August 2012 Through January 2013 7th Circuit Criminal Case Digest

April 2012 Through July 2012 7th Circuit Criminal Case Digest

Older Summaries by Week

The Supreme Court issued no new criminal opinions and no new grants of certiorari in a criminal case this week.  The Seventh Circuit issued 3 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

Reversible error for district court to refuse to apply minor role reduction (§3B1.2) where it never discussed or even acknowledged any factor relevant to the guideline section and where both parties argued the reduction applied.  United States v. Diaz-Rios, No. 11-3130.  At sentencing, both the defendant and the government argued that the defendant, charged in a drug conspiracy case, was entitled to a minor role adjustment.  The district court, however, refused to apply the reduction.  The defendant appealed, the government conceded error, and the Court of Appeals reversed.  The defendant identified three other participants who be believed to be substantially more culpable.  The district court should have looked at the defendant’s role in the conspiracy as a whole, including the length of his involvement in it, his relationship with the other participants, his potential financial gain, and his knowledge of the conspiracy—all factors set forth in Note 3(C) to the relevant guideline section.  Nothing in the record indicated that the district court considered any of these factors.  Therefore, a remand was necessary. 

Reversible error for district court to adequately consider 3553(a) argument for a variance based on the defendant’s psychiatric history, notwithstanding that the defendant’s within-the-range sentence was presumed reasonable.  United States v. Vidal, No. 11-3873.  Upon an appeal from a within-the-range sentence for charges stemming from an attempt to rob a “stash house,” the Court of Appeals vacated the defendant’s sentence, finding that the district court failed to adequately address the defendant’s argument for a variance premised upon his psychiatric history.  Vidal sought a 180-month sentence (the mandatory minimum), which he argued was warranted by his difficult childhood and psychological problems. Dr. Susan Pearlson, a forensic psychiatrist, evaluated Vidal before sentencing and diagnosed him with posttraumatic stress disorder, bipolar spectrum disorder, claustrophobia, and drug and alcohol abuse. Dr. Pearlson opined that these disorders impaired Vidal’s ability to make rational decisions. While Vidal was being evaluated by Dr. Pearlson, he took his prescribed medications and felt more peaceful. Dr. Pearlson stated that “the  combination of sobriety and psychotropic medication over an extended period of time and the absence of an antisocial personality disorder” placed Vidal at a lower likelihood of reoffending upon his release from prison.  The court discussed Vidal’s behavior extensively, but all it had to say about his psychological problems was this: “I also note the mental health issues that you appear to struggle with. Certainly your drug abuse problem does not go well with your mental health issues.” Otherwise, the court emphasized Vidal’s lengthy criminal record, his history of violence, and the fact that he apparently had been undeterred by the time he already had spent in jail.  The Court of Appeals, after citing the now familiar law requiring a judge to address non-frivolous, non-stock arguments for a variance, noted that although the trial court acknowedged that Vidal had mental-health issues, its statement gave the court no insight into the judge’s evaluation of that condition.  One could infer simply from the participation of Dr. Pearlson, a forensic psychiatrist, that the court was aware that mental illness might need to be considered. But more than that is needed: The mention of a word is not the same thing as a discussion or an explanation.  Therefore, the court remanded for a fuller explanation of the court’s sentence.  NOTE:  This is yet another case to add to the arsenal of cases where, notwithstanding a within-the range sentence entitled to a presumption of reasonableness, the sentence is vacated due to a district court’s failure to adequately address a mitigation argument. 

Transportation of child pornography statute (18 U.S.C. §2252A) requires knowledge that one is transporting child pornography, but not that such transportation is illegal.  Comparing a final offense level to the base offense level of other crimes in not a valid gauge for determining whether a sentence avoids unwarranted disparities.  United States v. Dean, No. 12-1539.  In prosecution for transportation of child pornography stemming from the defendant’s taking a laptop full of child pornography across the border into Canada, the Court of Appeals first rejected the defendant’s argument that the “knowledge” requirement in the statute required proof that he knew his conduct was illegal.  The court rejected this argument, noting that the statute does require knowledge that one is transporting child pornography, but not knowledge of that act’s illegality.  Ignorance of the law is not an excuse, as the maxim goes.  The defendant also argued that the district court failed to adequately consider his argument for a variance premised on a comparison of the base offense level of other crimes to the final offense level of his own—he arguing that such a comparison demonstrated that his sentence resulted in a harsher sentence for conduct less serious than other conduct not as serious.  The court noted that even assuming a comparison of base offense levels adequately encompasses a proper unwarranted disparity argument, the defendant’s base offense level was actually lower than the base offense level for several of the statutes on which the defendant relied.  Accordingly, the court affirmed the defendant’s conviction and sentence. 

The Supreme Court issued no new criminal opinions and 2 new grants of certiorari in a criminal case this week.  The Seventh Circuit issued 2 precedential opinions in criminal cases this week, as summarized below.

A.  New cert grants (For a complete list of criminal issues pending in the Supreme Court, click HERE)

Bond v. United States, No. 12-158.  As summarized by ScotusBlog:  "The case involves Carol Anne Bond of Lansdale, Pennsylvania, who has been convicted of violating the federal law that carried out a global treaty seeking to ban the spread of chemical weapons.  The Court had ruled in her favor earlier in a preliminary case when the issue was whether Bond was entitled to pursue a constitutional challenge, based on states’ rights, to the poisoning prosecution under the weapons treaty.  The Court allowed her to go forward with that challenge, but then it failed in a lower federal appeals court.  Bond says she accepts criminal responsibility for trying to spread poison where her husband’s paramour would touch it, but protests that she faces much more severe punishment under the treaty-related law than if she were prosecuted under state law for poisoning cases."  The Third Circuit, below, while affirming the conviction, noted that the federal prosecutor's "decision to use the Act -- a statute designed to implement a chemical weapons treaty -- to deal with a jilted spouse's revenge on her rival is, to be polite, a puzzling use of the government's power."  The questions presented are:  “(1) Do the Constitution's structural limits on federal authority impose any constraints on the scope of Congress' authority to enact legislation to implement a valid treaty, at least in circumstances where the federal statute, as applied, goes far beyond the scope of the treaty, intrudes on traditional state prerogatives, and is concededly unnecessary to satisfy the government's treaty obligations, and (2) can the provisions of the Chemical Weapons Convention Implementation Act, codified at 18 U.S.C. § 229, be interpreted not to reach ordinary poisoning cases, which have been adequately handled by state and local authorities since the Framing, in order to avoid the difficult constitutional questions involving the scope of and continuing vitality of this Court's decision in Missouri v. Holland?”  Cert stage pleadings and the decision below can be found here.

Metrish v. Lancaster, No. 12-547.   When a former Detroit police officer, Burt Lancaster (no, not the actor who died in 1994), killed his girlfriend in 1993, a defendant in Michigan could raise the defense of diminished mental capacity.  At Lancaster's (second) trial in 2005, the trial court prohibited Lancaster for using that defense because, in a 2001 decision, the Michigan Supreme Court "abolished the diminished-capacity defense" in the state of Michigan.  The Sixth Circuit held the retroactive application of that 2001 decision was an unreasonable application of clearly established Supreme Court precedent.  The questions presented are:  “(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), 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)?”  Cert stage pleadings and the decision below can be found here.

            B.        New Seventh Circuit Criminal Opinions

Guns-for-drug exchange falls within purview of 924(c); circuit’s instruction in guns-for-drug exchange may present Sandstrom issue; variance of dates between indictment and evidence harmless where date is not essential or material element of charged offense.  United States v. Dickerson, No. 11-3285.  In prosecution for use of a possession of a firearm in furtherance of a drug distribution in violation of 18 U.S.C. §924(c), the Court of Appeals re-affirmed its previous holding that a guns-for-drugs exchange falls within the conduct covered by the statute.  The defendant accepted guns in exchange for crack cocaine.  At trial, the district court instructed that jury that “when a defendant receives a gun in exchanged for drugs, he takes possession of a firearm in a way that furthers, advances, and helps forward the distribution of drugs.”  This instruction tracked the language approved by the Seventh Circuit previously in United States v. Doody, 600 F.3d 753, 755 (7^th Cir. 2010).  Noting that the Supreme Court has expressly declined to address the issue of whether a guns-for-drugs exchange lies within the purview of the statute, the court noted that Doody still controls in this circuit, while noting that six other circuits agree with the law as stated in this circuit.  Having settled that question, the court next considered whether the court’s particular phrasing in its instruction was correct.  Specifically, the court noted that the conclusory-seeming nature of the quoted language above suggested that the possibility of a Sandstrom error, such an error occuring where the particular phrasing a jury instruction creates either a conclusive or a mandatory presumption in the mind of jurors.  See Sandstrom v. Montana, 442 U.S. 510 (1979). Although the defendant did not make such an argument, the court discussed the issue to provide guidance to lower courts in crafting instructions in similar cases. While the court found that the district court accurately summarized the law in this circuit, acted within its discretion in promulgating this instruction, and did not commit any non-harmless Sandstrom error, the court did not endorse the district court’s particular phrasing of the instruction in this case. Trial courts should craft jury instructions so as avoid wordings that could be interpreted as creatingconclusive or mandatory presumptions.  In the future, the court stated that it would behoove the courts of this circuit to avoid phrasings that even raise the specter of Sandstrom error. In some circumstances, instructing a jury that it may consider whether a firearm was used as an object of barter in a drug exchange as a factor in determining whether the firearm was possessed in furtherance of the drug crime may be more appropriate than the language used here.  However, again, because the issue was not raised below or on appeal, the court affirmed. Finally, the court considered the defendant’s claim that there was an improper variance between the date of possession listed in the indictment and that proved at trial.  The court, however, concluded that where, as here, the date is not an essential or material element of the charged offense, it is generally sufficient to prove that the offense was committed on any day before the indictment and within the statute of limitations.  As that was the case here, the variance was harmless.  NOTE:  The instruction at issue in this case was stated based on the court’s language in Doody.  Given the discussion in this case, the validity of the wording of the instruction is now in serious doubt.  Had the issue been raised here, it is likely the court would have found error, so if this issue comes up in one of your cases, argue that the wording suggested by the court in this case, rather than the language suggested in Doody, be used.

Blanket restriction prohibiting registered sex offenders from using social networking websites, instant messaging services, and chat programs violates the First Amendment.  Doe v. Prosecutor, No. 2-2512.  In this civil action, the plaintiff on behalf of a similarly situated class of sex offenders, challenged an Indiana law which prohibited registered sex offenders from using social networking websites, instant messaging services, and chat programs as violative the First Amendment.  The Court of Appeals agreed.  The court first found that the statute implicated the plaintiff’s First Amendment rights because it precludes public expression through the medium of social medium, although the restriction is content neutral.  Applying a variant of intermediate scrutiny, the court concluded that the law was not narrowly tailored. A complete ban such as the social media ban at issue can be narrowly tailored, but only if each activity within the proscription’s scope is an appropriately targeted evil. There is nothing dangerous about Doe’s use of social media as long as he does not improperly communicate with minors. Further, illicit communication comprises a minuscule subset of the universe of social network activity. As such, the Indiana law targets substantially more activity than the evil it seeks to redress. Moreover, Indiana has other methods to combat unwanted and inappropriate communication between minors and sex offenders. For instance, it is a felony in Indiana for persons over twenty-one to “solicit” children under sixteen “to engage in: (1) sexual intercourse; (2) deviate sexual conduct; or (3) any fondling intended to arouse or satisfy the sexual desires of either the child or the older person.” Other criminal statutes also reach the conduct sought to be prevent here. They also accomplish that end more narrowly (by refusing to burden benign Internet activity). That is, they are neither over- nor under-inclusive like the statute at issue here. Most relevant to federal criminal defense practitioners, the court noted that the opinion should not be read to affect district courts’ latitude in fashioning terms of supervised release.  Terms of supervised release may offer viable constitutional alternatives to the blanket ban—imposed outside the penal system—in this case.   

The Supreme Court issued no new criminal opinions and 3 new grants of certiorari in a criminal case this week.  The Seventh Circuit issued 2 precedential opinions in criminal cases this week, as summarized below.

A.  New cert grants (For a complete list of criminal issues pending in the Supreme Court, click HERE)

In Salinas v. Texas, No. 12-246, the Court granted review to address the open Fifth Amendment issue of whether the government can use a defendant's pre-arrest, pre-Miranda, refusal to answer a question against him at trial. The question presented is:  "Whether or under what circumstances the Fifth Amendment's self-incrimination clause protects a defendant's refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights."   This question was reserved by the Court in its 1980 decision in Jenkins v. Anderson, 447 U.S. 231 (1980), and federal and state courts are divided over the issue.  Cert stage pleadings and the opinion below can he found here.

United States v. Kebodeaux, No. 12-418.  This case involves two questions arising from the Fifth Circuit's decision that SORNA could not be applied to Mr. Kebodeaux who, in 2006 when SORNA was enacted, was no longer in prison (for his military conviction when he was 21 years old for having sex with a 15-year-old girl), not on supervised release, nor was he required to register as a sex offender as a condition of his release from custody.  The questions presented are:  (1) Whether the court of appeals erred in conducting its constitutional analysis on the premise that respondent was not under a federal registration obligation until SORNA was enacted, when pre-SORNA federal law obligated him to register as a sex offender, and (2) whether the court of appeals erred in holding that Congress lacks the Article I authority to provide for criminal penalties under 18 U.S.C. 2250(a)(2)(A), as applied to a person who was convicted of a sex offense under federal law and completed his criminal sentence before SORNA was enacted. Cert stage pleadings and the opinion below can he found here.

Sekhar v. United States, No. 12-357, involves an interpretation of "property" under the Hobbs Act.  As summarized by ScotusBlog, the case presents the issue of  "whether the federal anti-extortion act applies to a private individual's use of a threat in order to get a government authority to withdraw a recommendation that would be adverse to that private individual's interest in a pension fund."  The question presented is:  Whether the "recommendation" of an attorney, who is a salaried employee of a governmental agency, in a single instance, is intangible property that can be the subject of an extortion attempt under 18 U.S.C. §1951(a)(the Hobbs Act) and 18 U.S.C. §875(d).  Cert stage pleadings (so far only the government's brief in opposition) and the Second Circuit opinion below can he found here.

            B.        New Seventh Circuit Criminal Opinions

HABEAS/2255

Suggs v. United States, No. 10-3944.  On appeal of the district court’s dismissal of the petitioner’s 2255 petition, the Court of Appeals affirmed, holding that the petition was “second or successive” under 2255.  The petitioner originally filed a successful 2255 petition and was resentenced pursuant to the grant of that petition.  The petitioner then filed another 2255 petition after the resentencing, but only challenging aspects related to his original conviction, rather than events related to his resentencing hearing.  The district court found such a petition to be barred as successive.  The court of appeals agreed.  It noted that the Supreme Court recently addressed a closely related but distinct question in Magwood v. Patterson, 561 U.S. ___, 130 S. Ct. 2788 (2010), holding that a petitioner’s second challenge to his sentence under 28 U.S.C. § 2254 was not barred as “second or successive” when it (a) came after the petitioner had been resentenced because of a successful, initial section 2254 petition and (b) asserted a claim based only on the resentencing. The Magwood Court expressly declined to extend its holding to the situation we face here, where the second motion challenges the original conviction, not the new sentence. This circuit’s precedent holds that the second motion here is barred as second or successive. Dahler v. United States, 259 F.3d 763 (7th Cir. 2001).  The court recognized that the reasoning in Magwood casts some doubt about the continued viability of Dahler. However, because Magwood explicitly limited its holding so as not to reach the situation the court faced in this case, it was not persuaded that it should overrule its precedent. Based on the authority of Dahler, the court therefore concluded that Suggs’ motion was “second or successive” under section 2255 and affirmed the district court’s dismissal for lack of jurisdiction.

SENTENCING

o   Procedural Reasonableness/Substantive Reasonableness

United States v. Boroczk, No. 12-1022.  In a production of child pornography case, the defendant argued that his 70-year sentence of imprisonment was both procedurally and substantively unreasonable.  The defendant, a self-described “kingpin” of child pornography, created hundreds of sexually explicit images and videos involving two of his own children.  At sentencing, the defendant requested a variance down to the 15-year mandatory minimum.  In support, he presented the testimony of a clinical psychologist who was providing the defendant with counseling sessions.  The psychologist concluded that the defendant’s prognosis for successful rehabilitation was excellent.  The psychologist also concluded that the defendant’s risk of committing future hands-on offenses was low.  On appeal, the defendant first argued that the court did not adequately confront each piece of evidence in support of his argument that he was unlikely to recidivate.  The court noted that not every single piece of evidence presented by the defendant was explicitly mentioned by the district judge, but the district court rejected it by implication when it focused on the fact that Boroczk is a pedophile who expressed an alarming lack of remorse for his crimes after being caught. District judges need not belabor the obvious. The judge need not be explicit where “anyone acquainted with the facts would have known without being told why the judge had not accepted the argument.” The defendant also argued that the sentence was substantively unreasonable.  First, he argued that no presumption of reasonableness should apply where the guidelines range exceeds the statutory maximum and the court stacks consecutive sentence to achieve a within the range sentence.  The court rejected this argument, citing several cases where the presumption was applied to cases where a within the range sentence could only be achieved by stacking consecutive sentences.  Applying the presumption, the court had no problem finding the sentence substantively reasonable, characterizing the defendant’s conduct as “monstrous.”  NOTE:  I see a lot of challenges to the substantive reasonableness of sentences made in briefs filed in the Seventh Circuit.  When deciding whether or not to make such an argument, keep in mind that the Seventh Circuit has never found a within the range sentence to be substantively unreasonable.  Such an argument should ordinarily be your absolutely last resort when looking for issues on appeal.  Secondly, even for out-of-the range sentences, the Seventh Circuit has never found such a sentence to be substantively unreasonable.  At best, it has found that the court failed to adequately explain the sentence imposed, but it has never held outright that a sentence is per se substantively unreasonable.  Again, something to keep in mind.

The Supreme Court issued one new criminal opinions and one new grant of certiorari in a criminal case this week.

The Supreme Court issued a unanimous opinion in Smith v. United States, No. 11-8976.  Petitioner argued that "once he presented evidence that he ended his membership in the conspiracy prior to the statute-of-limitations period, it became the Government's burden to prove that his individual participate in the conspiracy persisted within the applicable five-year window."  The Court, however, concluded that neither the Constitution nor the conspiracy statute support this argument, and that "[e]stablishing individual withdrawal was a burden that rested firmly on the defendant regardless of when the purported withdrawal took place."  You can read the full opinion HERE.

The Supreme Court granted the government's cert petition in United States v. Davila, No. 12-167.  In this case from the 11th Circuit, the parties agree that the Magistrate Judge's comments to Mr. Davila, pressuring him to plead guilty, "amounted to judicial participation in plea discussions" in violation of  R. 11(c)(1).  The government, however, disagrees with the 11th Circuit's holding that a defendant "need not show any individualized prejudice" to obtain relief.   The government frames the Question Presented this way: 

"Whether the court of appeals erred in holding that any degree of judicial participation in plea negotiations, in violation of Federal Rule of Criminal Procedure 11(c)(1), automatically requires vacatur of a defendant’s guilty plea, irrespective of whether the error prejudiced the defendant."

Cert stage pleadings and the decision below can be found on ScotusBlog HERE.

The Seventh Circuit issued 5 precedential opinions in criminal cases this week, as summarized below.  Click on the case names to read the entire case. 

United States v. Bueno, No. 11-2532.  Held: (1) Although continuation of defendant’s detention after a stop of his car based upon a traffic violation was impermissible long, it was justified by circumstances that developed during the stop; (2) Guideline enhancement for maintaining drug premises (§2D1.1(b)(12)) was proper where the defendant’s duties included overseeing “stash houses”; and (3) Guideline enhancement for engaging in criminal conduct as a livelihood or engaging in a pattern of criminal conduct (§2D1.1(b)(14)(E)) was proper where the defendant admitted to being a leader of a drug distributing gang for seven months.  NOTE:  The opinion’s discussion of the law regarding prolonged detention during a traffic stop is very thorough, discussing many of the precedents in this area as well as various factual scenarios. 

United States v. Keskes, 12-1127.   In prosecution for wire and mail fraud arising out of the defendant’s receipt and sale of stolen merchandise over the Internet, the court affirmed the district court’s denial of the defendant’s motion for a mistrial after the prosecutor, in opening statement, told the fury that FBI agents went to a judge and obtained a search warrant for premises controlled by the defendant.  The defendant argued that the comment suggested that there had been a judicial finding of guilty.  Consistent with United States v. Hendrix, 509 F.3d 362 (7th Cir. 2007), where the court concluded that a single “statement from a witness that a judge approved a search warrant for [the defendant’s apartment did not inappropriately strengthen the prosecution’s case and was not unfairly prejudicial,” the court found that the passing, lone comment in this case did not deprive the defendant of a fair trial.  The defendant also argued that the district court erred in allowing testimony from government witnesses to the effect that “gypsies” were inveterate thieves, in violation of Federal Rules of evidence 401 and 403.  Reviewing for plain error, the court held that the descriptions related to ethnicity were only a small part of a five-day trial.  Moreover, at a pretrial conference, the government advised the court and defense counsel that some of its witnesses would use the term “gypsy” during their testimony because that was how the witnesses knew the people. The prosecutors said they would strive not to use the term. But as the court recognized, “[Y]ou cannot stop witnesses from testifying.” There was a discussion about the parties suggesting a different term, but the defense proposed none and did not object to use of the term “gypsy.” Nor did the defense object to use of the term during the trial. Moreover, defense counsel used the term at least as often as the prosecutors did in opening statement, cross-examination, and closing argument.  Finally, the defendant argued that the district court violated his Fifth Amendment right to remain silent by equating his silence at sentencing with a lack of remorse and consequently increased his sentence.  Again reviewing for plain error, the court noted that fir sentencing purposes, “[S]ilence can be consistent not only with exercising one’s constitutional right, but also with a lack of remorse.” Burr v. Pollard, 546 F.3d 828, 832 (7th Cir. 2008). A lack of remorse is a proper sentencing consideration “because it speaks to traditional penological interests such as rehabilitation (an indifferent criminal isn’t readyto reform) and deterrence (a remorseful criminal is less likely to return to his old ways).” Id.  Sometimes it can be “difficult to distinguish between punishing a defendant for remaining silent and properly considering a defendant’s failure to show remorse” in sentencing. Id. (quoting Bergmann v. McCaughtry, 65 F.3d 1372, 1379 (7th Cir. 1995)).  Here, the defendant did not assert his Fifth Amendment privilege at the sentencing hearing, which would have alerted the court to the fact that his silence should be viewed as an exercise of his constitutional right rather than a lack of remorse.  Furthermore, the district court identified several other factors which demonstrated a lack of remorse.  Under these circumstances, no error occurred. 

United States v. Herrera, No. 11-2894.  In this case, the Court of Appeals considered a number of issues related to fingerprint evidence.  The defendant first argued that the methods of matching latent prints with other latent prints or with patent prints have not been shown to be reliable enough to be admissible as evidence under the Rules of Evidence and Daubert.  The court rejected this issue, although noting that this type of scientific evidence is less rigorous that DNA evidence.  Although not infallible, it does not have to be so to be probative.  Just because evidence of this nature requires sponsorship of an expert witness does not mean it is not good science.  Accordingly, the court found no problem with the fingerprint evidence.  NOTE:  This case contains an extensive analysis of the scientific underpinnings of fingerprint evidence.

United States v. McMurtrey, No. 11-3352.  In this case, the Court of Appeals attempted to clarify some issues concerning the procedures a district court may or must use in evaluating a criminal motion to suppress evidence under Franks.  If police officers obtain a search warrant by deliberately or recklessly providing the issuing court with false, material information, the search warrant is invalid. In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court held that when a defendant makes a substantial preliminary showing that the police procured a warrant to search his property with deliberate or reckless misrepresentations in the warrant affidavit, and where such statements were necessary to the finding of probable cause, the Fourth Amendment entitles the defendant to an evidentiary hearing to show the warrant was invalid. A district court that is in doubt about whether to hold a Franks hearing has discretion to hold a so-called “pre- Franks” hearing to give the defendant an opportunity to supplement or elaborate on the original motion. In such a pre-Franks hearing, the natural temptation for the court will be to invite and consider a response from the government. However, the court should not give the government an opportunity to present its evidence on the validity of the warrant without converting the hearing into a full evidentiary Franks hearing, including full cross-examination of government witnesses. The court emphasized that the option to hold such a limited pre-Franks hearing belongs to the district court, not the defendant.  If the defendant’s initial Franks motion does not make the required “substantial preliminary showing,” the court need not hold a pre-Franks hearing to provide the defendant a further opportunity to do so. In this case, the defendant made a sufficient preliminary showing under Franks by offering two police officers’ affidavits. On the critical issue of which of two houses should be searched, the affidavits contradicted each other. The affidavits also indicated that each officer previously had contradicted himself in the information he had provided to the other officer. That evidence was sufficiently specific to support (though not require) a reasonable inference that the affidavit submitted to support the search of the defendant’s home was deliberately or recklessly false. Rather than hold a full Franks hearing, however, the district court held a truncated pre-Franks hearing. The district court permitted the government to offer additional evidence to explain the discrepancies in the affidavits. That evidence should have required a full Franks hearing, yet the defendant was not permitted full cross-examination on the government’s new evidence. The court then relied on the untested government evidence to find that the defendant had failed to make a showing sufficient to obtain a full Franks hearing.  The court found this procedure to be erroneous as it denied the defendant his full opportunity to challenge the warrant under Franks.  Accordingly, the court vacated the defendant’s conviction and remanded for further proceedings.  NOTE:  A very important case on pre-
Franks procedure.

United States v. Anaya-Ag, No. 11-3675.  In this illegal re-entry case, the defendant argued that the district court erred in rejecting his argument for a variance based upon the Northern District of Illinois’ lack of a fast-track program.  The court first noted that the defendant challenged a number of what he considered “prerequisites” set up by the court’s decision in United States v. Ramirez, 675 F.3d 634 (7^th Cir. 2011).  The court, however, found that Ramirez does not impose any restraints on a defendant’s ability to present mitigating arguments at sentencing nor limit a district court’s discretion to accept fast-track disparity arguments.  The court stated that Ramirez explained when a district court must address a fast-track argument.  It did not limit a district court’s discretion or ability to consider any mitigation arguments, including those based on fast-track disparities.  Ramirez only repeated what should have been evident. To succeed on a fast-track mitigation argument or to appeal successfully the silent rejection of such an argument, defendants must show that they are “similarly situated” to defendants in fast-track districts. That means the defendant must promptly plead guilty, agree to the factual basis proffered by the government, and execute an enforceable waiver of specific rights before or during the plea colloquy. It also means that the defendant must establish that he would be eligible to receive a fast-track sentence in at least one district offering the program and submit the likely imprisonment range in that district. Ramirez did not create a set of affirmative acts that the defendant must complete before the judge would be permitted to consider a fast-track disparity argument. Rather, the  prerequisites are only necessary to compel a district judge to explicitly address the fast-track argument on the record; if the prerequisites are met, then he must comment on the argument.  However, he may always consider the fast-track argument in mitigation, regardless of whether the prerequisites are met or not.  NOTE:  This case finally resolves a perceived tension between the requirements set forth in Ramirez and a district court’s discretion to consider any factor in mitigation.  The court has reiterated that a district court may always consider a fast-track argument in mitigation at sentencing without demonstrating any prerequisites.  However, if the prerequisites set forth in Ramirez are not present, then the district court need not comment on the argument when imposing sentence.  Notwithstanding the court’s assertion that this was all Ramirez originally stood for, this was not at all clear before this case.

The Supreme Court issued no new criminal opinions or grants of certiorari this week.

The Seventh Circuit issued 2 precedential opinions in criminal cases this week, as summarized below.  Click on the case names to read the entire case. 

United States v. Nduribe, No. 12-1975.  Held:  For obstruction of justice sentencing enhancement to apply for flight from arrest, the flight must be “likely to burden a criminal investigation or prosecution significantly—likely to make the investigation or prosecution significantly more costly or less effective than it would otherwise have been . . .(A defendant’s conduct is attempted obstruction if, had it succeeded, it would have had those consequences.)  NOTE:  This case contains a very thorough analysis of obstruction of justice in the context of flight from arrest and evading capture.  It also attempts to synthesize several circuit precedents in the area which, at least on their face, appear inconsistent. This is a must read if you have flight from or evasion of arrest in your case. 

United States v. Ramirez-Fuentes, No. 12-1494.  Held:  (1) Testimony of DEA Agent appearing as an expert witness regarding violent associated with drug trafficking was relevant and not unduly prejudicial; (2) testimony by same agent as to the “Mexican” nature of the methamphetamine in the case improperly invited the jury to consider the defendant’s nationality in reaching its verdict and was excludable under Rule 403, but not a reversible error under plain error review and the other evidence in the case; (3) the sentence was procedurally reasonable in that the district court adequately considered and commented upon the defendant’s arguments for a variance; and (4) the within-the-range sentence was substantively reasonable.  NOTE:  This case contains a very thorough analysis of the issue of race being injected into a trial.  It is worth reading pages 9 through 15.

The Supreme Court issued no new criminal opinions or grants of certiorari this week.

The Seventh Circuit issued 2 precedential opinions in criminal cases this week, as summarized below.  Click on the case names to read the entire case. 

