsel abandoned a nonfrivolous claim that was both “obvious” and “clearly stronger” than the claim that he actually presented, his performance was deficient, unless his choice had a strategic justification.  Here, the court first concluded that the sufficiency of the evidence was so weak that pursuing it was the equivalent of filing no brief at all.  Because Miller made a single argument that any reasonable lawyer would have recognized as dead on arrival, the situation is close to the one described in Smith v. Robbins, where counsel erroneously refrains from filing a merits brief at all. 528 U.S. at 288. In that situation, the Court held, thedefendant need show only that “a reasonably competent attorney would have found one nonfrivolous issue warranting a merits brief.” The same rule should obtain if counsel raises only an entirely frivolous argument and passes by another that is genuinely arguable under the governing law.  Regarding the amendment of the indictment issue, the issue was preserved, had statutory support, and two decisions of the Indiana Supreme Court which favored the defendant’s position.  It clearly should have been raised instead of the sufficiency argument.  Regarding prejudice, prejudice exists if counsel bypassed an nonfrivolous argument that, if successful, would have resulted in the vacation of Shaw’s conviction. Here, reasonable jurists could disagree about the ultimate outcome on the issue that should have been raised but, if successful, the issue would have resulted in dismissal of the indictment. This was enough to establish prejudice.  NOTE:  This is a rare decision addressing ineffective assistance of counsel in the appellate context where counsel raises a weak issue and leaves a stronger issue out of the brief.  It is even rarer because the court actually issues the writ of habeas corpus, finding both deficient performance and prejudice.  A must read for appellate lawyers. 

Confrontation right not violated where an expert who did not perform lab tests testified using data produced by another expert’s tests, where the testifying expert did reached her own conclusions based upon the data.  United States v. Maxwell, No. 12-1809.  On appeal from a conviction related to crack cocaine offenses, the defendant argued that his Sixth Amendment right to confrontation was violated.  Specifically, the analyst from the Wisconsin State Crime Laboratory who originally tested the substance seized from Maxwell retired before trial, so the government offered the testimony of his co-worker instead. The coworker did not personally analyze the substance herself, but concluded that it contained crack cocaine after reviewing the data generated by the original analyst.  Reviewing for plain error only, the court noted that the government may not introduce forensic laboratory reports or affidavits reporting the results of forensic tests and use them as substantive evidence against a defendant unless the analyst who prepared or certified the report is offered as a live witness subject to cross examination. But an expert who gives testimony about the nature of a suspected controlled substance may rely on information gathered and produced by an analyst who does not himself testify, as “the facts or data” on which the expert bases her opinion “need not be admissible in evidence in order for the [expert’s] opinion or inference to be admitted.”  In this case, the witness who testified did not read from the report, did not vouch for whether the non-testifying expert followed standard procedures, or state that the reached the same conclusion as the non-testifying expert.  An appropriately credentialed individual may give expert testimony as to the significance of data produced by another analyst. In other words, the defendant was not deprived of his Sixth Amendment right simply by virtue of the fact that the testifying expert relied on the other expert’s data in reaching her own conclusions, especially since she never mentioned what conclusions the other expert reached about the substance.

In a false statements case premised upon the submission of false documents to the government, venue is proper in the jurisdiction where the documents were created, even if they were ultimately submitted to the government in a different jurisdiction.  United States v. Clark, No. 12-3603.  On appeal by the government after the court dismissed the defendant’s indictment for making false statements due to a lack of venue, the Court of Appeals reversed.  The defendant argued in the district court that when a false document is filed under a statute that makes the filing of the document a condition precedent to the exercise of federal jurisdiction, venue is proper only in the district where the document was filed for final agency action.  In this case, the defendant was charged with filing false payroll records to establish that he, as a government contractor, was paying a “prevailing wage.”  Although the false records were “made” in the district in which the indictment was filed, they were filed in a different jurisdiction.  Congress has provided that “any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.” 18 U.S.C. § 3237(a). The parties did not dispute that Section 1001 lacks a separate venue provision, or that 18 U.S.C. § 3237 applies. The sole question therefore was whether the ten false-statement offenses outlined in the indictment were “begun, continued, or completed” in the Southern District of Illinois.  The district court reasoned that because no federal offense occurs until such time as the general contractor submits those documents to the federal government for payment, the Southern District of Illinois was an improper venue.  The Court of Appeals, however, noted that even if the completion of a Section 1001(a)(3) offense requires the submission of false documents to federal authorities, however, it does not follow that the making of the false documents cannot constitute the beginning of the offense.  It was enough to establish venue if the offense was “begun” in the district of prosecution, which occurred here given that the documents were created in the jurisdiction. 

Deficient performance in advising petitioner regarding consequences of not accepting a plea deal did not prejudice the petitioner where he would have insisted on going to trial even if he had been properly advised.   Quintana v. Chandler, No. 12-3125.  Upon consideration of a 2254 petition, the court rejected the petitioner’s claim that his trial counsel was ineffective for failing to adequately inform him about the consequences of his plea.  The defendant was charged in Illinois state court with kidnapping and sexual assault.  The state offered him a plea deal to what amounted to four years on each count, to be served concurrently at 50% of the time imposed.  The defendant rejected the offer and insisted he was innocent.  Ultimately, he was sentenced to two consecutive terms:  one lasting six years and the other lasting twenty one years, to be served at 85% of what was imposed.  In post-conviction proceedings, the petitioner claimed that he believed that any sentence ultimately imposed would have been concurrent and served at 50%.  Trial counsel admitted he did not know the sentences would be served consecutively and that there was some discussion about whether any sentence imposed would be served at 50%, that he told the petitioner the offer was reasonable, but the petitioner insisted he was innocent and wanted to proceed to trial.  On the deficient performance prong, the state conceded that trial counsel was deficient in failing to advise the petitioner of the mandatory, consecutive nature of any sentence that would be imposed after trial and his misunderstanding about the amount of good-time credit the petitioner could earn.  However, the petitioner’s claim failed on the prejudice prong.  Looking at all the evidence, the court concluded that the defendant would have insisted on proceeding to trial even if he had been properly advised about the consequences of the plea deal, and therefore the ineffective assistance did not ultimately prejudice him. 

Defendant’s waived challenges to guideline enhancements where they stipulated in their plea agreements to the facts necessary to establish those enhancements.  United States v. Walsch, No. 12-1503.  John E. Walsh and Charles Martin organized One World Capital Group, LLC, and devised a scheme to defraud its customers. They were caught and charged with various federal offenses. Both defendants pleaded guilty to several counts. Walsh pleaded guilty to wire fraud, tax evasion, and making false statements in a report to the Commodities Futures and Trading Commission. Martin pleaded guilty to wire fraud, tax evasion, and a Commodities Exchange Act violation. The district court sentenced Walsh and Martin to terms of imprisonment of 150 and 204 months, respectively, and ordered each of them to pay $16,976,554 in restitution. They appealed their sentences. Walsh challenged the district court’s finding as to the amount of the loss and restitution, and both defendants challenge the application of a sentencing enhancement based upon a finding that each was an officer or director of a futures commission merchant.  Regarding loss, the defendant argued that the government failed to prove his subjective intent as to intentional loss and that using actual loss was unreliable.  The court rejected these arguments, noting that the defendant specifically stipulated to facts which established the amount of loss.  The defendants also challenged a 4-level enhancement for being an officer or director of a futures commission merchant under 2B1.1(b)(18)(B)(i).  Again, both defendants stipulated that they were in fact directors of a futures commission merchant, thereby waiving any challenge on appeal.

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Cases from 07/10/13 through 07/18/2013

The Seventh Circuit issued 6 precedential opinion[s] in criminal cases since the last update, as summarized below.  To view summaries of all Seventh Circuit criminal cases decided since August 2012 to the present, categorized by issue, click HERE.

Successive 2255 petition cannot be made based upon Alleyne because the Supreme Court has not declared that decision to be retroactiveSimpson v. United States, No. 13-2373.  Upon the defendant’s request to the circuit to file a successive 2255 petition, the court held that such a petition premised upon the Supreme Court’s decision in Alleyne could not be made because the Supreme Court has not declared that decision retroactive.  Moreover, the court noted that Alleyne is an extension of Apprendi, which the Supreme Court declined to declare retroactive, which implies that the Court would not find Alleyne retroactive. 

Defender could not establish a plain error where he argued that Batson extends to strikes based on “religiosity” when no cases have ever applied Batson to such a claim. United States v. Heron, No. 11-3471.  The defendant was convicted after a jury trial of possessing with intent to distribute cocaine and marijuana.  He was caught riding shotgun in a tractor-trailer truck filled with over 1,000 pounds of marijuana and 28 kilograms of cocaine, while he was en route from Phoenix, Arizona, to East St. Louis, Illinois. Charged with possession with intent to distribute, Heron denied any involvement with the drugs, claiming that he had agreed to come on the trip as a favor to a friend and that he believed it would involve transport of legitimate goods only.  On appeal, the defendant argued that the government struck a juror based on her religion in violation of Batson. Applying the plain error standard, court noted that the defendant asked the court to extend Batson to strikes based on a juror’s “religiosity,” rather than actual religious affiliation.  Although a handful of state court have extended Batson strikes base on juror’s religious affiliation, no court has extended it to ”religiosity,” and the court declined to do so in this case.  Given that not a single authority supported the argument, it was impossible to establish that any error was “plain.” 

District court’s should attempt to avoid using boilerplate instructions not adapted to the particulars of a case if such boilerplate instructions are not easily understood by jurors.  United States v. Wright, No. 12-3425.  The defendant was convicted after trial of cocaine distribution.  At trial, the informant did not testify, but the government presented evidence of conversations in which Wright, in response to the informant’s inquiries, admitted to stocking up drugs for sale. On appeal, Wright argues that his Sixth Amendment right to confrontation was violated when the informant’s statements were admitted in the absence of live testimony. Looking to the testimony, the court concluded that the informant’s statements were clearly contextual.  Without their admission, the defendant’s responses would have been unintelligible, and a jury would not have any sense of why the conversation was event happening.  The government also argued that any constitutional violation was cured by the district court’s instruction to the jury that the CI’s statements were only offered “to provide context for the defendant’s statements and are not to be considered for the truth of the matters asserted.”  Because the court already concluded that the statements were properly admitted, the court did not need to address this argument.  Nevertheless, the court cautioned district court’s about how to use such instructions.  The court stated, “But while this kind of boilerplate instruction might not be reversible error under our precedent, we are concerned that generic jury instructions unadapted to the particulars of a case may fail to give the practical guidance that lay jurors need. If scenarios like these arise in the future, and instructions are to be given, those instructions should tell the jury—directly and concretely—what it can and cannot consider, and why. For example, the jury could have been told that the CI’s half of the conversation was being played only so that it could understand what Wright was responding to, and that the CI’s questions and statements standing alone were not to be considered as evidence of Wright’s guilt. By using the boilerplate instruction in this case, it may not have been clear what considering the CI’s statements only for ‘context’ actually meant. Indeed, even the government could not give a clear and straightforward explanation of the term when asked at oral argument. It might also have been confusing to tell the jury not to consider the CI’s statements ‘for the truth of the matters asserted’ since most of his statements were questions anyway.” The court provided the above example merely by way of illustration, not because it is the best one, and definitely not to create another template which district courts should feel compelled to use in all cases. The bottom line is that litigants and judges should continue endeavoring to make jury instructions as concrete and understandable to lay jurors as possible.

Within-range sentence premised on career offender guideline is entitled to a presumption of reasonableness on appeal.  United States v. Smith, No. 13-1401.  On appeal after being sentenced as a career offender, the defendant argued that his within-range sentence was unreasonable because the Sentencing Commission did not develop the career offender guidelines using its standard empirical approach and that the factors particular to his case made his sentence substantively unreasonable.  The defendant argued that because the career-offender guideline is not empirically based, the guideline should be entitled to no presumption of reasonableness on appeal.  Following the holdings in other circuits, the court held that the presumption applies to the career offender guideline on appeal.  The court also rejected his substantive reasonableness challenge. 

Defendant’s right to speedy trial not violated by a 30-continuance to allow the government to develop more evidence on the issue of the defendant’s consciousness of guilty.  United States v. Harmon, No. 12-1502.  After a trial for a marijuana conspiracy, the defendant argued on appeal that a trial continuance violated his right to a speedy trial and that the disclosure of his prior drug conviction deprived him of a fair trial.  The government sought a 30-day continuance to develop evidence regarding the defendant’s consciousness of guilty, a delay to which the defendant objected.  The court found that the delay caused by the government’s need to develop evidence of the defendant’s consciousness of guilt was akin to a delay caused by a missing witness.  Analogized as such, the delay was reasonable and justified.  Weighing all the factors, the court therefore found that the defendant’s speedy trial rights were not violated.  On the defendant’s second issue, a witness inadvertently disclosed during trial that the defendant had a prior drug conviction.  The court struck the testimony, instructed the jury to ignore the evidence, but refused to grant a mistrial.  Citing the familiar standards for presuming jurors will follow their instructions, the court concluded the defendant was not deprived of a fair trial.  The court also rejected some routine sentencing challenges. 

Evidence of a conspiracy sufficient to allow co-conspirator statements into evidence under Rule 801(d)(2)(E).  United States v. Bey, No. 12-1592.  On appeal from the defendant’s conviction for conspiring to distribute heroin, the court rejected his challenges to his conviction. First, the defendant argued that the district court erred in allowing the government to introduce out-of-court statements of co-conspirator statements, arguing that the government failed to provide sufficient evidence of a conspiracy between the defendant and the declarant.  Such statements are admissible under Rule 801(d)(2)(E) as co-conspirator statements, but the government must first show by a preponderance of the evidence that a conspiracy existed and the statements were in furtherance of that conspiracy before the statements can be admitted.  The court found more than sufficient evidence to establish the existence of the conspiracy.  Second, the defendant also argued that the evidence was insufficient to establish his conspiracy conviction.  Predictably, the court rejected this argument as well, finding the evidence was enough, although not overwhelming. 

 
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Cases from 06/27/13 through 07/09/2013

Supreme Court Activity Since Last Update

The Supreme Court term has ended until October, but the Court granted one last case for certiorari in a criminal case before it ended this term.  For a complete list of criminal issues decided this Term and those issues pending in the Supreme Court for next Term, click HERE.  For in depth analysis of the Supreme Court cases, I suggest you visit the SCOTUSBlog website HERE.

The case in which the Court granted certiorari is Pirolene v. United States, No. 12-8561, a case involving Amy's right to restitution from a defendant convicted of possession of child pornography.  Contrary to other circuits, the en banc  Fifth Circuit held that 18 U.S.C. § 2259 does not require the Government to show proximate cause to trigger a defendant's restitution obligations.  The Supreme Court will address the following question (fashioned by the Court): "What, if any, causal relationship or nexus between the defendant's conduct and the victim's harm or damages must the government or the victim establish in order to recover restitution under 18 U.S.C. Sec. 2259?."  Case page on SCOTUSblog is here:  http://www.scotusblog.com/case-files/cases/paroline-v-united-states/

The Seventh Circuit’s primary case addressing this issue is United States v. Laraneta, 700 F.3d 983 (7th Cir. 2012).

Seventh Circuit Activity Since Last Update

The Seventh Circuit issued 4 precedential opinion[s] in criminal cases since the last update, as summarized below.  To view summaries of all Seventh Circuit criminal cases decided since August 2012 to the present, categorized by issue, click HERE.

Wisconsin offense of possession of a short-barreled shot gun is not a violent felony for ACCA purposes, overruling United States v. Upton and interpreting the ACCA differently than the Career Offender guideline on this question.  United States v. Miller, No. 11-3788.  In prosecution for possession of a firearm by a felon, the Court of Appeals held that possession of a short-barreled shotgun in violation of Wisconsin law is not a violent felony.  The court had previously held that such possession was a violent felony in United States v. Upton, 512 F.3d 394, 404 (7th Cir. 2008), but that case was decided before several significant Supreme Court decisions interpreting the residual clause of the ACCA.  After conducting a very thorough analysis of Supreme Court precedents on the issue, the court concluded that such possession is not a violent felony.  Applying the precedents, the court considered whether possession of a short-barreled shotgun in the ordinary case presents a serious potential risk of physical injury as guided by the types and degrees of risk presented by the enumerated crimes of burglary, arson, extortion, and crimes involving the use of explosives. A short-barreled shotgun can be possessed in a variety of circumstances, ranging from a situation which is patently violent, for example, when one is used in the course of a robbery, to those in which violence is at best latent, such as when a short-barreled shotgun is hidden away at a home, perhaps even unloaded or disassembled. Wisconsin also recognizes the concept of joint and constructive possession. But what is the ordinary case of mere possession?  Looking at the reported Wisconsin decisions, the court noted that short-barreled shotgun cases often involve a passive possession in which the weapon is not exposed to others. In these cases, the firearm poses no immediate risk to anyone but can still serve as a factual basis for a conviction. The range of conduct which could constitute knowing possession of a short-barreled shotgun can vary on a scale of risk of danger to others, but the mere possession of a weapon doesn’t have to involve any risk. This led the court to conclude that the risk of physical injury to another presented by the mere possession of a short-barreled shotgun is not in the same league as the risks presented by the offenses of burglary, arson, extortion, or crimes involving the use of explosives. One can imagine scenarios in which the mere possession of such a weapon poses a risk of harm to others, e.g., if the possession took place in a public place and was visible to others, such as in a bank. But just as the court’s task is not a search for a hypothetical way in which a violent crime can be committed without risky behavior, it is not to speculate about how a crime can be committed in a risky manner.  The court noted that the Application Notes to the Career Offender guideline specifically lists the offense a being a “crime of violence,” but found that nothing required a court to follow that Note when interpreting the ACCA.  Moreover, that Application note was inserted before the Supreme Court precedents on the issue which the court used to overrule UptonNOTE:  This is the first case in quite some time addressing a prior conviction’s classification as a “violent felony.”  The analysis and synthesis of Supreme Court precedents on the residual clause is perhaps the best case out there to make sense of some very confusing precedents.  This should be the first case one looks to when evaluating a prior conviction for ACCA purposes.  This is also the second case now to “de-link” the Guidelines and the ACCA for purposes of defining a prior conviction as a violent felony or crime of violence.  Therefore, do not assume that just because a precedent holds that a prior offense is a “crime of violence” for Guideline purposes that it is also a violent felony for “ACCA” purposes.  For a complete list of Seventh Circuit cases on what constitutes a crime of violence or violent felony, click HERE.