United States v. Adigun, No. 11-1888.  Held:  1)  An unconditional plea of guilty waived defendant’s ability to challenge the denial of his motion to suppress evidence on appeal and 2) although the defendant should have had his minimum sentence reduced under the Fair Sentencing Act, the error was harmless.  The defendant entered into an open plea and he did not, either in writing or orally, expressly preserve his right to challenge the court’s denial of his motion to suppress.  He argued on appeal, however, that the court could infer from the record that he believed he had preserved the issue.  The court found that no such inference could be made on this record, especially given that the government had never offered to allow the defendant to enter into a conditional plea. Although the court also noted that there was several conflicting lines of precedent of whether a failure to enter into a conditional plea deprived a court of jurisdiction to consider the issue or, instead, was reviewable for plain error should the government elect not to raise the waiver, the court concluded that it need not decide the question in this case because the government asserted the waiver.  Thus, the issue was unreviewable no matter how it was characterized.  On the second issue, the court erroneously used a pre-FSA mandatory minimum of 120 months, but imposed a 150-month sentence.  Moreover, the court declined the defendant’s motion for a variance down to the 120-month minimum.  Under these circumstances, the error was harmless because it was clear that even if the mandatory minimum had been lower, the court believed the 150-month sentence was appropriate.  Thus, any error was harmless.

United States v. Earls, No. 11-3347.  Held:  In prosecution for aggravated identity theft: 1) the district court did not err by admitting evidence that the defendant faced up to 60 years’ imprisonment on pending state felony charges; 2) trial court properly allowed two Government agents to identify the defendant via photographs at trial, and finally, 3) the trial court did not err when it applied the cross-reference provision in Sentencing Guideline § 2L2.2(c)(1)(A), for using the false identification papers to commit another felony offense (bail jumping).

The Supreme Court issued no new criminal opinions or grants of certiorari this week.

The Seventh Circuit issued 3 precedential opinions in criminal cases this week, as summarized below.  Click on the case names to read the entire case. 

United States v. Elliott, No. 11-2766.  Held:  There is no right to a jury finding that, for Armed Career Criminal purposes, that prior qualifying convictions were “committed on occasions different from one another. The defendant contended that whether the three prior burglary convictions he had were committed on occasions different from one another constituted factual questions as to which the Fifth and Sixth Amendments, and the Supreme Court’s decision in Apprendi entitled him to a jury trial.  The court noted that the Supreme Court in Almendarez-Torres held that a defendant’s recidivism is not an element of the offense which must be found by a jury beyond a reasonable doubt, but rather is a sentencing factor that may be found by the sentencing judge, even when recidivism increases the statutory maximum penalty to which the defendant is exposed.  Although whether the prior crimes occurred on occasions different from one another is a question that looks beyond “the fact of a prior conviction,” the facts related to whether prior convictions occurred on different occasions cannot be easily distinguished from the facts related to the existence of the prior convictions.  Thus, unless and until the Supreme Court overrules Almendarez-Torres or confines its holding solely to the fact of a prior conviction, as opposed to the nature and/or sequence of a defendant’s prior crimes, a district judge properly may make the findings required by the ACCA.  As for whether or not the defendant’s prior burglaries actually occurred on different occasions, the Seventh Circuit’s decision in Hudspeth dictated the outcome.  Hudspeth requires a court to answer the question of whether the crimes were simultaneous or were they sequential.  Here, the three burglaries occurred over five days and were therefore sequential.  Thus, they occurred on different occasions.  PRACTICE NOTE:  In light of the Supreme Court’s decision to consider whether Apprendi applies to statutory mandatory minimums (Alleyne v. United States), an argument challenging Almendarez-Torres, and particularly the narrow argument presented in this case, may have some traction in the Supreme Court depending on how Alleyne comes down.

United States v. Wasilewski, 12-2664.  Held:  District court did not err in applying an abuse of a position of trust enhancement (3B1.3) in a prosecution for embezzlement from a bank where the defendant was an assistant vice-president and assistant manager at the victim bank, responsible for daily operations of the bank, assigned teller drawers and safes, maintained codes for same, and performed audits on teller drawers and cash dispensers—said duties facilitating the defendant’s embezzlement.  The court also rejected in short order that the district court improperly treated the guidelines as mandatory at sentencing. 

United States v. Craig, No. 12-1262.  Upon the filing of appellant counsel’s Anders brief, the Court of Appeals granted counsel’s motion to withdraw.  The defendant was convicted of multiple counts of production of child pornography.  His guideline range was life.  To get as close to this range as possible, the judge ran the sentences on some of the counts consecutively, for a total of 50 years, which would make the defendant 96 when released from prison.  The Court of Appeals noted that not only was the court allowed to impose the consecutive terms, but encouraged to do so by the Guidelines when the statutory maximum on any one count is below the guideline range.  Judge Posner wrote a concurring opinion “merely to remind district judges of this circuit of the importance of careful consideration of the wisdom of imposing de facto life sentences.  A sentencing judge should consider the incremental deterrent and incapacitative effects of a very long sentence compared to a somewhat shorter one, given the expenses involved with incarceration—especially elderly prisoners.  Forgoing imprisonment as punishment of criminals whose crimes inflict little harm may save more in costs of imprisonment than the cost in increased crime that it creates. In this case, it is not a “little crime” case, and not even the defendant suggests that probation would be an appropriate punishment. But it is a lifetime imprisonment case, and the implications for cost, incapacitation, and deterrence create grounds for questioning that length of sentence. For suppose the defendant had been sentenced not to 50 years in prison but to 30 years. He would then be 76 years old when released (slightly younger if he had earned the maximum good-time credits). How likely would he be to commit further crimes at that age?  Only 1.1 percent of perpetrators of all forms of crimes against children are between the ages of 70 and 75; how many can there be who are older than 75?  Regarding the benefits of deterring other sex criminals, Judge Posner wondered how likely is it that if told that if apprehended and convicted he would be sentenced to 50 years in prison the defendant would not have committed the crimes for which he’s been convicted, but if told he faced a sentence of “only” 30 years he would have gone ahead and committed them?  He concluded with the following, “I am merely suggesting that the cost of imprisonment of very elderly prisoners, the likelihood of recidivism by them, and the modest incremental deterrent effect of substituting a superlong sentence for a merely very long sentence, should figure in the judge’s sentencing decision.  PRACTICE NOTE:  Judge Posner’s reasoning in his concurrence could be useful in making in arguments in the district court where a sentence imposed will be the functional equivalent of a life sentence.  I doubt, however, that such an argument could ever establish that a sentence was unreasonable on appeal.

The Supreme Court issued no new criminal opinions or grants of certiorari this week.

The Seventh Circuit issued 2 precedential opinions in criminal cases this week, as summarized below. 

United States v. Gonzalez-Lara, ___ F.3d ___ (7^th Cir. 2012; No. 11-3892).  The defendant pleaded guilty to illegal re-entry, and challenged on appeal a 16-level increase for having a prior drug conviction that resulted in a term of imprisonment exceeding 13 months.  The defendant argued that he did not receive a sentence exceeding 13 months until his probation on the drug trafficking offense was revoked.  The court noted that the plain text of the guideline does not limit the 13-month imprisonment term to a defendant’s pre-revocation sentence.  The defendant’s probation was revoked and he received a 3-year sentence on that revocation before his original deportation.  The court noted that this case was different that the issue it addressed in United States v. Lopez, where the defendant was sentenced to a term of less than 13 months imprisonment, deported, and the sentenced to more than 13 months on the revocation.  In that case, the revocation sentence was imposed after deportation.  Here, both the original and revocation term were imposed before deportation, making the 16-level enhancement applicable. 

United States v. McIntosh, ___ F.3d ___ (7^th Cir. 2012; No. 11-3535).  In prosecution for failure to surrender to serve a sentence, the Court of Appeals affirmed he defendant’s conviction and sentence.  First, the defendant argued that the evidence was insufficient to prove that he willfully failed to surrender because he was confused about the date and location of his surrender.  However, the court noted that even if he was genuinely confused, when he learned that the Marshalls were looking for him, he fled out of state until finally tracked down.  Failure to surrender is a continuing offense and, at the very least, he committed the offense once he fled.  Finally, the court found that the defendant’s five-year statutory maximum sentence was appropriate in this case. 

The Supreme Court issued no new opinions or grants of certiorari in criminal cases this week.

The Seventh Circuit issued 7 precedential opinions in criminal cases this week, as summarized below. 

United States v. Matthews, ___ F.3d ___ (7^th Cir. 2012; No. 11-3121).  In this drug distribution case, the defendant argued that the district court procedurally erred by treating the 18:1 crack-to-powder sentencing ratio in the guidelines as binding and that the court’s decision to adhere to that ratio created unwarranted disparities because other judges in the same district used a 1:1 ratio in like cases.  The court rejected both of these arguments.  The court found that the district court commented on the drug-quantity ratio in direct response to Matthews’s argument that the court should follow the lead of other judges in the district and impose a below guidelines sentence based on a 1:1 crack-to-powder ratio. The judge declined to do so, deferring instead to the 18:1 policy adopted in the Fair Sentencing Act of 2010 and the corresponding amendments to the guidelines. Although the judge adopted a highly deferential stance toward the judgment of Congress and the Sentencing Commission, there is no indication that he misunderstood his discretion to use a different ratio.  On the second question, the judge’s decision to adhere to the ratio endorsed by Congress and the Commission does not make the resulting within guidelines sentence unreasonable merely because other judges in the district exercised their discretion to use a different ratio. A sentence disparity that results from another judge’s policy disagreement with the guidelines is not “unwarranted” under § 3553(a)(6).  PRACTICE NOTE:  This case guts what looked to be an excellent argument on disparity when judges in the same district differ on who does and does not use a 1:1 crack to powder sentencing ratio.  According to this case, where you have two judges in the same district and one does and one does not vary from the guidelines to the 1:1 ratio, the arbitrary roll of the dice as to which judge the defendant ends up in front of—which could mean a difference of years in his sentence—is not an “unwarranted” disparity.

United States v. Wolfe, ___ F.3d ___ (7^th Cir. 2012; No. 11-3281).  The defendant was convicted on one count of bank theft and one count of interstate transportation of stolen goods under 18 U.S.C. §§ 2113(b) and  2314 for his role in a copper theft scheme.  On appeal, he challenged his conviction based upon the prosecutor’s statements during closing argument, his sentence, and the court’s order of restitution.  The prosecutor made the following statement regarding one of its key witnesses, which the defendant characterized as improper vouching:  “I think [Ms. Gurgon] was—and I think you would agree with me, hopefully you’ll agree with me, one of the clearest, sharpest witnesses on trial. Obviously she’s a very bright person.”  The court found this statement to be, at worst, borderline inappropriate.  Although the prosecutor should not have injected his own personal beliefs into the trial, the evidence supported his characterization and this misstep in the context of the entire case did not support a finding that the defendant was denied a fair trial.  After affirming the district court’s determination of the amount of loss, the court finally considered the most important argument in the case concerning restitution. The defendant challenged the amount of restitution on the ground that it was not supported by the jury’s factual findings, a violation of the Sixth Amendment under Apprendi v. New Jersey, 530 U.S. 466 (2000). Specifically, he contended that the recent Supreme Court decision in Southern Union Co. v. United States, ___ U.S. ___, 132 S. Ct. 2344 (2012), first, required the court to overturn its longstanding jurisprudence that restitution is not a criminal penalty, and second, mandated that all restitution amounts be supported by the jury’s verdict.  Southern Union held that Apprendi applies to criminal fines.  The court, however, noted that the law in the Seventh Circuit is that restitution is not a criminal penalty and, therefore, Southern Union could not be extended to restitution.   While noting that this is a minority position amount the circuits, the court refused to overturn its precedent on this question and therefore rejected the Apprendi challenge.  PRACTICE NOTE:  The question of whether restitution is a criminal or civil penalty is now an entrenched circuit split ripe for review.  I would expect a petition for certiorari to be filed in this case.  If you can make an Apprendi challenge to restitution in the district court, you should continue to preserve this objection until someone can get the Supreme Court to resolve this circuit split.

United States v. Henry, ___ F.3d ___ (7^th Cir. 2012; No. 12-1683).  The defendant entered into a plea agreement with a waiver of his appellate rights.  At sentencing, the district court sentenced the defendant to 96 months’ imprisonment, consecutive to his undischarged state term of imprisonment on another conviction.  On appeal, the defendant argued that his plea was not knowing and voluntary because he was unaware that his federal sentence could run consecutively to the state term of imprisonment and that the district court was required to advise him of the same.  The Court of Appeals affirmed.  Although the defendant may not have known that his federal term would be consecutive to the state term, an unanticipated sentence does not make a plea unknowing or involuntary.  The defendant was properly advised at his Rule 11 colloquy which demonstrated his plea was knowing and voluntary.  Finally, a district court is not required to advise a defendant that his federal sentence may run consecutively to an undischarged state term.

United States v. Preacely, ___ F.3d ___ (7^th Cir. 2012; No. 12-1683).  The defendant challenged the revocation of his supervised release, arguing that the evidence was insufficient to establish that he violated a condition of his supervised release and the condition in question was unconstitutionally vague.  The defendant was convicted of tax fraud, and, as a condition of supervised release, was ordered not to engage in the business of tax preparation.  His supervised release was revoked due to a violation of that condition.  Although the defendant argued that he was only performing “administrative duties” related to a tax preparation duty, the condition prohibited participating in a tax preparation business “directly or indirectly.”  Even assuming the defendant’s characterization of his work was correct, it was still enough to establish a violation.  Regarding his constitutional argument, the court found that the prohibition was not vague.

United States v. Taylor, ___ F.3d ___ (7^th Cir. 2012; No. 11-3607).  In prosecution for being a felon in possession of a firearm, the defendant argued that the court erred in denying his motion in limine to exclude evidence of other guns found at the scene when he was arrested, that the evidence was insufficient to convict him, and that his 480 month sentence—13 years above the range, was substantively unreasonable.  Over the course of two days in, the defendant went on a shooting spree. He fired his black 9 millimeter Beretta semiautomatic pistol on residential streets, at family homes, and at a moving vehicle, all in an apparent attempt to retaliate against rival gang members. The defendant was arrested and charged with possessing a firearm after having previously been convicted of a felony. Before his jury trial, he filed a motion in limine to exclude evidence of two other guns that officers had recovered at the scene of his arrest, and the district court denied that motion. The two other firearms recovered at the scene were attributed by authorities to be possessed by two other gang members.  The district court concluded that this evidence was directly relevant to showing that it was more probably that the defendant, and not the other two individuals, possessed the weapon with which he was charged.  If the two other gang members possessed their own guns, it would be more likely that the defendant possessed the third gun—the one for which he was charged.  The court concluded that the evidence was not only relevant, but there was no danger of misleading the jury into believing that the defendant was somehow responsible for the possession of the weapons.  The court also concluded that there was more than sufficient evidence to convict the defendant.  Finally, on the sentencing issue, the court affirmed the sentence as substantively reasonable, finding that the district court provided a comprehensive explanation of its decision to impose a sentence above Taylor’s guideline range and that it discussed at length the violent nature of Taylor’s offense as well as his extensive criminal history, and it explained the ways in which the guideline range did not adequately reflect the seriousness of the offense.

United States v. Moreland, ___ F.3d ___ (7^th Cir. 2012; No. 11-2546).  In a very large, multi-defendant methamphetamine and marijuana conspiracy case, the Court of Appeals rejected an extraordinarily large number of issues common to all the defendants, as well as those raised individually.  Rather than summarize the court’s analysis, I will simply list the issues the court rejected including:  whether wiretaps were properly authorized; whether excusing jurors prior to voir dire due to business commitments, employment obligations, or vacations was improper; whether excluding busy people from a jury violates the Jury Selection and Serve Act which forbids exclusion from juries on the basis of “economic status”; whether excusing prospective jurors before trial violated Fed.R.Crim.P.43(a)(2); whether a DEA agent improperly testified as both a fact and expert witness; whether one defendant had only a buyer-seller relationship to the conspiracy; whether cash seized from one defendant after a pat-down pursuant to a traffic stop violated the Fourth Amendment; whether life sentences were cruel and unusual punishment; whether the judge’s accidental reading a list of the defendant’s prior felony convictions as they related to his possession of a weapon charge required a new trial; whether an enhancement for possession of a gun in connection with a drug offense was proper; and whether one defendant was a minor participant.  The Court rejected all of these arguments and affirmed all convictions and sentences. 

United States v. Purnell, ___ F.3d ___ (7^th Cir. 2012; No. 12-1283).  Upon appeal from the denial of a 3582(c)(2) petition, the Court of Appeals affirmed, holding that the district court could consider the defendant’s post-sentencing false statements to the court when denying the defendant discretionary relief.  The Defendant originally plead guilty pursuant to a plea agreement.  However, in pleadings filed after he was sentenced, he challenged the validity of his plea and made assertions contrary to what he had stated under oath at his plea hearing.  On this basis, the district court declined to exercise its discretion and lower the defendant’s sentence under the amended guideline range.  The defendant first argued that the district court failed to address each 3553(a) factor when denying the defendant a reduction, but the court concluded that such an explanation is not required.  Rather, all that is necessary is articulation of the basis for a decision clearly enough for the court of appeals to determine if the decision is reasonable.  Secondly, the court found that the district court could consider post-sentencing conduct as a 3553(a) factor.  Finally, the court noted that the defendant’s false statements in his post-sentencing pleadings were properly considered and could be the basis for the denial of relief.  The court did note, however:   “Our decision today should not be read as endorsing denials of section 3582(c)(2) motions based solely on vexatious litigation or post-conviction filings that skirt or challenge the appellate and section 2255 waivers in plea bargains. The repeated filing of frivolous motions is undoubtedly aggravating for judges with busy dockets. Frustration in the face of repeated post-conviction filings is understandable, but it is not a consideration contemplated by section 3582(c)(2) or the Sentencing Commission. . . It would not be appropriate or permissible for federal courts to retaliate for similar reasons. While there is language in the district court’s decision that expresses understandable frustration with Purnell’s litigation, we think it is clear that the district court did not base its denial of the section 3582(c)(2) motion on annoyance with his post-conviction filings. Rather, the district court concluded that Purnell made repeated false statements to the court and that this post-conviction conduct was contrary to the award of a discretionary sentence reduction.”

The Supreme Court issued no new opinions or grants of certiorari in criminal cases this week.

The Seventh Circuit issued 2 precedential opinions in criminal cases this week, as summarized below.

United States v. Foster, ___ F.3d ___ (7^th Cir. 2012; No. 11-3097).  The defendant was convicted after a jury trial of several counts of distributing crack and sentenced to a 240 month sentence.  On appeal, he argued that the district court improperly admitted evidence in violation of the Confrontation Clause and improperly rejected his request for a missing witness instruction.  He also appealed his sentence, arguing that the district court should have used the Fair Sentence Act at sentencing.  On the confrontation issue, the district court admitted recorded statements of a non-testifying CI and ATF agents.  Regarding the CI’s statements, the court found that the recorded statements were properly admitted, not for the truth of the matter asserted, but to give context to the defendant’s portion of the conversation.  Regarding the testimony of the ATF agents, the court found that all of their testimony concerned their own personal observations and actions which was the proper subject of any witness’s testimony.  Regarding the missing witness instruction, when the CI was subpoenaed, he informed the court through counsel that he would assert his Fifth Amendment privilege if called to testify. The defendant then sought a missing witness instruction, which the court denied.  The Court of Appeals found that the witness was not peculiarly within the government’s power to produce, as required before such an instruction is appropriate.  The witness was equally unavailable to both parties, especially given that his relationship with the government had broken down before trial.  On the Fair Sentencing Act question, had the FSA been applied, the defendant’s mandatory minimum would have been 10, rather than 20, years, and his supervised release minimum would have been lower as well.  Dorsey made the FSA applicable to the defendant, establishing an error.  Nevertheless, the court here found the error to be harmless.  The district court stated that it would have imposed the same sentence regardless of the applicability of the FSA.  In doing so, the court gave a very detailed explanation of its sentence and why it would be the same under the FSA.  Under such a circumstance, any error was harmless. 

United States v. Delgado, ___ F.3d ___ (7^th Cir. 2012; No. 12-2478).  In prosecution for possession of a firearm by a felon, the Court of Appeals reversed the district court’s denial of the defendant’s motion to suppress.  A Milwaukee police officer responding to a report of gunshots near the 1900 block of South 12th Street saw a Hispanic male running towards a building at 1830 South 13^th Street. A witness then told the officer that her cousin had been shot by a black male and that her cousin was hiding in an apartment in that building. After police officers approached the apartment and knocked, Defendant Luis G. Delgado, who was the Hispanic male seen earlier, and the shooting victim, who had a visible graze wound on his wrist, came out of the apartment. The officers detained Delgado in the squad car and then, without a warrant, entered and searched his apartment finding various firearms. Delgado was indicted for being a felon in possession of a firearm and for possessing an unregistered firearm. Delgado moved to suppress. Both the magistrate judge and the district court agreed that the warrantless search was not justified by exigent circumstances, but the district court found that the search was a valid protective sweep and denied Delgado’s motion. Pursuant to the conditional plea agreement, Delgado pled guilty and was sentenced to a year and a day of imprisonment.  On appeal, the government conceded that the warrantless search was not a valid protective sweep, but argued that exigent circumstances existed because a reasonable officer could have believed that the unaccounted-for shooter was still hiding in the same apartment from which the shooting victim and Delgado had emerged.  The court of appeals rejected this argument. It found that absent any verbal or non-verbal indication from the victim, the witness, or Delgado that anyone else was in the apartment or that the victim or Delgado had been subjected to violence inside the apartment, the mere fact that the shooter was generally at large was not enough for a reasonable officer to believe that the shooter was specifically in the apartment.

The Supreme Court issued no new opinions and no new grants of certiorari this week.

The Seventh Circuit issued 3 precedential opinions in criminal cases this week, as summarized below.

United States v. Pelletier, ___ F.3d ___ (7^th Cir. 2012; No. 12-1274).  The defendant, Dominick Pelletier, admitted during a job interview with the FBI that he had pornographic pictures of children on his home computer. Instead of joining the FBI’s vaunted ranks, Pelletier was indicted for one count of possession of child pornography. After the district court denied two of his motions to suppress, Pelletier entered a conditional guilty plea and reserved the right to appeal the denial of the suppression motions.  The court affirmed.  The defendant was required to take a polygraph test as part of his application process.  Before doing so, he signed a form which provided that he understood he was not in custody and that his participation in the test was voluntary.  After the test, the defendant told the examiner he had trouble with one question because he had images of naked children on his home computer.  The defendant was then asked to write a statement summarizing his discussion on the matter which the defendant did, stating that he had downloaded and stored child pornography on his computer as part of a graduate school project. A second agent then interviewed the defendant, without providing Miranda warnings.  The agent did state, however that the defendant did not have to answer any questions.  When the agent asked for consent to search the computer, the defendant refused, eventually stating that he had “hardcore” child porn on his computer.  Finally, toward the end of the conversation, the defendant admitted “inadvertently” creating child pornography by recording himself having sex with a girl he later learned was a minor.  At some point during this interview, the agent stepped out of the room and had agent’s freeze the defendant’s premises while a warrant was sought.  The agent then stepped back into the room and obtained the defendant’s consent to search his premises after being told that a warrant would be sought if he did not consent.  The defendant first claimed that his statements should have been suppressed because he never received his Miranda warnings.  The court concluded that the defendant was not in custody, he being present as a job applicant, not as a suspect.  A reasonable applicant would expect to go through what the defendant did at the FBI office; nothing suggested he was not free to leave at any time.  Regarding the consent to search his computer, the defendant argued that the FBI involuntarily obtained his consent.  The court concluded that the inevitable discovery doctrine resolved this issue, as the government had more than enough evidence to obtain a warrant and, indeed, was in the process of obtaining one but for the defendant’s consent which stopped the process. 

United States v. Hagler, ___ F.3d ___ (7^th Cir. 2012; No. 11-2984).  On August 15, 2000, two men unsuccessfully tried to rob a bank in Woodburn, Indiana. They fled before police could arrive, and, for years, they remained at large. Then, in 2008, new DNA tests cracked the case and tied defendant William Hagler to the crime. Hagler was indicted for attempted bank robbery, and a jury found him guilty. Hagler appealed, arguing that the government waited too long to indict him, that the evidence was insufficient to convict him, and that new DNA testing entitles him to a new trial.  The court of appeals affirmed.  First, the statute of limitations for the crime charged was five years.  Here, the robbery attempt took place on August 15, 2000, but the indictment did not issue until July 28, 2010, nearly ten years later.  However, 18 U.S.C. §3282(a) provides that if DNA evidence implicates a person in a felony, the statute of limitations begins to run from the time that implication is revealed by the DNA evidence. The defendant noted that a partial DNA profile was uploaded by the government in 2002 when approximately 40 “hits” occurred, which therefore should be the date when the statute of limitations clock began to run.  However, the government argued that it was not until 2008 that the DNA profile linked a specific individual to the crime—the defendant—which is when the clock began to run.  The court agreed with the government, noting that the statute states that the clock begins running when the evidence “implicates an identified person.”  The court concluded that this phrase requires the identification of something more than a 1 in forty chance.  However, the court refused to require that the evidence link one single person to the crime.  For example, DNA evidence might match two people—identical twins—to a crime and still meet the definition in the statute.  Such instances would be rare, but could happen.  Regardless, in this case, the hit to 40 potential suspects was too indeterminate to trigger the clock; only when the evidence linked the crime to the defendant did the clock begin to run.  The court also rejected the defendant’s argument that pre-trial delay prejudiced his right to a fair trial.  The court concluded that the defendant could not show that the delay caused him any actual and substantial disadvantage in mounting his defense.  Next, the court rejected the defendant’s argument that the government failed to prove that the bank which was the subject of the robbery was federally protected.  Although an FDIC certificate alone may not be enough to demonstrate that a bank is federally insured at the time of a robbery, here the government also presented the testimony of a bank employee who had personal knowledge of the bank’s insured status.  The two pieces of evidence in conjunction was sufficient. 

United States v. Plowman, ___ F.3d ___ (7^th Cir. 2012; No. 11-3781).  The defendant was a local government official in Indianapolis, Indiana, when he accepted a bribe from an undercover FBI agent. Prior to trial, the government filed a motion in limine seeking to preclude Plowman from arguing an entrapment defense. The district court granted the motion. A jury then convicted Plowman of federal-funds bribery and attempted extortion under color of official right. Plowman argued on appeal that the court erred in prohibiting him from arguing entrapment to the jury.  The court held that the defendant failed to present sufficient evidence to justify an entrapment defense.  The defendant proffered only vague and conclusory information to establish inducement, rather than the type of specific evidence required.  Generalized summaries of FBI sting operations are not enough to meet the evidentiary threshold for making an entrapment defense.

The Supreme Court issued no opinions in criminal cases or new grants of certiorari this week. The Seventh Circuit issued one precedential opinion in a criminal case, as summarized below.

In United States v. Laraneta, ___ F.3d ___ (7th Cir. 2012; No. 12-1302), the Seventh Circuit decided several important issues related to awards of restitution for the victims of child pornography offenses. The district court awarded the two victims depicted in child pornography possessed by the defendant restitution in the amount of $3,367,854 and $965, 827.64 respectively. These same amounts had been awarded to the same victims in hundreds of other child pornography cases. The district judge, however, ordered that the amount one victim recovered from other defendants to be subtracted from what the defendant owed to her, but did not do so for the other victim. The victims intervened on appeal. The court first addressed whether the victims in this case were properly allowed to intervene. The court concluded that although such victims should not be allowed to intervene to protect their interests in the district court, they may do so on appeal. The court next held that the amount of restitution recovered from other victims should have been subtracted from the award for both victims, not just one. Regarding the amount of restitution, the now-adult victims premised their claims for restitution on costs of therapy, lost and expected to be lost income because of psychological damage that impairs their ability to work, and other items, all within the specific statutory definitions of victims’ compensable losses. The defendant argued that he should not have been held responsible for all of the victim’s losses, as he was only one of an unknown number of viewers. Looking to exactly what harm the defendant caused the victims, they argued that apportioning their harm among the numerous past, present, and future defendants was all but impossible. But the court disagreed. First, it was an open question of whether the defendant only uploaded the images or if he also then redistributed those images. If the court considered only his having seen those images, and imagine his being the only person to have seen them, the victims’ losses would not have been as great as they were. Think of a victim’s stalker, whose stalking of her, inspired by seeing her pornographic images, caused significant psychological harm that could not be attributed to the defendant in this case to the slightest degree if he never uploaded any of her images. All that’s clear, according to the court is that without a finding that the defendant was a distributor, it is beyond implausible that the victims would have suffered the harm they did had he been the only person in the world to view pornographic images of them. The case was therefore remanded for a redetermination not of the victims’ total damages, which were conceded, but of the portion allocable to the defendant. Additionally, the judge cannot make the defendant’s liability “joint and several,” which would then allow him to seek contribution from other contributors to the victims’ losses. Restitution in criminal cases is governed by statute, and the statute in question allows joint and several liability only if the court finds more than one defendant. There is only one defendant in this case, so joint and several liability was inappropriate.

The Supreme Court issued no new opinions and two grants of certiorari in criminal cases this week. 

The Seventh Circuit issued 4 precedential opinions in criminal cases this week, as summarized below.

In United States v. Schmidt, Jr., ___ F.3d ___ (7^th Cir. 2012; No. 12-1738), the court affirmed the district court’s denial of the defendant’s motion to suppress evidence which was premised upon an argument that the backyard of his home was curtilage and no exigent circumstances existed to allow the warrantless presence of officers in the backyard.  In May 2011, several Milwaukee police officers were investigating a series of gunshots that were heard near the intersection of South 10th Street and West Orchard Street. About an hour into the investigation, some of the officers learned that one person had been shot in the leg near that intersection and was recovering at a hospital. At around 1:00 a.m., an officer approached a backyard shared by two duplexes on 1420 South 10th Street and noticed bullet holes and a trail of about nine spent casings in the area, including five casings right next to one of the duplexes and a casing in the yard itself. Without a warrant, he entered the backyard and approached a corner of the yard, where he found and seized a rifle, which belonged to John E. Schmidt, Jr. Schmidt was subsequently indicted for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).  The Court of Appeals started its analysis by declining to rule on the question of whether the backyard was curtilage, noting that even if it was, the warrantless entry was justified by exigent circumstances.  Specifically, the assumed warrantless search of an area protected by the Fourth Amendment was overcome by the government because a reasonable officer could believe that someone in the backyard may have been shot and in need of immediate aid.  This inference was supported by the report of gunshots, one shooting victim from the events already having been discovered, and the shell casings found outside of the backyard. 

In United States v. Hardimon, ___ F.3d ___ (7^th Cir. 2012; No. 11-1821), the court affirmed the district court’s denial of the defendant’s motion to withdraw his guilty plea premised upon his argument that the psychotropic drugs he was taking at the time of his plea clouded his mind and made his plea involuntary.  At the guilty-plea hearing the judge asked the defendant whether he was “currently under the influence of any drugs, medicine, or alcohol,” and the defendant answered: “prescription medications.” The judge asked him whether “any of these medications affect your ability to think clearly,” and the defendant answered “no,” and also “no” to whether he had been “treated in the past 60 days for any addictions to drugs, medicine or alcohol of any kind.” But he answered “yes” to the next question—whether he’d been treated in the past 60 days for “any mental disorders, mental defects, or mental problems.” The judge asked him to explain, and he replied that he was taking medicines for “high anxiety, depression, adult attention hyperactivity disorder, and depression.” At “therapeutic level?” the judge asked, and the defendant said “I believe so, yes.” The judge asked the defendant whether he thought the drugs were working and he said, “I believe the ADHD [attention deficit hyperactivity disorder—the disorder that he called ‘adult attention hyperactivity disorder’] medicine makes me concentrate more. It does cause quite a bit of anxiety, so they have given me something else to help the anxiety a little bit, but it [the ADHD medicine] definitely increases my alertness.” In answer to further questions the defendant assured the judge that he was “thinking clearly,” “capable of making decisions, serious decisions,” such as pleading guilty to the 15- count information that the government had filed against him, and that he had no “physical conditions or problems that affect” his “ability to think clearly.” The judge then proceeded with the usual questions in a plea hearing, received the usual answers, and accepted the plea of guilty. Six weeks later the defendant moved to withdraw the plea, explaining that he had been taking Prozac to treat his mental illnesses but that a week after the plea hearing his primary-care physician had switched him to Lexapro and “almost immediately” he experienced “increased alertness, awareness and attentiveness” and realized that at the plea hearing he had been “incapable of understanding the true nature of the charges against him . . . and the consequences of his plea.”  Both the district court and the Court of Appeals rejected this argument.  The court noted that the drugs the defendant took are taken by millions of people and it should not just be assumed that someone can’t think straight because they are taking them.  Rather, to make a case for withdrawal of a plea, the defendant needs to present the affidavit of a qualified psychiatrist describing the possible effects of the drugs in the dosages prescribed and indicating that the defendant’s ability to think was materially impaired.  Here, the judge’s inquiries at the plea hearing were adequate and revealed no impairment of the defendant.  Accordingly, the bare assertion that the defendant was on medication which he claimed to alter his thinking was not enough to establish the plea was involuntary. 

In United States v. Hible, ___ F.3d ___ (7^th Cir. 2012; No. 11-2574), the court held that the Defendant waived his right to argue that he should have been sentenced under the Fair Sentencing Act.  At the defendant’s post FSA plea hearing, he asserted that he should be sentenced under the FSA which altered his mandatory minimum for 10-years to no mandatory minimum at all.  The PSR first calculated the defendant’s total offense level under 2D1.1, which was a 39.  The report also calculated the defendant’s career offender offense level, assuming the FSA did not apply, which resulted in a total offense level of 34.  Had the FSA applied, the total offense level under the Career Offender Guideline would have only been 31.  Because the level under 2D1.1 was higher than the career offender guideline, the PSR recommended using the drug guideline to sentence the defendant.  After the defendant then objected to the drug quantity contained in the PSR which resulted in the recommended total offense level of 39, the government countered that use of the advisory career offender level (the higher non-FSA one) was appropriate to use to sentence the defendant, rather that the 2D1.1 level.  At sentencing, the defendant indicated he had no objection to the career offender guideline as calculated under the law as it existed prior to the FSA.  The court then reaffirmed that the defendant withdrew his objections to the PSR in light of the fact that the court would use the career offender guideline.  On appeal, the defendant argued that, in light of Dorsey, the FSA applied to his case and he should have been sentenced under the lower career offender level which resulted from application of the FSA.  He maintained that his objection at the plea hearing was enough to preserve the objection.  The court concluded that the defendant waived any such challenge.  His objection at the plea hearing demonstrated that he knew of the impact of the FSA on his case.  Yet, at sentencing, he did not assert a right to be sentenced under the FSA.  Indeed, he affirmatively withdrew all his objections—a conscious, strategic decision made to avoid a hearing on relevant conduct and the potentially higher offense level calculated under the drug quantity guideline.  Therefore, the court affirmed the defendant’s sentence.  PRACTICE NOTE:  Yet another example of a failed attempt to preserve an issue for appeal.  At our recent seminar in Rock Island, Dan Hansmeier of our office gave a presentation on properly preserving issues for appeal.  The video of the presentation will soon be available for viewing, and I’ll send out notice on this Listserv with instructions on how to do so soon.   

In United States v. Natour, ___ F.3d ___ (7^th Cir. 2012; No. 11-2577),  Sami Natour was convicted, following a jury trial, of four counts of interstate transportation of stolen property in violation of 18 U.S.C. § 2314. At sentencing, the district court attributed to him a loss amount of approximately $292,000 and determined that he was “in the business of receiving and selling stolen property,” U.S.S.G. § 2B1.1(b)(4); these conclusions resulted in a 14-level increase to Mr. Natour’s  base offense level under the Guidelines. See U.S.S.G.  §§ 2B1.1(b)(1)(G), (b)(4). The district court sentenced Mr. Natour to 28 months’ imprisonment on all counts, to run concurrently, and ordered restitution in the amount of $104,742.16.  The defendant appealed both his conviction and sentence.  First, the defendant argued that the evidence and the jury instructions impermissibly broadened the indictment in violation of his rights under the Grand Jury Clause, the indictment being constructively amended to include additional offense conduct beyond the language of the indictment.  Reviewing for plain error, the court looked at the statute of conviction, the indictment, and the jury instruction.  The statute reads: “ Whoever transports, transmits, or transfers in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud . . . [s]hall be fined under this title or imprisoned not more than ten years, or both.” (Emphasis added). The indictment alleged “knowing,” but the defendant claimed the government proceeded on the “taken by fraud” theory.  Moreover, the jury instruction used the language in the statute, rather than that in the indictment. The court concluded that the most natural reading of the statute views the three descriptive terms as containing a significant amount of overlap and that “stolen” is broad enough to encompass the kind of fraudulent taking the evidence supported in this case.  Thus, no constructive amendment occurred.  Regarding sentencing, the court rejected the defendant’s challenge to a 2-level enhancement for being “a person in the business of receiving and selling stolen property” under U.S.S.G. §2B1.1(b)(4).  In light of the fact that the defendant was convicted of making four large shipments of illegally obtained phones in less than one month, the enhancement clearly applied.  The court also rejected the defendant’s challenge to the amount of loss.

The Supreme Court issued no opinions in criminal cases this week.  The Court granted certiorari in two criminal cases.  In Trevino v. Thaler, (11-10870), the Court will consider the following question:  “Whether the Court should vacate the Court of Appeals’ opinion and remand to the Court of Appeals for consideration of Mr. Trevino’s argument under Martinez v. Ryan?”  The case involves a plea to give convicted individuals a new chance to claim that their defense lawyers in state court failed to perform adequately. That is an issue that arose in the wake of last Term’s decision in Martinez v. Ryan. Thaler involves whether the Ryan precedent applies to death penalty cases in general, and to such cases in Texas in particular.  The second grant of certiorari was in McQuiggin v. Perkins, (12-126), addressing the following question:  Whether, under the Antiterrorism and Effective Death Penalty Act of 1996, there is an actual-innocence exception to the requirement that a petitioner show an extraordinary circumstance that “prevented timely filing” of a habeas petition, and if so, whether there is an additional actual-innocence exception to the requirement that a petitioner demonstrate that “he has been pursuing his rights diligently.”

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

In United States v. Fluker, ___ F.3d ___ (7^th Cir. 2012; No. 11-1013), the defendants were found guilty after a jury trial of charges related to their participations in various, fraudulent, Ponzi-like schemes that duped victims into investing millions of dollars into programs that were destined to fail.  All defendants challenged three evidentiary rulings made by the district court.  First, in a civil action initiated by the Illinois Attorney General, one of the defendants signed a Consent Order wherein be acknowledged that he failed to disclose material information to his victims regarding the fraudulent investment schemes he was offering to them.  Over the defendants’ objection, the Consent Order was admitted into evidence, along with an instruction that it could only be used against the defendant who entered into the Consent Order. The court held that the issue has been waived, noting that after the defendant lost his motion in limine, he actually stipulated to the admission of the Consent Order.  Second, one of the defendants had prior convictions for larceny and uttering a forged check.  Although the defendant challenged the admission of these prior convictions, the court noted that the defendant actually admitted the fact of the prior convictions on direct examination.  Although done as a way to limit the damage from the introduction of the priors after the court denied the defense motion in limine to exclude them, the fact that the defendant elected to introduce them himself constituted a waiver.  The final evidentiary challenge related to emails introduced between one of the defendants and some victims.  The defendants argued the emails were not properly authenticated and were inadmissible hearsay.  At trial, the government sought to authenticate the emails through circumstantial evidence based upon a number of surrounding facts, which the court found to be sufficient. As to the hearsay objection, the court concluded that the emails were not offered for the truth of the matter asserted, but rather to show context.  One defendant also argued that the court improperly gave an Ostrich instruction. The court held that the instruction was proper, given that the defendant maintained through the trial that she had no knowledge of the scheme in question being a scam.  Finally, the court rejected in short order a number of routine guideline enhancements relating to role in the offense, criminal history, and calculation of loss.

In United States v. White, ___ F.3d ___ (7^th Cir. 2012; No. 11-2150), the defendant was convicted after a jury trial of soliciting the commission of a violent federal crime against a juror in violation of 18 U.S.C. §373.  The alleged solicitations at issue were messages that White posted to a website that he created to advance white supremacy, which included White’s 2005 statement that “[e]veryone associated with the Matt Hale trial has deserved assassination for a long time,” and his 2008 publication of information related to the foreperson, “Juror A,” of the jury that convicted Hale. The 2008 post disclosed Juror A’s home address and mobile, home, and work phone numbers, though it did not contain an explicit request for Juror A to be harmed.  After trial, the court granted the defendant’s motion for judgment of acquittal, finding that the defendant’s blog posts were not objective solicitations and nothing on the website transformed them into solicitous instructions.  The Court of Appeals reversed the judgment of acquittal.  It found that a reasonable jury could have found that the defendant was in fact soliciting violence against the juror.  When viewing such evidence, the context and the audience is important. The blog posted the juror’s picture, personal information, address, and telephone number. The only thing missing was an explicit solicitation to murder the juror, but such a solicitation need not be explicit if the context and circumstances show that the posts were in fact solicitations to murder.  Though the government did not present a specific “solicitee,” it was unnecessary to do so given the very nature of the solicitation—an electronic broadcast which, a reasonable jury could conclude, was specifically designed to reach as many white supremacist readers as possible so that someone could kill or harm Juror A. 18 U.S.C. § 373 requires proof of intent “that another person” commit the felony, and White’s desire for any reader to respond to his call satisfies this requirement. 

The Supreme Court did not grant any new petitions in criminal cases this week, and it issued no new opinions in criminal cases this week.  For a complete list of criminal issues pending in the Supreme Court, click HERE.

 The Seventh Circuit issued one precedential opinion in a criminal case this week so far, as summarized below.  I also missed a case decided last week, which is also summarized below.

 In United States v. Adams, ___ F.3d ___ (7^th Cir. 2012; No. 11-3707), the defendant was sentenced as an Armed Career Criminal.  On appeal, the defendant argued that his civil rights had been restored on two of his qualifying prior convictions, such that he was not an Armed Career Criminal.  At the time the defendant was sentenced for his priors in Illinois, Illinois law provided that felons lost their right to possess firearms for the duration of their confinement plus five years.  Had this law remained in effect, the defendant could have regained his right to possess firearms.  However, before the defendant was released from confinement, Illinois changed the law to provide a permanent ban on firearm possession unless the Director of the Illinois State Police expressly gives permission to a felon to possess a firearm.  According to the court, because the law was changed before the defendant ever regained his right to possess a firearm, his right to possess a firearm was never “restored,” thereby making his prior convictions qualifying felonies.  Although the defendant argued that the court should look to the statute in effect at the time of the prior conviction to avoid confusion prompted by a later change in the law, the court concluded that post-conviction statutory changes are just as relevant to the question of whether civil rights have been restored.   PRACTICE NOTE:  The court here seems to concede that Melvin and Walden should be reconsidered for an individual who actually had his right to possess a firearm restored.  Accordingly, if you have a pre-1985 conviction, you might want to investigate the release date to determine if the individual was every able to legally possess a firearm.  If he was, you should raise the issue in the district court, as this opinion seems to suggest that a defendant whose rights were actually restored by operation of statute may be able to knock that prior felony out for ACCA purposes. 

 In United States v. Ousley, ___ F.3d ___ (7^th Cir. 2012; No. 11-2760), the court rejected an argument that a mandatory life sentence for a dealer who possess a smaller quantity of crack cocaine than the quantity of powder cocaine necessary to trigger a similar life sentence for powder cocaine dealers violates the Eighth Amendment’s prohibition against cruel and unusual punishments.  Ousley’s argument relied upon the premise that there is a national consensus against crack and powder cocaine sentencing disparities and on the fact that the statute mandates a life sentence in cases like his. Ousley protested that a mandatory sentence necessarily precludes the sentencing court from performing a particularized assessment of the character and record of the offender to determine whether a life sentence is appropriate.  The court noted that prior Supreme Court precedent in Harmelin and Ewing unmistakably foreclose the defendant’s argument.  Although the defendant argued that the Supreme Court’s decisions in Graham and Miller gave the court of appeals freedom to ignore the prior Supreme Court precedents, the court noted that it had already held that the prior Supreme Court precedents were not abrogated by the new cases.  United States v. Cephus, 684 F.3d 703, 709 (7^th Cir. 2012).

The Supreme Court granted no new petitions for certiorari in criminal cases this week, and it issued no new opinions in criminal cases this week.

The Seventh Circuit issued two precedential opinions in a criminal case this week, as summarized below.

In United States v. Wilson, ___ F.3d ___ (7^th Cir. 2012; No. 12-1878), the defendant was convicted after a jury trial of assault resulting in serious bodily injury, arising from an incident between the defendant and another incarcerated inmate.  The court rejected the defendant’s arguments that he did not inflict “serious” bodily injury on his victim and that the judge improperly refused a self-defense instruction. The court noted that the four sub-definitions have added confusion, rather than clarity, to the definition of “serious bodily injury.”  Those definitions are:  substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.  Under the facts of this case, where the defendant kicked and stomped his victim while wearing steal toed boots, the court concluded that all of these four sub-definitions were met.  The court also concluded that there was absolutely no evidence to support a self-defense instruction.

In United States v. Quinn, ___ F.3d ___ (7thCir. 2012; No. 12-2260), the Seventh Circuit reversed the district court’s imposition of a lifetime term of supervised release in a child pornography case.  Although the lifetime term of supervision was allowed by statute and recommended by the government, the court held that the district court was required to consider serious arguments below the recommended term.  At sentencing, the defendant presented extensive psychological evidence to show that the defendant was not a risk to reoffend or commit any other types of crimes against children.  However, the district court neither commented on the defendant’s arguments nor its reason for imposing the length of the term of the other conditions imposed.  In finding this failure to comment on the defendant’s argument as error, the court also noted that 0n remand the judge should consider not only how Quinn’s arguments about recidivism affected the  appropriate length of supervised release, but also the interaction between the length and the terms of supervised release. The more onerous the terms, the shorter the period should be. One term of Quinn’s supervised release prevented contact with most minors without advance approval. Quinn has a young child, whom he had never been accused of abusing. Putting the parent-child relationship under governmental supervision for long periods (under this judgment, until the son turns 18) requires strong justification, according to the court.  Finally, the court noted that although district judges can reduce the length of supervised  release, or modify its terms, at any time, 18 U.S.C. §3583(e)—an opportunity that may lead a judge to think that uncertainties at the time of sentencing should be resolved in favor of a long (but reducible) period—still this is a subject that requires an explicit decision by the judge after considering the defendant’s arguments. The judge also should consider the possibility of setting sunset dates for some of the more onerous terms, so that a defendant can regain more control of his own activities without needing a public official’s advance approval, while enough supervision remains to allow intervention should the defendant relapse.

The United States Supreme Court issues no new opinions this week, but there was one important grant of certiorari.  Specifically, in Alleyne v. United States, No. 11-9335, the Court agreed to consider the following issue: "Whether this Court's decision in Harris v. United States, holding that the Constitution does not require facts which increase a mandatory minimum sentence to be determined by a jury, should be overruled."  As noted via the Listserv earlier in the week, for more information on this case, go to this link: http://www.scotusblog.com/case-files/cases/alleyne-v-united-states/?wpmp_switcher=desktop.  If you have a case where the district judge finds the facts by a preponderance of the evidence at sentencing for application of the mandatory minimum, preserve this issue, file a notice of appeal, and ask the court of appeals to stay your case until a decision in Alleyne. Keep your case open until a decision in Alleyne is issued.

The Seventh Circuit issued one precedential opinion in a criminal case this week, as summarized below. 

In United States v. Owens, ___ F.3d ___ (7th Cir. 2012; No. 12-1918), a jury convicted Dominick Owens, a City of Chicago zoning inspector, of two counts of federal program bribery, 18 U.S.C. § 666(a)(1)(B), for accepting two $600 bribes in exchange for issuing certificates of occupancy for four newly constructed homes. On appeal, Owens challenged the sufficiency of the evidence regarding whether the issuance of the certificates of occupancy had a value of $5,000 or more as required by § 666(a)(1)(B). The court found insufficient evidence from which a jury could find guilt beyond a reasonable doubt on this element and reversed.  The statute in question requires that the transaction related to the bribe have a value of $5,000 or more.  In other words, the subject matter of the bribe, not the bribe itself, must have a value of at least $5,000.  Here, the subject matter of the bribes were the issuance of four certificates of occupancy.  Admittedly, the certificates in this case were not easy to value.  In such a case, one approach is to look to the amount of the bribe itself, as the amount of the bribe can serve as a proxy for the value of the subject matter of the bribe.  Here, however, such a technique did not benefit the government, as the total amount of the bribes in this case totaled only $1,200. Another approach to valuing the subject matter of the bribe is by looking to the value of the benefit the bribe giver will receive if the bribe is successful. The Government presented mortgage documents showing that the homeowners received mortgages with notes ranging from $200,000 to over $600,000 to purchase the four homes, and zoning documents indicating that the construction costs for each home were estimated to be between $180,000 and $250,000. According to the Government, the mortgage values and construction costs for the homes, “coupled with the fact that homes could not be occupied without certificates,” permitted “the reasonable inference that the certificates involved something valued at $5,000 or more.”  The court disagreed, noting that the government failed to present any evidence that the issuance of the certificates via bribes benefited the developers or homeowners in some way that issuance of the certificates through legitimate means would not have.  Therefore, the court reversed the conviction, finding that the government failed to prove that the subject matter of the bribes was $5,000 or more. 

The Supreme Court began its new term this week.  The Court granted to one new petition for certiorari in a criminal case at the start of the term.  In Missouri v. McNeely, No. 11-1425, the Court will consider the following question:  Whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream?  For more information about this case, visit the SCOTUS Blog page on this case HERE.  My "List of Criminal Case Issues Currently Pending in the United States Supreme Court," available HERE, has been updated to include this case.

The Seventh Circuit issued 2 precedential opinions in criminal cases this week, as summarized below.

In United States v. Smith, ___ F.3d ___ (7th Cir. 2012; No. 11-2128), the defendants were convicted after a jury trial of bank robbery, 924(c), and 922(g) offenses.  They challenged the denial of a motion to suppress, several evidentiary rulings, and their sentences on appeal.  First, the defendant argued that evidence recovered from the car he was driving when stop and arrested by police should have been suppressed.  The police attempted to stop the defendant's car based upon information that the car was involved with the bank robbery.  When the police attempted to stop the car, the defendant sped away, eventually crashing his car.  The court held that the car was permissibly searched for two reasons.  First, pursuant to the Supreme Court's decision in Arizona v. Gant, the “[p]olice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within
reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.”  Here, the defendant was properly arrested and there was reason to believe that the car contained evidence related to the bank robbery.  Secondly, given that the police had to tow the damaged car away, any evidence would also have been properly discovered as part of an inventory search.  The co-defendant in the case also argued that he was arrested without probably cause.  Specifically, when the defendant's car initially stopped prior to the police chase, the co-defendant exited the car.  Police then drew their weapons and, when the car sped office, handcuffed the defendant for 10 minutes until other officers could arrive with photographs of the bank robbers to confirm that the co-defendant was one of the robbers.  The court held that this initial seizure was merely a Terry stop for which the police had sufficient reasonable suspicion.  Officers conducting an investigatory stop may approach with guns drawn and may handcuff a suspect without transforming an investigatory stop into an arrest. Here, it was entirely reasonable for officers to approach the car with guns drawn because they had been directed to consider the bank robbers “armed and dangerous” and because they knew the bank robbery had involved a gun. Similarly, it was entirely reasonable  to use handcuffs to securely detain the co-defendant during the brief ten minutes when the officer was left alone on a public street street—both to protect himself and the public at large.  Next, the defendant's challenged the admission of expert testimony by an FBI Examiner concerning footprint impressions left at the scene of the bank robbery, arguing that the footwear impression analysis was not grounded in reliable scientific facts, data, and methodology as required by Fed. R. Evid. 702.The court rejected this argument, noting that it had previously held that such footwear impression analysis was admissible.  See United States v. Allen, 390 F.3d 944, 949-50 (7th Cir. 2004).  The court reaffirmed its holding in Allen.  Next, the court rejected one of the defendant's challenge to his 924(c) conviction.  Although the defendant did not personally possess the weapon used in the bank robbery, Pinkerton allows conviction in such a circumstance where a co-conspirator used or carried a firearm during and in relation to the conspiracy, if the evidence shows that it was reasonably foreseeable to the defendant that a member of the conspiracy would possess a gun in furtherance of the conspiracy. Although the use of a firearm may not be reasonably foreseeable in every case, the facts here clearly established to all the bank robbers knew a firearm would be used, thereby satisfying the Pinkerton standard.  Finally, one of the defendant's challenged his sentence, arguing that an enhancement for making a threat of death and another for physical injury were improper, where the conduct in question was engaged in by another defendant and not the defendant personally.  Because the conduct was reasonably foreseeable to the defendant, the enhancements were proper. 

In United States v. Gaona, ___ F.3d ___ (7th Cir. 2012; No. 12-2039), he defendant entered into a plea agreement that required the government to refrain from making a specific sentencing recommendation. On appeal, the defendant contended the government breached the plea agreement and sought specific performance of that agreement before a different judge. Finding that the defendant  waived her objection to any breach of the plea agreement, the court affirmed.  The parties' agreement provided, “The government will not make a specific sentencing recommendation, but is free to present all facts to the court.”  However, at sentencing, when defense counsel argued for probation and noted that the government was not asking for a sentence including imprisonment, the government interjected and stated that it did not think a probationary sentence was appropriate.  When defense counsel objected, the government argued that it did not breach the plea agreement, but that it would not object if the defendant wished to withdraw her plea.  Counsel noted the defendant did not want to withdraw her plea, but she did seek specific performance of the agreement.  The court then granted a recess to allow the defendant to consider her options.  When court reconvened, defense counsel indicated that the defendant wished to proceed, and she was therefore sentenced to a term of imprisonment.  The court held that the defendant's indication that she wished to proceed with sentencing, after the 3-day recess for her to consider her options, constituted a waiver.  Specifically, the district court gave the defendant three days to consider how to proceed after hearing the government’s characterization of her conduct and its clarification comments. She unequivocally said “Yes” when asked whether the district court should continue with the sentencing. Defense counsel did not move to withdraw the plea or ask for another judge to sentence the defendant. The district court sentenced her in accordance with her wishes: to be sentenced on that day, by that particular judge. A party cannot later challenge exactly what it asked the court to do.  This was, according to the court, a waiver in its simplest sense. 

The Seventh Circuit issued 3 precedential opinions in criminal cases this week, as summarized below.

In United States v. Vallone, ___ F.3d ___ (7th Cir. 2012; No. 08-3690), the court addressed several issues in a 199 page opinion arising out of a multi-defendant case involving charges of conspiring to defraud the United States by impeding and impairing the functions of the IRS and to commite offenses against the United States, along with related fraud and tax offenses.  The charges stemmed from trust packages marketed and sold by Aegis.  Although the system of trusts was portrayed as a legitimate, sophisticated means of tax minimization grounded in common law, the system was in essence a sham, designed solely to conceal a trust purchaser's assets and income from the IRS.  Customers appeared to sell their assets to several trusts when, in fact, customers never really ceded control of their assets.  The defendant's first made a Speedy Trial Act claim, which the court rejected on grounds that the Defendant's had waived any such claim and that, furthermore, the court's ends-of-justice findings were adequate.  The defendants also argued that the district court improperly barred them from presenting a Cheeks defense, i.e. a claim that the had a good faith belief in the legality of their actions by barring the defendant's from presenting evidence to demonstrate that the trusts were in fact legal, thereby negating the mens rea  of "intentional" regarding the tax charges.  The court, however, noted that the legality of the trust system was not a question of fact for the jury; it was a question of law which had already been determined in a number of court decisions which predated the trial.  The defendant's had ample notice that their trust system was illegal.  There are countless other issues in this case, but all of them involve well established law to the particular facts of this case.  Thus, the case doesn't add much to, and certainly doesn't change, any existing law.  PRACTICE NOTE:  This case is a classic example of what we learned in law school; limit the number of issues you raise in a brief.  If you raise countless issues, the legitimacy of your good issues is minimized and the amount of time the court's attention is dissipated among too many issues.

In United States v. Spears, ___ F.3d ___ (7th Cir. 2012; No. 11-1683), the defendant was charged with various crimes stemming from his business of making and selling various counterfeit documents, including fake Indiana driver's licenses and handgun permits.  The defendant first challenged his convictions for aggravated identity theft, arguing that he did not "transfer a means of identification of another person" as required by the statute, but rather  merely transferred identifying information to its rightful owner, albeit in the form of a fraudulent handgun permit.  Specifically, the defendant sold his customer a fraudulent handgun permit bearing her own identifying information, which she then used in an attempt to buy a firearm.  The court concluded that although this conduct was not theft as colloquially understood, given that the information was given to the defendant by the victim for the express purpose of creating the false document, the conduct still fell within the literal terms of the statute.  Section 1028A(a)(1) captures more than misappropriation of another person's identifying information; a person commits the offense when he "knowingly transfers, . . . without lawful authority, a means of identification of another person" during or in relation to a predicate felony."  The defendant committed this conduct when he knowingly and without lawful authority sold his customer a fraudulent handgun permit containing her own identifying information and she used it to try to buy a firearm.  The court did, however, find the evidence insufficient to sustain the defendant's conviction for unlawful possession of five or more false identification documents.  Here, the government introduced six possibilities, all of which either depict or resemble Indiana driver's licenses.  Two of the documents, however, were only photocopies of apparently fake driver's license; they do not appear to be issued by the
State of Indiana, nor were they documents commonly accepted for identification purposes.  Likewise, three others are so clearly incomplete or obviously unprofessional that they do not appear to be issued by the State.  To meet the definition in the statute, the proffered documents must at a minimum appear to a reasonable person of ordinary intelligence to be issued by or under the authority of the government, which the document in this case did not do given their quality.