Before a court can impose a statutory minimum penalty for drug distribution that results in death, the court must make specific findings for each defendant in a multi-defendant case which establish that the defendant was in the distribution chain which resulted in death.  United States v. Walker, No. 10-2173In this large-scale heroin distribution prosecution, five defendants appealed their sentence, which involved a 20-year mandatory minimum sentence because their activities resulted in the death of five people.  The district court thought that it was required to impose the same penalty on all of the defendants under a theory of strict liability, and the Court of Appeals considered on appeal whether each of the defendants must receive the same statutory penalty, regardless of their role in the conspiracy or connection to the drugs that killed the users.  The court concluded, in agreement with the Sixth Circuit, that a district court must make specific factual findings to determine whether each defendant’s relevant conduct encompasses the distribution chain that caused the victim’s death before applying the twenty-year penalty.  Using this standard, the court affirmed the sentences of three defendants, holding that the district court made specific findings that these defendants were in the distribution chain that led to the deaths.  However, for two defendants, the court failed to make such findings and they were therefore entitled to a remand for resentencing for the court to consider the whether the statutory penalty was supported by the facts for these defendants. 

An indictment is sufficient in a conspiracy case if it sets forth the conspiracy, the operative time frame of the conspiracy, and the statute violated.  United States v. Vaugn, No. 12-1835.  After a trial of two defendants for conspiring to distribute more than 100 grams of heroin, both defendants appealed.  The first issue presented was whether the district court erred in denying a defendant’s motion to dismiss the indictment and his motion for a bill of particulars.  The Court of Appeals noted that an indictment fulfills the requirements of Rule 7(c)(1) and of the constitution if it sets forth the conspiracy, the operative time of the conspiracy, and the statute violated.  In this case, the quite typical indictment in a drug cases met these requirements.  Although it did not allege facts addressing any particular drug transactions, nothing requires such specificity.  Regarding the denial of the motion for a bill of particulars, the court noted that the standard used under the Rule 7 analysis was basically the same under this issue.  Moreover, before the defendant made his motion, the government produced over 350 pages of discovery, including investigative and surveillance reports and numerous reports of interviews with witnesses who were involved in transactions with the conspirators.  This information was adequate to satisfy the need for a bill of particulars.  After finding no errors at trial, the court also rejected a number of routine sentencing arguments concerning the calculation of drug quantity and a leadership enhancement. 

District court was not required to conduct an entirely new sentencing hearing after remand, where the court could correct the errors identified by the Court of Appeals without conducting such a hearing.  United States v. Simms, No. 12-3818.  On appeal after remand, the defendant argued on appeal that the district court upon remand for resentencing should have started from “scratch,” i.e., as if the new sentence were to be the first sentence, rather than simply correct the two minor errors which were identified by the court on the first appeal.  The Court of Appeals noted that there are three types of remands, two limited and a general one.  In the more limited of the two types of limited remand the appellate court seeks a ruling or advice from the trial court and pending its receipt of that ruling or advice retains jurisdiction over the appeal. E.g., United States v. Taylor, 509 F.3d 839, 845-46 (7th Cir. 2007); United States v. Alburay, 415 F.3d 782, 786 (7th Cir. 2005); United States v. Paladino, supra, 401 F.3d at 483-84. In a second type of limited remand the appellate court returns the case to the trial court but with instructions to make a ruling or other determination on a specific issue or issues and do nothing else. See United States v. Polland, 56 F.3d 776, 778 (7th Cir. 1995), and cases cited there. Finally, in a general remand the appellate court returns the case to the trial court for further proceedings consistent with the appellate court’s decision, but consistency with that decision is the only limitation imposed by the appellate court. The general remand is the most common form of remand.  In the present case, the remanded was limited in form but general in substance.  All the district court was required to do was correct the errors identified in the first appeal, although the court did not prohibit the judge from conducting a full blown sentencing hearing at which he considered new arguments.  Thus, the court was given latitude as to the scope of the hearing on remand.  The district court elected to simply correct the error, rather than conduct a full-blown sentencing hearing, which it was entitled to do given the nature of the court’s remand in this case. 

 
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Cases from 06/17/13 through 06/26/2013

Supreme Court Activity Since Last Update

The Supreme Court has issued two opinion[s] in criminal cases since the last update and no new criminal grant[s] of certiorari.  The 2012 Supreme Court Term is over. For a complete list of criminal issues decided this Term and those isues pending in the Supreme Court for next Term, click HERE.  For in depth analysis of the Supreme Court cases, I suggest you visit the SCOTUSBlog website HERE.

In Decamps v. United States, the Court limited the use of the modified categorical approach in ACCA cases to instances where a statute is divisible and a court seeks to determine which version of the divisible statute the defendant committed.  The Ninth Circuit had expanded the use of the modified categorical approach to instances where a state statutory version of an offense was broader than the generic version of the offense.  To determine whether the defendant’s offense was a violent felony, the Ninth Circuit allowed the district court to look to admitted facts and pleadings in the prior proceeding to determine whether the facts of the defendant’s actual offense fit with the narrower, generic version of the offense.  The Court reversed, holding that the Ninth Circuit’s approach improperly expanded the modified categorical approach beyond the narrow context the Court’s precedents allowed, which limited the use of that approach to determining what offense a defendant committed where a statute was divisible.  Read the full opinion HERE.

In United States v. Kebodeaux, the Court held that SORNA’s registration requirements as applied to the defendant fell within the scope of Congress’ authority under the Necessary and Proper Clause.  The defendant in the case has served his sentence and been released for his sex crime under the Uniform Military Code of Justice at the time SORNA was passed, and he therefore argued that Congress lacked the power to regulate his intrastate movements via SORNA.  The Supreme Court held that the defendant’s release was not “unconditional,” for the Jacob Setterling Crimes Against Children and Sexually Violent Offender Registration Act imposed certain registration requirements upon him when upon his release.  Thus, because the defendant was already subject to properly imposed registration requirements at the time SORNA was enacted, Congress had the power to impose the SORNA registration requirements on him.  To read the full opinion, click HERE. 

Seventh Circuit Activity Since Last Update

The Seventh Circuit issued 2 precedential opinion[s] in criminal cases since the last update, as summarized below.  To view summaries of all Seventh Circuit criminal cases decided since August 2012 to the present, categorized by issue, click HERE.

Customers of a broker whose funds were siphoned off were properly counted as victims, even though the defendant’s brokerage firm restored their funds as soon as the loss was identified.  United States v. Loffredi, No. 12-1124.  On appeal from a mail fraud conviction, the court rejected the defendant’s challenge to the district court’s 2-level adjustment for an offense involving ten or more victims.  See U.S.S.G. § 2B1.1(b)(2)(A)(i).  Loffredi owned and operated a securities brokerage firm that offered its customers investments in certificates of deposit, mutual funds, and Treasury bills. Instead of purchasing the investments requested by his customers, however, Loffredi diverted their money toward his own personal expenses and business debts. Over four years he fraudulently misappropriated approximately $2.8 million from his brokerage customers. One customer alerted the Securities and Exchange Commission to some irregularities in his financial statements, and the ensuing investigation led to an indictment charging Loffredi with five counts of mail fraud. See 18 U.S.C. § 1341. He pleaded guilty to one count.  The PSR counted 14 victims, they being the customers whose funds he misappropriated.  However, the defendant argued that only his firm, which had reimbursed the losses of the customers, was the victim. The defendant cited to precedents from other circuits held that individuals whose losses are short-lived and immediately covered by a third-party do not sustain “actual loss.”  The Seventh Circuit rejected this reasoning, noting that nothing requires a victim’s loss to be endured for some minimum period of time.  Moreover, one can sustain part of an overall loss even though the financial burden of the loss has shifted to someone else by the time the defendant goes to court for sentencing.  Accordingly, the defrauded customers were properly counted as victims. 

 
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Cases from 06/01/13 through 06/17/2013

Supreme Court Activity Since Last Update

The Supreme Court has issued four opinion[s] in criminal cases since the last update and two new grant[s] of certiorari.  For a complete list of criminal issues decided and pending in the Supreme Court this Term, click HERE.  For in depth analysis of the Supreme Court cases, I suggest you visit the SCOTUSBlog website HERE.

New grants of certiorari:

Burrage v. United States, No. 12-7515:

(1) Whether the crime of distribution of drugs causing death under 21 U.S.C. § 841 is a strict liability crime, without a foreseeability or proximate cause requirement; and (2) whether a person can be convicted for distribution of heroin causing death utilizing jury instructions which allow a conviction when the heroin that was distributed “contributed to,” death by “mixed drug intoxication,” but was not the sole cause of death of a person.

Burt v. Titlow, No. 12-414:

(1) Whether the Sixth Circuit failed to give appropriate deference to a Michigan state court under Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) in holding that defense counsel was constitutionally ineffective for allowing respondent to maintain his claim of innocence; (2) whether a convicted defendant’s subjective testimony that he would have accepted a plea but for ineffective assistance, is, standing alone, sufficient to demonstrate a reasonable probability that defendant would have accepted the plea; and (3) whether Lafler v. Cooper always requires a state trial court to resentence a defendant who shows a reasonable probability that he would have accepted a plea offer but for ineffective assistance, and to do so in such a way as to “remedy” the violation of the defendant’s constitutional right.

New opinions:

In Alleyne v. United States, the Supreme Court held overruled Harris and held that because mandatory minimum sentences increase the penalty for a crime, any fact that increases the mandatory minimum is an “element” that must be submitted to the jury.  To read the full opinion, click HERE.

In Peugh v. United States, the Supreme Court held that the Ex Post Facto Clause applies to the Guidelines.  Thus, a sentencing court may not use a version of the Guidelines at sentencing which provides for a harsher penalty than that in effect at the time the defendant committed his offense; in that circumstance, the court must use the version in effect at the time of the offense. To read the full opinion, click HERE.

In United States Davila, the Court held that a judge’s violation of Rule 11(c)(1) where the judge improperly involves him or herself in plea discussions does not require vacatur of the plea if the record does not demonstrate prejudice.  A court should consider, in light of the full record, whether it was reasonably probable that, but for the judge’s interference, a defendant would have exercised his right to go to trial before vacating a plea based on the Rule 11 violation.  To read the full opinion, click HERE.

In Salinas v. Texas, the Court held that a defendant’s pre-arrest, pre-Miranda silence can be used against him at trial unless he expressly invokes his right to silence; standing mute alone without an express invocation of Fifth Amendment rights under this circumstances is not enough to preclude the use of the silence at trial.  To read the full opinion, click HERE.

Seventh Circuit Activity

The Seventh Circuit issued 4 precedential opinion[s] in criminal cases since the last update, as summarized below.  To view summaries of all Seventh Circuit criminal cases decided since August 2012 to the present, categorized by issue, click HERE.

Defendant’s flight before sentencing was a substantial breach of the plea agreement, relieving the government of its obligations thereunder. United States v. Munoz, No. 12-3551.  After pleading guilty pursuant to a plea agreement, the defendant fled for five years to Mexico.  When he was finally taken back into custody, the defendant argued that the government breached the plea agreement by (1) advocating a base offense level higher than the parties had agreed in the plea agreement, and (2) recommending a sentence in the middle of the guideline range rather than at the bottom.  The Court of Appeals rejected these arguments, however, finding that the defendant first breached the plea agreement when he fled.  The court found that an implied but obvious term of the plea agreement was that the defendant remain in the country and show up for sentencing.  No reasonable defendant could reasonably expect that he could abscond for five years and still hold the government to its promises under the plea agreement.  Accordingly, given the defendant’s breach, the government appropriately exercised its option to rescind the deal. 

Jury instruction on make a false statement in connection with Medicare program was erroneous where it left out essential element of the charge.  United States v. Natale, No. 12-3231.  In prosecution for Medicare fraud, a jury acquitted the defendant of the fraud counts but convicted him of making false statements in violation of 18 U.S.C. § 1035.  When charging the jury on the false statement counts, the trial court used instructions that seemingly permitted conviction for false statements completely unrelated to Medicare reimbursement.  On appeal, the defendant argued that the district court’s instruction on the false statements charges swept too broadly and allowed conviction for conduct not covered by the statutory text.  Although the court ultimately agreed with the defendant, it found the error to be harmless.  Section 1035 prohibits, “in any matter involving a health care benefit program, knowingly and willfully . . . making any materially false . . . statement in connection with the delivery of or payment for health care benefits, items, or services.”  Noting that no circuit precedent or pattern jury instruction lays out the elements of this offense, the court noted that the court’s jury instruction left out as an element that the false statement must arise in a “matter involving a health care benefit program.”  The court found that this language was an essential element of the offense.  As such, the instructions omission of this language was plain error.  The defendant also argued that the instruction was improper because it permitted the jury to convict as long as the false statement “had the effect of influencing the action of a person or entity or was capable of or had the potential to do so. “  The court agreed that requiring materiality only as to a “person or entity,” the jury instruction impermissible broadened the scope of the statute to include prosecution for false statements that relate to the delivery of health care benefits, items, or services but that have no effect on a health care benefit program.  Notwithstanding both of these errors in the instruction, the court found both errors to be harmless given the nature of the evidence presented in the case. 

Defendant could not establish excusable neglect for failing to file a timely motion for extension of time to file post-trial motions.  United States v. Cates, No. 12-2870.  On appeal after conviction of a police officer for violating a person’s civil rights stemming from his sexual assault of her when he responded to a 911 call, the defendant argued that the district court erred when it denied his motion for an extension of time to file post-trial motions.  At the first sentencing hearing, the defendant reported problems with his attorney and the district court delayed sentencing and appointed new counsel.  Two months after appointment of new counsel and five months after the time for filing post-conviction motions had passed, the attorney requested an extension of time which the court denied.  Because the extension was filed long after the filing deadline, the defendant was required to establish “excusable neglect” for the blown deadline.  Nothing in any of the pleadings established why the defendant’s counsel waited so long to file the motion for an extension.  Only a busy schedule was listed as a reason, which is generally not an excuse.  Although new counsel legitimately needed time to review the record to prepare the post-trial motions, that did not excuse him from seeking an extension sooner.  Rather, he did nothing, and then sought the extension.  He should have first sought the extension which, had it been timely filed (or at least filed sooner) would likely have been granted. 

Conviction vacated where government used properly admitted 404(b) evidence to argue propensity during closing argument and rebuttal.  United States v. Richards, No. 12-2790.  In prosecution for drug offenses, the Court of Appeals vacated the defendant’s conviction because the government improperly introduced recorded telephone conversations of the defendant discussing unrelated drug activity under Rule 404(b).  The court first determined that the recorded conversations were properly admitted under Rule 404(b) to establish the facts allowed by the rule.  However, the court noted that even if evidence is initially admitted for a non-propensity purpose, the government cannot then later deploy the Rule 404(b) evidence in support of some other argument or inference, which is what occurred in this case.  Specifically, during closing argument the government routinely called the defendant a “drug dealer” and a “drug trafficker.”  As support for these labels, the government relied exclusively on the admitted phone recordings allowed into evidence under Rule 404(b), the prosecutor going so far as to state, “You heard the calls. . . . When he doesn’t think anyone is listening, he is a cocaine dealer.” The court found that, reduced to its core, the government’s closing argument revolved around the propensity inference as its centerpiece.  Moreover, the defendant was prejudiced by the use of this propensity argument given that the government made the propensity argument in rebuttal as well (thereby depriving the defendant of an opportunity to respond and the government’s propensity argument went directly to the heart of the defendant’s credibility given that he testified at trial. 

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Cases from 06/01/13 through 06/07/2013

Supreme Court Activity Since Last Update

The Supreme Court has issued one opinion[s] in criminal cases since the last update and no new grant[s] of certiorari.  For a complete list of criminal issues decided and pending in the Supreme Court this Term, click HERE.

The Court decided Maryland v. King on Monday, holding that when officers make an arrest supported by probable cause to hold for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.  To read the full opinion, click HERE.

Seventh Circuit Activity Since Last Update

The Seventh Circuit issued 3 precedential opinion[s] in criminal cases since the last update, as summarized below.  To view summaries of all Seventh Circuit criminal cases decided since August 2012 to the present, categorized by issue, click HERE.

Leadership enhancement vacated where defendant did not manage his drug buyers or any participants in the criminal activity.  United States v. Weaver, No. 12-3324.  In a drug case, the Court of Appeals vacated the defendant’s sentence, finding that the district court erred in applying a 3-level leadership enhancement because there was no evidence that the defendant managed or supervised his buyers or any other participant.  The defendant was involved in a methamphetamine conspiracy where he fronted drugs to two distributors.  However, the court found that the defendant provided insufficient ongoing supervision of the distributors to warrant the enhancement.  He simply fronted drugs to the distributors, urging them to sell it quickly and pay him.  This type of fronting is no different than any other business arrangement where a business extends credit to customers.  In such an arrangement, the creditor would naturally wish to protect his investment and insure payment of the debt owed to him.  Moreover, the defendant did not tell his distributors was price they should charge their customers, put territorial limits on their sales, or set any distribution quotas.  Essentially, this is a quintessential buyer-seller relationship where no management or supervision was occurring between the defendant and his purchasers.  NOTE:  This is the rare case that vacates a leadership enhancement.  This case seems to be a follow-up to the recent decision in United States v. Rosales, No. 12-3531, where the court carefully analyzes this enhancement and criticizes the poor guidance the Guidelines give for applying the enhancement. 

If the district judge asks defense counsel after imposing sentence whether the court had adequately addressed all of the defendant’s principal mitigating argument, and counsel responds affirmatively, then any claim contrary to that on appeal is waived.  United States v. Garcia-Segura, No. 12-2522.  Upon consideration of the defendant’s argument that the district court failed to adequately address his principal mitigating arguments for a variance, the court rejected that claim and gave district court’s advice on how to avoid such claims on appeal in the future.  Specifically, the court stated, “Although we conclude that the district court adequately addressed the defendant’s principal arguments in this case, we note that similar appellate challenges are not uncommon. In order to ensure that defendants feel that they have had such arguments in mitigation addressed by the court and to aid appellate review, after imposing sentence but before advising the defendant of his right to appeal, we encourage sentencing courts to inquire of defense counsel whether they are satisfied that the court has addressed their main arguments in mitigation. If the response is in the affirmative, a later challenge for failure to address a principal mitigation argument under the reasoning of Cunningham would be considered waived. If not, the trial court would have the opportunity to clarify whether it determined that the argument was ‘so weak as not to merit discussion,’ lacked a factual basis, or has rejected the argument and provide a reason why. See Cunningham, 429 F.3d at 679. An affirmative answer, however, would not waive an argument as to the merits or reasonableness of the court’s treatment of the issue.”  NOTE:  The court’s decision in this case, as well as its decision in the Schmitz case last week indicate a growing weariness with the argument that district courts are failing to adequately address arguments in mitigation.  This case basically instructs district judges on how to avoid appeals on this basis.  Our office is working with the attorney in this case to file a petition for rehearing which asks that the court at least require the question to be asked before sentence is imposed, rather than after.  At least if the question is asked before sentence is imposed, the judge’s consideration of the argument may actually affect the sentence imposed.  But a judge asking the question after sentence is imposed is meaningless, other than to preclude an appeal.