In United States v. Kindle, ___ F.3d ___ (7th Cir. 2012; No. 10-3725), the court affirmed the district court's grant of the government's motion to preclude the defendant's entrapment defense, over the dissent of Judge Posner.  The defendant was charged along with several other defendants with conspiring to steal cocaine from a fictitious "stash house," along with several other crimes.  The charges stemmed from a sting operation, where the government CI claimed there a stash house with 20 to 30 kilograms of cocaine there at any given time.  The CI suggested the defendant and others rob the stash house, and the defendant took the bait.  The defendant and his confederates were thereafter arrested.  To make an entrapment claim, a defendant must show both that the government induced him to commit a crime and that he was not otherwise predisposed to commit that crime.  The court concluded that the defendant failed to meet his burden of showing that he was not predisposed, and therefore did not reach the inducement issue.  Specifically, the defendant had several prior convictions for crimes such as burglary, armed robbery, and armed vehicle hijacking. This was enough to show pre-disposition.  Judge Posner in dissent, however, noted that the defendant had never before robbed a stash house and had never before been convicted of a drug offense.  Although the defendant had the prior convictions noted in the majority opinions, his last conviction was in the 1990s, he being released from prison in 2005, four years before the conduct in this case.  Likewise, since his release the defendant had been a productive citizen and was age 41--an age at which many criminals have "aged out" of violent crimes.  All of these facts were enough to send the issue to the jury for it to make a determination, rather than being precluded by the district court.  PRACTICE NOTE:  Although Judge Posner's dissent is not binding authority, it contains a very thorough analysis of the entrapment defense which is worth consulting whenever one has an entrapment issue.  While it is a dissent, there is no disagreement with the majority as to the correct state of the law, but rather the application of the facts to the law in this case.  Thus, his reasoning would still have some force in making an argument before the court. 

The Seventh Circuit issued 3 precedential opinions in criminal cases this week, as summarized below.

In Dowell v. United States, ___ F.3d ___ (7th Cir. 2012; No. 10-2912), the court held that the defendant's waiver in his plea agreement of his right to collaterally attack his sentence did not preclude him from arguing that his trial counsel was ineffective for failing to file a notice of appeal.  The defendant entered into a plea agreement that waived his right to appeal his conviction and sentence, except for the specifically reserved issue of whether he was a career offender.  In his collateral attack, the defendant claimed he asked his counsel to file a notice of appeal on the career offender, but counsel failed to do so.  The government successfully argued in the district court that the waiver of the right to collaterally attack the sentence barred the defendant's claim.  The Court of Appeals held that the scope of the waiver in this case did not include a lawyer's failure to file a notice of appeal.  The plea agreement specifically reserved the right to appeal the career offender determination.  Such a specific reservation of that right necessarily includes a meaningful opportunity to exercise it, which includes the assistance of counsel in filing the appeal.  Therefore, the court held that "[w]hen counsel does not provide effective assistance by failing to file a notice of appeal of an issue specifically reserved for appeal in the plea, a petitioner must be able to use a collateral attack to save the appeal from being lost due to counsel’s failure to do what he was requested."  PRACTICE NOTE:  A welcome exception to what can be waived in a plea agreement; a waiver of the right to collaterally attack a sentence does not extend to a claim of IAC for failing to file a NOA of an issue specifically reserved in the plea agreement. 

In United States v. Chapman, ___ F.3d ___ (7th Cir. 2012; No. 11-3619), the court of appeals rejected the defendant's arguments that the district court failed to evaluate or adequately explain it reasons for denial of his 3553(a) arguments.  The defendant was sentenced for producing child pornography, stemming from his luring kids to his home as young as 12, giving them drugs and alcohol, and then filming them engaging in sexual activity.  At sentencing, the defendant did not present new evidence nor testify.  Rather, he relied on information in the PSR suggesting that the defendant had a very difficult childhood, including sexual abuse, drug use, and poverty.  He also noted that the defendant was not a mass producer or mass distributor of child pornography, was remorseful, had a solid work history, and had no prior convictions.  The defendant asked for 15 years--the mandatory minimum--and the government asked for 60 years.  The court imposed a sentence of 40 years, although the guideline range was Life.  After reviewing the sentencing transcript, the court concluded that the district court sufficiently considered each of the mitigating factors requiring a response and adequately explained its reasons for rejecting those factors.

In United States v. Williams, ___ F.3d ___ (7th Cir. 2012; No. 12-1871), the Seventh Circuit clarified that in some circumstances, a career offender may benefit from the retroactive amendment to the crack cocaine guideline.  Although United States v. Forman, 553 F.3d 585, 589 (7th Cir. 2009), holds that "Amendment 706 provides no benefit to career offenders, that statement is "imprecise."   Specifically, no all career offenders are sentenced on the basis of the offense levels in the career-offender guideline.  Some defendants, although career offenders, are sentenced using 2D1.1 because the Total Offense Level resulting from that guideline is higher than that under the career offender guideline.  In such cases, an amendment to 2D1.1 may lower a defendant's sentence at least to an amount no less that that provided by the career offender guideline.  The court went on to note, however, that Forman is "generally correct," as it could find only one published case where a career offender actually received a reduced sentence because he was sentenced under 2D1.1 instead of the career offender guideline.  PRACTICE NOTE:  This case provides an important, and long overdue, clarification of the applicability of Amendments 706 and 750 to career offenders.  There is no bar to career offenders from receiving a reduction simply because of the career offender status.  Rather, career offenders are not generally eligible for a reduction because Amendments 706 and 750 do not lower the career offender level, but instead only 2D1.1.  However, in those cases where a career offenders were sentenced pursuant to 2D1.1 because that guideline yielded a higher offense level, such defendants may still receive a reduction at least down to the level provided by the career offender guideline. 

The Seventh Circuit issued 4 precedential opinions in criminal cases this week, as summarized below.

In United States v. Williams, ___ F.3d ___ (7th Cir. 2012; No. 11-1002), the court rejected the defendant's argument that former lawyer violated his Sixth Amendment right to effective assistance of counsel when when he testified against the defendant at trial.  The defendant went to trial on a charge of armed bank robbery and use of a firearm during a crime of violence.  The lawyer testified that Williams had mailed him an envelope marked “legal mail” (so that it would not be opened by the jail) that contained a sealed letter addressed to a cousin of Williams and a note asking the lawyer to forward the letter to Williams’s family to give to the cousin. The lawyer was suspicious and read the letter. It instructed the cousin to provide an alibi for Williams by testifying that Williams had been involved in a marijuana deal on the day of the robbery. Realizing that Williams was trying to obstruct justice by asking the cousin to provide him with a false alibi, the lawyer did not forward the letter. Instead, with the judge’s permission the lawyer withdrew as Williams’s counsel, turned the letter over to the government, and agreed at the government’s request to testify at Williams’s trial. He testified that the letter was a “blatant attempt to get me involved in smuggling something out of the jail that in turn would be a potential instrument for obstruction.”  The court first noted that there was no violation of the lawyer-client privilege because when information is transmitted to an attorney with the intent that the information will be transmitted to a third party, such information is not confidential.  Regarding the lawyer's ethical obligations to his client, the Northern District of Illinois Local Rule that governed this situation at the time permitted a lawyer to “reveal . . . the intention of a client to commit a crime,” N.D. Ill. L.R. 83.51.6(c)(2), although it did not require him to do so unless “it appear[ed] necessary to prevent the client from committing an act that would result in death or serious bodily harm.” Id. at 6(b) (note that the current rule has different language).  According to the court, this rule placed on limitations on a lawyer's reporting the intention of his client to commit a crime.  Although a lawyers minimum duty is to first try to dissuade a client from his criminal conduct, nothing requires the lawyer to try and do so, and he may instead elect to immediately withdraw and reveal the defendant's intention to commit a crime to the court.  Finally, even if the defendant violated his duty to his client, exclusion of the evidence is not a proper remedy.  Here, the ability to report the misconduct to the ARDC was a sufficient deterrent to attorney misconduct, and in light of this available remedy, the application of the exclusionary rule was not necessary.  Exclusionary rules should be reserved for cases in which there is no alternative method of deterrence.  Finally, the court noted that the evidence in the case was overwhelming without the lawyer's testimony.  Judge Hamilton filed a cogent and well-reasoned dissent.  PRACTICE NOTE:  It appears that the current version of Local Rule 83.51.6(c)(2) would not have allowed defense counsel to make the revelations he made in this case.  Regardless, the best practice, as advocated by the dissent, is always to attempt to dissuade a client from his criminal intentions first.  Going to the court and revealing the client confidence should always be the last resort.

In United States v. Doyle, ___ F.3d ___ (7th Cir. 2012; No. 11-3077), a jury found Doyle guilty of distributing a controlled substance that resulted in death. Doyle appealed his conviction, challenging the admission of a medical examiner’s findings form without the opportunity to cross-examine the author of that form.  At trial, the Government needed to prove that Doyle provided the heroin that killed the victim and that the heroin he provided was the sole cause of death. To prove that it was heroin—and heroin alone—that caused the victim's death, the Government put two expert witnesses on the stand. The first was Dr. Christopher Long, a toxicologist, and the second was Dr. Phillip Burch, the St. Louis Deputy Chief Medical Examiner. During direct examination of Dr. Burch, the Government began laying a foundation to admit into evidence the Medical Examiner’s Post Mortem Report. At that point, Doyle’s counsel, with the intention to “help things along,” stated that he had no objection to any of the Government’s medical reports coming in as evidence. So with no challenge by Doyle, the district court admitted into evidence all of the Government’s medical exhibits. Included in those exhibits was Exhibit 95f, the Medical Examiner’s findings form. The findings form, which is the subject of the appeal, was created by Dr. Timothy Dutra and contains notes—presumably Dr. Dutra’s, although it was not known for certain—concerning the victim’s cause of death. The form had a scratch-out on it. The form lists “Acute heroin and cocaine intoxication” (emphasis added) as the cause of death, but the words “and cocaine intoxication” are crossed out. On appeal, Doyle argued that the admission of the findings form without the testimony of its author, Dr. Dutra, violated his Sixth Amendment right to confrontation. Reviewing the issue for plain error, the court assumed the findings form was testimonial, that its admission was a plain error, and decided only the question of whether the defendant's substantial rights were affected.  To do so, the defendant was required to show that, but for the Confrontation Clause error, the outcome of the trial probably would have been different.  He could not make such a showing.  The evidence presented at trial overwhelmingly established that Ward died from a heroin overdose and that cocaine did not contribute to his death, and the defendant could therefore could not show a violation of his substantial rights.  PRACTICE NOTE:  This case is yet another good example of the need to properly preserve objections.  Had a proper objection been made, the court could not have avoided the issue on whether a Crawford violation in fact existed (which it surely did), and look only to the weight of the evidence.  The failure to object transformed a fairly decent issue into a sure loser. 

In United States v. Robers, ___ F.3d ___ (7th Cir. 2012; No. 103794), the the defendant pleaded guilty to conspiracy to commit wire fraud in violation of 18 U.S.C. § 371, based on his role as a straw buyer in a mortgage fraud scheme; Robers signed mortgage documents seeking loans which were based on false and inflated income and assets and based on his claim that he would reside in the houses as his primary residence and pay the mortgages. The loans went into default and the real estate which served as collateral for the loans were later foreclosed upon and resold. For his role in the scheme, the district court sentenced Robers to three years’ probation and ordered him to pay $218,952 in restitution to the victims—a mortgage lender of one property and the mortgage insurance company which had paid a claim on the other defaulted mortgage. The MVRA that where property has been returned to a victim, the defendant pay restitution "less the value (as of the date the property is returned) of any part of the property that is returned, i.e. "offset value."  The dispute in this case concerned the calculation of the “offset value.” Robers argued that the MVRA requires the court to determine the offset value based on the fair market value the real estate collateral had on the date the victim lenders obtained title to the houses following foreclosure because that is the “date the property is returned.” The government countered that money was the property stolen in the mortgage fraud scheme and that foreclosure of the collateral real estate is not a return of the property stolen; rather, only when the collateral real estate is resold do the victims receive money (proceeds from the sale) which was the type of property stolen. Accordingly, the government argued that the offset value must be determined based on the eventual cash proceeds recouped following the sale of the collateral real estate.  The court of appeals noted that a circuit split exists on this issue:  the Second, Fifth, and Ninth Circuits use the defendant's approach, but the Third, Eight, and Tenth Circuits (as well as the Seventh in two non-precedential opinions) use the government's.  The Seventh Circuit in this case joined the latter circuits, holding that the offset value is the eventual cash proceeds recouped following a foreclosure sale.  Accordingly, the property stolen is only returned upon the resale of the collateral real estate and it is at that point that the offset value should be determined by the part of the cash recouped at the foreclosure sale.  The court also held that the victims are entitled to expenses (other than attorney’s fees and unspecified fees) related to the foreclosure and sale of the collateral property because those expenses were caused by Robers’s fraud and reduced the amount of the property (cash) returned to the victim lenders. Because the district court included attorney’s fees and unspecified fees in the restitution award, the court vacated that portion of the district court’s award, but otherwise affirmed.  PRACTICE NOTE:  This is now a well-established circuit split which is ripe for review by the United States Supreme Court. 

In United States v. Schwanke, ___ F.3d ___ (7th Cir. 2012; No. 12-1149), the defendant agreed to cooperate with authorities investigating his drug-distribution conspiracy, but he thereafter received a death threat from his coconspirator, fled to the Philippines, and stayed for four years. Later he pleaded guilty to conspiracy to possess with the intent to distribute marijuana and was sentenced to 50 months’ imprisonment. On appeal he challenged his sentence, arguing that the district court improperly adjusted his offense level upward under U.S.S.G. § 3C1.1 for obstruction of justice.  In imposing the enhancement, the district court did not focus on the flight, which the court acknowledged stemmed from a legitimate fear for the defendant's life.  Rather, it was his choice to remain hidden for four years when other options were available to him, such as contacting his family of the FBI once he was abroad.   The court of appeals noted that panicked, instinctive flight does not warrant the enhancement, but calculated evasions does.  The district court properly distinguished from the initial flight which may have fallen into the first category and the decision to remain a fugitive for four years, which clearly fell into the latter category.  As such, the court properly applied the enhancement. 

The Seventh Circuit issued 3 precedential opinions in criminal cases this week, as summarized below.

In United States v. Jones, ___ F.3d ___ (7th Cir. 2012; No. 10-3130), the court issued its first post-Dorsey published opinion on application of the Fair Sentencing Act to three cases consolidated for appeal.  All three defendant's were sentenced after the passage of the Act, but were sentenced under the pre-FSA law under then governing circuit precedent.  The court considered whether, in light of Dorsey, each of these defendants was entitled to a remand for resentencing under the FSA.  The court held that the first defendant, Patrick Jones, was not entitled to a remand.  In his case, the district court explicitly stated that it was varying from the guidelines and sentencing the defendant using the 18-1 ratio embodied in the FSA.  Because the court explicitly tied its variance to the range called for by the FSA, the court found that "the district court did not err by failing to apply the crack cocaine thresholds required under the FSA."  The same was true for the second defendant, where the district court again used the FSA Guideline to sentence the defendant.  However, for the third defendant, the court ordered a remand for resentencing.  In this defendant's case, there was no evidence that the district court applied the 18-to-1 ratio under the FSA or that the defendant's sentence would have been the same had the district court applied the FSA's ratio.  Here, the court stated that it was not bound by the FSA and that the correct Guidelines range was that based upon the old 100-to-1 ratio.  Even though the district court departed downward to the FSA’s sentencing range of 168 to 210 months, that departure was “based on Mr. Watson’s character, in general.” According to the Court of Appeals, the FSA range should have been the starting point range, not the end point range based on a downward departure after considering the § 3553(a) factors. PRACTICE NOTE:  If there is a general rule to glean from these consolidated appeals, it is that a defendant is entitled to a remand even if the court varied to a sentence within the FSA range if, in doing so, the court did not explicitly tie the variance to the FSA.  On the other hand, if the court tied a variance specifically to the FSA, then the defendant probably will not be entitled to a remand. 

In Turner v. United States, ___ F.3d ___ (7th Cir. 2012; No. 11-3426), the court reversed the district court's grant of a 2255 petition, finding that the Supreme Court's decision in Skilling did not require his conviction to be vacated.  Cecil Turner was convicted on four counts of wire fraud and two counts of making false statements to the FBI stemming from a scheme to defraud the State of Illinois of salaries paid to but not earned by a team of janitors responsible for cleaning state office buildings in Springfield, Illinois. As was typical at the time in federal fraud prosecutions, the wire fraud counts were submitted to the jury on alternative theories that Turner aided and abetted a scheme to defraud the State of Illinois of its money and also its right to honest services. The Court of Appeals originally  affirmed the judgment in 2008.  Two years later, the Supreme Court decided Skilling v. United States, 130 S. Ct. 2896 (2010), limiting the honest services fraud statute to schemes involving bribes or kickbacks. Turner filed a § 2255 motion asking the district court to vacate the wire-fraud convictions based on Skilling error, and the district court agreed. The government then appealed, asking the court to order the wire-fraud convictions reinstated.  The court found the Skilling error was harmless, given that the evidence on the two fraud theories was coextensive; the jury could not have convicted Turner of honest-services fraud without also convicting him of pecuniary fraud.  Specifically, the core of the case against Turner was that he aided and abetted the janitors’ scheme to defraud the State of Illinois of its money—in the form of thousands of dollars in salaries paid for no work—by helping to perpetuate and cover it up. The honest-services fraud theory was thus entirely premised upon the money/property fraud. On the evidence in this case, the jury could not have convicted Turner for honest-services fraud had it not been convinced beyond a reasonable doubt that he aided and abetted the janitors’ money-fraud scheme. In short, this prosecution was an all-or-nothing proposition. Either Turner was guilty of aiding and abetting a pecuniary and an honest-services fraud (as it was then understood), or he was not guilty of either type of fraud.  Accordingly, any Skilling error in this case was harmless. 

In United States v. Robinson, ___ F.3d ___ (7th Cir. 2012; No. 12-1391), the court of appeals rejected the defendant's argument that he was entitled to a reduced sentence under 18 U.S.C. 3582(c)(2) because, according to the defendant, the Fair Sentencing Act reduced his mandatory minimum sentence.  The defendant was sentenced before the effective date of the FSA, and he was sentenced to a 20-mandatory minimum term of imprisonment.  Because of that mandatory minimum sentence, the district court denied the defendant's petition for a lower sentence under the Retroactive Amendment 750 to the Sentencing Guidelines (reducing the crack to powder ratio from 100-1 to 18-1).  Specifically, although the defendant's guideline range under the retroactive amendment would be lower but-for the statutory mandatory minimum, the defendant's mandatory minimum was not altered by the Fair Sentencing Act because the defendant was sentenced before its enactment.  Thus, the defendant could not receive a sentence lower that the statutory mandatory minimum.  The Court of Appeals agreed.  The Act’s lower mandatory minimums do not apply to offenders, like Robinson, sentenced before its effective date. The Courts of Appeals unanimously so held before the Supreme Court decided Dorsey. See, e.g., United States v. Baptist, 646 F.3d 1225, 1229 (9th Cir. 2011) (collecting cases). And Dorsey carefully confined its application of the Fair Sentencing Act to pre-Act offenders who were sentenced after the Act.  Robinson, therefore, has received the lowest possible sentence under the statute.  PRACTICE NOTE:  This is the first published case in this circuit to consider the applicability of the FSA in the 3582(c)(2) context.  Although the holding in this case was predictable in light of the decision in Dorsey, we now finally have clear circuit precedent for the proposition that a defendant sentenced to a pre-FSA mandatory minimum cannot obtain relief under Retroactive Amendment 750 if he was sentenced before the Act became law. 

The Seventh Circuit issued 9 precedential opinions in criminal cases this week, as summarized below.

In United States v. Garcia, ___ F.3d ___ (7^th Cir. 2012; No. 12-1805), the court affirmed the district court’s denial of the defendant’s motion to suppress 13 kilograms of cocaine. When the defendant was arrested, officers found a piece of paper with an address on it and went to the address. It turned out to be the home of the defendant’s sister and her daughter, the defendant’s 18-year-old niece. The defendant’s son, a child of 8, was also present. The child’s mother lived in California, and the child lived with his father in an apartment in the same apartment complex as the aunt and niece. Two of the officers who had gone to the relatives’ apartment testified at the suppression hearing that they had interviewed the two women, and the niece had told them that because the defendant was often not in his apartment during the day or even the night, she made surethat the child got to school in the morning and sometimes would wait for him in the defendant’s apartment when the child came home from school if the defendant wasn’t expected to be at home. She said the defendant had given her or her mother a key to the apartment and she had unlimited access to it to take care of the child—get him ready for school, let kids into the apartment to play with him in her presence, and so forth. She was willing to allow the officers to search the apartment and told them she thought she was authorized by the defendant to allow people to enter and look through it. She signed a form they handed her, consenting to the search, and led them to the apartment and opened the door for them. They found the 13 kilograms of cocaine in 13 packages in a closet. The defendant argued that the niece did not have authority to give consent to the search. The court initially noted that not just anyone with a key can consent to a search of property they do not own nor reside in, but it is different if that person is an employee, relative, or neighbor left in charge of the premises. At the extremes of authority to consent to a search are a spouse or partner who shares a residence and the neighbor, babysitter, or hotel staff that has a key. The court found the facts in this case closer to the cohabitation extreme. The niece in this case was more than a babysitter; she was basically in loco parentis for the child when the defendant was gone. The fact that the defendant kept a large quantity of cocaine in the closet of the apartment also suggested that he reposed an unusual degree of trust in the niece and thus had delegated authority over the apartment when he was not there. Accordingly, the consent to search was valid in this case. PRACTICE NOTE: This is a good case to keep in mind whenever you have a question about someone’s authority to consent; it has a pretty good, in-depth discussion on the issue.

In United States v. Martin, ___ F.3d ___ (7^th Cir. 2012; No. 11-1208), the court rejected the defendant’s challenge to his convictions for drug, firearm, and witness tampering offenses, but remanded for resentencing. The morning of the second day, one of the jurors—who hailed from Christopher, Illinois—was late for jury duty. A court security officer waiting for the late juror saw a woman, whom the court referred to as CM, drive up, and asked CM if she was coming from Christopher. When CM replied in the affirmative, the security officer escorted her to the jury room, believing that CM was the late juror from Christopher. No one apparently asked CM if she was a juror. CM was in the jury room for no more than 5 minutes when the jurors lined up to proceed into the courtroom. CM then informed a security officer that she did not think she was supposed to be there. Upon questioning by the judge, each juror and CM herself testified that CM did not speak to anyone in the jury room. The judge then proceeded with the trial, without objection from the defense. On appeal, however, the defendant argued that the brief encounter with the non-juror deprived him of his right to an impartial jury. The court first noted that the issue at hand was not a structural error where prejudice would not need to be established; the court has repeatedly held that alleged errors related to improper communication with jurors do not constitute structural errors subject to automatic reversal, but rather are the type of trial errors subject to the harmless error standard (plain error here because of no objection). Here, there was no evidence of any impact whatsoever by the jurors brief 5 minute presence in the jury room. On the sentencing question, the defendant had two 924(c) convictions, and the PSR stated, and the court adopted, the Guidelines range for Count 4 as 5 years to life and Count 5 as 25 years to life. This was incorrect; Guideline section 2K2.4(b) states that the guideline sentence for a 924(c) conviction is the minimum term of imprisonment required by statute–here, 5 and 25 years. Relying on the erroneous guideline range, the court sentenced the defendant to life on both of these counts. Reviewing under the plain error standard, the court noted that a sentence based on an incorrect Guidelines range constitutes plain error and warrants a remand for resentencing, unless the court has reason to believe that the error no way affected the district court’s selection of a particular sentence. Here, the error clearly affected the sentence, as the court directly tied the sentence to what it termed as the "high end of the range" on the counts in question. Accordingly, a remand for resentecing was necessary with use of the correct guideline range. PRACTICE NOTE: This is a rare case discussing the guideline for 924(c) counts. In the rare case where a judge imposes something more than the mandatory, minimum consecutive term, that will constitute a variance requiring a justification on the record.

In United States v. Seiver, ___ F.3d ___ (7^th Cir. 11-3716; No. 11-3716), the court rejected an argument that information in a warrant affidavit was "stale" such that probable cause was lacking for the issuance of the warrant. The affidavit established that three child pornography images had been uploaded to the defendant’s computer seven months prior to the request for the issuance of the warrant. The defendant argued that there was no reason to believe that seven months after he had uploaded child pornography there would still be evidence of the crime on the defendant’s computer. The court rejected this argument in a sweeping opinion which suggested that a "staleness" argument would almost be impossible to prevail in the context of a computer search. The court noted that even if the defendant had deleted the child pornography, a successful recovery of the images from his hard drive by an FBI computer forensic expert would establish that he had possessed them at one time. Noting that a very large body of caselaw and the parties agreed upon the framework for analysis in this case, i.e., the importance of "staleness" and the importance to a determination of "staleness" of whether the suspect was a "collector" and thus likely to have "retained" or "maintained" rather than "destroyed" the pornographic images that he required, the Court of Appeals nevertheless rejected that framework. As a basis to do so, and without any briefing or argument on the issues by the parties, Judge Posner for the court stated that these prior authorities and the parties were laboring under the misapprehension that deleting a computer file destroys it, so that if the defendant had deleted the pornographic images between their uploading to the Internet and the search of his computer the search would not have yielded up the images, or evidence of their earlier presence in the computer, unless it’s a case in which the defendant is a "collector" of child pornography who decided to "keep" copies of the images that he’d downloaded. Launching into a very technical analysis of computers, deleted data, ant its recovery-all of which information which was gleaned through its own research and posited without giving the parties an opportunity to refute it-the court concluded that just because someone deletes a file does not mean it is still not accessible through the use of forensic computer software. Computers and computer equipment are not the type of evidence that rapidly dissipates or degrades as other evidence does on the context of staleness. Only after a very long time does the likelihood that the defendant no longer possesses the computer or the deleted data has been overwritten diminish probably cause to believe the file is still recoverable. Whatever length of time this may be, it is certainly more than 7 months. Accordingly, the court affirmed. PRACTICE NOTE: The court in this case essentially sweeps away a large body of law in this area, based upon its own research on a question never briefed by the parties–an increasingly common phenomenon which is antithetical to the adversarial system. This case was brief by Andy McGowan, formerly of our office and now and Assistant FPD in Kansas, and litigated in the district court and argued by our Senior Litigator, George Taseff. We are currently evaluating our rehearing and certiorari options.

In United States v. Grigsby, ___ F.3d ___ (7^th Cir. 2012; No. 11-2473), the court rejected the defendant’s argument that the district court improperly applied an obstruction of justice enhancement and a 3-level supervisory role enhancement. The defendant, a bank teller, was convicted of bank robbery stemming for her scheme with several co-conspirators to steal more than half a million dollars from the bank for which she worked. In her sworn statement to the court, however, Grigsby minimized her role in the offense at sentencing, trying to pin most of the blame on her coconspirators. So at sentencing the district court applied a two-level sentencing guidelines enhancement for obstruction of justice, see U.S.S.G. § 3C1.1, and a three-level enhancement to account for her supervisory role in the offense, see id. § 3B1.1(b). The resulting guidelines range was 46 to 57 months, and the court chose a sentence of 57 months, the top of the range. The court affirmed, finding both enhancements were based on the court’s factual finding that Grigsby lied during her plea colloquy in an intentional effort to mislead the court by understating her role in the offense. Although this finding was based largely on documentary evidence—the grand-jury testimony and plea agreements of two of Grigsby’s coconspirators—the court’s review was deferential and it could only reverse for clear error. The court’s factual finding that Grigsby lied about her role in the offense because she did in fact supervise the scheme is well-supported by the evidence and specific enough to withstand clear-error review. The court also rejected the defendant’s argument that the district court failed to consider the "need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." The court noted that it has repeatedly explained that 3553(a)(6) addresses unwarranted disparities "not among codefendants or coconspirators but among judges or districts." The district court’s discretion allows but does not require the court to consider the disparities within a particular case. Here, the facts showed no "unwarranted" disparity at either level. PRACTICE NOTE: The court here appears to be attempting to synthesize two seemingly inconsistent lines of cases on the "unwarranted disparity" question. For an exposition of these conflicting lines of cases, see this article written by University of Chicago Law Professor Alison Siegler posted on our website here: http://ilc.fd.org/General%20Documents/Divergent%20Lines.pdf The court does so by holding that a district court is required to consider district or judge based disparity arguments, but is also allowed to consider disparities between defendants in the same case.

In United States v. Winters, ___ F.3d ___ (7^th Cir. 2012; No. 11-3527), Corey Winters pleaded guilty to conspiracy to possess with the intent to distribute large quantities of drugs. The plea agreement provided that the government would recommend a base offense level of 32. But at sentencing the government concurred in the Presentence Investigation Report’s ("PSR") conclusion that Winters was a career offender, which raised Winters’s offense level to 37. The district court adopted the PSR, set Winters’s offense level at 37, and sentenced him to 165 months’ imprisonment, well below the recommended Guidelines. Winters appealed, arguing that the government violated the plea agreement by not recommending to the district court a base offense level of 32. The court affirmed, noting that the Supreme Court’s decision in Sykes v. United States, 131 S.Ct. 2267 (2011), overrode the government’s agreed to recommendation. When the PSR was prepared by probation, it used his prior convictions for fleeing to make him a career offender. The defendant objected to this classification, but noted that the issue was pending before the Supreme Court in Sykes. Then, prior to sentencing, the Supreme Court’s holding in Sykes indicated that those offenses were in fact crimes of violence for guideline purposes. At sentencing, the government indicated that it had no objection to the PSR, notwithstanding its agreement to recommend a lower offense level. Although the defendant did not allege a breach below, he argued the failure to make the recommendation constituted a breach under the plain error standard of review. The court concluded that he could not establish that his substantial rights were affected because, even if the government had argued that Winter’s offense level should have been 32, the district court was not bound by the plea agreement. Moreover, it was undisputed that the defendant’s correct offense level was 37–a level the court was bound to use under the law regardless of what the government agreed to in the plea agreement. Accordingly, the defendant could not show that the failure to make the recommendation in the plea agreement impacted his substantial rights.

In United States v. Carter, ___ F.3d ___ (7^th Cir. 2012; No. 11-3608), after a jury trial for carjacking and being a felon in possession of a weapon, the court rejected the defendants’ arguments that the district court improperly instructed the jury, that there was insufficient evidence to support their convictions, and that joinder of their offenses was improper. The defendants first argued that the district court erroneously instructed the jury as to the required mental state for the carjacking offense. The district court’s instruction tracked the mental state alleged in the indictment, requiring the government to prove that each defendant "intended to cause serious bodily harm when the defendant took the motor vehicle." The defendants contended that this instruction alters the mental state described in the federal carjacking statute, which provides that a person commits a carjacking if he or she "with the intent to cause death or serious bodily harm" takes a motor vehicle, etc. Although the statute is written in the disjunctive, the defendants argued that "the intent to cause death or serious bodily harm" describes a single mental state: "the specific intent to kill or its near equivalent." Omitting the phrase "to cause death" from the jury’s instructions altered the required finding, according to the defendants. The court disagreed, noting that the statute was worded disjunctively, allowing a conviction for either intent to cause death or serious bodily harm. Secondly, one of the defendants argued that an aiding and abetting instruction was improper because he was charged as the principal in the carjacking. The court, however, noted that it is well established that a defendant charged as a principal may be convicted as an aider and abettor–even where an indictment makes no reference to the aiding and abetting statute. Regarding the sufficiency of the evidence, the court concluded there was more than enough to convicted the defendants. Finally, the defendants argued that their respective felon-in-possession counts should not have been tried together with their counts relating to carjacking. They argued that joinder was improper under both Rules 8 and 14 of the Federal Rules of Criminal Procedure. Rule 8 permits joinder when the counts are logically related–that is, when the counts arise from the "same series of acts or transactions." Here, the counts were logically related, as the guns involved in the felon-in-possession counts were used to commit the carjacking. Even if joinder was proper under Rule 8, the defendants argued the counts should have been severed under Rule 14 to avoid prejudice. The defendants argued they were prejudiced because the felon-in-possession counts necessarily introduced evidence that each of them had a prior felony conviction. The court noted that, first, the evidence was overwhelming on the carjacking counts, so there was no risk that the other counts prejudiced the verdicts on the other counts. Secondly, any potential prejudice was mitigated by the court’s instruction that the felon status was only to be considered for the felon in possession counts. Accordingly, the court affirmed the convictions.

In United States v. Medina, ___ F.3d ___ (7^th Cir. 2012; No. 11-2458), the defendant was convicted of illegal re-entry. He appealed the thirty-seven month sentence he received, contending that he should not have received a sixteen-level enhancement for being deported after a felony conviction for a "drug trafficking offense" where the imposed sentence exceeded thirteen months or after a felony "crime of violence." Medina argued that his 1989 convictions did not fall within those definitions under the 1989 edition of the United States Sentencing Guidelines and so the enhancement did not apply. The court, however, found that because the crimes qualify under the 2010 Sentencing Guidelines, which were the guidelines in effect at the time of Medina’s sentencing and are the guidelines that matter, the enhancement was proper. There was no question that the defendant’s prior convictions met the 2010 Guideline definition of a "drug trafficking offense." The defendant, however, argued that the definition in the 1989 Sentencing Guidelines should control here because that was when he was sentenced for the prior conviction which warranted the enhancement. If that version were used, his prior conviction would not have qualified as a "drug trafficking offense." The court rejected this argument for a number of reasons. First, the general rule is that a court uses the manual in effect at the time of sentencing. Although other circuits disagree, this circuit in Demaree has held that even if the version in effect at the time of sentencing is harsher than that in effect at the time of the offense, the advisory nature of the Guidelines eliminates any ex post facto concerns. Even if Demaree were incorrect, the consequence here would be to use the guidelines in effect on the date of the offense, not the date on which he committed the offense which qualified him for the enhancement. He committed his offense in 2009, and the Guidelines in effect on that date were the same for purposes of the defendant’s argument as those used at his sentencing hearing in 2010. The defendant also argued that his 1989 convictions should not be used to enhance his sentence, because those offenses were already used to enhance his sentence for a previous illegal reentry conviction. He argued that only priors committed after the first illegal reentry conviction could be used in this second illegal reentry prosecution. The court noted that nothing in the text of the guidelines prohibits the use of the same prior conviction for the same enhancement in two, sequential illegal reentry prosecutions. Therefore, the enhancement was properly applied. PRACTICE NOTE: This circuit’s outlying precedent in Demaree comes up once again in this case regarding its unique holding that the advisory nature of the guidelines eliminates any ex post facto concerns with using Guidelines which are harsher than those in effect at the time of the offense conduct. There are more than one petitions for certiorari asking the Supreme Court to bring this circuit in line with the other circuits. If you have this issue, contact me and we can get you a brief and/or cert petition on it.

In United States v. Chapman, ___ F.3d ___ (7^th Cir. 2012; No. 11-2951), the defendant was convicted after a jury trial of six counts of forging checks. The defendant argued on appeal that the government failed to prove his guilty beyond a reasonable doubt and that the district court improperly admitted a previous forgery conviction. The court predictably rejected the sufficiency of the evidence argument. On the question of whether the defendant’s prior 2004 forgery question was properly admitted, the defendant argued that the evidence was presented to suggest to the jury "once a forger, always a forger." Applying the familiar 4-factor test under Rule 404(b), the court found that, first, the evidence shed light on the questions of intent and lack of mistake, questions with the defendant put into question with his defense. Additionally, the prior conviction was nearly identical to the current offense and separated by only two years. Finally, the evidence as not unduly prejudicial, especially in light of the limiting instruction the court provided on the evidence’s proper use.

In United States v. Javell, ___ F.3d ___ (7^th Cir. 2012; No. 11-3044), the defendant and his co-defendant were convicted after a jury trial of two counts of mortgage-based wire fraud. The defendant argued that the district court violated Bruton, its progeny, and Javell’s Sixth Amendment rights by admitting the post-arrest statements made by Arroyo, his co-defendant, and by failing to properly instruct the jury about the rules of nonimputation. According to Javell, Arroyo’s post-arrest statements directly implicated Javell and had the jury not heard those statements, Javell would not have been convicted. On the Bruton question, the court found that nothin in the government’s Bruton statement was facially incriminating, nor did any part of the statement even reference Javell indirectly through redaction or replacing his name with a more innocuous phrase. Instead, any reference to Javell that was not already redacted by the government, was redacted by the district court at the Bruton hearing. Moreover, even if the government had never introduced their Bruton statement or any other evidence of Arroyo’s confession, the government still had a plethora of other evidence against the defendant. Javell also argued that the district court erred by failing to instruct the jury to only consider Arroyo’s postarrest statements with respect to Arroyo; that they should not be imputed to Javell. First, the defendant never objected at trial or request a specific, clarifying instruction, so the issue would only be reviewed for plain error. The court found that, in reviewing all the instructions given as a whole, no error occurred. The court did for unknown reasons omit the last line of Seventh Circuit Pattern Jury Instruction 3:02, which states that "[y]ou may not consider this statement as evidence against any defendant other than the one who made it." It was not clear why this omission occurred, but the court said regardless of the reason it was of little consequence given all the other instructions given in the case.

The Seventh Circuit issued 6 precedential opinions in criminal cases this week, as summarized below.

In Brown v. Rios, ___ F.3d ___ (7th Cir.2012; 11-1695), the court held that the the Illinois offense of "compelling a person to become a prostitute" (Ill. Rev. Stat. 1983, ch. 38 § 11-16(a)(1)) is not a violent felony within the meaning of the Armed Career Criminal Act.  The court had originally held on direct appeal that the offense was a violent felony, but that decision pre-dated the Supreme Court's decision in Begay.  United States v. Brown, 273 F.3d 747 (7th Cir. 2001).  In this collateral attack, the court reconsidered that holding.  The court first noted that although Begay held that a crime "akin to strict liability, negligence, and recklessness crimes" is not a violent felony.  But this can't be read to mean that every intentional crime is a violent felony; that would make no sense, and the Supreme Court immediately added that a violent felony in the catchall category is one that is "similar in risk to the listed crimes," which means crimes such as burglary and arson. Neither has it been shown that compelling a person within the meaning of the Illinois statute to become a prostitute necessarily creates a risk of violence to her.  There would be a risk if the compulsion required to convict were physical coercion, but all the statute requires here is inducing the victim to engage in prostitution by promising them money or other things of value.  Moreover, if a panderer uses physical coercion, he is committing a more serious crime than the offense in question here.  Thus, the court concluded that the offense was not a violent felony.  Secondly, the court considered whether the defendant's prior conviction for "armed violence," defined as "committing any felony defined by Illinois law while armed," Ill. Rev. Stat. 1978, ch. 38, § 33A- 2—the felony was possession of illegal drugs—was a violent felony within the meaning of the federal Act because of the frequent linkage remarked in many cases between guns and drugs.  Had the felony involved the sale of drugs, the Seventh circuit stated that the "armed violence" conviction here would have been a violent felony.  However, the felony in question here was possession of drugs, thus implying that the defendant was only a drug user who happened to own a gun. It has not been shown that the mere possession of a gun by a drug user (who might not be a habitual user, that is, an addict) can be described as purposeful, violent, or aggressive conduct within the meaning of Begay.  Accordingly, the defendant was not an Armed Career Criminal.  PRACTICE NOTE:  This case overrules United States v. Brown, 273 F.3d 747 (7th Cir. 2001).

In United States v. Reeves, ___ F.3d ___ (7th Cir. 2012; No. 11-2328), the court rejected the defendant's challenge to a prior conviction used to enhance his sentence under § 851.  The defendant argued that the prior offense could not be used to enhance his sentence because the conviction was established in violation of the Sixth Amendment, to wit, that his attorney failed to advise him that a guilty plea might expose him to potential sentencing enhancements for any future convictions.  The defendant argued that it was objectively unreasonable under Strickland for his attorney in the state court proceedings to fail to advise him about the later effect of a guilty plea on the potential sentence for any future crimes, and he argued that the Supreme Court's decision in Padilla v. Kentucky mandated this conclusion.  The Court of Appeals rejected this argument.  First, the opinion in Padilla clearly limited its scope to the context of deportation only, i.e. advising a client about potential deportation consequences of a conviction.  Moreover, deportation is a consequence of the instant conviction; enhancement depends of the defendant's deciding to commit future crimes.  There is no automatic consequence to the defendant's guilty plea to the prior offense in this case; any risk was dependent on the defendant deciding to commit more crime in the future.  Adopting the defendant's reasoning would be equivalent to holding that counsel has a constitutional duty to advise the client as to how he might best continue his criminal activity while minimizing his risk of future punishment.  No such requirement exists in precedent, or anywhere else.  PRACTICE NOTE:  This is the first attempt in this circuit to expand the holding in Padilla; the court clearly indicates in this opinion that it is not inclined to expand that holding to any context beyond deportation.  However, we should keep trying different to expand Padilla into different contexts. 

In United States v. Freeman, ___ F.3d ___ (7th Cir. 2012; No. 11-2658), the Court of Appeals rejected the defendant's argument that his arrest and strip search at the jail, finding that the police had probably cause to to arrest the defendant.  The defendant Brent Garner were caught in a sting operation set up by narcotics officers in Springfield, Illinois, using a couple of known drug associates working as cooperating informants. Freeman and Garner showed up at the appointed time and place for the undercover drug transaction in a minivan matching the description given by one of the informants. They remained at the scene for only a few minutes, however. As they drove away, the police initiated a traffic stop. A search of the two men and the van did not turn up any drugs, but the police arrested them anyway. When Freeman was booked into the jail, he was strip-searched and found with a bag of crack cocaine concealed between his buttocks. The court concluded that the police had plenty of information to give them probably cause to believe that the defendant had committed the crime of attempted distribution of cocaine.  All of the events that occurred matched the information the police possessed indicating that a drug transaction was about to transpire.  The facts clearly established that the two occupants of the van came to the appointed time and place in response to the sting operation and were there to sell cocaine.  Secondly, officers had reasonable suspicion to strip search the defendant at the jail.  Jail officials must have reasonable suspicion that a detainee is concealing contraband before they may conduct a strip search, and whether reasonable suspicion exists "depends upon such factors as the nature of the offense, the arrestee's appearance and conduct, and the prior arrest record."  Here, because the defendant was arrested for attempted drug distribution, the offense is exactly the type of crime that raises reasonable suspicion of concealed contraband, this fact combined with his history of drug crimes were sufficient to justify the strip search. 

In United States v. Howard, ___ F.3d ___ (7th Cir. 2012; No. 11-2495), the court rejected the defendant's arguments that the trial court abused its discretion by admitting evidence of the defendant's prior bad acts and by declining to empanel a new jury.  In the summer of 2006, the defendant and Andrea Brown ended their romantic relationship. Throughout the next year, Howard alternated between attempts to reconcile with Brown and attempts to harm her. He sent letters to Brown begging her to take him back and to allow him to see their son, but he also hired someone to throw acid in her face, surveilled her house, and allegedly paid a man named Telly Virgin to shoot at the METRA train that she operates. A jury found Howard guilty of hiring Virgin to shoot at a METRA train in an attempt to murder Brown. At trial, the government introduced several pieces of evidence to prove that Howard took repeated actions between the summer of 2006 and the summer of 2007 that were consistent with a motive and intent to harm Brown. Howard claims that this evidence was impermissible under Federal Rule of Evidence 404(b), which prohibits evidence of a defendant’s prior bad acts unless the evidence is introduced for a permissible purpose and is not unfairly prejudicial. The district court rejected this argument, and Howard now appealed. In addition, Howard appealed the district court’s denial of his motion to empanel a new jury. He contended that the messages from two jurors, which asked the judge why Howard was taking notes during the voir dire discussion of jurors’ personal information, indicate that the jury had prejudged him.  On the 404(b) question, the court concluded that the prior acts clearly established the defendant's motive to harm the victim, which fell easily within the a permissible use of 404(b) evidence.  Likewise, the evidence was sufficiently similar to the offense charged, in that it all involved attempts or actual harm to the victim by the defendant, showing his obsession with her.  Finally, the court utilized several cautionary instructions to ensure that the evidence was used properly and only considered for the purposes for which it was admitted.    On the question of the juror notes, neither note conveyed that anyone was afraid of the defendant.  Moreover, in response to the notes, the court explained to the jurors the importance of note taking and questioned the individual jurors and confirmed that they had not prejudged the defendant.  Given these facts, there was no reason to question the jurors impartiality and there was no need to empanel a new jury. 

In United States v. Castillo, ___ F.3d ___ (7th Cir. 2012; No. 11-2792), upon consideration of appellate counsel's Anders brief, the Court clarifyied an ambiguity concerning the scope of appellate review of an above-guidelines sentence.  The court has previously stated that the farther the judge’s sentence departs from the guidelines, the more compelling the justification based on factors in section 3553(a) that the judge must offer in order to enable the court of appeals to assess the reasonableness of the sentence imposed.  The ambiguity is in the word “farther.” It can be conceived of in either relative or absolute terms. A sentence of 60 months is 30 percent longer than a sentence of 46 months (the top of the applicable guidelines range in this case); and a 30 percent increase is large in relative terms. But in absolute terms, given the severity of federal criminal punishments, it is a smallish 14 months; the average federal prison sentence in 2009 was 57 months.  The court concluded that the relative is generally more important that the absolute.  In other words, when evaluating the justification required for the departure, the court will look to the percent of the departure, rather than the actual number of months in absolute terms.  PRACTICE NOTE:  This decision is both good and bad for defendants.  For low guideline ranges where a departure may be small in months, but large in percentage, defendants will benefit.  However, on the high end, this will make things more difficult.  In a case where the top of the range is 405 months, a 10% upward departure will require minimal justification, even though the departure will be in excess of 3 years.

In United States v. Sklena, ___ F.3d ___ (7th Cir. 2012; No. 11-2589), the defendant and his co-defendant Edward Sarvey were charged with seven counts of wire and commodity fraud, as well as two counts of noncompetitive futures contract trading. Sarvey died before the start of his trial, but Sklena went to trial. There he sought to use Sarvey’s deposition before the U.S. Commodity Futures Trading Commission (CFTC) as evidence of his innocence, but the district court excluded it as inadmissible hearsay and eventually convicted Sklena of seven of the nine charged counts. Sklena appealed, arguing that the government’s evidence was insufficient to support his convictions, and in the alternative, that the district court abused its discretion by excluding Sarvey’s deposition testimony.  The court found the evidence to be sufficient, but remanded on the exclusion of the deposition issues.  Although the evidence in question was hearsay, Federal Rule of Evidence 804(b)(1) provides that "testimony that (a) was given as a witness at a . . . lawful deposition, whether given during the current proceeding or a different one; and (b) is now offered against a party who had . . . an opportunity and similar motive to develop it by direct, cross-, or redirect examination" may be admitted where the witness has since become unavailable.  The district court held that the rule did not apply because the CFTC and the DOJ are not the same party and did not share similar motives to develop Sarvey's testimony.  The court concluded that in this case the CFTC and DOJ should be considered as the same party.  The CFTC and the DOJ play closely coordinated roles on behalf of the United States in the overall enforcement of a single statutory scheme. Their interdependence is memorialized in the statute. Functionally, the United States is acting in the present case through both its attorneys in the Department and one of its agencies, the CFTC.  Secondly, there is no question that the deposition of Sarvey presented the United States with an adequate opportunity to develop his testimony.  However, the United States must also have had a similar (although not necessarily identical) motive then as now for doing so. Whether the motive of the United States, acting through a civil enforcement agency, is similar enough to its interests when it engages in criminal enforcement depends on a number of factors, including the substantive law that each is enforcing, the factual overlap between the two proceedings, the type of proceeding, the potential associated penalties, and any differences in the number of issues and parties.  Examining all these factors, the court concluded that the deposition testimony should have been admitted.  Finally concluded that the error was not harmless, the court reversed the defendant's conviction and remanded for a new trial. 

The Seventh Circuit issued 4 precedential opinions in criminal cases this week, as summarized below.

In United States v. Thi, ___ F.3d ___ (7th Cir. 2012; No. 11-3004), the pleaded guilty to bank fraud after she and her boyfriend stole debit-card information from customers of her nail salon and used that information to make unauthorized ATM withdrawals. The district court directed her to pay more than $77,000 in restitution and sentenced her to 36 months’ imprisonment, 5 months below the bottom of the Guidelines range. On appeal she argued that the district court failed to adequately consider her arguments in mitigation, particularly those addressing her minimal role in the offense, the effect of her sentence on her young daughter, and the sufficiency of a sentence of home confinement.  The Court of Appeals affirmed. Regarding her role in the offense, the court noted that before she was entitled to a minimum rule reduction, she needed to demonstrate that she was "substantially less culpable" than the average participant in the scheme.  Here, the defendant was actually on of three primary participants in the scheme. The defendant also argued that both she and her boyfriend faced incarceration, the the court should have taken this fact into account due to the fact that they had a 3-year old child who would be left parentless by their incarceration.  Although such a circumstance is unusual, the district court recommended that the defendant serve her below-the-range sentence as close as possible to her family and in a halfway house.  These recommendations were enough to demonstrate that the district court sufficiently considered this factor.  Finally, although the defendant argued that her sentence was unreasonable because the district court did not impose a "split sentence" including home confinement as an alternative to imprisonment, the court noted that a below-the-range sentence is presumed reasonable.  Moreover, the Guidelines advise against home imprisonment for people in Zone D, which the defendant was. 

In United States v. Trujillo-Castillon, ___ F.3d ___ (7th Cir. 2012; No. 11-2646), the Court of Appeals vacated the defendant's sentence because the district court may have improperly factored in the defendant's Cuban heritage when imposing an above-the-range sentence.  The defendant received an above-the-range sentence of 48 months for conspiring to use unauthorized accounts and a mandatory 24-month, consecutive term for aggravated identity theft.  At sentenced, the government argued for a top-of-range sentence because the defendant has stated that he viewed fraud differently than violent crimes.  The government surmised that "it may be possible to explain his stated attitude because of his Cuban heritage . . . Maybe there is a different attitude toward private property in Cuba."  Rather than object, defense counsel picked up on this theme and explained that there as an attitude in Cuba that if you steal, then "you're pulling a Robin Hood type of act."  The district court then made the following comments:  The court first explained that the defendant’s “lifestyle” cannot “be blamed on Cuba.” It said that his record was reminiscent of “when the Mariel people came over here and created crime waves all over the place”; “When [Fidel] Castro emptied his prisons, and his psychiatric wards, and Jimmy Carter took them all in.” The court continued that, unlike in Cuba, “in America, private property is sacrosanct. It’s not the Government’s property. . . . And that’s the way we live in America. And that’s why it’s a serious offense when you do this.” The court inveighed that coming from “deprived circumstances” does not “give anybody who  comes from Cuba the right to . . . not value the very constitutional rights that other citizens possess.”   Based on these comments, the Court of Appeals concluded that the sentencing court crossed the "very fine line of demarcation separating presentencing statements regarding a defendant's relationship with a country or its residents who have engaged in similar criminal activity there and statements concerning the race or national origin of the defendant which would violate his due process guarantees."  The government should have never mentioned the defendant's national heritage, and the court exacerbated matters by comparing the defendant to the Mariel immigrants.  By lumping the defendant in with the Mariel people and expressly contrasting the values held by Americans with people, like the defendant, the court arguably made the defendant's national origin a factor at sentencing--something the Constitution prohibits.  The court therefore vacated the sentence and ordered that Circuit Rule 36 (requiring a new judge for re-sentencing) to apply on remand.  PRACTICE NOTE:  It is rare to see an opinion where the court finds that an unconstitutional factor has been used by a sentencing court when imposing sentence.  This case is one of many examples of how judges at sentencing can get themselves into trouble when they start speaking off the cuff at sentencing.  

In United States v. Laguna, ___ F.3d ___ (7th Cir. 2012; No. 11-3469), the defendant was charged with willfully interfering with a final deportation order.  An immigration judge entered an order of final removal against the defendant after he picked up two felony convictions.  One of the instructions in the order was that the defendant obtain a Polish passport (his country of origin being Poland).  Initially, immigration officials did not strictly enforce that requirement, but later repeatedly and forcefully warned the defendant about the consequences of failing to obtain a passport.  When the defendant did not heed these warnings, he was charged in this case.  On appeal, the defendant argued that the district court improperly excluded exculpatory evidence and deprived him of his right to assert a complete defense.  Specifically, he claimed that the court improperly prevented him from introducing evidence demonstrating that he never "willfully" interfered with his removal.  The Court of Appeals affirmed.  The specific evidence the defendant sought to introduce related to his interaction with ICE from 2004 until 2010, when ICE made no effort to force his compliance with the removal order.  He argued that it was reasonable for him to believe that ICE would remain indifferent towards his refusal to obtain a passport, thereby negating the "willfulness" requirement of the statute of conviction.  The court concluded that the defendant's proffered evidence was irrelevant.  The statute only requires proof that the defendant voluntarily and willfully refused to obtain a passport.  Any evidence suggesting that some previous relationship with ICE superseded his statutory obligation is immaterial and confusing.  In other words, the proffered evidence did not negate the government's assertion that he (1) knew he was removable, (2) knew he needed to obtain a passport, and (3) knew his express refusal to do so contravened his removal order.  The evidence he sought to introduce only showed that he subjectively believed that he would not be prosecuted, which is not defense at all, according to the court.   Such a defense is akin to a defendant asserting that he knew he violated the law, but did not think he would get caught. 

In United States v. Lemke, ___ F.3d ___ (7th Cir. 2012; No. 11-2662), the Court of Appeals rejected the defendant's argument that his 24-month below-the-range sentence for making a threatening communication in interstate commerce was unreasonable and excessive.  The defendant met the victim while working as a serviceman in her home, pursued her, and eventually left threatening telephone messages for her.  At sentencing, the court allowed the defendant to present extensive testimony at sentencing in mitigation, as well as allowing lengthy arguments in aggravation and mitigation.  The record demonstrated that the district court thoroughly considered all of the sentencing factors in the case. 

The Seventh Circuit issued 8 precedential opinions in criminal cases this week, as summarized below.

In Ryan v. United States, ___ F.3d ___ (7th Cir. 2012; No. 10-3964), the court affirmed the denial of former Governor of Illinois George Ryan's collateral attack to his conviction.  The defendant was convicted of honest services fraud and RICO, with the mail fraud counts constituting predicate crimes of the RICO conviction.  At the defendant's trial, the jury was instructed that it could convict the defendant of honest services fraud if he either accepted bribes or concealed receipt of payments that created a conflict of interest.  Although an accurate statement of the law at the time of trial, and when the conviction was affirmed by the Seventh Circuit, the Supreme Court subsequently held in Skilling v. United States that only bribery or kickbacks can be used to show honest-services fraud.  Although acknowledging that the instructions given were erroneous in light of Skilling, the court concluded that the error was harmless because there was no question that for at least two of the predicate fraud offenses to the RICO offense, the evidence showed that the jury must have found bribery and not just a failure to disclose a conflict of interest.  Therefore, despite the error, it was harmless, and the court affirmed the denial of the collateral attack.

In United States v. Saucedo, ___ F.3d ___ (7th Cir. 2012; No. 11-2457), the court rejected the defendant's argument that the search of his tractor-trailer exceeded the scope of his consent to search, therefore affirming the denial of the defendant's motion to suppress.  After the defendant was stopped for an expired license plate, the defendant gave the officer general consent to search the cab and trailer of the truck.  During the course of the search, the officer used a flashlight and a screwdriver to remove screws holding the molding in place that covered a hidden compartment in the tractor, which the defendant claims exceeded the scope of his consent.  The court of appeals noted that before searching, the officer asked if there were any drugs in the vehicle.  Thus, the defendant was well aware that the officer was looking for drugs when he consented, without any express limitation, to the search.  Thus, the consent allowed the officer to search inside compartments in the tractor-trailer, including the sleeper area, where drugs could be concealed.  This necessarily included the hidden compartment, which one could reasonably think might, and in fact did, contain drugs.  If the defendant didn't want the hidden compartment to be searched, he could have limited the scope of the search to which he consented. 

In United States v. Reibel, ___ F.3d ___ (7th Cir. 2012; No. 11-3416), the Seventh Circuit rejected the defendant's challenge to his sentence for child pornography offenses.  The defendant argued that his sentence was unreasonable because the child pornography guidelines punished him as severely as the worst child pornographers, and the judge based the sentence on mere speculation about sex offenders and their victims rather than on evidence.  The court of appeals rejected these arguments in short order, noting that as to the first argument, it has repeatedly rejected the idea that the maximum sentence for child-pornography offenses must be reserved for the worst offenders.  On the second issue, the record revealed that the judge had sound reasons to choose the sentence he imposed, which were not based upon mere speculation.  PRACTICE NOTE:  The Seventh Circuit has repeatedly rejected this "marginal deterrence" argument related to the child pornography guidelines, nothwithstanding the fact back in 2005 the court suggested that the child pornography guidelines might in fact be flawed for this reason.  See United States v. Newsom, 402 F.3d 780, 786 (7th Cir. 2005).  I think that after 7 years of rejecting arguments based upon its suggestion in Newsom, the Seventh Circuit has now put the final nail in this argument's coffin. 

In Wayne v. United States, ___ F.3d ___ (7th Cir. 2012; No. 12-2680), the Seventh Circuit denied the petitioner's request to file a successive 2255 petition, finding that the Supreme Court's decision in Missouri v. Frye, 132 S.Ct. 1399 (2012), did not announce a new rule of constitutional law.  PRACTICE NOTE:  At least in this circuit, this case precludes any relief for claims based on Frye or Lafler for closed cases outside the 1-year statute of limitations for filing 2255 petitions and all successive petitions, regardless of when filed.

In United States v. McDowell, ___ F.3d ___ (7th Cir. 2012; No. 10-2543), the court of appeals affirmed the defendant's drug related convictions, rejecting his arguments that his confession should have been suppressed because of a delay in presentment, the government should have been required to disclose the identity of a confidential cooperating source, and the court improperly denied his request for a jury instruction regarding the requirement of evidence corroborating his confession.  On the first issue, after the defendant was arrested in a sting operation, he informed DEA agents that he was an informant for the Chicago police.  Because it was after hours and they needed to verify this claim, agents asked him if we would be willing to waive his right to prompt presentment before a magistrate judge, which the defendant did.  He then spent the night in jail and signed a confession the next morning.  The court noted that, like other important rights, the right to prompt presentment may be waived.  The defendant clearly made such a waiver and could not, therefore, argue that the delay in presentment required the suppression of his confession.  On the revelation of the confidential source issue, the court noted that the government has a limited privilege to withhold the identity of a confidential informant.  However, this privilege can be defeated if the defendant establishes that the disclosure of the informant's identity is relevant and helpful to his defense or is essential to a fair determination of a cause.  One important factor to consider is the role of the confidential informant; the more important and involved in transactions a witness is, the more disclosure is favored.  In this case, the witness in question was definitely an important, transactional witness.  However, the reason for the defense's request for disclosure in this case was weak.  The defendant argued that the informant would have supported a duress defense because he could testify about a drug debt the defendant owed to his supplier.  He claimed that the informant was known for using threats and violence against those who failed to pay.  The court, setting aside the likely invocation of the informant's Fifth Amendment privilege if questioned along such lines, noted that a duress defense would not have been viable under the circumstances of this case because such a defense requires evidence of "present, immediate, or impending" violence.  At most, the defendant here claimed only potential future violence, which is an insufficient evidentiary foundation for a duress defense.  Finally, on the corroboration instruction, although a correct statement of the law, a district court is not obligated to instruct the jury on the requirement of corroboration.  Rather, the matter is left to the trial judge, and the standard instructions regarding the government's burden of proof and the presumption of innocence are generally sufficient, as they were in this case. 