Judge cannot impose post-release restrictions on a defendant that would only be lawful as conditions of supervised release.  United States v. Zamudio, No. 12-2480.  At sentencing, under the heading “additional imprisonment terms,” stated that the “defendant is to be turned over to the proper immigration authorities for deportation proceedings upon completion of term of incarceration.  If deported, defendant is to remain outside the United States and is not to return without written consent of the Secretary of the U.S. Department of Homeland Security.”  The district court lacked authority to order this at sentencing.  Federal judges may impose restrictions on a defendant, effective after he completes the prison term to which the judge sentenced him, only as conditions of supervised release. That includes restrictions related to immigration.  The court also noted that the imposition was gratuitous, in light of a recent amendment to the guidelines which states that the sentencing “court ordinarily should not impose a term of supervised release in a case in which supervised release is not required by statute and the defendant is a deportable alien who likely will be deported after imprisonment.” U.S.S.G. § 5D1.1(c).  NOTE:  This case is basically identical to the recent case in Guitierrez-Ceja.  This case re-emphasizes, in light of Goodwin, that defense counsel needs to carefully scrutinize ALL aspects of the proposed sentence which includes special conditions of supervised release and anything else ordered by the court at sentencing.  We naturally tend to focus on the term of imprisonment, but we need to look at supervised release and restitution carefully as well.   

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Cases from 05/26/13 through 05/31/2013

Supreme Court Activity Since Last Update

The Supreme Court has issued two opinion[s] in criminal cases since the last update and one new grant[s] of certiorari.  For a complete list of criminal issues decided and pending in the Supreme Court this Term, click HERE.

As summarized by Sentencing Resource Counsel Laura Mate:

The Court granted cert in Rosemund v. United States, No. 12-895 on an issue that has divided the circuits.  As posted by SCOTUSblog, here is the issue: 

Whether the offense of aiding and abetting the use of a firearm during and in relation to a crime of violence or drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2, requires proof of (i) intentional facilitation or encouragement of the use of the firearm, as held by the First, Second, Third, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits, or (ii) simple knowledge that the principal used a firearm during a crime of violence or drug trafficking crime in which the defendant also participated, as held by the Sixth, Tenth, and District of Columbia Circuits. The Tenth Circuit's decision below and cert papers can be found here.

The two cases decided are as follows:

Trevino v. Thaler, No.11-10189 (5-4), http://www.supremecourt.gov/opinions/12pdf/11-10189_6k47.pdf

[W]here, as here, state procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise an ineffective assistance of counsel claim on direct appeal, our holding in [Martinez v. Ryan, 566 U.S. 1 (2012)] applies:

'[A] procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.'"  Whether raising such claims on direct appeal is explicitly barred, as in Martinez, or implicitly barred, as in Trevino, "[i]n both instances failure to consider a lawyer's 'ineffectiveness' during an initial-review collateral proceeding as a potential 'cause' for excusing a procedural default will deprive the defendant of any opportunity at all for review of an ineffective-assistance-of-trial-counsel claim."

McQuiggen v. Perkins, No.12-126 (5-4), http://www.supremecourt.gov/opinions/12pdf/12-126_lkgn.pdf

"We hold that actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar, as it was in [Schlup v. Delo, 513 U.S. 298 (1995) and House v. Bell, 547 U.S. 518 (2006)], or as in this case, expiration of the statute of limitations."  The Court, however, also specified that "[u]nexplained delay in presenting new evidence bears on the determination of whether the petitioner has made the requisite [miscarriage of justice] showing."  In other words, "[u]ntimeliness, although not an unyielding ground for dismissal of a petition, does bear on the credibility of evidence proffered to show actual innocence."

Seventh Circuit Activity Since Last Update

The Seventh Circuit issued 5 precedential opinion[s] in criminal cases since the last update, as summarized below.  To view summaries of all Seventh Circuit criminal cases decided since August 2012 to the present, categorized by issue, click HERE.

Married couple counts as two victims of investment fraud under the Guidelines where the couple jointly held the accounts subject to the defendant’s fraud.  United States v. Harris, No. 12-1470.  In a mail fraud and money laundering prosecution, the defendant argued that the district court erred at sentencing when it counted married couples as two separate victims for purposes of the total victim count, by denying the defendants fourth request for a continuance of the sentencing hearing, and by imposing an objectively unreasonable sentence.  On the victim question, the guideline section 2B1.1(b)(2)(B) provides for a four-level enhancement for more than 50 victims.  The district court counted each married couple as two victims, but had he counted them as only one, the enhancement would not have applied.  The Court of Appeals held that the enhancement was properly applied in this case where, as here, all of the accounts plundered by the defendant were help jointly by the married couples.  When a broker sells investment products to married clients who hold those accounts jointly, it is reasonable to conclude that both spouses suffer the loss or enjoy the gain, depending on the performance of the investment.  On the continuance question, the defendant asked for more time needed more time to gather information to challenge the amount of loss.  However, the district court properly concluded that even under a best case scenario where the defendant could establish the loss amount she asserted, it would not have affected the guideline range and, therefore, it was no abuse of discretion to deny the motion to continue on that basis.  Finally, the court found that the within the range sentence was not substantively unreasonable.

Blanket challenges to guidelines based upon policy reasons not directly linked to the defendant’s individual circumstances and characteristics need to be addressed at sentencing by the district court, even if it is the defendant’s principal argument in mitigation.  United States v. Schmitz, No. 11-3269.  In prosecution for mail fraud, the defendant argued on appeal that the court committed a procedural error, when the court failed to address his contention that “factor creep” in the Guidelines has inflated beyond reason the sentencing range for white collar frauds.  The court rejected both of these arguments.  The Court of Appeals agreed that the district court did not address the defendant’s “factor creep” argument and that the argument was the defendant’s principal argument in mitigation.  However, the defendant’s argument was not one addressed to his own characteristics and circumstances.  Rather, he was making a categorical challenge to the validity of the fraud guideline, on the ground that the severity of sentenced called for by the current incarnation of the guidelines is unsupported by any empirical data demonstrating the need for sentences far longer than those called for by the original 1987 version of the guideline, and that the Sentencing Commission had thus failed its institutional role in adopting the current guideline.  The court held that such a blanket challenge to the guideline rather than one tailored to his unique circumstances and characteristics need not be explicitly addressed by the district judge at sentencing.  NOTE:  This seemingly routine case, in my opinion, makes a significant shift in this Circuit’s attitude toward requiring district courts to address principal arguments in mitigation.  Although the court writes the opinion in a way to suggest that its holding is nothing new, in fact, the court has routinely remanded in cases where a judge has failed to address arguments similar to this one. Given that the number one argument made on appeal in the Seventh Circuit (and the number one reason for remands) are arguments that the district court failed to address at sentencing, I believe this case may represent the beginning of a narrowing of the law in this area by the Court of Appeals. 

Rule 606(b) does not prohibit a court from considering improper juror statements made prior to deliberations, but does prohibit consideration of post-deliberation statements.  United States v. Farmer, No. 12-3132.  After a jury trial, the defendant argued that he was entitled to a new trial because an alternate juror, several days after the trial, contacted defense counsel and said that other jurors had made statements during the prosecution’s case indicating that they had discussed the evidence and had already decided the defendant was guilty, all before deliberations had properly begun.  The district court denied the motion, and the Court of Appeals affirmed.  The court noted that Federal Rule of Evidence 606(b) cabins post-verdict review of juror deliberation.  In the event of inquiry into the validity of a verdict or indictment, the Rule bars juror testimony on, and court consideration of, the jury’s internal deliberations, including the juror’s discussions and mental processes.  The Rule also prohibits the court from receiving a juror’s affidavit or evidence of a juror’s statements on these matters.  However, potentially prejudicial communications that occur before jury deliberations, as in this case, are not wholly protected by the Rule and may be considered by the court in certain cases.  When a district court receives information after a verdict is returned that jurors engaged in premature deliberation or made pre-deliberation statements indicating they had already made up their minds, Rule 606(b) does not prevent consideration of evidence of the statements or conduct, but it does prevent consideration of evidence about whether and how such statements or conduct may have affected actual deliberations and verdicts. In essence, the court must ignore any evidence about the supposed actual effects of the statements or conduct on the jurors, and must rely instead on precedent, experience, and common sense to gauge whether the statements or conduct should be presumed prejudicial. In the present case, the district court determined that the statements in question were not prejudicial, which was not an abuse of discretion.  Although the statements in question were not appropriate, it is impossible for human beings serving as jurors not to form preliminary opinions about a case.  There was no reason to conclude that the jurors ultimately were unable to follow the courts final instructions. 

Evidence sufficient to support jury verdict of first degree murder.  United States v. Delaney, No. 12-2849.  In prosecution of first degree murder of a fellow inmate, the Court of Appeals considered whether the jury should have found whether the defendant killed the victim “in the heat of passion” and should therefore have convicted him only of voluntary manslaughter.  The victim, a child molester who shared a cell with the defendant, was found dead in the cell with his wrists bound with pieces of bed sheets and a bed sheet around his neck with multiple knots in it.  He also had visible signs of being beaten as well as strangled.  The defendant argued that he did not commit the murder with malice but rather only in the “heat of passion.”  In an opinion authored by Judge Posner, the court first went into a very lengthy discussion about what malice and “malice aforethought” mean, as well as the difficulties in distinguishing between first and second degree murder.  After a lengthy discussion, the court then acknowledged that this question had nothing to do with the case, as the defendant’s argument was only that no reasonable jury could have failed to find that he acted in the “heat of passion.”  After another lengthy discussion about what this term means, the court finally rejected the defendant’s argument, noting that there was more than enough evidence for a jury to conclude that the crime was not committed in the heat of passion, i.e., the tying up of the defendant, etc.  Judge Bauer concurred, stating only, “I have to admit that this opinion had me in suspense until the last minute. I’m not sure it provides a clear trail for future prosecutions but I sign on because the result is in keeping with the evidence.

Sentence vacated where court failed to address the defendant’s two principal arguments in mitigation at sentencing.  United States v. Martin, No. 12-3154.  In prosecution for child pornography possession, the Court of Appeals vacated the sentence because the district court failed to address two of the defendant’s arguments in mitigation.  The defendant argued at sentencing that the court should vary from the Guidelines because of mental health issues and that the child-pornography guidelines are too long as a matter of policy.  At sentencing, although the district court made some general remarks about sex offenders and recidivism, these remarks were too general and vague to be considered in response to the defendant’s specific mitigating arguments.  Accordingly, a remand was necessary for the court to comment on the defendant’s arguments directly.

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Cases from 05/17/13 through 05/25/2013

Supreme Court Activity Since Last Update

The Supreme Court has issued one opinion[s] in criminal cases since the last update and one new grant[s] of certiorari.  For a complete list of criminal issues decided and pending in the Supreme Court this Term, click HERE.

In Metrish v. Lancaster, No. 12-547, the Supreme Court resolved the following questions granted for review as follows:  (1) Whether the Michigan Supreme Court's recognition that a state statute abolished the long-maligned diminished-capacity defense was an "unexpected and indefensible" change in a common-law doctrine of criminal law under this Court's retroactivity jurisprudence. See Rogers v. Tennessee, 532 U.S. 451 (2001), NO and (2) whether the Michigan Court of Appeals' retroactive application of the Michigan Supreme Court's decision was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement" so as to justify habeas relief. Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011)? NO.

To read the full opinion, click HERE. 

The new grant of certiorari is in Fernandez v. California, No. 12-7822 on the following question:

Whether, under Georgia v. Randolph, a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously stated objection, while physically present, to a warrantless search is a continuing assertion of 4th Amendment rights which cannot be overridden by a co-tenant.  You can access more information about the case on SCOTUSBlog HERE.

Seventh Circuit Activity Since Last Update

The Seventh Circuit issued 7 precedential opinion[s] in criminal cases since the last update, as summarized below.  To view summaries of all Seventh Circuit criminal cases decided since August 2012 to the present, categorized by issue, click HERE.

The word “maintain” in enhancement for maintaining a premises for purposes of manufacturing or distributing drugs should be interpreted in same was as word is interpreted for 18 USC 856 offense of maintaining a stash house.  United States v. Flores-Olague, No. 12-2232.  The defendant pleaded guilty to drug offenses, and the district court applied a relatively recently enacted sentencing enhancement  for “maintaining a premises for the purposes of manufacturing or distributing a controlled substance,” U.S.S.G. §2D1.1(b)(12).  This enhancement was enacted as part of the Fair Sentencing Act.  After reviewing the relevant application notes and background, the court noted that it interpreted the word “maintain” in the guideline in the same manner it interpreted the word for 18 U.S.C. § 856 offenses (maintaining a “stash house”).  In both contexts, to “maintain” a premise for manufacturing or distributing drugs, or a stash house, ownership is not dispositive—the defendant only need be more than a casual visitor.  Moreover, a defendant’s drug trafficking activities at other locations are irrelevant to the “maintaining the premises” inquiry so long as customers knew they could—and did—purchase drugs from the defendant at the premises in question.  Finally, the Application Note directs a court to compare the frequency of illegal and legal activities at the premises, which can be problematic when a premises is also used as a primary residence, the facts of each case must be considered in tandem with all the factors relevant to the enhancement.  In this case, the enhancement was properly applied. 

Obstruction of justice enhancement based upon perjury at trial vacated where district court failed to make factual findings on elements of perjury.  United States v. Parker, No. 12-1991.  In prosecution for embezzlement, the Court of Appeals vacated the district court’s obstruction of justice enhancement.  The district court premised the enhancement on the defendant’s testimony at trial, which the court found to constitute perjury.  However, the court of appeals noted that to apply the enhancement based upon perjury, a district court must make findings as to all the factual predicates necessary for a finding of perjury:  false testimony, materiality, and willful intent.  The district court in this case failed to make the requisite factual findings.  Indeed, regarding “willfulness,” the court noted that although the defendant’s testimony was false, “she may have actually believed her testimony was not a lie.”  Nor would the court look to the record itself for support of the enhancement, given the extent of ambiguity in the record concerning whether the defendant’s testimony was simply false or full-blown perjury.  Accordingly, the court remanded to the district court for more findings. 

Court reminds district court’s not to omit advisements required during Rule 11 proceedings.  United States v. Davenport, No. 12-3358.  Upon the grant of a motion to dismiss pursuant to the filing of an Anders brief, the Court of Appeals found that the district court’s failure to advise the defendant at his change of plea hearing of his right to testify if he went to trial was not plain error.  However, the court also had this to say, “We note, however, that these kinds of omissions occur all too frequently during plea colloquys, and we caution district courts to use more care. Not every omission will be harmless, and full compliance with Rule 11 is easily achieved.” 

Leader/Organizer enhancement affirmed, but only after the court criticized the vague criteria provided in the Guidelines for imposing the enhancement.  United States v. Rosales, No. 12-3531.  In prosecution of the defendant for his involvement in stealing truckloads of merchandise, the Court of Appeals affirmed a leader/organizer enhancement, but only after calling into question the multi-factor test called for by the guidelines. The court at length criticized the Guidelines 7-factor test for determining whether a defendant is a leader/organizer, noting that the majority of the factors are vague or redundant.  More confusion is added by the manager/supervisor provision, which has the same factors as the leader/organizer enhancement.  Regardless, no matter how the defendant’s role was viewed, he was a leader/organizer of the operation sufficient to warrant the enhancement.  NOTE:  This case contains a good analysis of everything which is wrong with the leader/organizer enhancement.  Unfortunately, it doesn’t provide much in the way of an alternative.  If, however, your client is facing this enhancement, this is a case you will want to read closely.

District court can usually satisfy Rule 32(i)(3)(B) requirement to rule on objections to PSR by adopting recommendations of the PSR.  United States v. Brown, No. 12-3413.  The Court of Appeals rejected the defendants argument that the district court violated Federal Rule of Criminal Procedure 32(i)(3)(B), which requires a district court to rule on any disputed matter in the PSR that will affect the court’s sentencing determination.  The court noted that the burden imposed on district court’s is “minimal,” and that it can usually be satisfied by adopting the proposed findings in the PSR, even as to contested facts, so long as the PSR articulates a sufficiently clear basis for the sentence and the reviewing court can be sure that the district court made a decision of design rather than convenience.  In this case, the district court’s few comments at sentencing in combination with its adopting the findings in the PSR were sufficient to satisfy the Rule. 

Only one conviction for 922(g) offense permissible, even if defendant was disqualified under more than one subdivision of the statute or possessed more than one weapon on the same occasion.  United States v. Bloch, No. 12-2784.  On appeal by the defendant, the government acknowledged an error made at sentencing, but not raised by the defendant.  Specifically, a jury found the defendant guilty of two 922(g) offenses—one based upon his status as a felon and another based upon his status as a domestic-violence misdemeanant.  The government noted, and the Court of Appeals agreed, that a person cannot be convicted of more than one 922(g) crime based on a single incident of possession.  Although the government is free to pursue multiple theories of violation at trial, only one conviction may result under 922(g) for a single incident of possession, even though the defendant may belong to more than one disqualified class.  Moreover, a single act of possession can yield only one conviction under 922(g) even if the defendant possessed multiple firearms at the same time.  Accordingly, the defendant’s two 922(g) convictions merged in this case, and one conviction must be vacated.  Because the defendant received two, 120-month consecutive sentences on the two counts, his sentence would be reduced on remand by 120-months.  NOTE:  Not good to have the government point out a 120-month error that trial and appellate counsel missed.

Where inferences would support that mistakes in an affidavit in support of a warrant both reckless or negligent disregard for the truth, the ruling of the district court will not be overturned.  United States v. Williams, No. 11-3129.  The Court of Appeals affirmed the district court’s denial of a motion to suppress.  In the district court, a Franks hearing was conducted.  The defendant argued that the affidavit used in support of the search warrant in the case against him suffered from incorrect and misleading information.  Looking at the specifics in the case, the court concluded that a reasonable judge could have inferred either that the police acted with reckless disregard for the truth or that their errors and omissions reflected only honest haste and negligence.  Supporting the inference that the officers’ mistakes were made through haste, rather that recklessness, was the fact that they also left out information which alone would have been sufficient to establish probable cause.  Although the court at length criticized the government for the manner in which the affidavit was prepared and its contents, under the prevailing clear error standard of review, the Court of Appeals refused to overturn the judgment of the district court.   

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Cases from 05/10/13 through 05/16/2013

Supreme Court Activity Since Last Update

The Supreme Court has issued no opinion[s] in criminal cases since the last update and no new grant[s] of certiorari.  For a complete list of criminal issues decided and pending in the Supreme Court this Term, click HERE.

Seventh Circuit Activity Since Last Update

The Seventh Circuit issued 2 precedential opinion[s] in criminal cases since the last update, as summarized below.  To view summaries of all Seventh Circuit criminal cases decided since August 2012 to the present, categorized by issue, click HERE.