In United States v. Garvey, ___ F.3d ___ (7th Cir. 2012; No. 11-2201), the Seventh Circuit rejected the defendant's argument that the testimony of a lab supervisor who peer reviewed the work of an analyst who concluded that the substance the defendant possessed was methamphetamine violated his rights under the Confrontation Clause.  The analyst who performed the work had taken another job and the government did not call him as a witness, instead using the testimony of the supervisor to establish that the defendant possessed methamphetamine. During the testimony, the supervisor read from portions of the analyst's report.  Reviewing the issue under the plain error standard, the court declined to answer the question of whether, under the Supreme Court's recent decision in Williams v. Illinois, 132 S.Ct. 2221 (2012) because, even assuming error, the defendant's substantial rights were not affected.  The jury heard an abundance of other evidence establishing that the defendant sold methamphetamine during the four controlled buys at issue in the case and the quantity sold in each transaction.  PRACTICE NOTE:  This is the first post-Williams case in this circuit, but doesn't provide any guidance on the application of Williams, unfortunately, because of the plain error standard of review which allowed the court to avoid answering the question of whether an error actually occurred or not.

In United States v. Vargas, ___ F.3d ___ (7th Cir. 2012; No. 1-1661), the court rejected a number of evidentiary challenges lodged by the defendant related to his drug distribution conviction.  The defendant showed up at a local pharmacy parking lot with a shoe box full of $45,000 after having numerous conversations with a government informant about purchasing cocaine.  The defendant, however, claimed he was in the lot to purchase a truck.  At trial, the government cooperator testified that he had been instructed by his handlers to get close to the defendant because of "possible cocaine trafficking."  The defendant argued that this testimony was unfairly prejudicial propensity evidence that invited the jury to draw an improper inference that his mere presence at the scene connected him with drug trafficking.  The statement at issue did not tend to prove any of the elements of the offense for which the defendant was charged and therefore cannot be categorized as direct evidence.  The statement was also inadmissible as 404(b) evidence, as there was scant evidence in the record to prove by a preponderance that the "possible cocaine trafficking" was close enough in time to be relevant to the offense charged or that the defendant had actually participated in past trafficking.  However, the error was harmless, given the other evidence in the case.  The defendant also argued that the district court should have admitted a portion of a videotape of the defendant after his arrest where he stated to officers that he was "buying a truck."  The defendant argued that it was admissible under the doctrine of completeness, as codified in Rule of Evidence 106.  The court of appeals noted, however, that this Rule cannot be used to circumvent Rule 803's exclusion of hearsay testimony.  The statement in question fell into no exception to the hearsay rule.  Finally, the court rejected the defendant's argument that the district court erred in failing to give a "mere presence" instruction.  The court found that the evidence in the record did not support the defendant's claim that he was merely present at the scene to a degree necessary to require the mere presence instruction.  PRACTICE NOTE:  Although harmless error prevented the defendant from obtaining a reversal on the 404(b) argument, the fact that the court does at least find that the evidence in question here was inadmissible under 404(b) is good for the defense and adds to an ever growing number of cases in this circuit limiting the reach of 404(b).

In United States v. Marin-Castano, ___ F.3d ___ (7th Cir. 2012; No. 11-3810), the court rejected the defendant's argument that the court committed procedural and substantive error in sentencing him for illegal re-entry.  The defendant argued at sentencing that he should receive a below-guideline sentence because a prior conviction which resulted in a 16-level enhancement was stale and overstated the seriousness of his current reentry offense.  The court of appeals found that the district court adequately addressed the defendant's non-frivolous arguments and imposed a reasonable sentence.  PRACTICE NOTE:  Although this case doesn't break any new ground, it contains a better than usual recitation of what a district court must do to meet the procedural reasonableness requirement and is worth looking at if you are arguing procedural unreasonableness on appeal. 

The Seventh Circuit issued 2 precedential opinions in criminal cases this week, as summarized below.

In United States v. Phillips, ___ F.3d ___ (7th Cir. 2012; No. 11-3822), the Seventh Circuit affirmed the defendants' mortgage fraud convictions.  The defendants, after being turned down for a loan from a bank, turned to a mortgage broker for assistance.  The mortgage broker falsified the defendants' income and other information on a loan application and in fact did obtain a mortgage for the defendants.  When he was charged for his actions, he agreed to cooperate and testify against his clients, the defendants in this case.   At trial, the district court barred the defendants from asking questions designed to elicit testimony that the broker assured them that the the "approach" he used to file for the mortgage, which he deemed the "stated income loan program," was lawful.  The judge also foreclosed an argument that the defendants made a mistake of fact when signing the loan application.  According to the defendants, section 1014 is a specific-intent crime, and they were hindered in showing the lack of intent.  The Seventh Circuit noted that the offense in question has only three elements:  (1) knowingly making a false statement; (2) to one of the listed entities; (3) for the purpose of influencing that entity.  Given these elements, the court concluded that even if the broker had testified that he assured the defendants that false statements about income and employment are permissible, it would not have helped the defense.  It would not have negated the falsity of the statements on the application (element 1), the identity of the lender (element 2), or the defendants' intent to influence the lender (element 3).  In fact, such testimony would have bolstered the prosecution's case by showing that the broker led defendants to believe that false statements would succeed in influencing the lender, thus reinforcing proof of element 3.  Justice Posner dissented from the majority opinion authored by Chief Judge Easterbrook.

In United States v. Garvey, ___ F.3d ___ (7th Cir. 2012; No. 11-3088), the Seventh Circuit affirmed the defendant's conviction for selling stolen property along the Wisconsin-Minnesota border.  At trial, all four of the defendant's co-conspirators testified against him.  On appeal, the defendant alleged that the district court's misstatement of its subpoena power prevented him from calling a witness to impeach one of those co-conspirators.  He also claimed that the court erred in denying his motion for a mistrial after the prosecution's questioning prompted a witness to declare that he smoked marijuana with the defendant.  The defendant sought to have a buyer of some of the stolen property testify in order to impeach the testimony of one of the co-conspirators.  However, on the Friday before trial was to begin the next Monday, the witness had not been subpoenaed.  Upon learning this, the judge stated that the defendant could not subpoena the witness anyway because the witness was outside the 100-mile jurisdiction for subpoenas.  On the following Monday, the first day of trial, the court corrected this misstatement, noting that its subpoena power was national.  Although the witness was eventually served on Wednesday, it came too late for him to testify at the trial.  Reviewing for plain error, the Court of Appeals noted that even if the district court's misstatement resulted in the witness being unavailable to testify, the testimony was not material.  Defense counsel had already thoroughly impeached the witness in question, and failing to have additional impeachment through the testimony of the impeaching witness did not affect the defendant's substantial rights.  Regarding another witness's statement that he "smoked weed" with the defendant, the court found this single, isolated statement was not enough to overcome the presumption that the jurors would follow the curative instruction given by the judge after the improper statement was made.   .

The Seventh Circuit issued 7 precedential opinions in criminal cases this week, as summarized below.

In Kirkland v. United States, ___ F.3d ___ (7th Cir. 2012; No. 11-2507), the court considered a number of issues related to whether two prior "violent felony" convictions for ACCA purposes occurred on a "different occasion."  The defendant had two 1985 convictions at issue, one for buglary and one for robbery.  Both offenses occurred on the same day.  According to the charging documents, the burglary involved the defendant and two others and charged that the offense occurred at the home of Charles Gabbard.  The charging document did not provide a time for the offense.  The charging document for the robbery conviction charged the same three defendants and indicated that they robbed an unnamed individual and stole cash and pizza that was the property of Domino's Pizza.  No time or location of the robbery was included in the charging document.  The defendant argued that these two offenses should be counted as one offense for ACCA purposes, because they did not occur on a "different occasion" as defined in the ACCA.  The district court held that pursuant to Shepard and Taylor, the court could only consider the charging documents, the judgments, and the plea questionnaires from the 1985 convictions in determining whether the offenses occurred on different occasions.  Looking at these documents alone, the government conceded that it was possible that the two offenses occurred simultaneously.  However, because the defendant could not show that the offenses occurred on the same occasion by a preponderance of the evidence, the government argued that the two offenses should be counted separately because the defendant had the burden on this question.  The district court agreed and found the defendant to be an armed career criminal.  The Seventh Circuit first held that the district court properly limited the documents it could consider to those documents allowed by Shepard and Taylor.  Courts may only consider Shepard approved sources in determining whether prior offenses occurred on separate occasions.  Moving to the question of whether the two offenses occurred on different occasions, the court first noted that the key issue is not whether the prior offenses are "related," but whether each arose out of a "separate and distinct criminal episode."  The primary question is simple: were the crimes simultaneous or were they sequential.  Applying this standard, the Court of Appeals agreed that the record in the case did not establish conclusively whether the prior offenses occurred simultaneously or sequentially.  Where the district court erred, however, is its conclusion that the enhancement therefore applied because it was the defendant's burden to prove the offenses occurred on different occasions.  The court held that this burden shifting required by the decision in Hudspeth has since been changed by Shepard and its progeny.  Therefore, if the Shepard-approved documents before a district court are equivocal as to whether the offenses occurred on the same occasion, the ACCA does not apply.  Applying this standard, the ambiguity as to the timing for the prior convictions in this case meant that the defendant did not qualify as an ACCA.  PRACTICE TIP:  The holding in this case is an important change in the law for the benefit of defendants.  If the Shepard-approved documents fail to establish that prior convictions occurred on a "different occasion," then the prior convictions are treated as one, rather than multiple, prior convictions. 

In United States v. Stadfeld, ___ F.3d ___ (7th Cir. 2012; No. 11-1369), the court held that the defendant's mistaken belief that an oral non-prosecution agreement with the county prosecutor did not preclude his federal prosecution.  In exchange for information given to county prosecutors about a drug operation, the county prosecutor agreed not to prosecute the defendant.  When the United States Attorney's office indicted the defendant, he moved to suppress his statements, arguing that he spoke to investigators only because he was under the mistaken impression that he had full immunity.  The district court denied the motion, holding that although the defendant got bad advice from his attorneys, neither the police nor the prosecutor had misled him, so his statements were not involuntary.  The Seventh Circuit affirmed, agreeing that the statements were not the product of law-enforcement coercion, and the erroneous advice from the defendant's lawyers did not make his statements involuntary or inadmissible based on ineffective assistance of counsel.  PRACTICE TIP:  Never assume a non-prosecution agreement with an entity other than the United States Attorney's office binds the United States Attorney; it does not.  They must be an actual party to any such agreement to be bound by it.  And ALWAYS get such agreements in writing. 

In United States v. Garcia-Ugarte, ___ F.3d ___ (7th Cir. 2012; No. 11-1990), the Seventh Circuit rejected the defendant's argument that at his sentencing hearing for his illegal re-entry offense, the district court failed to address two of his main arguments:  that he was deprived of the opportunity to argue for a concurrent sentence and should therefore be given credit for time already served on his attempted aggravated kidnapping conviction; and next, to avoid unwarranted sentencing disparities, a below-Guidelines sentence was appropriate to account for the lack of a fast-track program in the Nothern District of Illinois where he was prosecuted.  The court also rejected his argument that the court improperly applied a 16-level enhancement for illegally re-entering after a a previous drug felony conviction for which he received a sentence in excess of 13 months.  Regarding the first argument, the defendant argued that the district court should have granted him credit for time served in state custody on an unrelated aggravated kidnapping conviction because federal immigration authorities delayed his prosecution on the immigration offense, thereby denying him the opportunity to seek a federal sentence concurrent with the state sentence.  The Court of Appeals noted, however, that the district court thoroughly considered the argument and rejected it.  Therefore, no procedural error occurred.  On the second question, the Court of Appeals again concluded that the district court properly understood its authority to vary, properly considered the defendant's argument, but ultimately rejected it.  No procedural error occurred here either.  Finally, regarding the 16-level enhancement, the record clearly established that the defendant re-entered after a prior conviction for distribution of marijuana for which he received a 7-year prison sentence.  The enhancement therefore applied, and the Court of Appeals affirmed the defendant's sentence. 

In United States v. Dooley, ___ F.3d ___ (7th Cir. 2012; No. 11-2256), the Seventh Circuit vacated the defendant's sentence, finding that the district court plainly erred when it failed to consider Application Note 2(B) of guideline section 5G1.2 when imposing consecutive sentences for 3 aggravated identity theft convictions under 18 U.S.C. §1028A convictions.  The defendant pleaded guilty to nine total counts, three of which were aggravated identity theft convictions.  Section 1028A requires that every conviction under the statute is punished by exactly two years in prison.  The statute also requires that the two-year sentence must run consecutively to every sentence for a different crime--though sentences for multiple aggravated-identity-theft convictions may run concurrently with each other.  The district court had three options at sentencing: he could have added 24-months to the underlying convictions for all three 1028A offenses (running them all concurrently with each other); added 48 months (running two of them concurrently with each other and one consecutively to the other two); or 72 months (running all three consecutively to each other).  The district court chose to run all three consecutively to the underlying convictions and to each other.  Although 1028A does not offer any guidance about which option to choose, it does direct that "discretion shall be exercised in accordance with any applicable guidelines and policy statements issued by the Sentencing Commission."  Application Note 2(B) to Guideline section 5G1.2 in turn lists a number of factors the court must consider when deciding whether to run the 1028A convictions consecutively or concurrently to each other.  At sentencing, neither the PSR, defense counsel, the prosecutor, nor the district court ever mentioned the Application Note, indicating that everyone was unaware of the relevant Application Note.  Given that the statute ties itself to the guideline considerations in this case, failure to consider Application Note 2(B) was a plain error.  Moreover, the defendant's substantial rights were affected; an extra 48 months in prison is substantial by any measure.  Therefore, the court remanded for reconsideration in light of the factors set forth in Note 2(B).  NOTE:  This appeal was litigated by our University of Illinois College of Law extern, Christopher Quinlan, under the supervision of AFPD John Taylor.  Chris will be joining our staff as a lawyer (pending admission to the Bar) at the end of August.

In United States v. Miller, ___ F.3d ___ (7th Cir. 2012; No. 11-2506), the court affirmed the defendant's convictions for child pornography offenses.  At the defendant's trial, he testified that he had no interest in viewing child pornography, and he did not seek out the images of naked children.  Finding that this testimony opened the door to evidence of the defendant's intent, knowledge, and lack of mistake, the district court allowed the government to question him about allegations of sexual misconduct with his minor granddaughter and stepdaughter.  The court prohibited the government from proving up the allegations with extrinsic evidence, however, and instructed the jury at the close of the evidence that the evidence was relevant only to questions of the defendant's intent, knowledge, and lack of mistake.  On appeal, the defendant argued that by allowing the sexual misconduct evidence without conducting the requisite 403 balancing test, the district court erred.   The Seventh Circuit noted that it was undisputed that the district court failed to explicitly conduct the Rule 403 balancing test.  The court has consistently held that a district court commits error by not clearly articulating its Rule 403 rationale before admitting adverse character evidence against a defendant, even if such evidence is admissible under Rule 404(b) or rule 414(a).  Admissibility under these Rules must first be established, but once that is done, the Rule 403 analysis must always be performed.  Not only must the court conduct the 403 balancing test, it must do so in more than a "pro forma manner."  Rather, it should carefully analyze the prejudicial effect and provide a "considered explanation" of its reasons for admitting evidence.  A perfunctory analysis or bare-bones conclusion "simply will not suffice."  Given that there was no analysis whatsoever in this case, an error occurred.  Nevertheless, given the overwhelming weight of the evidence in the case, the court concluded that the error was harmless.  PRACTICE TIP:  This case puts some real "teeth" in the requirement for the court to conduct the Rule 403 balancing test.  Don't assume that just because evidence is admissible under another rule that the Rule 403 analysis need not be performed by the court. 

In United States v. Jones, ___ F.3d ___ (7th Cir. 2012; No. 11-3719), the Seventh Circuit rejected a challenge the the ACCA's residual clause as void for vagueness, finding that it could not make such a finding in light of the Supreme Court's rejection of the argument, albeit indirectly.  Picking up on Justice Scalia's dissent in Sykes v. United States, 131 S.Ct. 2267, 2284 (2011) (Scalia, J., dissenting), wherein the Justice stated that the time had come to "admit that [the] ACCA's residual provision is a drafting failure and declare it void for vagueness," the defendant asked the Seventh Circuit to adopt Justice Scalia's position and declare the residual clause unconstitutionally vague under the Due Process Clause of the Fifth Amendment.  In making the argument, the defendant noted that the Supreme Court has never received briefing on the vagueness issue.  The Seventh Circuit, however, noted that the Court's response to Justice Scalia's dissent was direct, especially in light of the thoroughly developed argument in the dissent.  The court was therefore reluctant to treat the Court's responsive statements as mere dicta.  The court finally noted that Justice Scalia may be right, but it was not within its authority to make that determination.  The court did suggest, however, that perhaps the defendant could persuade the Court to directly consider the issue.  PRACTICE NOTE:  Dan Hansmeier of our office litigated this case.  We preserved and raised this issue precisely so we could attempt to get the issue before the Supreme Court.  We will of course seek certiorari.  Where possible, preserve the argument that the residual clause is void for vagueness.  In other words, raise it in the district court and raise it on appeal, asking the Seventh Circuit to withhold ruling on the issue until the Supreme Court rules on our petition for certiorari in Jones.  For a copy of our brief in Jones, click HERE. 

In United States v. Lopez-Hernandez, ___ F.3d. ___ (7th Cir. 2012; No. 11-3854), the Seventh Circuit rejected the defendant's argument that at his sentencing hearing for being in the United States without permission after he had been deported, the district court improperly considered his 41 arrests that did not result in convictions when sentencing the defendant to the top of his guideline range.  The government confessed error, agreeing that the judge should not have considered the arrests without determining that the defendant had actually engaged in the conduct for which he had been arrested.  The court, however, noted that although a sentencing court may not rely on the prior arrest record itself in deciding on a sentence, the court may still consider underlying conduct detailed in arrest records where there is a sufficient factual basis for the court to conclude that the conduct actually occurred.  In this case, for 15 of the arrests, there is a summary of the arrest reports in the record--the accuracy of which the defendant never contested.  Given the uncontested nature of the summaries, the judge was entitled to take account of those 15 arrests for which there were summaries in deciding whether to sentence the defendant to the top of the guidelines range.  Although the judge appeared to rely on all 41 arrests, the defendant never suggested that the arrests for which there was no summary were somehow not grounded in fact.  In light of the defendant's failure to challenge the accuracy of anything in his lengthy arrest record, the judge was entitled to assume that all 41 arrests considered as a whole, when coupled with the defendant's five convictions, gave a more accurate picture of the likelihood of recidivism than the convictions and arrest summaries alone and justified a sentence at the top of the range. 

The Seventh Circuit issued 3 precedential opinions in criminal cases this week, as summarized below.

In United States v. Johns, ___ F.3d ___ (7th Cir. 2012; No. 11-3299), the court considered a number of arguments arising from the defendant's conviction and sentencing for making false representations to the debtors' bankruptcy trustee with the intent to defeat the provisions of the Bankruptcy Code.  As part of an ongoing scheme, the defendant and his co-defendant offered to purchase  a home from a couple, where their home was about to go into foreclosure.  They offered to pay $30,000 more than the outstanding loan on the house, provided that the sellers gave that amount back to the defendant after the sale.  Essentially, they were purchasing the house for less than the amount of the loan they received from the bank and getting the difference back from the seller after the sale was complete.  In order to secure the promise to pay the defendant the equity from the sale, the defendant had the sellers sign a mortgage document which allegedly secured the payment to the co-defendant, but listed the co-defendant's girlfriend as the payee.  The hitch was that because the sellers were in bankruptcy, the defendant needed the approval of the Bankruptcy trustee to ensure the fair and equitable distribution of assets among all creditors.  The trustee refused to sanction the sale, but the seller and the defendant went through with the sale anyway.  When the trustee learned of the sale and discovered the phony mortgage, an investigation ensued which led to the indictment in this case.  The defendant first challenged the denial of his motion for acquittal.  The false statement relied upon by the government was his assertion to the trustee that a genuine $30,000 mortgage existed on the property.  The defendant argued that he in fact secured the mortgage and, therefore, his statement was not false.  After discussing at length the requirements for a valid mortgage, the court ultimately concluded that the use of the co-defendant's girlfriend as the person who held the mortgage was fatal to an actual mortgage existing.  The girlfriend never signed the agreement and was not even aware of it.  Thus, there could not have been a meeting of the minds between the alleged parties to the contract, and no underlying contract was formed.  Moreover, even if she had been a legitimate party, the agreement would have failed for lack of consideration.  The sellers were required to pay the co-defendant's girlfriend the $30,000, but they received nothing in return.  Accordingly, the defendant's representation to the trustee that a mortgage existed on the property was materially false, supporting his conviction.  Regarding sentencing, the district court included the $30,000 in the loss calculation, as well similar amounts related to the sale of two other homes.  The government argued that the original payment price for each home, before any "equity" was returned back to the defendant, represented the fair market value, and that each homeowner had a right to that equity.  Since the defendant took it for himself, each homeowner suffered a loss in the amount of equity turned over to the defendant.  The defendant argued that each home was in foreclosure and had no positive equity in the homes.  Thus, they did not "lose" the money they turned over to him, for they would never have realized that money through a fair market sale or foreclosure.  The court agreed with the defendant.  Not only did the defendants not realize a loss, but they in fact may have come out ahead because of the defendant's scheme.  Through the defendant's scheme, they were able to pay off their debts.  Nor did the defendant intend for there to be a loss.  Indeed, they were successful in their scheme until they were caught.  The court noted that it is incorrect to suppose that ill-gotten gains must have caused someone a loss.  The court has previously stated that intended losses are intended losses, not bookeeping entries.  It is not enough that a criminal expect a pecuniary gain--he must foresee that his victim will actually suffer pecuniary loss.  Here, unless the seller would have been in a better financial position but for the defendant's scheme, they did not suffer a loss.  Similarly, unless a foreseeable result of the scheme was the placement of the sellers in a worse financial position than if they did not sell their house to the defendant, no loss was intended.  For at least two of the houses involved, there was no question that neither of these two situations were present, and no loss occurred.  However, because the record was unclear about whether the sellers in a third transaction had any "real" equity in the home, in addition to the defendant's phony equity, the court remanded for more findings on this question.  Finally, the district court imposed a vulnerable victim enhancement due to the sellers' financial distress.  The defendant argued that in order to be a vulnerable victim, the victim must first suffer some harm.  The court agreed and noted that the enhancement cannot apply if no one suffers any harm.  Here, there was still a question on remand for one group of sellers regarding whether they experienced a loss.  The court held that, should the court on remand find that they in fact experienced a loss, then the court held that financial desperation is enough to warrant the vulnerable victim enhancement.  NOTE:  Dan Stiller, the Federal Public Defender for Wisconsin litigated this appeal.  Nice win on the sentencing issues!

In United States v. Tello, ___ F.3d ___ (7th Cir. 2012; No. 10-2677), the court considered the defendants' challenges to the convictions and sentences in a RICO conspiracy case arising out of their membership in the Milwaukee chapter of the Latin Kings street gang.  One defendant challenged the validity of his guilty plea.  In his plea agreement, he admitted to two crimes in furtherance of the alleged conspiracy, but only one of those crimes was actually listed in the indictment as a predicate act.  Thus, accordingly to the defendant, there was a disparity between the alleged RICO conspiracy and that to which he pled.  The court construed the argument as a "constructive amendment" argument.  Reviewing the issue for plain error, the court noted that although a substantive RICO charge requires proof of two predicate acts, a conspiracy charge does not.  A RICO conspiracy charge punishes the agreement and does not require proof that the defendant committed two predicate acts of racketeering--or any at all for that matter.  Accordingly, because the defendant clearly admitted to the agreement, the variance in the predicate acts between the indictment on the substantive offense and the acts listed in the agreement related to the conspiracy charge did not constitute a constructive amendment of the indictment.  The second defendant challenged his sentence.  Specifically, the defendant had previously appealed the district court's determination that he was a career offender.  The court of appeals reversed the district court, finding that his prior Wisconsin conviction for second degree recklessly endangering safety did not constitute a crime of violence.  The court therefore remanded for resentencing, directing the district court on remand to address the defendant's further contention that the conduct underlying the reckless endangerment conviction was carried out in furtherance of the conspiracy to which he had pleaded guilty and therefore should not be included in his criminal history calculation.  On remand, the district court accepted the government's argument, not raised previously, that the defendant was an accessory after the fact to a murder committed by a fellow Latin Kings member, and therefore applied the accessory after the fact guideline, which substantially increased the defendant's sentence.  The court held that the government waived any reliance on this enhancement by not proposing it sooner, and the district court exceeded the scope of the mandate by entertaining the government's argument on remand.  The government could have raised the issue at the original sentencing hearing.  Although the government noted that it did not raise the argument because the defendant was found to be a career offender at the initial sentencing hearing, the defendant challenged the enhancement at sentencing.  Thus, the government should have been aware that the court might have agreed with the defendant that he was not a career offender, or even that if it did agree, the Court of Appeals might reverse.  The court therefore could find no legitimate reason for the government's failure to raise the issue initially, and they therefore waived the right to raise it on remand.  PRACTICE NOTE:  The scope-of-remand analysis should be very useful in future cases.  This is the best case I have seen in a long time on this issue.  Basically, if you defeat an enhancement on appeal, the government cannot come back and argue for a different enhancement, even if they had no incentive to push for the enhancement at the initial sentencing because the subsequently reversed enhancement applied originally.

In United States v. Dixon, ___ F.3d ___ (7th Cir. 2012; No. 11-3802), the Seventh Circuit held that a defendant originally sentenced pursuant to a (C) agreement was precluded from receiving a reduced sentence under retroactive amendment 750 because his sentence was not "based on" the Guidelines, but rather based on the sentence provided for in the plea agreement.   Last term, the Supreme Court in Freeman v. United States considered whether defendants sentenced pursuant to a (C) agreement could receive 3582(c)(2) relief.  The case resulted in a plurality decision, with four dissenters believing such defendants are never entitled to relief and four justices believe such defendants are always entitled to relief.  Justice Sotomayor agreed in her concurring opinion held that the eligibility of such defendants depends on the specific language in the plea agreement.  Specifically, she agreed with the dissenters that a sentence imposed pursuant to a binding plea agreement is based on the agreement so 3582(c)(2) relief is not usually available.  There are, however, two exceptions to this rule, according to her.  When a binding plea agreement itself calls for the defendant to be sentenced within a particular Guidelines sentencing range, the sentence is still "based on" the guidelines and 3582 is applicable.  Secondly, where an agreement provides for a specific term, relief still might be available if the agreement makes clear that the basis for the specificed term is a Guidelines sentencing range.  Because a majority of justices did not agree on a single rationale in Feeman, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.  In this case, Justice Sotomayor's approach is therefore the controlling law.  Applying this approach to the present case, the court noted that the agreement allowed for a range between 15 and 20 years imprisonment.  Thus, because there was no explicit reference to a Guideline range, it does not fall within the first exception.  Under the second exception, the agreement either would have had to "expressly use" a guideline range or a Guidelines sentencing range would have to be evident from the agreement itself."  No Guideline range appears in the written terms of the plea agreement.  Although the agreement does set forth information about the defendant's offense level and criminal history category, the actually sentencing range agreed to in the agreement was in no way linked to these guideline factors.  The guideline range was 360 to Life, but the agreement was to a term from 15 to 20 years.  Thus, the written terms of the agreement itself did not make clear that any particular Guidelines range was employed.  Although the prosecutor at sentencing did link the two ranges orally at sentencing, noting that the agreed range was from one-half to two-thirds of the bottom of the Guideline range, the court concluded that the approach in Freeman does not allow reliance on such oral pronouncements.  In the words of the court, "All that matters is whether the parties' binding plea agreement was expressly based on the Sentencing Guidelines, not whether the Guidelines informed the parties' decision to enter into the agreement or whether the Guidelines informed the court's decision to accept the agreement." 

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

In United States v. Johnson, ___ F.3d ___ (7th Cir. 2012; No. 11-3153), the court dismissed the defendant's appeal upon the filing of defense counsel's Anders brief.  In doing so, the court discussed the potential issue in the case of whether the district judge erred in declining to give a below-guidelines sentence despite the defendant's age, a question discussed at length at the sentencing hearing, where defense counsel argued that the defendant should get a shorter sentence than 78 months because he was 70 years old at the time of sentencing and so might die before he was released from prison.  The court concluded that the district judge imposed a proper sentence, but in doing so discussed at length the role of age and life expectancy tables at sentence.  Of particular note, the court acknowledged that it had wrestled in previous cases with the question of whether life expectancy statistics should figure in sentence for offenses for which Congress has not authorized a life sentence.  The Seventh Circuit has concluded, as other courts have, that a sentence which although it is a term of years is likely or even certain to be a de facto life sentence because of the defendant's age is improper if the statute under which he was convicted provides that only a jury can authorize a life sentence.  Here, however, the defendant's age and physical condition did not make his sentence a de facto life sentence and, if it did, it would then only be one more consideration that the judge might be asked to weigh in determining the sentence, properly so if the prospect of dying in prison is thought to make a sentence of otherwise appropriate length harsher.  PRACTICE NOTE:  Although the court found the age issue to be frivolous in this case, it clearly signaled here that there are strong grounds for a variance where a term of years sentence is likely to result in the defendant dying in prison.  Thus, for clients advanced in years, it is well worth consulting the life expectancy tables. 

In United States v. McKinney, ___ F.3d ___ (7th Cir. 2012; No. 11-3722), the court affirmed the district court's sentencing enhancements for failing to report income exceeding $10,000 from criminal activity (U.S.S.G. §2T1.1(b)(1)) and an obstruction of justice enhancement in a tax fraud case.  Regarding the income enhancement, the defendant argued that the proceeds in question were obtained and pocketed by his wife, and here therefore was not accountable for them.  The court noted that an individual whose spouse obtained income through illegal means shares the duty to report such income and may receive a sentence enhancement should that spouse fail to do so.  Moreover, under general principles of federal income tax law, the defendant was jointly and severally liable for any deficiencies, penalties, and interest assessed against him and his wife regarding a joint return unless he was an "innocent spouse."  The defendant clearly was not innocent in this case.  On the obstruction of justice enhancement, the defendant argued that the false statements he made to IRS agents which formed the basis of the enhancement were made before a criminal investigation was initiated and, therefore, could not support the enhancement.  The court stated that it did not matter that the statements were made to the IRS agents before a criminal investigation was begun.  The fact that the investigation originated as civil, not criminal, does not legitimize the defendant's lies and attempts to frustrate the government's inquiries.  Although providing false statements or incomplete or misleading information to law enforcement, if not under oath, does not constitute obstruction if the investigation is not actually obstructed or impeded, such conduct can form the basis of the enhancement if the disinformation was material and impeded the official investigation or prosecution of the offense in question.  The misinformation in this case met this standard. 

The Seventh Circuit issued five precedential opinions in criminal cases this week, as summarized below.

In United States v. Griffin, ___ F.3d ___ (7th Cir. 2012: No. 11-1951), the court reversed the defendant's conviction for possession of a firearm and ammunition by a convicted felon, finding that the evidence presented at trial was insufficient to support his conviction because there was no evidence that he actually intended to exercise any control over his father's firearms in his parents' home where he was living at the time.  After the defendant's release from prison, he resided with his parents.  A few weeks later, a search warrant was executed at the home looking for the defendant's brother.  Ten firearms and ammunition, belonging to the defendant's father (an avid hunter) were also in the home.  The defendant was charged with possession of all the firearms and ammunition in the home.  The only evidence directly linking the defendant to the evidence was a jailhouse snitch, who testified that the defendant told him that two of the firearms were purchased by his father on his behalf.  The court first noted that there was no evidence of actual possession of any kind, so the government had to rely on a constructive possession theory.  To have such possession, the government must establish that the defendant knowingly had both the power and the intention to exercise dominion and control over the firearms or ammunition, either directly or through others.  Exclusive control over the location of contraband is one way to show constructive possession, but the defendant clearly had no such control in this case.  Although the government argued that the defendant had a substantial connection to the property, the court emphasized that mere proximity is not enough to establish a sufficient nexus to prove constructive possession.  Looking closely at the caselaw, court concluded that in "substantial connection" cases, the evidence must show both a substantial connection between the defendant and the location and the defendant and the contraband itself.  Although the government sought to establish this connection in this case, it confused the defendant having access to the firearms, as opposed to possession.  Simply because the defendant had access to the weapons does not mean he possessed them.  Finally, the jailhouse snitch testimony could not establish the requisite connection.  The testimony did not attribute to the defendant possession of the specific firearms or ammunition for which he was convicted.  The testimony was that two handguns hidden behind the stove were the defendant's, but no handguns were actually found there.  Accordingly, the court found the evidence insufficient and reversed.  PRACTICE NOTE:  This is an excellent opinion for defendants, especially given the opinions narrow reading of the "substantial connection" test in constructive possession cases.  Congratulations to Professor Sarah Schrup and the Northwestern University School of Law Blum Legal Clinic on a very nice victory!

In United States v. Breshers, ___ F.3d ___ (7th Cir. 2012; No. 12-1364), the court affirmed the district court's order of restitution under the plain error standard.  The defendant was convicted of kidnapping and interference with commerce by robbery.  The court ordered $44,618.50 in restitution to the victims, but the defendant argued on appeal for the first time that the restitution was unauthorized because his victims did not suffer physical injury.  The court noted at the outset that trial counsel failed to object, thus depriving the court and the government  of the opportunity to explore the victim's injuries and develop a record on the subject.  The defendant first argued that the district court erred because it only authorized payment based on a victim's physical--as contrasted with mental--injuries.  After looking at the Mandatory Victims Restitution Act, cases interpreting it, and other federal statutes, the court concluded that it was at best "unclear" whether the MVRA included mental injury.  Although other circuits have held that physical injury is required before restitution can be ordered for mental injuries, the cases in the other circuits were not decided under a plain error standard.  Given the ambiguity in the statute, the defendant could not prevail, as the error argued in this case was not "plain."  Accordingly, the court affirmed.  PRACTICE NOTE:  The question of whether or not the MVRA allows restitution for mental injury alone has not been decided in the Seventh Circuit, so if you have this issue come up, be sure to make the argument in the district court and raise it on appeal if you lose. 

In United States v. Mota, ___ F.3d ___ (7th Cir. 2012; No. 10-1486), the court affirmed the defendant's conviction for drug distribution, notwithstanding the fact that the defendant learned at the start of trial that a government agent had failed to record and relay exculpatory evidence regarding a conversation between the agent and the defendant's co-defendant, during which conversation the co-defendant assumed complete responsibility for the crime and proclaimed the defendant's complete innocence.  Reviewing the defendant's claim under the plain error standard due to his failure to make a Brady violation claim below, the court noted that the failure to transmit the exculpatory evidence was inexcusable.  Nevertheless, a Brady violation did not occur here because the defendant learned of the evidence at the start of his trial and thoroughly presented it to the jury.  Also, because the defendant had the opportunity to cross-examine the negligent agent and because the co-defendant testified on the defendant's behalf, the court could not conclude that the defendant was denied a fair trial.

In United States v. Cephus, ___ F.3d ___ (7th Cir. 2012; No. 10-3838),  the defendants were tried together for conspiring to entice underage girls, often
runaways, to engage in prostitution, to transport them (along with adult women who also worked for the ring) in interstate commerce to engage in prostitution, to use force and fraud to coerce adult women to engage in prostitution, and to commit related offenses. The defendants were also charged with the underlying offenses. See 18 U.S.C. §§ 1591, 2421, 2423. The jury convicted all three defendants on all counts. The judge sentenced
both the ringleader, Justin Cephus, and Jovan Stewart to life in prison (without parole, which has been abolished in federal sentencing) and Justin’s brother Stanton Cephus to 324 months in prison.  The defendants made a number of evidentiary challenges on appeal, all of which the court rejected in relatively short order.  However, the court remanded the sentence of one defendant for clarification.  At the sentencing hearing, the judge imposed life sentences on seven counts and sentences ranging from 5 to 10 years on other counts.  The judge stated that the sentences were "all to be served consecutively to each other," but the written judgment stated that they were all to be concurrent.  The court noted that what the judge says in sentencing a defendant takes precedence over the written judgment.  Notwithstanding this rule, the court found it hard to make sense of sentencing a defendant to consecutive sentences some of which are life sentences without the possibility of parole and the others term sentences.  Although perhaps the judge ran the sentences consecutively in case some or all of the life sentences were later vacated, the judge did not say this.  Given the ambiguity in the case, the court elected to remand the case to the district court for clarification on this point.

In United States v. Collins, ___ F.3d ___ (7th Cir. 2012; No. 11-1954), the defendant was convicted after a jury trial of multiple counts of tax evasion, willful failure to file tax returns, and voter fraud.  He was sentenced to a 50-month within-the-range sentence.  On appeal, he challenged a jury instruction, the sufficiency of the evidence, and the district court's calculated tax loss at sentencing.  The court affirmed.  Regarding the jury instructions, the court used the Seventh Circuit pattern instructions and there was no special reason for any modification in this case.  The evidence was more than sufficient to convict on all counts.  Finally, on the issue of loss, the defendant argued that the court should have used his own expert's estimate of the tax loss in this case, instead of the estimate provided by the government's agent.  The court deferred to the district court's credibility determination with respect to the expert testimony, which clearly rejected the defendant's expert testimony as incomplete and reliant upon the information provided to her by the defendant. 

The Supreme Court finished its term this week, deciding three cases related to criminal law.  It also granted certiorari in one new criminal case.  The Seventh Circuit this week issued precedential opinions in six cases this week, as summarized below.

Regarding the Supreme Court, it held hat the 8th Amendment prohibition of cruel and unusual punishment prohibits a sentence of life without parole for a juvenile homicide offender. You can access the opinion in the two companion cases, Miller v. Alabama and Jackson v. Hobbs, here: http://www.supremecourt.gov/opinions/11pdf/10-9646g2i8.pdf

The Court also held that the bulk of the Arizona immigration statute was pre-empted by federal law, with the exception of the provision which allows officers to inquire into the immigration status of a person upon reasonable suspicion that the person is an illegal alien. You can access the opinion here: http://www.supremecourt.gov/opinions/11pdf/11-182b5e1.pdf

In it's last criminal case of the term, the Supreme Court today held that the Stolen Valor Act is unconstitutional in violation of the First Amendment.  The case is United States v. Alvarez.  You can access the opinion here:  http://www.supremecourt.gov/opinions/11pdf/11-210d4e9.pdf

The one new grant of a petition for certiorari was in Henderson v. United States, 11-9307.  The question presented is: " 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."

In United States v. Selvie, ___ F.3d ___ (7th Cir. 2012; No. 12-1140), the Seventh Circuit affirmed the application of an obstruction of justice enhancement in the defendant's possession of a firearm by a felon case.  After the defendant was arrested, he called his girlfriend while in custody and asked her to file a complaint with the Chicago Police Department alleging that officers planted the gun on the defendant.  After an investigation was launched, the girlfriend recanted her story, admitting she had no personal knowledge of what she alleged.  The court concluded that the defendant intended to induce false testimony from a fabricated witness in order to subvert the government's ability to prove the charges against him, constituting obstruction of justice.  The Court of Appeals agreed.  Although the defendant argued that his conduct did not significantly obstruct or impede an official investigation because his plan was quickly abandoned, the government need only show that it expended time and resources on the false information.  Here, an investigation was launched, time was spent, and only because the girlfriend quickly recanted were further efforts not necessary. 

In United States v. Hill, ___ F.3d ___ (7th Cir. 2012; No. 2312), the court rejected the defendant's argument that the district court erred when it increased his base offense level by fourteen levels for the amount of intended loss to the government related to his conspiracy to defraud the United States and identity theft convictions, stemming from his filing of false tax returns.  As part of the scheme purported to run a tax service through which they obtained personal information from people and then filed false tax returns claiming $525,460 in tax refunds.  The government issued approximately $353,500 in refunds based upon the false returns.  The defendant first argued that the government was not a victim of the identity theft convictions and therefore loss to it should not have been included.  The court disagreed, finding that the crime here was more than simply identity theft of an individual.  The identity theft occurred for the purpose of stealing from the government, which made the government a victim of the offense in addition to the people whose identity was stolen.   Regarding a double counting argument, the court relied upon its recent precedent that double-counting is permitted in the guidelines to reject that argument.  Finally, the court found there to be no unwarranted disparity between the defendant's sentence and that of his co-defendant, as the differences in sentence were warranted by differences in guideline calculations for the two men. 

The Seventh Circuit decided United States v. Bohman, ___ F.3d ___ (7th Cir. 2012: No. 10-3656). held that police may not stop a vehicle only because it emerged from a site suspected of drug activity and, consequently, the district court erred in denying the defendant's motion to suppress.  Officers were conducting surveillance of a site suspected of being a location for meth lab operations, when the defendant's vehicle departed from the location.  An officer stopped the defendant's car, conceding that the defendant had not committed any traffic violation.  A search of the car revealed that it was indeed a meth lab.  The defendant did not dispute that a justifiable stop of his car would permit his removal from the car and the search which ensued thereafter.  Rather, the defendant argued that the initial stop was unreasonable and, therefore, anything obtained after that initial stop should have been suppressed as fruit from the poisonous tree.  The Seventh Circuit held that a mere suspicion of illegal activity at a particular place is not enough to transfer that suspicion to anyone who leaves that property.  Although an officer with a warrant to search a place may stop anyone leaving that place without additional individualized suspicion, a mere suspicion of illegal activity about a place, without more, is not enough to justify stopping everyone emerging from that property.  Although the government argued good faith, the court noted that the good faith exception does not apply to a situation where, as here, no reasonable suspicion existed to stop the defendant's car.  Stopping a car just to identify its occupants is deliberate enough to justify suppression when there is neither probably cause nor reasonable suspicion that the care is being driven contrary to the laws governing the operation of motor vehicles or that the car or any of its occupants is subject to seizure or detention in connection with the violation of any other applicable law.  Although the circumstances in this case may have supported a "general suspicion," what was lacking was the required "quantum of individualized, articulable suspicion.

In United States v. Burge, ___ F.3d ____ (7th Cir. 2012; No. 11-3495), the Seventh Circuit held than an Illinois conviction for misdemeanor abandonment under the Illinois animal cruelty statute is similar to misdemeanors listed in subsection 4A1.2(c) of the Sentencing Guidelines as offenses that should not count for any criminal history points.  The district court assigned the conviction 1 criminal history point, which gave the defendant a total of two criminal history points, thereby making him ineligible for the safety valve.  Therefore, because the defendant had this animal cruelty conviction (which stemmed from his llama escaping from its pen), the defendant was subject to a 10-year mandatory minimum on his federal marijuana conviction, whereas the safety valve would have given him a guideline range of 18 to 24 months.  The court noted that for misdemeanors, they are counted unless they are enumerated in 4A1.2(c)(1) or (c)(2) or are offenses similar to those listed.  Looking to the list, the court analogized the defendant's offense to an enumerated "fish and game violation."  Although the court noted that the Illinois animal cruelty statute includes provisions that could reach truly disturbing behavior, the opinion did not address those cases.  Rather, it focused on the facts in the present case.  Because the issue was not raised below and, indeed, was only raised by the Court of Appeals at oral argument, the court considered whether the error in this case was "plain."  The court noted that it had treated failure to recognize that a similar offense was excludable under subsection 4A1.2(c) as a plain error in a previous case.  Although the practical effect of treating such errors as plain errors is to impose on district courts (with the help of probation officers) an independent duty to consider whether prior offenses are listed in, or similar to those listed in, subsection 4A1.2(c), at least when the offense in question may have a significant effect on the guideline calculation.  This obligation is consistent with and part of the general duty to apply the Guidelines. 

In United States v. Reyes-Medina, ___ F.3d ___ (7th Cir. 2012; No. 11-3272), the Seventh Circuit rejected the defendant's arguments that the district court failed to consider two sentencing factors when it imposed his sentence and that a consecutive sentence was unreasonable and excessive.  The defendant pleaded guilty to using a communication facility in committing a drug trafficking offense.  First, the defendant argued that the judge failed to consider 3553(a)(6), regarding unwarranted sentencing disparity.  The court noted that the district court in fact commented on the (a)(6) argument.  Moreover, it noted that if a district judge correctly calculated and carefully reviewed the guidelines range, he necessarily gave weight and consideration to the need to avoid unwarranted disparities.  A sentence with a guideline range necessarily complies with (a)(6).  Given that the range was correctly calculated and was within the range, the district judge "did not need to say a word" about that factor to satisfy the procedural requirement that he give that factor "meaningful consideration."  Secondly, the defendant argued that the judge failed to consider his (a)(5) argument, which requires a sentencing court to consider "any pertinent policy statement . . . issued by the Sentencing Commission."  Again, the court noted that the record made clear that, taken as a whole, the judge sufficiently considered the arguments.  Finally, regarding the substantive reasonableness of the defendant's consecutive sentence, the court concluded that, like the other issues, the district court sufficiently considered the defendant's argument for concurrent sentences and supported its rejection of those arguments with a sufficient statement of the reasons on the record. 

In United States v. Sims, ___ F.3d ___ (7th Cir. 2012; No. 11-3550),  the defendant argued that his prior conviction for selling cocaine and another conviction for possessing cocaine with intent to deliver were not committed "on occasions" different from one another" such that he could not be sentenced as an Armed Career Criminal because the two offenses should be counted as one prior qualifying conviction, rather than two.  Here, the offenses occurred a week apart from one another.  Moreover, the facts of the two offenses established by a preponderance of the evidence that they were two, discrete offenses.  The court noted that it was not adopting a hard and fast rule about how much time must pass between a sales offenses and a possession offense before the two are considered to be committed on different occasions.  A week, as in this case, is likely to be enough, but the court did not rule out the possibility that a defendant in a future case could point to evidence indicating that only one episode was unfolding. 

The Supreme Court granted a petition for certiorari in one criminal case and issued three opinions in criminal cases this week.  The Seventh Circuit issued only one precedential opinion in a criminal case this week, as summarized below.

The new certiorari grant was in Smith v. United States, No. 11-8976.   The question presented is as follows:  “Whether withdrawing from a conspiracy prior to the statute of limitations period negates an element of a conspiracy charge such that, once a defendant meets his burden of production that he did so withdraw, the burden of persuasion rests with the government to prove beyond a reasonable doubt that he was a member of the conspiracy during the relevant period -- a fundamental due process question that is the subject of a well-developed circuit split.” Lisa Wright, Assistant Federal Public Defender from the D.C. Federal Defender office is counsel of record in the case. 

In Dorsey/Hill v. United States, No. 11-5683, the Court held that the Fair Sentencing Act applies to every defendant sentenced after the Act's enactment, regardless of when the defendant's offense conduct occurred.  Congratulations to Dan Hansmeier of our office who represented Petitioner Edward Dorsey, as well as congratulations to Northern District of Illinois CJA Panel attorney Stephen Eberhardt who represented Petitioner Corey Hill.

In Southern Union Co. v. United States, No. 11-94, the Court held that Apprendi applies to the imposition of criminal fines.

The Court also issued its decision in Williams v. Illinois, 567 U.S. ___ (2012).  Justice Alito issued the opinion, joined only by the Chief Justice, Justice Kennedy, and Justice Breyer.  Justice Breyer issued a concurring opinion, and Justice Thomas concurred only in the judgment.  Therefore, there is no clear majority opinion.  Justice Alito's opinion holds that the testimony of the forensic specialist who relied upon a lab report prepared by another entity did not violate the Confrontation Clause.  Here, the lab report was  not introduced for it's truth but as a basis for the forensic specialist's opinion.  Crawford does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.  The report here was not introduced as substantive evidence.  Moreover, even if the report had been introduced for its truth, no Confrontation Clause violation would have occurred.  The reports in the cases interpreting Crawford were made for the purpose of proving a particular criminal defendant's guilty.  The report here, however, had the primary purpose of catching a dangerous rapist who was still at large, not to obtain evidence against the particular defendant in this case, who was neither in custody nor under suspicion at the time.  Thus, there was no prospect of fabrication nor incentive to produce anything other than a scientifically sound and reliable report.  Justice Thomas, in his separate opinion, concluded that the disclosure of the lab report's out-of-court statements through the forensic specialist's testimony did not violate the Confrontation Clause solely because the statements in the report lacked the requisite "formality and solemnity" to be considered "testimonial."  In his opinion, the lab report was in fact introduced for the truth of the matter asserted, for the validity of the testifying expert's testimony turned on the truth of the lab report.  However, the lab report was not "testimonial" because "testimony" is a "solemn declaration or affirmation made for the purpose of establishing some fact."   Items which meet this test are depositions, affidavits, prior statements, or "formalized dialogue," such as custodial interrogation.  The lab report  here does not fall into any of these categories.  PRACTICE NOTE:  Given the lack of a majority as to the reasoning in this case, it is unclear upon a first read how to apply this case to future fact scenarios.  The general rule in such cases is as follows:  Because five justices failed to agree on a single rationale, the controlling law is “the position taken by those Members who concurred in the judgments on the narrowest grounds.” Marks. v. United States, 430 U.S. 188, 193 (1977).

The Seventh Circuit, in its only precedential criminal opinion of the week, vacated a defendant's conviction after a two-week trial in a drug conspiracy case, finding that the district court erred in denying a motion to suppress evidence.  Specifically, in United States v. Wysinger, ___ F.3d ___ (7th Cir. 2012; No. 10-3894), the court held that a videotaped interrogation of the defendant introduced at trial should have been suppressed because officers did not cease questioning after the defendant's unambiguous invocation of his right to counsel and because officers gave potentially inadequate Miranda warnings in combination with the officers repeated attempts to divert the defendant's attention from asserting his rights.  When the defendant was first placed in the interrogation room, he was told that he was under arrest.  Almost immediately, and before he was read his Miranda warnings, the defendant asked, "Do I need a lawyer before we start talking?"  The court held this to be an ambiguous statement insufficient to constitute an unambiguous invocation of the right to counsel, distinguishing this statement from "Can I have a lawyer?"  Nine minutes later, however, the defendant did unambiguously invoke his right.  At that point, in response to being asked to "tell us what has been going on," the defendant asked again, "I mean, do you think I should have a lawyer?  At this point?"  Although perhaps also ambiguous, his next sentence was clear and removed all doubt.  The agent said, "If you want an attorney, by all means, get one," and the defendant said, "I mean, but can I call one now? That's what I'm saying."  In context, the response was unequivocal and questioning should have stopped at that point.  Therefore, everything after that exchange should have been suppressed and not viewed by the jury.  Regarding the first nine minutes before the invocation of the right to counsel, the court held that this portion of the video should also have been excluded.  First, rather than using the standard Miranda warning, the agent gave the following warning, "Before we ask any questions, you must understand you have a right to remain silent. Anything you say can be used against you in court. You have a right to talk to a lawyer for advice before we ask any questions or have one—have an attorney with you during questioning. If you can’t afford a lawyer, one will be appointed for you before we ask any questions. Do you understand—."  At this point, the agent slammed his hand down on the table, claiming to be killing a bug.  After startling the defendant in this way, he asked the defendant if he understood his rights.  The court found that this version of the Miranda warnings was potentially misleading because it appeared to give the defendant the choice of having a lawyer before questioning or during questioning, but not necessarily both, whereas the properly worded Miranda warnings make it clear that a defendant has a right to a lawyer at both times.  Although perhaps not enough to warrant suppression alone, the misleading warning in combination with the officer's subsequent efforts to divert the defendant from asserting his Mirandai rights was sufficient to warrant suppression.  The court recounted a series of actions on the part of the agent clearly designed to divert or delay the defendant's exercise of his rights.  Finally, the court concluded that the admission of the videotaped interrogation was not harmless.  The tape was not only played during the government's case in chief, but the jury also asked to view it during deliberations.  The bulk of the other evidence against the defendant was testimony from cooperators who had substantial motives to lie given the deals they were cutting with the government.  Accordingly, the court vacated the defendant's conviction and remanded to the district court. 

The Supreme Court issued no opinions in argued criminal cases this week, although it did issue a summary reversal order of the Sixth Circuit's set aside of two murder convictions under the AEDPA.  You can access that summary opinion here:  http://www.supremecourt.gov/opinions/11pdf/11-845.pdf.  The Court issued one new grant of certiorari in a criminal case.  Specifically, in Evans v. Michigan, the Court will consider the following question:  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? 

The Seventh Circuit issued two precedential opinions in criminal cases this week.

In United States v. Tichenork, ___ F.3d ___ (7th Cir. 2012; No. 11-2433), the court rejected the a constitutional challenge to the Career Offender provision of the Guidelines, finding that the the provision is neither unconstitutionally vague nor did the Sentencing Commission exceed its authority in enacting the definition of "crime of violence."  Regarding the first argument, the court relied on its holding in United States v. Brierton, 165 F.3d 1133, 1139 (7th Cir. 1999), where the court held that "the Guidelines are not susceptible to attack under the vagueness doctrine."  Secondly, even if such a challenge could be made, the defendant's argument would fail because, in this case, his qualifying prior conviction had been specifically identified in circuit precedent as a "crime of violence."  Accordingly, the defendant had clear notice of the illegality of his conduct and the consequences he could fact.  On the issue of the Sentencing Commission's authority, the defendant argued that the Commission was originally charged by Congress with defining a "crime of violence" consistent with 18 U.S.C. § 16.  However, the current version of the guideline definition now tracks the Armed Career Criminal Act instead, which is a broader definition that originally authorized by Congress.  The Court rejected the argument, relying on prior precedents which held that the Commission had the authority to enact the definition of "crime of violence" as it now exists.  PRACTICE NOTE: Dan Hansmeier from our our office currently has a challenge to the ACCA's definition of "violent felony" as void for vagueness pending in the Seventh Circuit, picking up on Justice Scalia's suggestion that the Act may be unconstitutionally vague.  The case is United States v. Jones, 11-3719.  From oral argument, it seems clear that the Seventh Circuit believes that it is bound  by Supreme Court precedent to deny our appeal.  Assuming we do in fact lose the appeal, we will be seeking certiorari on the question.  If you have an ACCA case and would like to preserve a challenge to the Act, contact Dan for a copy of his brief at Daniel_Hansmeier@fd.org.

In United States v. Psihos, ___ F.3d ___ (7th Cir. 2012; No. 11-2683), the Seventh Circuit considered a number of challenges to the defendant's sentence stemming from his conviction for making false statements in a tax return.  First, the court rejected the defendant's argument that the court improperly calculated the amount of tax loss because the court failed to take into account available deductions the defendant could have claimed had he made a full disclosure of his income on his tax forms.  Relying on its decision in United States v. Chavin, 316 F.3d 666 (7th Cir. 2002), the court noted that tax loss is based on the object of the offense and should not take into account "unrelated mistakes," and unclaimed deductions cannot be used to offset tax loss for guideline purposes.  The defendant also challenged the amount of restitution for the same reasons, although the court reviewed this issue only for plain error due to the defendant's failure to distinguish between loss and restitution in the district court.  Under this standard, the defendant could not prevail because the amounts he claimed which should offset the restitution amount, or actual loss, were not adequately supported supported in the record or quantifiable.  Lastly, the court rejected the defendant's argument that the court procedurally erred by failing to adequately consider his argument for a below-guideline sentence because the tax loss overstated the seriousness of his offense.  Noting that the sentence was presumptively reasonable because it was within the range, the court found that the district court's statement that the defendant's argument was not supported with adequate documentation was enough to meet the procedural requirements for addressing a 3553(a) argument in this case. 

The Supreme Court granted certiorari in one new criminal case during the week ending on Friday, June 8, 2012, Bailey v. United States. The question presented is: Whether, pursuant to Michigan v. Summers, police officers may detain an individual incident to the execution of a search warrant when the individual has left the immediate vicinity of the premises before the warrant is executed? For documents related to this case, follow this link: http://www.scotusblog.com/case-files/bailey-v-united-states/?wpmp_switcher=desktop.  PRACTICE NOTE:  The practice challenged in this case is relatively common.  In fact, the Seventh Circuit decided a case less than two weeks ago, United States v. Johnson, ___ F.3d ___ (7th Cir. 2012; No. 11-2690), which appears to present this same issue, although it was not directly raised on appeal.  Be sure to re-examine any cases you have which may present this issue and keep the case alive until the Supreme Court issues an opinion in this case. 

The Seventh Circuit issued three precedential criminal opinions last week.

In United States v. Ford, ___ F.3d ___ (7th Cir. 2012; No. 11-2034), the Seventh Circuit held that the district court properly excluded the defendant's alibi witness because he failed to inform the prosecution in advance as required by Rule 12.1(a).  The defendant sought to introduce the testimony of his personal training, with whom he had a scheduled appointment two hours after the defendant allegedly robbed a bank.  Specifically, the defendant wanted the trainer to testify to how the defendant was not nervous or agitated, but instead seemed in he same state as he always was during training sessions.  The defendant wanted to present this evidence to prove that he could not have committed the crime only two hours earlier given his mental state.  The Court of Appeals held that this constituted "psychological" alibi evidence which required notice to the prosecution, just like any other alibi evidence.  Although the defendant was not claiming that it was physically impossible for him to be at the scene of the crime, the inference from the evidence concerning his psychological state was that it was impossible for him to have committed the crime and be in the calm mental state he was two hours later.  Therefore, the district court properly refused to allow the alibi witness to testify.  The court also rejected the defendant's challenge to the district court's refusal to suppress a bank manager's out-of-court identification of the defendant in a photo array.  Sixteen months after the robbery, a bank teller was presented with six photos arranged together and asked if she recognized the robber, whereupon he picked the defendant.  The defendant argued that the array was suggestive because the manager would probably think that one of the photos was of the robber, or at least the suspected robber, which might have led him to pick the one that most resembled the robber, even if the resemblance was not close, especially given the amount of time that had lapsed since the robbery and the robber had been masked when he saw him.  The court first found that the array was suggestive.  Notwithstanding the fact that the officer told the manager not to assume the robber was in the array, a witness is likely to suspect that the array must include a picture of the robbery.  The better procedure is a sequential array, where the witness is more likely to compare each picture with his or her memory, rather than comparing each picture with each other.  Moreover, because the robber wore a dust mask during the robbery, the people in the photo's should have had the dust mask on as well.  Likewise, the officer who investigated the case should not have compiled the photo array, but rather a different officer with no stake in the case should have done so.  Finally, the other people in the array didn't look much like the defendant.  Although the court ultimately concluded that the manager should not have been allowed to testify at trial about his previous identification of the defendant as the robber, the court found the error to be harmless--notwithstanding the fact that the government did not argue harmless error.  The court noted that a court can base a decision on a ground forfeited by a party if the ground is founded on concerns broader than those of the parties, which is true in the case of harmless error.  PRACTICE NOTE:  The Seventh Circuit here is saying that it will apply the harmless error rule in every criminal case, regardless of whether the government fails to raise the issue or even concedes than an error is not harmless.  Therefore, when briefing an issue on appeal, it now appears to be necessary to demonstrate why every error is not harmless, rather than waiting to address the issue in a Reply brief after seeing whether the government raised harmless error in its response. 