Testimony of officer regarding coded drug slang on recordings was permissible expert testimony.  United States v. Collins, Ho. 11-3098.  In prosecution for a large scale drug conspiracy, the defendant argued that the district court improperly admitted into evidence certain tape recordings at trial, and second, that the district court erred in allowing an expert to testify regarding “coded drug-dealing language” on the tapes.  He also challenged a “manager or supervisor” enhancement at sentencing.  The Court of Appeals rejected all these arguments.  The defendant first argued that the admission of the defendant talking to a co-defendant locked a proper foundation under Rule 901(a).  The court, however, found that the government provided sufficient evidence to establish a chain of custody for the tapes and their accuracy and trustworthiness.  The court also found that the agent’s testimony where he “decoded” the drug slang used on the tapes was properly admitted.  The testimony offered in this case was similar to that affirmed by the court on numerous other occasions.  Finally, the factors necessary to establish a “manager or supervisor” enhancement were sufficiently proven. 

404(b) evidence to establish motive is most relevant when a defendant completely denies having committed a crime.  United States v. Roux, No. 10-2192.  A jury convicted the defendant of inducing or coercing a minor to create sexually explicit images, in violation of18 U.S.C. § 2251(a). Roux appeals, contending that the district court erred in admitting certain evidence against him and that the government committed certain missteps at trial which should have prompted the court to declare a mistrial. The Court of Appeals affirmed.  On the evidentiary issues, the defendant first argued that the court erred by admitting into evidence under Rule 404(b) information establishing that the defendant sexually abused two girls who were the sisters of the girl depicted in the images for which the defendant was charged.  The court found that was properly admitted to show motive in light of the defendant’s defense that he did not take an inappropriate pictures and that he had never sexually abused anyone.  When a defendant argues he does not commit a crime, motive evidence becomes highly relevant.  The defendant also objected to the admission of some booking photos of the defendant to establish his appearance at the time of the alleged conduct (he had lost considerable weight by the time of trial), but the Court of Appeals found that, unless one knew the photos were booking photos in advance, one could not tell from just looking at them that they were booking photos.  Thus, there was no risk of prejudice from jurors inferring that he had been arrested or incarcerated previously from the photos.  On the mistrial issue, the government introduced several recorded phone calls made while the defendant was in jail.  Although the parties agreed that there would be no mention of the fact that the recordings were made while the defendant was in jail, the prosecutor referred to them once as “jail phone calls” in the presence of the jury.  Although the defendant thought this reference entitled him to a mistrial, the court found this single reference did not prejudice the jury, especially in light of its presumption of innocence instruction.  Rejecting the defendant’s other, less developed issues, the court affirmed.

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Cases from 05/03/13 through 05/09/2013

Supreme Court Activity Since Last Update

The Supreme Court has issued no opinion[s] in criminal cases since the last update and no new grant[s] of certiorari.  For a complete list of criminal issues decided and pending in the Supreme Court this Term, click HERE.

Seventh Circuit Activity Since Last Update

The Seventh Circuit issued 4 precedential opinion[s] in criminal cases since the last update, as summarized below.  To view summaries of all Seventh Circuit criminal cases decided since August 2012 to the present, categorized by issue, click HERE.

Guideline range for supervised release term in SORNA case is 5 years; SORNA is not a “sex offense” as defined in the Guidelines; court must make specific findings on the record linking special conditions of supervised release to the defendant.  In a sweeping decision, the Seventh Circuit in United States v. Goodwin, No. 12-2921, vacated under the plain error standard of review all of the special conditions of supervised release in a SORNA case, finding that the district court failed to make findings on the record linking the necessity of the conditions to the defendant.  As an initial matter, the court first rejected the defendant’s argument that SORNA violates nondelegation principles and therefore is unconstitutional.  Next, the court considered what the proper guideline range was for a SORNA offense.  The PSR relied upon Note 1 to USSG § 5D1.2 for a finding that the guideline range was five years to life.  This guideline provides for a maximum life term of supervised release for a “sex offense.”  Application Note 1 to the guideline specifically lists a failure to register as an offense falling under this definition.  Nevertheless, the court found that the Note is “plainly erroneous” in defining a failure to register as a sex offense.  Consequently, the guideline range for the offense is between one and three years pursuant to § 5D1.2(a)(2), increased up to exactly five years because of the statutory minimum term of five years.  Regarding the specific conditions, the court next considered the question of whether the defendant properly objected to the imposition of the special conditions.  The defendant noted that nothing in the record indicated that he received notice that the special conditions might be imposed prior to sentencing.  The government, however, argued that if the defendant did not have an opportunity to object prior to the imposition of the special conditions, he was obligated to object at the time of the ruling in order to avoid the plain error standard.  The court avoided ruling on this issue, finding that even under the plain error standard, all of the special conditions of supervised release had to be vacated.  The court first noted that special conditions of supervised release must meet three requirements.  First, post-release conditions must be reasonably related to the peneological purposes set forth in 3553(a).  Second, special conditions cannot involve a greater deprivation of liberty than is reasonably necessary to achieve the goals of deterrence, incapacitation, and rehabilitation.  Third, the conditions must be consistent with any pertinent statements issued by the Sentencing Commission.  Because the court failed to make any findings for any of the special conditions of supervised release, the court vacated all of the challenged conditions.  Indeed, it went so far as to vacate conditions that were not even challenged on appeal, exercising its sua sponte powers on those conditions because they, too, had no findings in the record to support them.  As to challenges specific to particular conditions, the court found that a condition prohibiting the possession of “material that depicts or alludes to sexual activity” might be unconstitutionally overbroad, noting that it “could block Goodwin from possessing much of the Western literary canon—or arguably even from possessing a slip copy of this opinion.”  For the same reason, it noted that a condition prohibiting the defendant from “receiving or sending any sexually arousing material that is otherwise legal via the internet from visiting any website, including chat rooms or bulletin boards containing any sexually arousing material” could be unconstitutionally overbroad because this conditions was basically an internet version of the other condition.  The court did not, however, ultimately rule upon the constitutionality of the provisions because it vacated the conditions due to a lack of any specific findings.  The other conditions it vacated for this same reason required: installation of internet monitoring software; submission to searches of his person, car, computer, and other property; allowing his computer equipment to be removed for more thorough examinations; and no contact with minors, except in the presence of an adult who is aware of the defendant’s prior sex offense and who has been approved by the probation department.  The two unchallenged conditions the court vacated required him to participate at his own expense in sex offender treatment and mental health counseling “as deemed necessary by the probation officer.”  NOTE:  This case has a number of very important holdings in it.  Most importantly, the case stands for the proposition that a judge must make findings on the record linking a special condition of supervised release to a specific defendant, even if the defendant does not object.  In this case, there was no objection in the district court, but the court vacated nearly all of the conditions under the plain error standard.  Secondly, the case at least strongly suggests that contemplated special conditions should be put into the record prior to sentencing.  The obvious place for this is the PSR.  Finally, the case calls into question the constitutionality of the somewhat common prohibitions on possession of material “alluding to sexual activity” or which is “sexually arousing. “  Make sure every special condition of supervised release in your cases has a factual basis in the record for its imposition.  If it does not, object and cite this case. 

Dan Hansmeier of our office litigated this case. He offers the following practice tips based upon Goodwin:

“(1) On the standard of review on appeal, only concede plain error if the erroneous information is contained in the PSR, but wasn't objected to below. There may be exceptions to this (for instance, if something not in the PSR was clearly discussed at sentencing, and the defendant clearly had an opportunity to voice an objection prior to imposition of sentence), but even so, it's probably best to let the government raise plain error; don't do it for them. Forcing the Court of Appeals to choose standards can benefit us: if they do not want to deal with the issue, we may win on plain error review, which is better than a less deferential standard.  Sometimes a court’s desire to avoid the standard of review issue can benefit our clients.

(2) On the length of supervised release issue, the Court arguably employs a rule-of-lenity-type analysis. As I read it, the Court essentially says that the Guideline is sufficiently unclear, and, thus, we side with the defendant. If that is not explicit, I think it is implied. So, if you have an ambiguous Guideline, Goodwin helps in that respect as well.

(3) On the conditions, the analysis is actually a straightforward application of the controlling statute (3583(d)). When you challenge special conditions, always begin with this statutory language. Stress that this is required by Congress, as recognized by the Court (in other words, this is not some judicially crafted rule that can be altered by judges; it is the law, and judges must enforce it).

(4) The sua sponte portion of the opinion is of particular interest. The Court vacated a sex offender treatment requirement and a mental health counseling requirement on its own. This is surprising considering that Goodwin is a sex offender and other facts in the record indicate that Goodwin arguably had some mental health issues.  The conditions were also "at the direction of the probation officer," which would indicate that, if the probation officer decided against treatment, there would be no treatment, thus making a challenge on appeal premature.  That logic was implicitly rejected by the Court, on plain error review nonetheless. Goodwin appears to be an implicit rejection of McKissic as well, which is the case where the court says that conditions of supervised release should not be overturned on plain error review because they can be challenged in a motion to modify when the individual is actually on supervised release. If the government relies on McKissic, cite Goodwin in response. I cannot see how McKissic is still good law after Goodwin.

This sua sponte portion of Goodwin also calls into question all of these 'treament" programs imposed regularly. At the least, it requires an explicit justification for the programs.  Moreover, there were 4 special conditions we did not challenge and that the Court of Appeals did not address. This makes it crystal clear that the Court had serious issues with the treatment program conditions. It was not that the district court simply failed to justify the conditions. If that were the case, the Court of Appeals would have sua sponte vacated all of the special conditions. There was something about these particular programs, which is even more remarkable in light of the facts of this case.

Ransom demand enhancement applies in a kidnapping case only if the demand was made to a third party, rather than to the victim only.  United States v. Reynolds, No. 12-1206In prosecution for kidnapping, the Court of Appeals reversed an enhancement for making a ransom demand pursuant to U.S.S.G. § 2A4.1(b)(1) because no “demand” was made to a third party.  The defendant, along with several others, kidnapped the victim.  They then proceeded to interrogate him about the location of money they believed he had.  The court noted that “ransom” is not defined in the guidelines or its commentary.  The court concluded that the enhancement may only apply if kidnappers’ demands for “money or other consideration” reach someone other than the captured person.  The court noted that the language of the guideline presupposes the existence of a third party.  Moreover, the guideline is the only provision that applies to the Hostage Taking Act, which can only be violated if a person kidnaps another in order to influence a third party.  Finally, although no other appellate court had considered the question, no appellate decision where the adjustment has been applied did so where the defendant did not intend his ransom demands to reach a third party.   

Court of Appeals may dismiss an appeal of a fugitive using the “fugitive disentitlement” doctrine.  United States v. Jacob, No. 12-3208.  In a case where the district court allowed the defendant to travel to Austrailia while on bond prior to sentencing, the Court of Appeals held that the “fugitive disentitlement” doctrine allowed for the  dismissal of his appeal.  The court noted that the Supreme Court has long recognized that dismissal is warranted when a criminal defendant becomes a fugitive. Ortega-Rodriguez v. United States, 507 U.S. 234 (1993); Molinaro v. New Jersey, 396 U.S. 365 (1970); Smith v. United States, 94 U.S. 97 (1876). The Court reasons that an escape from custody “disentitles the defendant to call upon the resources of the Court for determination of his claims,” Molinaro, 396 U.S. at 366, and that this procedure serves to deter future escapees, maintain an “efficient, dignified appellate practice,” and prevent courts from issuing unenforceable judgments, Ortega-Rodriguez, 507 U.S. at 240-42. Although dismissal in these circumstances is discretionary, see id. at 239-40; Gutierrez-Almazan v. Gonzales, 453 F.3d 956, 957 (7th Cir. 2006), because the defendant here remained at large and expressed no interest in returning to serve his prison sentence, the court dismissed his appeal.

Collateral estoppel doctrine applies in criminal cases, but depends on the nature of the ruling to which the doctrine is applied.  Lorea v. United States, No. 11-3223.  Upon consideration of a 2255 petition, the Court of appeals rejected the defendant’s argument that his trial counsel was ineffective.  In response to a motion to suppress, the judge had forbidden the government to offer evidence of what the petitioner had told DEA agents after he allegedly asked for a lawyer. After repeated continuances the judge dismissed the indictment (though without prejudice), on the ground that the delay resulting from the continuances had violated the Speedy Trial Act. Loera was re-indicted and again sought to suppress his statements to the agents. But this time the judge—the same judge—denied the motion on the ground that actually Loera had not told the DEA agents he wanted a lawyer. So the statements were admitted into evidence.  Loera faults his lawyer first for having failed to argue to the district judge that the denial of the motion to suppress in the first round of the criminal proceeding should be binding in the second round—the trial—by virtue of the doctrine of collateral estoppel; and second for having failed to argue in that first round that the delay in the proceeding had violated not only the Speedy Trial Act but also the speedy trial clause of the Sixth Amendment; if so, the dismissal of that proceeding should have been with prejudice.  On the first issue, the court engaged in a lengthy discussion of the applicability of the collateral estoppel doctrine in criminal cases.  Although the doctrine applies to criminal cases, not every ruling has collateral estoppel effect in a subsequent proceeding.  Here, the government did not oppose the defendant’s motion when made the first time because it did not intend to use the statements which were the subject of the motion at trial.  Thus, the granting of the motion was a judicial action, but not the resolution of a dispute.  According to the court, “Let collateral estoppel be applicable to a case such as this and the government will have an enhanced incentive to take an interlocutory appeal from pretrial evidentiary rulings in criminal cases.”  The court also noted that the law of the case doctrine did not apply here because, although the district judge initially suppressed the statements, he did not decide whether the statements should have been suppressed as a matter of law because of the parties’ agreement as to the first motion.  Given that nothing precluded the judge from reconsidering the original motion, trial counsel could not have been ineffective for failing to object to its doing so. 

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Cases from 04/27/13 through 05/02/2013

Supreme Court Activity Since Last Update

The Supreme Court has issued no opinion[s] in criminal cases since the last update and 1 new grant[s] of certiorari.  The Court also dismissed one grant of certiorari as improvidently granted.  For a complete list of criminal issues decided and pending in the Supreme Court this Term, click HERE.

The grant of certiorari was in Burrange v. United States, No. 12-7515 on the following questions:

1. Whether the crime of distribution of drugs causing death under 21 U.S.C. § 841 is a strict liability crime, without a foreseeability or proximate cause requirement.

2. Whether a person can be convicted for distribution of heroin causing death utilizing jury instructions which allow a conviction when the heroin that was distributed “contributed to,” death by “mixed drug intoxication,” but was not the sole cause of death of a person.

Cert petition available HERE.  Eighth Circuit's decision below:  United States v. Burrage, 687 F.3d 1015 (8th Cir. 2012)

The Court also dismissed Boyer v. Alabama as improvidently granted.  The Court had granted cert on the question whether  "a state’s failure to fund counsel for an indigent defendant for five years, particularly where failure was the direct result of the prosecution’s choice to seek the death penalty, should be weighed against the state for speedy trial purposes.”  Concurring opinion by Justice Alito, joined by Justices Scalia and Thomas, and dissenting opinion by Justice Sotomayor, joined by Justices Ginsburg, Breyer, and Kagan, available HERE.    

Seventh Circuit Activity Since Last Update

The Seventh Circuit issued 2 precedential opinion[s] in criminal cases since the last update, as summarized below.  To view summaries of all Seventh Circuit criminal cases decided since August 2012 to the present, categorized by issue, click HERE.

Court overrules U.S. v. Fearns and holds that where a prosecutor references a witness’s prior consistent statement without introducing that statement into evidence, prejudice is not presumed and reversal will only be warranted where the defendant can establish a denial of due process.  United States v. Tucker, No. 12-1281.  After a jury trial for conspiracy to distribute heroin, the defendant argued on appeal that he was denied a fair trial because of misconduct by the prosecutor and the improper admittance of “dual capacity” evidence testimony of a police officer.  The Court of Appeals affirmed, reviewing both issues for plain error.  First, the defendant argued that the prosecutor (1) references prior witness statements not in evidence; (2) improperly commented on the defendant’s decision not to testify; (3) misconstrued the nature of the co-conspirators plea agreements; and (4) improperly referenced familial experiences with heroin that jurors’ shared with the court during voir dire.  During closing argument, the prosecutor suggested that all nine cooperators who testified and whose credibility was attacked by the defendant made consistent statements immediately after they were arrested—statements never admitted into evidence.  The court agreed that the references were improper, but found that the error didn’t warrant reversal.  In reaching this conclusion, the court overruled its decision in United States v. Fearns, 501 F.2d 486 (7th Cir. 1974).  The court noted that Fearns has been interpreted where prior consistent statements are references without putting those statements into evidence, the prejudice created cannot be eradicated by any action of the trial judge.  Moreover, Fearns imposed a duty on the trial judge to sua sponte declare a mistrial in this circumstance.  The court found this interpretation impose an unreasonable burden on the district court of “having to listen to closing arguments with a hair trigger on the mistrial button—whether defense counsel has launched an objection or not.”  Thus, the court articulated the correct standard that, even if the court finds a comment to be improper when read in isolation, unless the remark, when interpreted through the full context of the record, “so infects the trial with unfairness as to make the resulting conviction a denial of due process,” the court will not reverse under the plain error test.  In this case, applying this test, reversal was not required.  The court also rejected the defendant’s remaining arguments. 

In consolidated cases for sentencing, the district court must calculate a single guideline range for all offenses and cases.  United States v. Tovar-Pina, No. 12-1964.  The defendant had an illegal reentry conviction, a conviction involving the use of stolen checks, and a supervised release revocation arising in multiple jurisdictions.  All of the cases were eventually consolidated into one jurisdiction for purposes of sentencing.  The PSR calculated separate guideline ranges of 24 to 30 months for each conviction.  The judge at sentencing imposed 30-month terms consecutive on the substantive convictions, as well as an additional 24-month consecutive term on the supervised release revocation.  Reviewing for plain error, the court noted that the Sentencing Guidelines instruct courts to determine a single offense level that encompasses all counts of conviction for a given defendant, including those “contained in the same indictment or information,” or as relevant here, “contained in different indictments or information for which sentences are to be imposed at the same time or in a consolidated proceeding.” U.S.S.G. ch. 3, pt. D, intro. comment. Two separate federal grand juries returned indictments against Tovar-Pina—one for the unlawful reentry offense and one for the bank fraud offenses—but the district court was imposing a sentence for both indictments at the same time and in a consolidating proceeding. So, the district court should have applied U.S.S.G. §§ 3D1.4-5 and determined a single offense level, which Tovar-Pina and the government agree on appeal should have been 15 with a criminal category IV, leading to a Guidelines range of 30 to 37 months’ imprisonment on each count, with all counts running concurrently.  Because the court failed to calculate this single range, the Court of Appeals remanded for sentencing. 

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Cases from 04/17/13 through 04/26/2013

Supreme Court Activity

The Supreme Court has issued 2 opinion[s] in criminal cases since the last update and no new grant[s] of certiorari.  For a complete list of criminal issues decided and pending in the Supreme Court this Term, click HERE.

The Supreme Court decided Missouri v. McNeely on Tuesday, April 17, 2013.  The Court held that the natural dissipation of alcohol in the bloodstream does not establish a per se exigency that suffices on its own to justify an exception to the warrant requirement for nonconsensual blood testing in drunk-driving investigations.  A fractured Court issued four separate opinions in the case, which you can read HERE.  As always, SCOTUSblog has an excellent analysis of the case HERE.   

On Tuesday, April 23, 2012, the Supreme Court decided Moncrieffe v. Holder, No. 11-702, as summarized by Sentencing Resource Counsel Jennifer Coffin below:

Applying (and celebrating) the categorical approach, the Supreme Court held today that a state conviction for possession with intent to distribute (for no remuneration) a small amount of marijuana does not constitute “illicit trafficking in a controlled substance” under section 1101(a)(43) of the Immigration and Nationality Act, and is thus not an aggravated felony subjecting a noncitizen to mandatory deportation and ineligibility for certain forms of discretionary relief   Justice Sotomayor wrote for the majority. 

The Court concluded:  This is the third time in seven years that we have considered whether the Government has properly characterized a low-level drug offense as “illicit trafficking in a controlled substance,” and thus an “aggravated felony.” Once again we hold that the Government’s approach defies“the ‘commonsense conception’” of these terms.  Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 9) (quoting Lopez, 549 U. S., at 53). Sharing a small amount of marijuana for no remuneration, let alone possession with intent to do so, “does not fit easily into the ‘everyday understanding’” of “trafficking,” which “‘ordinarily . . . means some sort of commercial dealing.’” Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 9) (quoting Lopez, 549 U. S., at 53–54). Nor is it sensible that a state statute that criminalizes conduct that the [Controlled Substances Act] treats as a misdemeanor should be designated an “aggravated felony.” We hold that it may not be. If a noncitizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, the conviction is not for an aggravated felony under the INA.

Here, Adrian Moncrieffe possessed 1.3 grams of marijuana, which was accepted as a "small amount."  Because the meaning of "small amount" was not at issue, the Court did not define the term "small amount."

Justice Thomas, joined by Justice Alito, dissented.

Opinion HERE.  Link to case page on scotusblog HERE.

 Seventh Circuit Activity Since Last Update

The Seventh Circuit issued 1 precedential opinion in criminal cases since the last update, as summarized below. 

Suppression is not a remedy for the use of excessive force where the evidence sought to be suppresses was not discovered through the use of that force.  United States v. Collins, No. 12-3317.  Johnnie Collins fled police officers by car and then by foot after he was stopped for speeding. An officer kicked Collins repeatedly and dosed him with pepper spray, but Collins did not stop resisting until another officer deployed his Taser. Afterward, the officers discovered a bag containing crack and powder cocaine that Collins had discarded during the foot chase, as well as a wad of cash in his pocket. After Collins was charged with possession of crack and powder cocaine with intent to distribute, he moved to suppress the drugs and money on the principal ground that they were obtained through the use of excessive force. The district court denied the motion to suppress, explaining that under United States v. Watson, 558 F.3d 702, 705 (7th Cir. 2009), the use of excessive force during an arrest is not a basis for suppressing evidence. Moreover, the court reasoned, the drugs and money were not seized as a result of the alleged use of excessive force. The Court of Appeals affirmed.  The court first noted that the defendant discarded the drugs prior to any the application of any force.  Thus, there was no “causal” connection between any excessive use of force and the discovery of the drugs.  Secondly, in Watson, the court held that suppression was not a proper remedy for the use of excessive force collateral to the seizure of evidence. The court here followed that precedent.

 
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Cases from 04/06/13 through 04/16/2013

The Supreme Court has issued no one opinion in criminal cases since the last update and no new grants of certiorari.  For a complete list of criminal issues decided and pending in the Supreme Court this Term, click HERE.

The Seventh Circuit issued 10 precedential opinions in criminal cases since the last update, as summarized below.

Illinois offense of aggravated stalking is a crime of violence under the residual clause of the ACCA.  United States v. Meherg, No. 12-1860.   On appeal from a finding that the defendant was an Armed Career Criminal, the Court of Appeals held that the Illinois offense of aggravated stalking qualifies as a crime of violence.  The Illinois crime of stalking is committed when a person “knowingly and without lawful justification . . . follows another person or places the person under surveillance . . . and . . . places that person in reasonable apprehension of immediate or future bodily harm, sexual assault, confinement or restraint.” 720 ILCS § 5/12-7.3(a-3). The Illinois crime of aggravated stalking is committed when a person commits stalking and “confines or restrains the victim.” 720 ILCS § 5/12-7.4(a)(2).  The defendant argued that the offense neither meets the elements test nor the definition in the residual clause.  The court agreed, and the government conceded, that the offense did not meet the elements test.  On the residual clause question, the court looked to the false imprisonment context discussed in United States v. Wallace, 326 F.3d 881 (7th Cir. 2008), where the court found that a situation where one person restrains another against his or her will presents a serious potential risk of physical injury, whether it be in the initial restraint or the possible resulting confrontation between the assailant and victim if the victim attempts to leave.  In that context, the court rejected the argument that the crime should not qualify because one could conceivably confine a victim without the risk of violent conduct.  The same reasoning applied in this context.  Aggravated stalking is ordinary stalking plus actually confining or restraining the victim.  Therefore, the offense requires not only that the victim fear confinement, but that the victim actually be confined or restrained.  Moreover, the offense has a mens rea or knowing or purposeful conduct, sufficient to require it to be treated in the same way as unlawful restraint and false imprisonment offenses.  NOTE:  This is the first case in quite some time where the court addresses whether a state offense is a crime of violence.  For a complete list of cases addressing whether a particular offense is a crime of violence or not, click HERE.

Government may withhold third point for acceptance of responsibility because of refusal to waive right to appeal in a plea agreement, notwithstanding circuit split on the issue.  United States v. Tristan Davis, No. 12-3552.  The defendant was originally charged with 922 offenses stemming from his giving false addresses when purchasing guns, six of which were later recovered from persons who could not lawfully possess them.  The defendant pled guilty but claimed that the guns were stolen from him.  At sentencing, the defendant only received two levels for acceptance of responsibility because the prosecutor declined to move for the third point because the defendant refused to waive his right to appeal in his plea agreement.  The defendant argued on appeal that the motion from the prosecutor is mandatory whenever the defendant pleads guilty early enough to spare the prosecutor the burden of trial preparation, although he acknowledged contrary precedent on the question from this circuit.  The Court of Appeals noted that two circuits sided with the defendant’s position, and four others sided with the Seventh Circuit.  Because a change in position would not eliminate the split, the court concluded that stare decisis supported the court adhering to its precedent, the conflict now being in the province of the Supreme Court or the Sentencing Commission.  Judge Rovner filed a lengthy and thorough dissent.  NOTE:  Given the circuit split, and Judge Rovern’s well reasoned dissent, if you have this issue, be sure to preserve it in the district court and Court of Appeals and then file a petition for certiorari

Defendant’s sentence cannot be enhanced under the distribution guideline for making files available to download by others via sharing software unless there is proof the defendant knew such files were available for download by others.  United States v. Robinson, No. 12-2015.  In possession of child pornography offense, the Court of Appeals held that a defendant’s sentence cannot be enhanced under the distribution guideline for making files available to download by others via sharing software unless there is proof the defendant knew such files were available for download by others.  The Guideline, §2G2.2, provides for a 15-level enhancement for distribution or “posting material . . . on a website for public viewing.”  The guideline does not actually have a knowledge requirement.  Nevertheless, joining a circuit split, the court held that a sentencing judge must find that the defendant either knew, or was reckless in failing to discover, that the files he was downloading could be viewed online by other people.  In the present case, the 61-year old defendant was very limited in his knowledge of computers.  Moreover, the court looked to the specific sharing software, and noted that the default setting was to share files that someone downloaded, although the using may not necessarily be aware of that fact.  Given the uncertainty, the court remanded to the district court for a finding on the defendant’s knowledge.  NOTE:  This is an important victory on the use of file sharing programs.  The government must now present some evidence that a defendant knew his files were available for download to others before receiving the distribution enhancement.  Given how sharing software works, and that the default setting is usually to share, some defendants genuinely do not know their files are viewable by others. 

Marijuana and cocaine offenses properly joined for trial because the two offenses were in the same class of crime—drug dealing.  United States v. Berg, No. 12-2118.  The defendant ran a crossborder smuggling scheme that traded American arms for Canadian cannabis. Later, he supplied several bags of cocaine to a dealer who unwittingly resold them to a government agent. On July 16, 2010, Berg confessed to both sets of crimes. The government took Berg to trial, and a jury convicted him. Berg appealed, arguing that his two sets of crimes were improperly tried in one case and that he was denied the opportunity to call an exculpatory witness.  The Court of Appeals affirmed.  On the first question, the defendant argued that because the jury heard both sets of charges at the same time, it may have inferred he was guilty because he had a propensity to commit crimes and not because of the strength of the evidence.  Because the defendant raised the issue for the first time in his post-trial motion, the court reviewed the issue for plain error.  The court first found that the two charges were properly joined because the marijuana and cocaine offenses were of the “same or similar character.”  On the joinder question, the court looks to categorical, not evidentiary, similarities among offenses.  Here, the fact that both crimes involved drug dealing sufficed to make them of like class.  On the question of whether the trial on the separate charges should nevertheless have been severed to avoid undue prejudice.  On this question, the defendant could not demonstrate prejudice, as the defendant could not establish that the denial of severance actually prejudiced him by preventing the jury from arriving at a reliable judgment as to guilty or innocence.  On the other evidentiary issues raised by the defendant, the court ultimately held that the defendant had waived the issues for purposes of appeal. 

Among other issues, court found that restitution properly ordered for offenses other than those of conviction, where conduct was part of same scheme.  United States v. Westerfield, No. 12-1599.  The defendant was a lawyer working for a title insurance company in Illinois when she facilitated fraudulent real estate transfers in a mortgage fraud scheme. The scheme used stolen identities of homeowners to “sell” houses that were not for sale to fake buyers, and then collect the mortgage proceeds from lenders who were unaware of the fraud. Westerfield facilitated five such real estate transfers, and was later indicted on four counts of wire fraud. She claimed that she had been unaware of the scheme’s fraudulent nature and argued that she had merely performed the typical work of a title agent. A jury disagreed, and convicted her on three of the counts. On appeal, she challenged her conviction for insufficient evidence and argued that the district court improperly admitted a codefendant’s testimony during trial. Additionally, she challenged her sentence based on the district court’s application of the U.S. Sentencing Guidelines and the district court’s restitution calculation.   On the sufficiency question, although no direct evidence was presented against the defendant, the circumstantial evidence was sufficient to support the verdict.  Regarding the codefendant’s testimony, he testified about the general workings of the scheme and the defendant’s role in the scheme.  The court found the evidence to be admissible both from the view as occurrence witness and lay expert witness testimony.  On the sentencing issue, the defendant argued that the court incorrectly calculated the amount of loss by using the value of loss from all five of the transactions she facilitated instead of only three transactions for which she was convicted.  The court rejected this argument, noting that the loss from the other transactions was properly included as relevant conduct.  For purposes of restitution, the court rejected the same argument.  The MVRA allows for restitution to be ordered for offenses of conviction and conduct in the course of the same scheme.  Here, although the district court did not make a specific “scheme” finding, reviewing for plain error, the findings regarding scheme for loss purposes under the guidelines were sufficient.  NOTE:  This case serves as a good reminder that restitution cannot be ordered for any offenses other than the offenses of conviction unless the other conduct is part of the same scheme.  In such cases, the court should explicitly make a finding as to scheme.  Thus, not all “loss” which incorporates relevant conduct in a case can be awarded as restitution with a finding of a “scheme.”

Upon appeal by the government, Court of Appeals affirms the district court’s grant of a motion for judgment of acquittal (!!!) United States v. Jones, No. 12-1497.  Upon appeal by the government of the district court’s entry of judgment of acquittal after a jury trial, the Court of Appeals affirmed.  A jury found the defendant guilty of drug offenses, but the court granted the defendant’s Rule 29 motion.  In doing so, the court concluded that the inferences the jury had to draw in order to reach a guilty verdict fell into the realm of impermissible speculation.  The Court of Appeals agreed.  The government’s case against the defendant was entirely circumstantial.  No witnesses testified that they saw the defendant in possession of any cocaine, and intercepted telephone calls which the government relied upon were not tied directly to actual or constructive possession of any cocaine.  The court then undertook a very fact-intensive analysis of the case, concluding that some of the necessary inferences the government asked the jury to make were too speculative.  NOTE:  This case is very fact specific, as any sufficiency of the evidence case is.  What makes the case remarkable is that the district judge actually granted a Rule 29 motion and the Court of Appeals affirmed it. 

Original finding of 31 kilograms of crack precluded reduction of defendant’s sentence under retroactive amendment to the sentencing guidelines.  United States v. Irons, No. 12-2377.  On appeal from the denial of a petition for a reduced sentence under the crack cocaine amendment, the Court of Appeals held that the district court lacked jurisdiction to consider the defendant’s petition.  The defendant was originally found to have been responsible for 31 kilograms of crack cocaine.  That finding precluded the defendant from obtaining any relief under the amendment, given that the whether it was more than 1.5 kilograms under the original guideline or more than 8.4 kilograms under the amendment, the defendant’s Base Offense Level was still 38.  NOTE:  It is hard to understand why this unremarkable opinion was published, other than the fact that it was authored by a district judge sitting by designation. 

Lengthening a sentence because rehabilitation is unlikely does not run afoul of Tapia.  United States v. Annoreno, No. 11-2783.  In prosecution for distribution and possession of child pornography offenses, the court of appeals affirmed all aspects of the defendant’s sentence.  For purposes of sentencing, the defendant offered evidence of diminished capacity in mitigation.  However, the defendant argued that the court impermissibly used that same evidence as an aggravating factor.  Although the court acknowledged the mitigating aspects of this evidence, it also noted that these same traits might make the defendant less amendable to treatment and rehabilitation, which would leave him a continuing risk to children.  The sentence court was entitled to consider its options and decide that treatment was unlikely given the defendant’s mental capacity and personal characteristics.  The defendant also argued that the court impermissibly lengthened his sentence so he could receive rehabilitative treatment, in violation of the Supreme Court’s decision in Tapia.  The court found the defendant misinterpreted the court’s reasoning, noting that the court didn’t lengthen the defendant’s sentence so he could receive treatment, but instead lengthened his sentence to incapacitate him given the likelihood that treatment would be ineffective.  This was a legitimate basis to lengthen the sentence.  Finally, as usual, the court rejected all of the defendant’s arguments that his sentence was substantively unreasonable. 

Witness testimony about defendant’s incarceration was not improper, where defense counsel’s questions on cross-examination invited the response.  United States v. Zitt, No. 12-1277.  In prosecution for conspiracy to distributed heroin, the court affirmed the district court’s refusal to grant a mistrial.  During the government’s case, one of its witnesses on cross-examination testified that he was in prison at the same time as the defendant.  The defense moved for a mistrial, but the court denied it and gave an instruction to ignore the answer as irrelevant.  The Court of Appeals found that the answer was not improper.  Examining another party’s witness entails risk in deciding what to ask and how to craft questions, and the witness here gave an answer that surprised everyone.  Specifically, a logical answer to the question of whether the defendant had known the witness had gone to jail was “yes,” because the two were in prison at the same time.  The answer was therefore responsive, fair, and proper in light of the line of questioning. 

Enhancement for governmental victim of offense of making false threats of an explosive device permissible where the defendant intended his conduct to elicit a response by law enforcement agencies who would then become victims of the false threat.  United States v. Conaway, No. 11-3246.  Conaway made a series of threatening phone calls to an imam and numerous federal and state officials. These calls culminated in a standoff at Conaway’s home that evening that drew a response from over a dozen governmental agencies and resulted in the evacuation of the entire street. Thankfully Conaway’s threats to, among other things, blow up the entire block turned out to be bogus—an ominous-looking device strapped to his chest held squares of putty, not explosive C-4. He was sentenced to two concurrent sentences of 60 months’ imprisonment after pleading guilty to making false threats to detonate an explosive device, see 18 U.S.C. § 1038(a)(1), and influencing a federal official by threat, see 18 U.S.C. § 115(a)(1)(B). He argued on appeal that his 60-month sentences were both procedurally and substantively unreasonable in light of his crime and what he views as mitigating factors that the district court failed to adequately consider. The court rejected all these arguments.  The defendant first challenged a guideline enhancement of six levels for the offense being motivated by the fact that the victim was a government officer or employee.  Although the defendant argued that his threats were directed at “anyone and anybody,” the court concluded that the defendant’s plan was specifically directed at law enforcement who he knew would respond to his actions.  Next, the defendant argued that his sentence 3-months above the range was substantively reasonable.  The court found that the sentence was reasonable and adequately explained.   

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Cases from 03/29/13 through 04/05/2013

The Supreme Court has issued no one opinion in criminal cases since the last update and no new grants of certiorari.  For a complete list of criminal issues decided and pending in the Supreme Court this Term, click HERE.

The Seventh Circuit issued 8 precedential opinions in criminal cases since the last update, as summarized below.

Court cannot impose post-release conditions without entering an order of supervised release.  United States v. Gutierrez-Ceja, No. 12-1388.  In an illegal reentry case, the Court of Appeals found an error identified in counsel’s Anders brief to be plain error, instead of harmless error, but rather than order that the issue be briefed, the court corrected the error itself.  At sentencing, the court stated that it was not imposing a term of supervised release because it was confident the defendant would be deported upon completion of his sentence.  However, the written judgment stated that if the defendant was not deported, then the defendant had to abide by certain conditions typical for supervised release.  Defense counsel noted, and the court agreed, that the court could not impose such conditions unless it imposed supervised release.  The only authority for imposing such terms is the supervised release statute.  Counsel’s assertion, however, that the error was harmless was incorrect.  The error was in fact plain.  Rather than require full briefing as is typical in a case where an issue is identified by the court upon review of an Anders brief, the court elected to ”excise” the post-release terms from the judgment. Here, the error was so patent that there was no response that the government could make to it, and the Anders brief, while wobbly with respect to the error of imposing post-release conditions in the absence of an order of supervised release, adequately demonstrates the absence of any possible ground of appeal other than the post-release conditions.  In these circumstances, the court could achieve judicial economy with no sacrifice of anyone’s legal rights by modifying the judgment of the district court to eliminate the post-release terms, and it did so.

Defendant not eligible for reduced sentence under retroactive crack cocaine amendment because he agreed to a specific sentence not linked to the Guidelines.  United States v. Scott, No. 12-2555.  Upon appeal of the denial of a 3582(c)(2) petition seeking a reduced sentence under the retroactive amendment to the sentencing guidelines, the Court of Appeals affirmed, holding that the defendant’s 11(c)(1)(C) agreement precluded relief.  The agreement for a specific sentence specifically noted that they made not calculation of the sentencing guidelines, but the agreement did stipulate that the defendant’s Base Offense Level was 34.  The district court, however, in denying the petition, did not reference the agreement for a specific sentence, but instead, the court simply checked a box on a form which reads:  “The defendant is eligible for a reduction under this amendment, but the Court has determined that such a reduction is not appropriate because of the nature and seriousness of the danger to any person or the community that may be posed by a reduction in sentence. (Application Note 1(B) of U.S.S.G. § 1B1.10).”  The defendant argued that the district court did not adequately explain its reasons for denying his motion, making meaningful appellate review impossible.  The court noted that a district court should not use a form for the entirety of the explanation of its sentence; a form might be an acceptable starting point, but an explanation of the reason why a particular factor applies, rather than a flat statement that it does, will normally be necessary both to guide the district court’s choices and to provide a basis for review.  Moreover, here, the use of the form injected error into the court’s reasoning, because the defendant was in fact not eligible for a reduced sentence as a matter of law.  Indeed, pursuant to the Supreme Court’s decision in Freeman, because the defendant’s agreement to a specific sentence was not linked to the Guidelines, he was not eligible for a reduction at all.

Defendant improperly sentenced under pre-FSA statute where his sentencing hearing occurred after the Act became effective.  United States v. Lomax, No. 11-2468.  On appeal from a conviction and sentence for a crack cocaine offense, the defendant argued that he should have been sentenced under the FSA, given that his sentencing hearing occurred after that Act’s effective date.  The court of appeals agreed that pursuant to Dorsey, the Act should have been used at sentencing.  Although this conclusion was rather straightforward, the court did note a gap in the record which complicated the case.  Specifically, the defendant pled guilty after the government filed an 851 enhancement, which would have increased his statutory maximum penalties.  With the enhancement, both pre- and post-FSA, the defendant would be subject to a maximum of life imprisonment.  Without the enhancement, however, his maximum pre-FSA was life, but his maximum post-FSA was 40 years.  This difference is significant because, given the defendant’s career offender status, his post-FSA guideline range would only go down if the 851 enhancement did not apply. Strangely, notwithstanding the 851 notice, the parties at sentencing made no reference to the enhancement, despite nothing in the record disclosing that the 851 notice was dismissed.  Given the incomplete record in the case, the court assumed for purposes of appeal that the 851 enhancement did not apply, that his new statutory cap was 40 years, and that his career offender guideline range was therefore lowered by the FSA.  The court therefore remanded the case for resentencing, with directions to the court to first resolve the 851 issue. 

An inoperable gun met the statutory definition set for at 18 U.S.C. § 921(a)(3)(A), (B) because it was “designed to be a gun, never redesigned to be something else, and not so dilapidated as to be beyond repair.”  United States v. Dotson, No. 12-2945.  In prosecution for being a felon in possession of a weapon, the Court of Appeals rejected the defendant’s argument that the inoperable pistol he possessed was not “any weapon which will or is designed to or may readily be converted to expel a projectile by the action of an explosive,” or the “frame or receiver of any such weapon,” as defined at 18 U.S.C. § 921(a)(3)(A), (B).  The pistol was a Hi-Point .380 caliber semi-automatic. It was designed to be a gun, and nothing else. But according to the pretrial report of an expert at the Justice Department’s Bureau of Alcohol, Tobacco, Firearms and Explosives, at the time when the defendant possessed the gun it was inoperable because of “significant damage, missing/broken parts, and extensive corrosion.” The expert testified similarly at trial—testified that the gun was “damage[d]” and had “corroded, missing and broken components which make it inoperable.”  There was no dispute that the gun could not “expel a projectile” and it could not be “readily . . . converted” to do so in any reasonable amount of time.  Thus, the only question was whether the gun “is designed” to expel a projectile by means of an explosive.  The defendant argued that the damage to the gun was such that it was no longer a weapon designed to expel a projectile.  The damage had changed the characteristics of the gun and therefor its design.  The government, however, argued that a gun is always a gun, regardless of any latter damage which may occur to it.  The court rejected both extremes and went through a series of hypotheticals demonstrating why both extremes were untenable.  Instead, the court looked to the gun used in this case, end held that it met the statutory definition because it was “designed to be a gun, never redesigned to be something else, and not so dilapidated as to be beyond repair.”  Thus, it met the statutory definition.

Presence of an alternate juror during jury deliberations did not constituted reversible error because no evidence suggested the alternate deliberated with the other jurors.  United States v. Dill, No. 12-1733.  On appeal from a various firearm offenses, the Court of Appeals held that the presence of an alternate juror during jury deliberations did not constituted reversible error because no evidence suggested the alternate deliberated with the other jurors.  The court first noted that Federal Rule of Criminal Procedure 24(c)(3) explicitly prohibits alternate jurors from being present during deliberation.  Therefore, under the plain error standard, the only question was whether the error affected the defendant’s substantial rights, an issue on which the defendant bore the burden of persuasion.  Relying on the Supreme Court’s analysis in Olano, the court noted that the defendant has not alleged—nor pointed to anything on the record indicating—that the alternate juror actually participated in the jury’s deliberations in any way.  Moreover, the district court explicitly instructed the alternate not to participate in deliberations and so without any indication that she somehow participated either “verbally or through body language,” the court had no basis to infer that her presence was prejudicial to the defendant.

Evidence of drug possession subsequent to time charged in a drug prosecution was not improper 404(b) evidence.  United States v. Gomez, No. 12-1104.  In prosecution for drug offenses, the Court of Appeals rejected the defendant’s arguments that the district court erred in admitting evidence of his possession of cocaine a few weeks after the charged crimes, and that the district judge didn’t specify his perjurious statements when increasing his sentencing range for obstruction of justice. On the first issue, the defendant argued that admission of evidence of his subsequent possession of a user amount of cocaine as 404(b) evidence was an abuse of discretion. The court then engaged in an unusually long analysis of all the 404(b) factors, very specific to the facts of the particular case.  The court ultimately found the evidence was properly admitted. 

Incorrect date in the indictment stemming from a clerical error was not plain error and restitution was properly imposed.  United States v. Scheuneman, No. 11-1554.  On appeal from convictions for tax evasion and interference with the IRS laws, the court of appeals rejected the defendant’s arguments that 1) a clerical error in the indictment’s description of the relevant date for two of his tax evasion counts rendered those counts legally insufficient; 2) the government constructively amended the indictment by introducing proof regarding dates other than those listed in the indictment; and 3) the court improperly ordered restitution for losses unrelated to his tax evasion offenses.  On the first issue, reviewing for plain error, the court noted that the indictment on two counts stated the relevant date for the beginning of the conduct as one year earlier than it should have.  The court first found that despite the confusing dates, the counts nevertheless stated all the elements of tax evasion.  On the second issue, the court noted that the evidence presented at trial was entirely consistent with the dates set forth in the indictment.  Although the indictment listed the wrong initial starting date for the conduct, the dates set forth in the indictment still encompassed the period for which the government presented evidence.  On the restitution issue, again reviewing for plain error, noted that the restitution order was not for relevant conduct on the tax evasion counts as the defendant argued, but instead was directly related to his conviction for interfering with the IRS laws.  As such, restitution was proper.

Multiple issues rejected in the appeal of John Burge, former Chicago policeman who tortured and abused suspects.  United States v. Burge, No. 11-1277.  This appeal stemmed from convictions for perjury and obstruction of justice stemming from the infamous abuse and torture of suspects by former Chicago Police Commander Jon Burge.  Burge was charged with lying in connection with his responses to interrogatories served on him during the course of some civil actions alleging damages based upon his misconduct.  The defendant first argued that the charges of obstruction of justice should have been dismissed because his false response to interrogatories did not occur “before” a judge as required by the statute.  The court rejected this argument, noting that the obstructive conduct need not physically occur in the presence of a judge, but rather occur in a proceeding that was pending “before a judge.”  Secondly, the court rejected the defendant’s argument that his culpability was diminished because his responses were given in the context of a civil interrogatory.  The court stated that perjury and obstruction of justice are offenses against the integrity of the judicial system—not solely injuries to opposing parties in a civil suit.  Next, the court rejected the defendant’s claim that his false statements were not material, noting that his denial of torturing suspects was a core component of the civil suit.  The court also rejected the defendant’s argument that a difference in language between the indictment and the jury instruction concerning materiality was a constructive amendment of the indictment.  Instead, the court found the difference to be only a variance because the instruction did not change the elements of the crime, nor did it affect the evidence the jury would have relied upon to hold the defendant liable for the crimes charged.  Next, after rejecting the defendant’s hearsay argument, the court finally held that the court did not err by referencing a victim impact letter at sentencing. 

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Cases from 03/22/13 through 03/28/2013

The Supreme Court has issued no one opinion in criminal cases since the last update and no new grants of certiorari.  For a complete list of criminal issues decided and pending in the Supreme Court this Term, click HERE.

The criminal case decided by the Supreme Court this week was Florida v. Jardines, and the Court’s decision is summarized by Sentencing Resource Counsel Laura Mate as follows:

In a 5-4 decision in Florida v. Jardines, No. 11-564, with Justice Scalia writing for the majority, the Supreme Court held:  "The government's use of trained police dogs to investigate the home and its immediate surroundings is a 'search' within the meaning of the Fourth Amendment." 

In this case, a joint surveillance team (two detectives, one a trained canine handler, and Franky, the dog) approached Jardines' home.  The dog explored the porch, and the handler informed the other detective that there had been a positive alert for narcotics.  On that basis, the detective applied for a warrant, searched the home, found marijuana plants, and Jardines was charged with trafficking in cannabis. 

The majority relied on a "property-rights baseline" that "keeps easy cases easy.  That the officers learned what they learned only by physically intruding on Jardines' property to gather evidence is enough to establish that a search occurred."  In a footnote, the majority makes clear, that it is "not the dog that is the problem, but the behavior that here involved the use of the dog.  We think a typical person would find it 'a cause for great alarm'... to find a stranger snooping about his front porch with or without a dog." 

Justice Kagan filed a concurring opinion in which Justice Ginsburg and Justice Sotomayor joined, to emphasize that while the majority "treats this case under a property rubric... I could just as happily have decided it by looking to Jardines' privacy interests."   As Justice Kagan notes, [i]t is not surprising that in a case involving a search of a home, property concepts and privacy concepts should so align."

In his dissent, Justice Alito is joined by Chief Justice Roberts, and Justices Kennedy and Breyer.

The decision can be found here, and the SCOTUSblog summary of the case can be found here

The Seventh Circuit issued 2 precedential opinions in criminal cases since the last update, as summarized below.

Constitution does not compel disclosure to defendant of the probation officer’s confidential sentencing recommendation, but the court offered its view that “our federal sentencing procedures might be better served by allowing the parties to evaluate any analysis that might form the basis of a judicial determination.”  United States v. Peterson, No. 12-2484.  The defendant argued on appeal that the district court’s reliance on the probation officer’s confidential sentencing recommendation violated his Fifth and Sixth Amendment rights because he had no opportunity to respond to the analysis contained therein.  The Court of Appeals rejected this argument.  As an initial matter, the court held that the defendant had forfeited the issue in the district court by failing to object once the court’s reliance on the confidential recommendation became known to him at sentencing.  Specifically, the defendant did not learn of the analysis contained in the recommendation until the district court’s explanation of the sentence.  The court noted that the defendant could have objected when, before concluding the sentencing hearing and issuing judgment, the district court asked the parties whether there was anything further for the court to address.  Secondly, the defendant could have raised an objection in a post-sentencing motion.  On the merits, the court noted that all of the underlying factual information supporting the probation officer’s rationale is contained in the PSR available to both parties.  By ensuring that the defendant received and reviewed all of the facts referenced in the probation officer’s sentencing recommendation, the district court gave the defendant all the process he was due.  Considering whether disclosing the recommendation is desirable, if not constitutionally compelled, the court noted that many districts require and the ABA recommends disclosure of the recommendation.  In light of legitimate concerns that probation officers can sometime appear to be surrogate prosecutors, the court offered its view that “our federal sentencing procedures might be better served by allowing the parties to evaluate any analysis that might form the basis of a judicial determination.”  The court went on to suggest how such a procedure might be implemented:  “We do not suggest that district courts should necessarily release confidential sentencing recommendations in all cases and under all circumstances. But the federal rules allow courts the opportunity to make these determinations on a case-by-case basis. See Fed. R. Crim. P. 32(e)(3) (“By local rule or by order in a case, the court may direct the probation officer not to disclose to anyone other than the court the officer’s recommendation on the sentence.” (emphasis added)). If a district court is concerned about a probation officer’s ability to produce a forthright assessment because of a potential supervisory relationship or a case-specific factor, the court could request that the probation officer submit the sentencing recommendation to the court confidentially. An order from the district court requiring confidentiality would produce the added benefit of informing the defendant that a confidential recommendation exists, something that could remain a mystery to defendants when the court does not reference the recommendation during sentencing. If, on the other hand, no such concerns exist because of the structure of the probation office or because of the nature of the case, the district court could direct that the parties receive all portions of the PSR, including the probation officer’s sentencing recommendation. This practice could allow the defense an opportunity to see and comment on the recommendation and independently confirm that all facts forming the basis for the recommendation are contained elsewhere in the report.  NOTE:  This is an important case in many respects.  First, although the court unfortunately rejected the constitutional challenge to nondisclosure of the confidential recommendation, it certainly strongly recommended that as a prudential matter the recommendations be disclosed.  Thus, this may at least provide the opportunity for a request that the courts in this district revisit their rules on this issue.  Secondly, this case continues a disturbing trend of blurring the lines of when defense counsel is required to object to things that happen when a judge is pronouncing sentence.  The Federal Rules specifically provide that parties are not required to take “exception” to a judge’s ruling.  However, in an increasing number of cases, the government is arguing and the court is accepting an argument that defense counsel is required to speak up if a judge makes an error while pronouncing his or her sentence.  Accordingly, if you think a judge makes a mistake while pronouncing sentence, you should probably speak up at the hearing or risk plain error review on appeal. 

Affair between investigating agent and defendant’s wife did not constitute outrageous government conduct constituting a denial of due process; eight year delay by court in ruling on motion for new trial did not violate the defendant’s Speedy Trial rights.  United States v. Westmoreland, No. 10-3961.  The defendant was originally convicted in two separate trials of a controlled substance offense (trial 1) and five additional counts stemming from the murder of the wife of his partner in drug dealing (trial 2).  After conviction and while his appeal was pending, the defendant filed a motion for a new trial based upon outrageous government conduct and newly discovered evidence.  The motion was based upon the fact that after the defendant’s conviction on the drug charge but before trial on the murder-related charges, the government learned that one of the lead investigating agents engaged in a sexual affair with the defendant’s wife.  Upon learning of the affair, the government elected not to seek the death penalty and did not call the agent as a witness, although it did call the defendant’s wife.  She testified about the affair at trial.  The defendant argued that the affair was so outrageous that it infected the entire investigation and prosecution, denying him due process of law.  The Seventh Circuit noted that such a defense has generally been disallowed in this circuit.  Moreover, even if the court were inclined to re-examine its precedents in this area, this case would not support the defense.  Where such a defense has been recognized, the defense has come into play only where the government’s involvement created a crime or criminal enterprise that did not exist before and where the government had to coerce the defendant to commit the crime by some unreasonable means.  Here, the defendant’s criminal conduct occurred long before the affair.  Thus, even if the affair infected the investigation and prosecution, it did not play any role in the crime itself, thereby precluding the defense.  On the issue of newly discovered evidence, the court noted that the defendant knew of the affair before trial and, in fact, believed that it had begun earlier than the government and his wife said it did.  Thus, the existence of the affair cannot be said to be “newly discovered evidence.”  On a separate issue, the defendant’s motion for a new trial sat before the district court for 8 years without any action.  Based upon this delay, the defendant argued that his right to a speedy trial was violated.  The court first noted that it has not decided whether the right to a speedy trial attaches to a post-trial motion for a new trial.  It also noted that it need not decide the issue in this case, for even if such a right did attach, the defendant could not show a right was violated.  Critically, the defendant could not show that he was prejudiced by the delay.  The defendant was serving an unchallenged 240-month sentence on the drug charge during the 8 years his motion was pending.  Thus, while he waited for a ruling on his motion for a new trial, he was not incarcerated any longer than he would have been otherwise.

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Cases from 03/16/13 through 03/21/2013

The Supreme Court has issued no new opinions in criminal cases since the last update and one new grant of certiorari.  For a complete list of criminal issues decided and pending in the Supreme Court this Term, click HERE.

The new grant of certiorari was in Kaley v. United States, No 12-464.  The issue for review is:

“Whether, when a post-indictment, ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice, the Fifth and Sixth Amendments require a pre-trial, adversarial hearing at which the defendant may challenge the evidentiary support and legal theory of the underlying charges.”

The Seventh Circuit issued 2 opinions in criminal cases since the last update, as summarized below.

Conviction for possession of a firearm after a conviction for domestic violence does not require proof that the defendant knew of his status as a prohibited person.  United States v. Stein, No. 12-2182.  On appeal after conviction for possession of a firearm following a misdemeanor conviction for a crime of domestic violence, the defendant argued that he should have been allowed to introduce evidence at trial support a proposed defense that his lawyer in the domestic-violence prosecution had led him to believe that the misdemeanor conviction would not disqualify him from possessing firearms.  The Court of Appeals rejected this argument based upon two prior precedents in the circuit rejecting such evidence as irrelevant.  Specifically, both United States v. Lee Wilson, 437 F.3d 616, 620 (7th Cir. 2006), and United States v. Carlton Wilson, 159 F.3d 280, 288-89 (7th Cir. 1998), both suggest that the mens rea element of the offense is satisfied by knowing possession of the gun and does not require proof that the defendant was aware of his status as a prohibited person.  The court reaffirmed the holding in these cases,  noting that unless the text of the statute dictates a different result, the term “knowingly” merely requires proof of knowledge of the facts that constitute the offense.

Sentence vacated where court rejected arguments for variance without explanation.  United States v. Pietkiewicz, No. 11-3296.  On appeal after a mail fraud conviction, the defendant argued that the district court erred by failing to explain why it rejected his arguments for a variance.  The defendant made a number of arguments for a variance from the guidelines, all of which the district court denied without comment.  Stating the now familiar principles on this question, the court noted that a court must state in open court the reasons for its imposition of a particular sentence and the amount of explanation required from the court varies with the circumstances.  Although a court is not required to conduct a comprehensive discussion of every factor affecting the sentencing judge’s decision, it must provide some explanation and “address nonfrivolous sentencing arguments.”  Given the district court’s complete silence, a remand was necessary to give the district court an opportunity to explain the reasoning behind its decision.  NOTE:  This is a particularly fertile area for appeal, with several good precedents remanding cases because of non-existent or inadequate explanations for rejection of non-frivolous arguments for a variance.  When reviewing a sentencing transcript or Order, make sure the district judge specifically addresses every non-frivolous argument made in support of a variance.

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Cases from 03/07/13 through 03/15/2013

The Supreme Court has issued no new opinions in criminal cases since the last update and no new grants of certiorari.  For a complete list of criminal issues decided and pending in the Supreme Court this Term, click HERE.

The Seventh Circuit issued 2 opinions in criminal cases since the last update, as summarized below.

An adult threw two punches aimed at a police officer’s head was subject to a 6-level enhancement for assaulting a police officer in a manner that created a substantial risk of serious bodily injury.  United States v. Alexander, No. 12-1084.  In a drug case, the Court of Appeals affirmed a 6-level enhancement for assaulting a police officer in a manner that created a substantial risk of serious bodily injury.  U.S.S.G. § 3A1.2(c).  Alexander boarded an Amtrak train in Chicago carrying a large amount of cocaine. When he disembarked in Springfield, police officers were waiting for him. The officers ordered Alexander to place his hands on a brick wall and proceeded to search him for weapons. After initially complying and submitting to a pat-down, Alexander turned and swung a right hook at the searching officer, Lieutenant Steil, striking him on the left side of his head behind the ear. Alexander followed with a left hook, but Lt. Steil ducked the blow and wrestled Alexander to the ground. Alexander continued struggling, got back on his feet, and began running. He did not get far before a police dog caught up and subdued him. He then surrendered to the police.  Alexander argued that the enhancement was not warranted, arguing that his punches had not seriously threatened harm to Lt. Steil. At Alexander’s sentencing hearing Lt. Steil testified that he had suffered only minor injuries.  The Sentencing Guidelines define “serious bodily injury” as “injury involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation.” U.S.S.G. § 1B1.1 cmt. n.1(L).  The Court of Appeals noted that appellate judges are poorly suited to second-guess a sentencing court’s evaluation of the “myriad factors” that establish the level of injury a victim suffered or risked suffering.  The court concluded that even one blow to the head, and even by an unarmed person, can pose a substantial risk of serious injury within the meaning of the Guidelines. The court noted that it was not holding or even suggesting that every swing of a fist qualifies for the upward adjustment under § 3A1.2(c). However, applying the Guideline standard to the specific circumstances of a case is the responsibility of the district judge. Thus, the court held that the district court did not clearly err by applying the adjustment in this case, in which an adult threw two punches aimed at a police officer’s head.  NOTE:  Although the court tried to limit its holding to the facts of this case and rely on the deferential standard of review, this case sets a very low bar for what constitutes “serious bodily injury” in the Guidelines. 

United States v. Banas, No. 12-1499.  Anthony Banas bilked investors out of more than $70,000,000 and lined his own pockets with the health care savings of people who trusted him. He also showed extraordinary contrition—he admitted his guilt, accepted responsibility for his actions, and he worked hard to secure some degree of restitution.  The district court sentenced him to 160 months imprisonment, a sentence below the Guideline range.  On appeal, the defendant argued that the sentence was both procedurally and substantively unreasonable.  Procedurally, the defendant argued that the court failed to consider two of his principal arguments in mitigation, to wit: that he was manipulated by another individual and that he fully cooperated with the government.  The court rejected this argument, noting that the court in fact referenced both of these arguments and gave them meaningful consideration.  On the substantive reasonableness argument, the defendant argued that the sentence was unreasonable because the court failed to account for various mitigating factors and the sentence was disproportionately long compared to his co-defendant’s sentence.  The court noted that the sentence imposed was below the Guideline range, and the court considered all the factors in mitigation.  Regarding his argument related to his co-defendant’s sentence, the court noted that the defendant in fact received a lower sentence than his codefendant, making the argument borderline frivolous.  NOTE:  Probably not a good idea in the future based on the language in this case to argue your client’s sentence is disproportionate to a codefendant’s sentence when your client’s sentence is actually lower than the co-defendant’s sentence. 

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Cases from 02/27/13 through 03/07/2013

The Supreme Court has issued no new opinions in criminal cases since the last update and no new grants of certiorari.  For a complete list of criminal issues decided and pending in the Supreme Court this Term, click HERE.

The Seventh Circuit issued  4 opinions in criminal cases since the last update, as summarized below.

Any errors in out-of-court identification procedures were harmless; cross-examination was not unconstitutionally limited; and not impermissibly to apply higher of two applicable mandatory minimum sentences for the same offense.  United States v. Sanders, No. 11-3298.  In January 2008, Lamar E. Sanders and an accomplice abducted Timicka Nobles’s daughter, R.E. The reason: to induce Nobles to rob her own mother. Nobles attempted to comply—she left a bag of cash for Sanders’s accomplice to pick up—but law enforcement authorities were already apprised of the plot. They quickly arrested Sanders’s accomplice, and Sanders turned himself in shortly thereafter. Fortunately, no one was injured, and police recovered the money. After a five-day trial, a jury found Sanders guilty of kidnapping and extortion. He now appealed his conviction and sentence. First, Sanders argued that the district court denied him due process by admitting Nobles’s three identifications of him. Second, Sanders claimed that the district court ran afoul of the Confrontation Clause, or, alternatively, abused its discretion, by limiting his cross-examination of Nobles. Finally, Sanders contended that the district court applied the incorrect mandatory minimum sentence. Finding no errors, the court affirmed.  Regarding the identification argument, the victim was first shown some photographs taken at a birthday party recovered from the defendant’s car where he was depicted with various other people.  The second identification was a few hours later in a formal photographic array.  A final, third identification was made a trial.  The court noted that if either of the first two procedures was unnecessarily suggestive, then the in-court identification must demonstrate an independent basis of reliability to be admissible.  Regarding the vacation photos, the victim was at best presented with the choice between the defendant and one other person, making the procedure most similar to a “show up” and the court assumed it was suggestive.  However, even assuming that to be the case, he could not prove the procedure was also unnecessary.  At the time the identification was made, police needed to act quickly to apprehend an armed felon on the loose; using the photo was the best way to get a quick ID on the suspect.  Moreover, any error was harmless, given that the victim’s daughter independently identified the defendant through a proper photographic array.  The defendant challenged the second photo array identification, arguing that his was the only photo the appeared in both the first and second procedure.  Rather than decide the issue directly, the court used the same harmless error analysis to reject this challenge as it used on the first challenge.  Moving to the cross-examination question, the defendant challenged the court’s decision to limit his cross examination of the victim concerning her criminal history to support his theory that the victim was actually implicated in the crime.  The court, however, noted that the defendant was allowed to question the victim and pursue his theory of defense, but just not allowed to delve into her criminal history.  Thus, because the defendant was given the chance to cross and establish his theory, the limitation in this one area did not implicate the Confrontation Clause’s core concern.  Finally, the defendant argued that he should have received a 20-year mandatory minimum pursuant to 18 U.S.C. § 1201(a) instead of a 25-year minimum required by 3559(f)(2).  The two mandatory minimums in question both apply to the defendant’s offense and, according to the defendant, to make sense of the two separate penalties, the higher penalty should only apply where “actual violence” occurred with a kidnapping.  The court rejected this approach, noting that the two penalty provisions were not inconsistent because 1201(g) provides for a penalty of “not less than” 20 years and the 25 year penalty in 3559(f)(2) is “not less than” 20 years.   

Skilling honest services error did not have substantial effect on jury’s verdict because the honest services error was premised on money/property fraud. Sorich v. United States, No. 11-2839.  Upon consideration of the denial of a 2255 petition, the Court of Appeals held that any honest-services fraud Skilling error did not have a substantial effect on the jury’s verdict.  Robert Sorich, Timothy McCarthy, and Patrick Slattery were convicted of mail fraud for their roles in a scheme to award City of Chicago jobs and promotions to favored applicants. Consistent with the circuit’s case law at the time, the jury was instructed that the defendants were guilty of mail fraud if they deprived the City of money or property, or if they deprived the City of its right to honest services. After the court affirmed the defendants’ convictions, the Supreme Court ruled that the honest-services fraud statute is limited only to schemes involving bribes or kickbacks. Skilling v. United States, 130 S. Ct. 2896 (2010).  In light of Skilling, the petitioners maintained they were entitled to collateral relief under 28 U.S.C. § 2255.  The court of appeals held, however, that although the jury’s receipt of an honest-services theory was error because the scheme in this case did not involve bribes or kickbacks, the error was harmless. The trial reflected a single scheme to take City jobs and promotions through false representations, and these jobs and promotions were the City’s money or property. Any honest-services violation  had to be premised on the money/property fraud, and the Skilling error therefore did not have substantial effect on the jury’s verdict.

Testimony of lab supervisor about procedures used by a lab tech and his conclusions violated Confrontation Clause but was harmless beyond a reasonable doubt.  United States v. Turner, No. 08-3109.  On remand from the United States Supreme Court for reconsideration in light of Williams v. Illinois, the court considered whether the expert testimony of a supervisor who did not perform any tests, but formed an opinion as to whether a substance contained cocaine base using the underlying data, violated the Confrontation Clause.  The supervisor not only reached his own conclusions based on the underlying data, but also testified that the tech who performed the analysis followed proper procedures and reached the same conclusion as the supervisor.  Noting that the Williams decision was a plurality, the court attempted to discern what the exact holding of the case is.  First, the court noted that to the extent the supervisor testified about anything that the actual lab tech did or concluded in testing the substances in question, his testimony may have violated the Confrontation Clause.  The court, however concluded that any Confrontation Clause error that occurred during Block’s (the supervisor) testimony was harmless beyond a reasonable doubt.  Only two aspects of Block’s testimony potentially present a Confrontation Clause problem: Block’s testimony that Hanson followed standard procedures in testing the substances that Turner distributed to the undercover officer, and his testimony that he reached the same conclusion about the nature of the substances that Hanson (the tech) did. In both respects, Block necessarily was relying on out-of-court statements contained in Hanson’s notes and report. These portions of Block’s testimony strengthened the government’s case; and, conversely, their exclusion would have diminished the quantity and quality of evidence showing that the substances Turner distributed comprised cocaine base in the form of crack cocaine. However, apart from Block’s testimony, there was other evidence indicating that the substances were crack cocaine, and Turner himself did not contest that they were, in fact, crack cocaine.  The court was therefore confident that any error did not affect the outcome of the trial.

 Statement “Can you call my attorney, Her Schultz” was an unambiguous invocation of counsel sufficient to require the cessation of police questioning.  United States v. Hunter, No. 12-1751On interlocutory appeal by the government from an order suppressing statements made by the defendant, the Court of Appeals affirmed, holding that officers continued to interrogate the defendant after he had unambiguously invoked his right to counsel.  While in the hospital for a gunshot wound he received from the police and handcuffed to a hospital gurney, the defendant said he was willing to speak to the officers but needed a minute to think.  He then asked with what he was charged, and then asked the officer to make some calls for him, including making the following question, “Can you call my attorney, Herb Schultz?”  When the officer asked what he wanted him to tell the people he was calling, he said, “Tell them that I’ve been shot.”  The officer never called the attorney and, shortly thereafter, two other officers arrived and continued to interrogate the defendant.  Although the defendant did not repeat his request to have the new investigators call his attorney, he did ask them if they knew his attorney, Herb Schultz.  The officers ignored the question and continued to question the defendant.  Reviewing the caselaw on various invocations of counsel, the court concluded that the defendant’s request that officers call his attorney was an unambiguous invocation of counsel.  Not only the statement itself, but the prior context as well, all supported this conclusion.  NOTE:  This case contains a lengthy and thorough review of circuit and Supreme Court precedent’s on what constitutes and unambiguous invocation of counsel and should be one of the first cases you read if you have this issue.

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Cases from 02/22/13 through 02/26/2013

Supreme Court Grants of Certiorari this week

The Supreme Court has issued no new opinions in criminal cases thus far this week, and two new grants of certiorari as noted below. For a complete list of criminal issues decided and pending in the Supreme Court this Term, click HERE.

Burt v. Titlow, No. 12-414

(1) Whether the Sixth Circuit failed to give appropriate deference to a Michigan state court under Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) in holding that defense counsel was constitutionally ineffective for allowing respondent to maintain his claim of innocence; (2) whether a convicted defendant’s subjective testimony that he would have accepted a plea but for ineffective assistance, is, standing alone, sufficient to demonstrate a reasonable probability that defendant would have accepted the plea; and (3) whether Lafler v. Cooper always requires a state trial court to resentence a defendant who shows a reasonable probability that he would have accepted a plea offer but for ineffective assistance, and to do so in such a way as to “remedy” the violation of the defendant’s constitutional right.

Kansas v. Cheever, No. 12-609

(1) Whether, when a criminal defendant who affirmatively introduces expert testimony that he lacked the requisite mental state to commit capital murder of a law enforcement officer due to the alleged temporary and long-term effects of the defendant’s methamphetamine use, the state violates the defendant’s Fifth Amendment privilege against self-incrimination by rebutting the defendant’s mental state defense with evidence from a court-ordered mental evaluation of the defendant; and (2) whether, when a criminal defendant testifies in his own defense, the state violates the Fifth Amendment by impeaching such testimony with evidence from a court-ordered mental evaluation of the defendant.

Seventh Circuit Criminal Opinions this Week

The Seventh Circuit issued two opinions in criminal cases thus far this week, as summarized below.

COLLATERAL ATTACKS

The proper vehicle for seeking to compel the government to file a Rule 35(b) motion is a 2255 petition; a petition or motion based on a claim that did not become ripe any earlier than until after the adjudication of the petitioner’s first petition or motion is not “second or successive” within the meaning of Sections 2244 and 2255(h). United States v. Obeid, No. 12-1254. In exchange for his cooperation with the government, the defendant received a sentence sentence that is at least 45% shorter than it would have been had he been sentenced within the range recommended Guidelines. On appeal, however, he argued that that he is entitled to an additional 24-month reduction, based not on his own cooperation, but on that of his identical twin brother. The district court concluded that Obeid was not so entitled, and the Court of Appeals agreed, though for a different reason. The defendant and his brother entered into cooperation agreements with the government, where in the government essentially agreed to treat the two brothers identically for purposes of cooperation. The defendant was sentenced first and after his brother received two levels more than he did for cooperation at his later sentencing hearing, the defendant filed a motion to compel the government to file a Rule 35(b) motion giving him the same reduction. The Court of Appeals noted that Rule 35(b) provides a mechanism for the government to seek a reduction in a defendant’s sentence but not the defendant. If a defendant seeks to enforce a promise to file a Rule 35, he must do so through a 2255 petition. Because the defendant had already filed a previous 2255 petition, the next question was whether his new filing was “successive” such that he needed permission from the Court of Appeals for its filing. The court noted that not every petition numerically second is necessarily “successive.” Joining a number of other circuits on the question, the court held that a petition or motion based on a claim that did not become ripe any earlier than until after the adjudication of the petitioner’s first petition or motion is not “second or successive” within the meaning of Sections 2244 and 2255(h). The court noted, however, that it expressed no view concerning claims that become ripe in between the filing and adjudication of a first petition. In this case, the defendant’s claim did not become ripe until the government moved for the additional reduction of his brother’s sentence, an event occurring after his original 2255 petition had been decided. Nevertheless, the defendant’s petition was filed outside of the 1-year statute of limitations because he did not file his petition within 1-year of learning of the reduction his brother received.

SENTENCING

United States v. Wang, No. 11-3363. The defendant was involved in a high-volume false document conspiracy that produced an estimated 7,000 phony identification documents for customers in Illinois. Members of the conspiracy altered valid passports to match their customers’ identification information, created fake documents to prove Illinois residency, and helped their customers obtain state identification cards or driver’s licenses. Wang participated in the conspiracy from “no later than 2008” until February 2009, connecting customers with document manufacturers, transporting them to state facilities, collecting payments, and retrieving false passports for reuse. At sentencing, Wang received a nine-level increase to his base offense level because the district court held him accountable for more than one hundred false documents. The court also denied Wang’s request for a minor participant reduction, finding that his active role in the conspiracy did not warrant a reduction. Wang appealed both of these decisions. The Court of Appeals affirmed, noting that the defendant was responsible for the activities of his co-conspirators because they engaged in a reasonably foreseeable, jointly undertaken activity. Likewise, the defendant was not a minor participant, but an important and active member of the conspiracy.

 

bulletCases from 2/15/13 through 2/21/2013

The Supreme Court issued 6 new criminal opinions and no new grants of certiorari in a criminal case this week. The Seventh Circuit issued no precedential opinions in criminal cases this week. For a complete list of criminal issues pending in the Supreme Court, click HERE)

New Supreme Court Opinions

1. Chaidez v. United States, No. 11-820

Whether the Court's decision in Padilla v. Kentucky, holding that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation, applies to persons whose convictions became final before its announcement? HELD: The Court's decision in Padilla v. KY is not retroactive for cases pending on direct review when Padilla was decided. Read the full opinion HERE.

2. Evans v. Michigan, No. 11-1327

Whether the Double Jeopardy Clause bars retrial after the trial judge erroneously holds a particular fact to be an element of the offense and then grants a midtrial directed verdict of acquittal because the prosecution failed to prove that fact? HELD: Double Jeopardy Clause bars retrial in this circumstance. Read the full opinion HERE.

3. Johnson v. Williams, No. 11-465

Whether a habeas petitioner's claim has been "adjudicated on the merits" for purposes of 28 U.S.C. § 2254(d) where the state court denied relief in an explained decision but did not expressly acknowledge a federal-law basis for the claim? HELD: Under the habeas statute, when a state court rules against a defendant in an opinion that rejects some of the claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. Read the full opinion HERE.

4. Henderson v. United States, No. 11-9307

Whether, when the governing law is unsettled at the time of trial but settled in the defendant's favor by the time of appeal, an appellate court reviewing for "plain error" should apply Johnson v. United States's time-of-appeal standard, as the First, Second, Sixth, Tenth, and Eleventh Circuits do, or should apply the Ninth Circuit's time-of-trial standard, which the D.C. Circuit and the panel below have adopted? HELD: Regardless of whether a legal question was settled or unsettled at the time of trial, an error is plain within the meaning of the federal rules as long as the error was plain at the time of appellate review. Read the full opinion HERE.

5. Florida v. Harris, No. 11-817. In a unanimous opinion written by Justice Kagan, the Supreme Court reversed the Florida Supreme Court's holding that, to demonstrate a drug detection dog's reliability, the state must produce the dog's training and certification records, along with a wide array of evidence relating to the dog's reliability. Instead, the Court held, "[t]he question—similar to every inquiry into probable cause—is whether all the facts surrounding a dog's alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test." This allows the state to introduce evidence of a dog's reliability and for the defendant to challenge that evidence, but does not "prescribe an inflexible set of evidentiary requirements." The Court noted that the Solicitor General acknowledged at oral argument that evidence of a dog's (or handler's) history or performance in the field "may sometimes be relevant." The other dog sniff case, Florida v. Jardines (No. 11-564), which presents the question "whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause," has not yet been decided.

6. Bailey v. United States, No. 11-770. With Justice Kennedy writing for the majority, the Supreme Court held that Michigan v. Summers, 452 U.S. 692 (1981), which categorically authorizes law enforcement officers "to detain the occupants of the premises while a proper search is conducted" without need for any level of suspicion, Muehler v. Mena, 544 U. S. 93 (2005), does not extend to the detention of a person who is not within the premises being searched or its "immediate vicinity." As a result , the detention of an individual who had left the premises before the search began and was a mile away before police detained him was not lawful under Michigan v. Summers. The Court added that "[i]n closer cases courts can consider a number of factors to determine whether an occupant was detained within the immediate vicinity of the premises to be searched, including the lawful limits of the premises, whether the occupant was within the line of sight of his dwelling, the ease of reentry from the occupant's location, and other relevant factors."

Though the Second Circuit's attempted extension of Michigan v. Summers is now off the table, the Court was careful to point out the alternative avenues for lawful detention: "If officers elect to defer the detention until the suspect or departing occupant leaves the immediate vicinity, the lawfulness of detention is controlled by other standards, including, of course, a brief stop for questioning based on reasonable suspicion under Terry or an arrest based on probable cause. A suspect's particular actions in leaving the scene, including whether he appears to be armed or fleeing with the evidence sought, and any information the officers acquire from those who are conducting the search, including information that incriminating evidence has been discovered, will bear, of course, on the lawfulness of a later stop or detention."

Justice Breyer, joined by Justices Thomas, and Alito, dissented.

bulletCases from 2/9/2013--02/14/2013

The Supreme Court issued no new criminal opinions and no new grants of certiorari in a criminal case this week.  The Seventh Circuit issued 4 precedential opinions in criminal cases this week, as summarized below.  For a complete list of criminal issues pending in the Supreme Court, click HERE)

New Seventh Circuit Criminal Opinions

United States v. Patrick, No. 12-1789.  The defendant was convicted on federal sex trafficking charges.  He was sentenced on four counts to a total of 360 months in prison, consecutive to a 20-year state term he was serving.  On appeal, he argued that the district court committed procedural error by failing to discuss his cooperation with the authorities and by seemingly basing the sentence on extraneous factors. The court agreed that, so far as the written record reflected, the district court did not give adequate consideration to his cooperation and the court therefore vacated the sentence. At Patrick’s sentencing hearing, the judge discussed Patrick’s criminal history at length. He expressed his concern that crime causes poverty and described the decline of his own childhood neighborhood. He then commented that it was hard to find “positives” about Patrick and rejected defense counsel’s suggestion that Patrick cared about his 12 children, adding this unfortunate remark: “Twelve kids by 10 different women. I mean, my God, how can you even satisfy 10 different women? I can’t even satisfy my wife.” He also chastised Patrick for failing to fulfill his patriotic duty. When reminded of the government’s motion for a reduced sentence based on Patrick’s cooperation, the judge stated that he would grant the motion by imposing a 360-month sentence rather than a life sentence, but that this sentence would run consecutively to Patrick’s 20-year state sentence. The government reminded the judge that it had in fact recommended that the federal sentence run concurrently with the state sentence. The judge responded, “I know what the recommendation of the Government was. But it’s clear that the Court does not have to accept the recommendation of the Government.” At no point in the record did the judge explain why he had chosen not to follow the government’s recommendation or why, apparently, he gave such little weight to Patrick’s cooperation.  The court’s failure to properly address the defendants mitigating argument on the record required a remand.  The court also noted concern about whether the court appreciated the severity of its sentence.  The sentence imposed was the functional equivalent to a life sentence.  Had the court viewed the length of the sentence in proper perspective, it might have given more weight to the defendant’s mitigating arguments.  NOTE:  This is yet another reversal where the court fails to comment on a mitigating, principal argument of a defendant at sentencing.  The court has demonstrated a willingness to remand in such cases, and the number of such cases is growing steadily.  This is also the second recent case where the court has made mention of how a court needs to consider whether a lengthy sentence is the equivalent to a life sentence.  Clearly a signal to make this argument in the right cases for a variance. 

Even if government breached plea agreement by relying on immunized statements of defendant at sentencing, error was harmless where the same information was supported from other independent sources. United States v. Bennett, No. 11-3245.   The DEA interviewed Gregory Bennett in connection with a series of transactions involving marijuana, MDMA (commonly known as “ecstasy”), and crack cocaine. In an attempt to induce complete truthfulness, the government, prior to the interview, agreed not to use Bennett’s statements against him, provided that Bennett promised not to later take a position inconsistent with his interview statements. During this proffer session, Bennett admitted that he had supplied all three drugs to a government informant. After the proffer interview, Bennett fled and went into hiding. A grand jury later indicted him. In 2010, Bennett was arrested living under an assumed name in Georgia. Bennett pled guilty to the possession of ecstasy and marijuana with the intent to distribute both. On appeal, he alleged that the government violated the terms of the original proffer agreement during the sentencing process, along with other subsidiary errors.  The court of appeals affirmed.  The defendant argued that the government breached the agreement by using his statements at sentencing; the government argued the defendant breached the plea agreement by taking inconsistent positions in emails with the government at sentencing when he argued that he was not responsible for crack cocaine.  The court resolved the dispute by noting that even if the government breached the agreement, any error related to the use of the defendant’s statements was harmless because the government presented multiple sources of evidence for the same information contained in the defendant’s proffer.  The court also rejected the defendant’s arguments that his drug quantity was improperly calculated, that he was improperly found to be a leader/organizer,  and that he was wrongfully denied an acceptance of responsibility adjustment. 


Officer lacked reasonable suspicion to stop a car obeying all traffic laws, but which was a different color than indicated in the vehicle’s registration information. 
United States v. Uribe, No. 11-3590.  Upon interlocutory appeal by the government of the district court’s grant of a motion to suppress evidence, the Court of Appeals affirmed.  The following facts were present before the officer stopped the defendant’s car:  “Early one morning,  Jesus Uribe was driving along Interstate 70 in Indiana. Apparently, he was not speeding or driving too slowly, weaving recklessly across lanes, crossing the dividing line, or giving any indication that he was intoxicated. Nor is there evidence that Uribe’s vehicle, a blue Nissan Altima with Utah plates, was in violation of any of Indiana’s numerous vehicle requirements—no malfunctioning brake lights, improperly tinted window, visibly altered muffler, or expired license plate. Only one aspect of Uribe’s travel was interesting: the blue Nissan he was driving had a registration number that traced back to a white Nissan. Although this color discrepancy alone is not unlawful either in Indiana, where Uribe was driving, or in Utah, where the car was registered, the deputy following Uribe’s car initiated a traffic stop “to check for registration compliance.” That stop led to a search of the vehicle, nearly a pound of heroin, and a federal indictment.”  The district court and the Court of Appeals held that these facts did not support reasonable suspicion to stop the car.  The only articulable fact for stopping the vehicle was the color discrepancy, but, as a matter of first impression in any federal court, the court held that a discrepancy between the observed color of a car and the color listed on its registration alone insufficient to give rise to reasonable suspicion.  Although other circuits have held that it can be considered as a factor among many, no court has ever held that this fact alone is sufficient.  The government tried to argue that the time of the stop—2:00 am—also supported a finding of reasonable suspicion, but the court of appeals noted that nothing there was nothing suspicious about an out-of-state care travelling on an interstate highway at night.  NOTE:  In addition to finding for the first time that a lawful discrepancy in color between a car and its registration information alone does not support a stop based upon reasonable suspicion, the court also rejects the absurd argument that driving on an interstate highway at night is somehow suspicious.  Perhaps in the future this case could be cited to fend off the equally, but more readily acceptable to the courts, argument that somehow driving in a “high crime area”—aka almost anywhere in a city—is somehow suspicious as well.

Testimony of Spanish-speaking linguist identifying defendant’s voice on recordings was not expert testimony, but lay opinion testimony admissible under Rule 901(b).  United States v. Mendiola, No. 10-1595.  A Spanish-speaking linguist working for the Drug Enforcement Administration (DEA) listened to recordings of Carlos Mendiola’s prison telephone conversations prior to testifying before a jury that Mendiola’s voice was likely the one on several wiretapped calls in which Mendiola and others planned a large-scale cocaine deal. Mendiola appeals his conviction, arguing that the linguist’s testimony constituted impermissible opinion testimony under the Federal Rules of Evidence and violated the Best Evidence Rule.  The court rejected these arguments, noting that Federal Rule of Evidence 901(b) enunciates the amount and quality of evidence sufficient to satisfy the requirement of voice identification.  That rule provides that “an opinion identifying a person’s voice—whether heard firsthand or through mechanical or electronic transmission or recording—based on hearing the voice at any time under circumstances that connect it with the alleged speaker.” The accompanying notes state that “aural voice identification is not a subject of expert testimony.”  Moreover, the bar for “familiarity” is not a high one.  Even hearing a defendant’s voice once during a court proceeding has been deemed sufficient to meet the “familiarity” requirement.  Here, the witness listened to both the recordings and the recording exemplar of the defendant’ voice.  This was enough to meet the minimal “familiarity” requirement.  Although the defendant attempts to analyze the admissibility of the evidence under the rules governing experts, and in fact never mentions Rule 901(b), that rule is the correct rule to analyze the admissibility of the testimony.  The evidence was clearly admissible under that Rule and, accordingly, the court affirmed the defendant’s conviction. 

bulletCases from 02/01/13--02/08/2013

The Supreme Court issued no new criminal opinions and no new grants of certiorari in a criminal case this week.  The Seventh Circuit issued 6 precedential opinions in criminal cases this week, as summarized below.  For a complete list of criminal issues pending in the Supreme Court, click HERE)

            A.        New Seventh Circuit Criminal Opinions

District court erred in applying a sentencing enhancement for possession of a firearm during course of drug conspiracy where there was insufficient evidence to show that the defendant’s co-conspirator’s possession of weapons was reasonable foreseeable to him.  United States v. Block, No. 10-3447.  This appeal involved eight defendants, all of whom pled guilty to conspiracy to possess with intent to distribute more than a kilogram of heroin and more than fifty grams of crack.  The defendant’s jointly argued that the district court failed to make a conservative drug quantity calculation for sentencing purposes.  However, the court reviewed the record carefully and concluded that the district court carefully calculated the amount of drugs involved in the conspiracy using the best, most conservative evidence presented.  After rejecting a number of other relatively routine sentencing issue, the court finally considered a defendant’s argument that the district court improperly applied a 2-level enhancement under § 2D1.1(b)(1) for the possession of firearms by his co-conspirators.  The court noted that it has repeatedly observed that the enhancement is not only applicable for the defendant who actually possesses a gun in the course of a drug offense, but “section 1B1.3(a)(1)(B) makes clear that defendants can also be on the hook for firearms possessed by their coconspirators so long as such possession was reasonably foreseeable.”  The district court must therefore make two separate findings: (1) that someone in the conspiracy actually possessed a firearm in furtherance of the conspiracy and (2) that the co-conspirator’s firearm possession was reasonably foreseeable to the defendant.  If the government meets its burden of showing gun possession by a co-conspirator, then the burden shifts to the defendant to show that it was clearly improbable that the gun was connected to the offense.  Here, the question revolved around the second fact.  Although the district court noted the commonality of guns in the drug trade, findings must still be made particular to the defendant in the case.  No evidence in this case was sufficient to prove that the defendant reasonably foresaw the use of gun’s by his co-conspirators (he was only a drug runner) and, consequently, the enhancement was improperly applied.  NOTE:  This should be a particularly useful case in this context in the future, as there are not many favorable precedents in our circuit finding that a co-conspirator’s possession of a firearm was not reasonable forseeable.

Subjective factors of intent of photographer and surrounding context can be looked to when determining whether a photograph is “lascivious.”  United States v. Schuster, No. 11-3338.  Eric Schuster pleaded guilty to knowingly using a minor to produce child pornography.  18 U.S.C. § 2251(a). The district court sentenced him to nearly 22 years of imprisonment. On appeal, Schuster challenged the sentence on four grounds: (1) the district court erred in finding that he distributed certain of the child pornography that he produced; (2) the distribution of other child pornography was not “relevant conduct” under the Sentencing Guidelines; (3) the district court erred in finding that a certain other photograph that he took of a young boy constituted child pornography(this finding impacted the Sentencing Guidelines calculation); and (4) the sentence is unreasonable. The Court of Appeals rejected all of the arguments.  Regarding the distribution enhancement, the court relied on the defendant’s own statement contained in a letter to the judge in the form of allocution, wherein he admitted to distributing the photographs he produced.  Nothing precluded the court from relying on this statement made by the defendant in applying the enhancement.  On the second argument, because the court properly found that the defendant distributed the pornography he created, there was no question that his other acts of distribution were relevant conduct to his offense.  On the question of whether a photograph of three young boys in the bathtub, with the focus on the boys’ genitals and their faces not depicted, the court used the Dost factors to determine whether the photographs depicted a “lascivious exhibition” (the court noted that it had not explicitly endorsed the Dost factors, but both parties agreed to use them in this case).  The court noted that the intent and motive of the photographer can be a relevant consideration in evaluating images.  Although it is the sexually suggestive nature of a photograph of a minor which distinguishes a depiction of simple nudity from a lascivious exhibition of the genitals, children typically are not mature enough to project sexuality consciously; instead, as the Ninth Circuit has pointed out, it is often the photographer who stages the picture in such a way as to make it sexually suggestive.” Thus, in some circumstances, the intent and motive of the photographer, by putting the images in context, place an important gloss on whether the relevant factors point to lasciviousness.  Here, there was no question that the defendant’s intent was to focus on the genitals, thereby creating a sexually suggestive photo.  Moreover, the government presented evidence that not only was the defendant sexually interested in young boys generally, but presented evidence that he was also sexually interested specifically one of the boys depicted in the photo.  This combination of factors was sufficient.  Finally, regarding the reasonableness of his sentence, the court noted that a district court may, but not must, disagree with the severity of the sentences called for by the Guidelines.  Here, the judge considered the argument and rejected it, which was within his discretion.  NOTE:  This case importantly, for the first time in this circuit to my knowledge, adds a subjective-intent-of-the-photographer element to the question of whether a photograph is a “lascivious exhibition” of the genitals.  Previously, the practice has been to look at the four corners of a photograph.  Now, the court endorses a more subjective approach which could bring a much larger set of photographs within the definition. 

District court may not include in drug quantity calculation drugs which a defendant never intended to actually provide to a supposed buyer.  United States v. Love, No 11-2547.  In an appeal from a conviction involving drug offenses, the court considered a number of issues.  Most significantly, the court reversed the district court’s calculation of drug quantity.  In the present case, the drug quantity was derived from a “reverse sting operation.”  In such cases, the base amount generally includes the agreed-upon quantity of the controlled substance.”  However, if the defendant establishes that the defendant did not intend to provide or purchase, or was not reasonably capable of providing or purchasing, the agreed-upon quantity of the controlled substance, then the court must exclude from the offense level determination the amount of controlled substance that the defendant establishes that the defendant did not intend to provide or purchase or was not reasonably capable of providing or purchasing.  Here, the defendant offered to sell the CI 1.5 ounces of crack.  It was undisputed, however, that the defendant never actually intended to sell the drugs to the  buyer—he wanted to rob and beat the buyer to avenge the robbery of his crack house.  Reviewing under the plain error standard, because it was undisputed that the defendant never intended to provide the buyer with the 1.5 ounces of crack, it should have been excluded from the drug quantity calculation.  Therefore, the court vacated the sentence and remanded.  NOTE:  The facts in the case are unusual in that there was no dispute that the defendant never intended to provide the crack to his supposed buyer.  However, the case is still useful as one of the rarer cases where a challenge to a drug quantity determination was successful. 

An error in calculating the applicable guideline sentencing range cannot be corrected in a postconviction proceeding now that the guidelines are advisory.  Hawkins v. United States, No. 11-1245.  The petitioner was found to be a career offender at sentencing.  However, subsequent Supreme Court precedents made clear that he did not have the requisite qualifying prior convictions for that designation.  The defendant filed a 2255 to correct the error, but the district court refused to consider the petition, finding that such an error was not of the type that can be corrected on collateral attack.  The Court of Appeals, with Judge Rovner dissenting, agreed.  The Seventh Circuit had previously held that such errors were cognizable in a 2255 in Narvaez v. United States, 674 F.3d 621, 629-30 (7th Cir. 2011).  However, the Guidelines were mandatory in the petitioner’s case in Narvaez.  Thus, it was arguable that under the mandatory guidelines, the guideline error in that case resulted in a sentence that exceeded the maximum authorized by “law.”  Now that the Guidelines are only advisory, it can no longer be argued that the court imposed a sentence “in excess of the maximum authorized by law.”  NOTE:  This is a very bad case for criminal defendants.  It was hoped that the Court would not limit Narvaez to claims under the old mandatory Guideline regime.  Given that nearly all new claims will involve defendants sentenced under the advisory guidelines, a defendant’s ability to get a guideline error corrected in a collateral proceedings is nearly dead.  The only exception is an error where the district court believes the Guidelines are actually mandatory, and I don’t see that happening much if ever in the future. 

CJA Funds may not be used to pay appointed counsel in 3582(c)(2) cases.  United States v. Foster, No. 12-2699.  For the first time in any circuit, the Seventh Circuit has held that there is no statutory authorization to use CJA funds to pay appointed counsel to represent defendant’s litigating 3582(c)(2) petitions.  Accordingly, if you have a voucher pending in such a case, you will not get paid.  Likewise, if you accept an appointment in such a case, it must be on a pro bono basis.  It is unclear whether Federal Public Defenders can accept such appointments.  This is not good, to say the least.

In 3582(c)(2) cases, if 5G1.1 was not used to set the guideline range at the mandatory minimum, then 5G1.1 should not be used when determining the guideline range when applying a retroactive amendment.  United States v. Wren, No. 12-1565.  The petitioner originally had a guideline range above his statutory mandatory minimum.  He then received a substantial assistance reduction below that range.  Because the original range was above the statutory mandatory minimum, 5G1.1 never applied at the original sentencing hearing.  Applying the retroactive crack cocaine amendment, the petitioner’s range was now lower than the statutory mandatory minimum.  However, the district court then applied 5G1.1, which provides that if the guideline range is below the mandatory minimum, the guideline range becomes the mandatory minimum.  The Court of Appeals held that this was an error.  The court noted that 1B1.10 states that a court should apply the retroactive amendment and “leave all other guideline application decisions unaffected.”  Because 5G1.1 was not used originally, it should not be used when recalculating the guideline range under the retroactive amendment.  NOTE:  This decision will give relief to a small group of petitioner’s who have generally be denied 3582(c)(2) relief in the past.  This decision will benefit petitioners who had an original guideline range above the mandatory minimum and received a sentence below the range, either through the safety valve or cooperation.  If their new range is below the mandatory minimum, 5G1.1 should NOT be used to reset the range to the mandatory minimum.  Rather, use the new range without reference to the mandatory minimum, and any proportionate reduction should be taken of this range. 

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