In United States v. Ramirez-Mendoza, ___ F.3d ___ (7th Cir. 2012; No. 11-3314), the Seventh Circuit remanded for re-sentencing because the district court insufficiently considered non-frivolous arguments in mitigation.  The defendant argued that the court erred in imposing an above-guideline sentence, presenting the question of whether the defendant was coerced into participating in the kidnapping for which he was charged. Prior to sentencing, the defendant provided a detailed sentencing memorandum laying out the facts in support of his mitigation argument, demonstrating that the coercion argument was more than a "stock argument."  Although the government conceded that the district court never expressly addressed the argument at sentencing, it argued that the court implicitly rejected the argument by calling the defendant's credibility into question in a different context.  The court concluded that such an intimation without confronting the coercion argument head-on was simply not enough for a non-frivolous argument.  Nor could remand be prevented under the harmless error review.  Only when a district court fails to address an immaterial sentencing argument will harmless error preventing remand; not where, as here, the argument is non-frivolous.  Therefore, the court remanded for re-sentencing.  PRACTICE NOTE:  The court's statement that failure to consider a non-frivolous argument at sentencing can never be harmless error should be cited on appeal when arguing that a court's failure to consider a non-frivolous argument in mitigation at sentencing is procedurally erroneous. 

In United States v. Figueroa, ___ F.3d ___ (7th Cir. 2012; No. 11-2594), the Seventh Circuit affirmed the district court's enhancement of the defendant's sentence as a manager or supervisor in an otherwise extensive criminal activity pursuant to Guideline Section 3B1.1(c).  Although the facts in this case are ultimately routine, Judge Posner engages in a very lengthy discussion about the poorly drafted nature of the guideline section and its application notes, as well as the difficulty of applying this guideline section to any particular case.  Of particular note is his criticism of the courts' use of the seven factors listed in the Application Note which are supposed to be used in determining whether a defendant is an organizer or leader, as opposed to a manager or supervisor.  The court suggested that the use of these seven factors in other cases to decide if someone was a manager or leader is inappropriate.  PRACTICE NOTE:  If the PSR recommends this enhancement to your client, give this case a close read, as it may well give you a good basis for objection to the enhancement. 

The Supreme Court this week issued no new grants of certiorari in a criminal case, issued no opinions in argued criminal cases, and issued one per curiam order in a non-argued criminal case.  That case, Coleman v. Johnson, No. 11-1053, reversed the judgment of the Third Circuit, finding that the court failed to give due respect to the role of the jury and the state courts of Pennsylvania when it granted the defendant's 2254 petition which argued that the evidence was insufficient to support his conviction for being an accomplice and a co-conspirator in a murder.  The Court concluded that the Third Circuit, in looking at what inferences the facts in the case supported, used an improper "fine-grained factual parsing" rather than asking whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Using that standard, the fact easily supported the conviction. 

In United States v. Sheneman, ___ F.3d ___ (7th Cir. 2012; No. 11-3161), the Seventh Circuit affirmed the defendant's conviction for wire fraud arising out of a mortgage fraud scheme, over his arguments that the evidence was insufficient to support his conviction and that the court improperly enhanced his sentence for the amount of loss and use of sophisticated means.  The defendant engaged in an elaborate mortgage fraud scheme that convinced unwitting buyers to purchase a large number of properties they could neither afford nor rent out after purchasing (as they had planned). As part of
the scheme, mortgage lenders were duped into financing these ill-advised purchases through various misrepresentations about the buyers and their financial stability. All told, four buyers with few assets and no experience in the real estate market purchased sixty homes. Most of the homes were eventually foreclosed upon, and the buyers and lenders each suffered significant losses. The defendant first challenged the sufficiency of the evidence on all three elements of the offense, an argument that was predictably rejected by the court.  On the amount of loss challenge, the district court held the defendant responsible for the losses to the lenders on the sixty properties sold as part of the scheme.  He argued that  a co-defendant falsified the loan documents and he neither agreed to that portion of the fraud scheme nor was it reasonably foreseeable to him.  The court rejected this argument, noting that the evidence proved otherwise.  Finally, on the sophisticated means enhancement, the defendant argued that this was a garden variety home "flipping scam" which was no more complex than a typical fraud of this kinds.  The court disagreed, noting the defendant carefully orchestrated an intricate scheme that fooled buyers, sellers, and mortgage lenders, resulting in four unsophisticated buyers of limited means purchasing sixty properties.  In doing so, he relied on his extensive knowledge of the real estate market and lending industry to perpetrate the scheme and to avoid detection for several years.  It was therefore not a simple scam and, additionally, the court had previously held in similar cases that the enhancement was appropriate. 

In United States v. Davis, ___ F.3d ___ (7th Cir. 2012; No. 11-1313), the Seventh Circuit affirmed the denial of petitions to reduce sentences under retroactive amendment 706 in several consolidated cases.  In each of the cases, the district court at sentencing originally made a finding that the defendants were responsible for "at least 1.5 kilograms" of crack cocaine.  Upon consideration of the petitions to reduce their sentences under the retroactive amendment, the court looked to the PSRs and concluded that the defendants were responsible for more than 4.5 kilograms of crack cocaine, and the Court of Appeals affirmed.  The court first rejected an argument that in light of Booker, the court was free to disregard the guideline range and impose an appropriate sentence under 3553(a).  The court reiterated its holding in previous cases that a defendant must first be eligible for a reduction before a court can consider 3553(a) factors.  For a defendant responsible for more than 4.5 kilograms of crack cocaine, Amendment 706 does not lower his guideline range.  Thus, the district court has no jurisdiction to alter the defendant's sentence, and the court has no opportunity to consider 3553(a) factors.  The court also rejected the defendants' arguments that the trial court could not look back at the record to determine if they were responsible for more than 4.5 kilograms of crack.  Rather, the court concluded that the trial court was required to do so in order to adjudicate the 3582(c)(2) motions.  Nothing prevents a district court from making new findings of fact when ruling on a 3582(c)(2) motion, so long as those findings are not inconsistent with those made at the original sentencing.  Indeed, new findings are often necessary where, as here, retroactive amendments have altered the relevant drug-quantity thresholds for determining a defendant's base offense level.  A district court may consider the record as a whole, including the defendant's motions, the government's responses, and any addenda to the PSRs explaining the scope of a drug trafficking conspiracy before reaching a conclusion on the drug quantity.  Here, the district court relied upon such documents in the record, and its finding that the defendant was responsible for more than 4.5 kilograms was not inconsistent with its earlier findings of the defendant being responsible for "at least 1.5 kilograms" of crack.  Had the court found at the original sentencing hearing that the defendant was responsible for exactly 1.5 kilograms, that would be a different case, but such was not the findings made here.

In United States v. Ortega-Galvan, ___ F.3d ___ (7^th Cir. 2012; No. 11-3115), the Seventh Circuit discussed a district court’s ability to consider the validity of a prior conviction in light of Booker. The defendant was charged with illegal re-entry and, based upon a prior conviction for criminal sexual abuse of a 13-year old, was subject to a 16-level enhancement for having a prior aggravated felony. The defendant, however, noted that the defendant’s birth certificate revealed that the defendant was 16 at the time of that prior offense, meaning that the offense should have been a misdemeanor rather than a felony. The defendant therefore asked the court to eliminate the 16-point aggravated felony enhancement, as well as the points for the conviction from his criminal history. The court applied the enhancement but eliminated the offense from the calculation from the criminal history. On appeal, the defendant argued that the court should have eliminated the 16-level enhancement under its 3553(a) authority. The Court of Appeals rejected this argument. When calculating the guidelines sentence, the district court may not examine the validity of prior convictions even though such convictions may be used to enhance a present sentence. This pre-Booker authority still governs the law as it relates to the calculation of the guideline range. Therefore, not only was the district judge correct in refusing to eliminate the 16-level enhancement, but it also erred in not using the prior conviction for purposes of criminal history points. On a related question, however, the court held that, at least in limited circumstances, 3553(a) would allow a court to consider the validity of a prior conviction in varying from the guidelines. Once the guidelines have been properly calculated, the court can consider as a 3553(a) factor the validity of the prior conviction should it wish to enter a sentence outside the guideline range. The court did, however, indicate that there may be some limits to this inquiry, even in the 3553(a) context. Were looking to the facts underlying the validity of prior convictions become a "practice" for 3553(a) purposes, sentencing hearings could become distended by challenges to prior convictions. In this case, a peek a the defendant’s birth certificate made the inquiry into the validity of the prior conviction simple. As the court stated, "In the next case a defendant asks for a factual inquiry into the soundness of a previous conviction, rather than just a glance at a birth certificate conceded to be valid, the judge would be entitled, and well advised, to refuse–and perhaps required to refuse. Ultimately, the court refused to decide the issue definitively in this case, however. PRACTICE NOTE: Use 3553(a) to attack validity of underlying prior convictions until the Court of Appeals more clearly defines the limits of such attacks.

In United States v. Spann, ___ F.3d ___ (7^th Cir. 2012; No. 11-3623), the Seventh Circuit dismissed the defendant’s appeal based upon appellate counsel’s submission of an Anders brief. In doing so, the court discussed its jurisdiction related to an argument that a court’s grant of a 3553(e) motion below a mandatory minimum did not go low enough. The court first noted that it has previously held that in the Rule 35(b) context, the Court of Appeals lacks jurisdiction to consider a challenge to the extent of a district court’s reduction under that rule. The court expressly decline to comment on the scope of its jurisdiction to consider a similar challenge to a 5K1.1 motion in which the bottom of the guidelines imprisonment range was not set by a statutory mandatory minimum. The court also reiterated that when imposing a sentence below the mandatory minimum, the court may not reduce the sentence based on factors other than the defendant’s cooperation. Finally, the court concluded that it lacked jurisdiction to consider the substantive reasonableness of a sentence which is below a statutory mandatory minimum based upon the government’s 3553(e) motion.

In Blueford v. Arkansas, the Supreme Court held that the Double Jeopardy Clause did not bar reprosecution of the defendant on a charge of capital murder where the jury informed the trial court that it had deadlocked on the lesser-included offense of manslaughter but was unanimous in a finding of not guilty on the offense of capital murder.  The Court concluded that the jury did not acquit the defendant on the capital charge because the note from the foreperson indicated the unanimity on that charge for acquittal was not a final resolution on the defendant's guilty.  After the note was delivered, the jury was sent back to deliberate further in attempt to reach a unanimous verdict on the lesser-included offense.  The jurors in fact did continue their deliberations and nothing prevented them from reconsidering their votes on the capital murder charge.  The foreperson's report prior to the end of deliberations therefore lacked the finality necessary to amount to an acquittal on the offense, and the Double Jeopardy Claude therefore did not preclude re-trial on all the charges. 

In United States v. Covington, ___ F.3d ___ (7th Cir. 2012; No. 11-2652), the Seventh Circuit rejected the defendant's argument that the district court denied him his right to allocution.  Although the defendant in fact spoke at some length in allocution, the trial judge interrupted the defendant a few times to ask the defendant questions.  These interruptions, according to the defendant, constituted a denial of his allocution right.  The court acknowledged the interruptions, but noted that such questioning does not in itself constitute a denial of the right of allocution.  The few questions in this case were very different from the continuous interruptions by the trial judge during a non-English speaking defendant's allocution found to be a denial of the right in United States v. Li, 115 F.3d 125 (2d Cir. 1997).  Judge Wood, however, dissented, finding that the judge's questions in this case had the effect of cutting off the defendant's efforts to make his central points and therefore deprived him of his right "to speak or present any information to mitigate the sentence."  Moreover, notwithstanding the defendant's failure to object at the time of sentencing, Judge Wood believed the district court's conduct to amount to plain error, warranting reversal.  Rosalie Guimaraes, of the Federal Defender Program for the Northern District of Illinois, litigated this appeal.

In Gardner v. United States, ___ F.3d ___ (7th Cir. 2012; No. 10-1576), the Seventh Circuit in a 2255 appeal held that trial counsel was ineffective for failing to file a motion to suppress, where he mistakenly believe that the defendant's insistence that police planted the gun on him precluded an argument that the firearm was the fruit of a suspicionless search.  Defense counsel, the prosecutor, and the judge all believed that the defendant had to admit to actual possession of the gun to challenge its seizure.  No such requirement exists.  A defendant who wishes to bring a Fourth Amendment challenge need only show that he had a legitimate expectation of privacy in the area searched.  Here, there was no question the defendant has a reasonable expectation of privacy in his own person and clothing.  If the frisk which discovered the gun was unconstitutional, then the gun found pursuant to that frisk would need to be suppressed.  The government maintained that any effort to suppress the gun would nonetheless have failed because the defendant's insistence that he did not possess a gun necessarily means that the search was not the "but-for" cause of discovery of the gun.  The court concluded, however, that an unlawful search does not "cause" the discovery of a planted gun if the search enabled the police to plant it.  A defendant seeking to have evidence suppressed as the fruit of an illegal search need only establish a "factual nexus between the illegality and the challenged evidence."  The defender here could have easily met this burden by pointing to the police reports asserting that the officers found a gun in his pocket.  He need not confess under oath to possession to show a "factual nexus."  Stated another way, the government's view would mean that a defendant who truthfully contends that police stopped him unlawfully and planted a gun on him during a suspicionless search would be able to challenge the search only by perjuring himself at a suppression hearing by falsely stating that he possessed the gun.  After concluding that there could be no other strategic reason for counsel's failure to file the motion to suppress, the court remanded for an evidentiary hearing to determine if the defendant was prejudiced by the error. 

In United States v. Johnson, ___ F.3d ___ (7th Cir. 2012; No. 11-2690), the Seventh Circuit affirmed the defendant's conviction and sentence, rejecting several arguments made by the defendant.  The defendant was charged with distributing crack cocaine, possession of a firearm as a felon, and sentenced as a career offender.  The police obtained a warrant to search the defendant's home for drugs.  On the morning of the execution of the search, officers observed the defendant leave his residence and drive off in his car.  Although the defendant did not commit a traffic offense, officers pulled the defendant over to preserve evidence and ensure the safety of officers as the executed the search.  After asking the defendant to exit his vehicle for a pat-down for safety purposes, an officer asked if the defendant had "anything on him" and the defendant stated that he possessed some marijuana.  Officers then handcuffed the defendant and drove him back to the residence.  An officer then read the defendant the search warrant, whereupon the defendant volunteered that everything in the residence was his.  The defendant was finally taken to the police station and, for the first time, given his Miranda warnings, after which he confessed.  The Court of Appeals first rejected the defendant's argument that he was subject to custodial interrogation when he admitted to possessing the marijuana.  The court noted that persons temporarily detained pursuant to a routine traffic stop are not in custody for Miranda purposes.  Secondly, the court rejected the defendant's argument that he was subject to custodial interrogation when he confessed to possessing everything that was found in the house.  Although the defendant was clearly in custody at this point, the court concluded that the simple act of reading the defendant the search warrant did not constitute interrogation.  Third, the court rejected the defendant's argument that the Supreme Court's decision in Missouri v. Seibert required reversal.  The defendant argued that his confession at the police station should be suppressed because it was tainted by the officers' prior actions by failing to provide Miranda warnings during custodial interrogation until after the interrogation produced a confession.  The Court in Seibert held that this "question first, warn later" approach was improper, but the court did not agree on the test for evaluating such practices.  The court in this case declined to decide what the proper test was because, under either standard articulated by the Supreme Court, the defendant's argument failed.  Specifically, the court had already found that the defendant was not in custody when originally stopped, and he was not subjected to interrogation when he admitted to possessing everything in the house.  Therefore, this was not a situation where the defendant was subjected to custodial interrogation prior to receiving his Miranda warnings and Siebert was inapplicable.  Regarding sentencing, the defendant argued that he was  not a career offender because his Illinois aggravated discharge of a firearm conviction occurred in Illinois.  The defendant was convicted of "knowingly or intentionally [d]ischarg[ing] 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.  Although the court previously held that this precise offense was a crime of violence in United States v. Curtis, 645 f.3d 937 (7th Cir. 2011), the defendant asked the court to revisit the holding in that case.  Specifically, the defendant noted that the court in Curtis failed to consider that the offense can be violated with a mens rea of negligence, and the court has held that negligence mens rea offenses are not crimes of violence.  The statute here can be violated if the shooter "reasonably should know" a vehicle would be occupied by a person, which is a negligence mens rea.  The Court of Appeals, however, noted that even if the defendant were to prevail in his argument that the statute is divisible as to its different mens rea offenses, in this case, the defendant was charged with "knowing" discharge of the firearm, which is unquestionably the version of the offense which is a crime of violence.  Therefore, the defendant was properly found to be a career offender. 

In United States v. Love, ___ F.3d ___ (7th Cir. 2012; No. 10-2879), the Seventh Circuit remanded for re-sentencing because the district court improperly applied a 2-level guideline enhancement in a fraud case for there being more than 10 victims pursuant to Guideline Section 2B1.1(b)(2)(A)(i).  The defendant's guideline range, after the enhancement, was 135 to 168 months.  The district court, however, imposed a 66-month sentence, well below the range.  On appeal, the defendant argued that the 2-level enhancement was improper, and the government conceded error.  The Court of Appeals noted that even though the defendant received a sentence that was significantly below the guidelines range, the range on which the sentence was calculated was erroneously calculated.  Such an error is not harmless because it is impossible to know whether the district court would have imposed the same sentence had it not committed the procedural error.  Therefore, a remand for re-sentencing was necessary.  Appellate Division Chief Johanna Christiansen of our office represented the defendant on appeal. 

In United States v. Wasson, ___ F.3d ___ (7^th Cir. 2012; No. 10-2577), the Seventh Circuit rejected the defendant’s Speedy Trial Act claim, as well as reaffirmed its minority view that the Ex Post Facto Clause does not prohibit the use of an older Guidelines Manual which provides for harsher punishment than the one in effect at the time of sentencing. On the Speedy Trial Act issue, the district court granted three motions to continue, two of which were at issue in th case. The court granted the defendant’s first continuance of the trial in the case, making a boilerplate "ends of justice" finding without specific details. The court granted the second continuance based upon a government motion, and relied upon its previous findings regarding the "ends of justice." The defendant argued that to satisfy the Act, the district court’s findings must be both explicit and contemporaneous with the granting of an excludable continuance. The court noted that although the Act specifies the need to make findings "in the record," it does not spell out precisely how the court must effectuate this. Although the Supreme Court in United States v. Zedner, 547 U.S. 489 (2006), stated that "at the very least the Act implies that those findings must be put on the record by the time a district court rules on a defendant’s motion to dismiss under" the Act, it did not go so far as requiring the findings to be put on the record contemporaneously withe the "ends of justice" conclusion by the trial court. Rather, the court of appeals must assure itself that the court’s reasons have been articulated by the time it rules on a defendant’s motion to dismiss and the reasons satisfy the Act. Here, the record of the two hearings on the continuances, coupled with the court’s written denial of the defendant’s motion to dismiss satisfy the standard. For the first continuance, the defendant’s own motion clearly spelled out why the continuance met the ends of justice. That motion, coupled with the judge’s conclusion that its grant met the "ends of justice" made it clear that the court considered the statutory factors. The subsequent hearing on the second continuance, as well as the court’s order denying the motion to dismiss, simply bolstered those original findings. Finally, regarding sentencing, the district court used the 2008 sentencing guidelines which were in effect at the time the defendant committed his crimes, which resulted in an offense level four levels higher than required by the manual in effect at the time of his sentencing hearing. Although the defendant argued that the Ex Post Facto Clause prohibited the use of the older manual, the court adhered to its minority view in United States v. Demaree, 459 F.3d 791 (7^th Cir. 2006), reaffirming that the advisory nature of the guidelines eliminates any ex post facto problem with changes that retroactively increase the sentencing range for a crime.

In United States v. Stevenson, ___ F.3d ___ (7^th Cir. 2012; No. 11-2355), the Seventh Circuit rejected the defendant’s argument that his sentence was unreasonable due to the disparity between his sentence and that of his defendant. The defendant was convicted after a jury trial of drug related offenses, and he was sentenced to 158 months–eight months above the guideline range. The defendant argued that the disparity between his sentence and his co-defendant’s 134 month sentence undercut the guidelines’ goal of uniformity. Reviewing for plain error, the court noted that the co-defendant pled guilty, cooperated, and confessed his guilty. Given the differences between the defendants, a sentencing difference is not forbidden if it is justified by legitimate considerations, such as rewards for cooperation. Although this case is not particularly important on its face, it does touch upon some divergent opinions on the issue in the Seventh Circuit, as noted by Professor Alison Siegler in her recent article entitled, "Review of Co-Defendant Sentencing Disparities by the Seventh Circuit: Two Divergent Lines of Cases." You can access that article here: http://ilc.fd.org/General%20Documents/Divergent%20Lines.pdf

In United States v. Ghaddar, ___ F.3d ___ (7^th Cir. 2012; No. 11-3074), the Seventh Circuit a 2-level sentencing enhancement in a mail and tax fraud case for using "sophisticated means" in committing these crimes pursuant to U.S.S.G. § 2B1.1(b)(10). The defendant owned a number of tobacco stores at which nearly half of the sales were in cash. The defendant directed his employees to separate cash receipts from the check and credit card receipts. He then used the cash to pay his employees and suppliers without reporting the cash as income to the IRS. Additionally, he channeled large sums of the cash to his homeland in Lebanon. He accomplished this overseas transfer by carrying currency or cashier’s checks with him when he traveled, wiring money from noncorporate accounts he controlled at stateside banks, and shifting money into the accounts of relatives and associates, who then wired it to his Lebanese accounts. In addition, on at least three occasions, Ghaddar directed his accountant to make multiple deposits of currency in amounts around $9,000 and then transfer lump sums to an account in the Channel Islands (British Crown Dependencies off the French Coast of Normandy). The account was under Ghaddar’s control but not in his name. The district court based the enhancement on these activities, but the defendant argued on appeal that his actions were commonplace compared to other cases where the enhancement was applied. Although the court found his argument unpersuasive, it did note that his contention that a rudimentary "cash skimming" operation is not ordinarily sophisticated. By itself, skimming currency receipts and using that money to pay employees and suppliers is not a particularly elaborate form of tax evasion. Some degree of concealment "is inherent in criminal tax fraud," and situations where a shop owner simply empties the cash register and hides the day’s receipts under his bed "must be distinguished from efforts over and above that concealment to prevent detection." For that reason, the adjustment for sophisticated means is warranted only when the conduct shows a greater level of planning or concealment than a typical fraud of its kind. That being said, although the skimming may not have been elaborate, the enhancement still applies when his actions are viewed as a whole. The efforts to transfer money to overseas accounts and the use of accounts held by other people, in combination with his other activities, demonstrated that the enhancement was warranted.

In United States v. Hosseini, ___ F.3d ___ (7^th Cir. 2012; No. 08-1879), the Court of Appeals considered several issues arising out of a multi-count RICO trial, stemming from the defendants’ operation of automobile dealerships. The defendants operated three automobile dealerships in Chicago, and from 1995 to 2005, sold many luxury cars to Chicago area drug dealers. More than half their sales during this period were to drug traffickers, who preferred to deal with Hosseini and Obaei because they were willing to accept large cash payments in small bills with no questions asked. They also falsified sales contracts and liens, ignored federal tax-reporting requirements, and arranged their bank deposits to avoid triggering federal bank-reporting requirements. Based on this activity and more, Hosseini and Obaei were charged in a massive 100-count indictment alleging RICO conspiracy, money laundering, mail fraud, illegal transaction structuring, bank fraud, and aiding and abetting a drug conspiracy. The defendants’ primary argument on appeal was that to be convicted of money laundering, the "proceeds" of their underlying crime meant net profit, not gross receipts. Because they contended that the government did not prove that the auto sales in question involved the net profit of the underlying drug trafficking, the evidence was insufficient. Because the issue was raised for the first time on appeal, however, the court reviewed only for plain error. The Court noted that for the type of money laundering alleged in this case, i.e., concealment, no clear answer on the net profits versus gross receipts question existed in prior precedents. Although the Seventh Circuit in Santos and Scialabba, defined proceeds as net profits, those cases involved "promotional" money laundering. The Supreme Court decision in Santos failed to have a majority decision. The Seventh Circuit had considered the meaning of proceeds in a concealment case but, United States v. Aslan, 644 F.3d 526 (7^th Cir. 2011), because the issue was considered for plain error, the court only concluded that the defendant could not meet the plain error test. The court came to the same conclusion in this case, finding that the state of the law precluded a finding of plain error, and declining to settle the underlying question of how to define proceeds in a concealment case. The court also noted that Congress has since amended the statute to clearly define proceeds in this context as gross receipts. After rejecting the defendants’ other issues, the court affirmed the convictions.

In United States v. Alcala, ___ F.3d ___ (7^th Cir. 2012; No. 11-2412), the Seventh Circuit decided as a matter of first impression whether a defendant’s waiver of his appellate rights applies to a motion to withdraw a plea. In the court below, the defendant entered into a plea agreement wherein he waived his right to appeal his conviction and sentence. Thereafter, before sentencing, he moved to withdraw his plea. The district court denied that motion and the defendant appealed. The government argued that the appeal waiver in the agreement precluded the appeal from the denial of the motion to withdraw the plea. Considering the question for the first time, the Seventh Circuit noted that the Sixth Circuit recently in United States v. Toth, 668 F.3d 374 (6^th Cir. 2012), joined every circuit to consider the question and held that such a waiver, if valid, precludes a defendant’s right to appeal a denial of his motion to withdraw his plea. The Seventh Circuit joined the other circuits, finding that appealing a denial of a motion to withdraw a plea is an attempt to contest a conviction on appeal, which therefore falls within the scope of a waiver of the right to appeal one’s conviction. The court then found that the waiver was valid and entered into knowingly. Accordingly, the court enforced the waiver and dismissed the appeal.

In United States v. Schiro, ___ F.3d ___ (7^th Cir. 2012; No. 09-1265), the Seventh Circuit affirmed the convictions of the defendants in the Chicago Outfit "Family Secrets" trial, over the dissent of Judge Wood. The defendants were charged with a RICO conspiracy related to their operation of the Chicago "Outfit." Two of the defendants had previously been convicted of a RICO conspiracy related to the conduct of the affairs of the Carlisi Street Crew. The primary question presented in the appeal was whether the RICO conspiracy conviction in this case was the same conspiracy as that for which the defendants were previously convicted, thereby violating the Double Jeopardy Clause. The defendants argued that their agreement to facilitate the criminal activities of their street crews (the first prosecution) and their agreement to facilitate the criminal activities of the Outfit itself (the second prosecution) are one and the same because the street crews are components of the Outfit. The court concluded that depending on what an individual does, there can be two different enterprises that he is assisting rather than one even though they are affiliated, provided that either they are indeed different or the patterns of racketeering activity are different. As an example, the court used an example of an employee working at Ford motor company. A worker at Ford Motor Company’s River Rouge Complex is an employee of Ford Motor Company. His agreement to work on the River Rouge assembly line contributes both to the plant’s output and to the output of the company as a whole, of which River Rouge’s output is simply a part. If Ford produced sawed-off shotguns rather than automobiles, the worker could be prosecuted for conspiring with employees of Ford or employees at the River Rouge plant to produce an illegal weapon, but he could not be prosecuted for two separate conspiracies, because the members and the objectives and the activities of the two conspiracies (conspiracy with employees of Ford, conspiracy with employees at River Rouge) would be identical. But if after producing sawed-off shotguns in the River Rouge plant an employee who had worked there is promoted into the Ford executive suite in Detroit as a regional manager and while there prepares financial reports designed to conceal from the government Ford’s income from the production of illegal weaponry at River Rouge and other Ford plants, he has joined a separate though overlapping conspiracy. Reasoning by analogy, the court found that the Outfit and its subsidiary street crews are different though overlapping enterprises pursuing different though overlapping patterns of racketeering. Here, the defendants were convicted in their capacity as Outfit members; some of the acts alleged in the indictment, such as murders and the formation of groups for special tasks for the organization, were unique to functions of the Outfit, rather than street crews. Thus, no double jeopardy violation occurred. Judge Wood dissented, concluding that the current prosecution entirely subsumed the prior prosecution, violating the Double Jeopardy Clause.  Appellate Division Chief Johanna Christiansen of our office represented Frank Calabrese, Sr. on appeal. 

In United States v. Konczak, ___ F.3d ___ (7^th Cir. 2012; No. 11-2969), the Seventh Circuit reminded defense counsel of their duty to consult with the defendant regarding his desire to challenge the validity of a guilty plea prior to filing an Anders brief. Appellate counsel filed an Anders brief, and considered therein whether the defendant could challenge the adequacy of the plea colloquy or the voluntariness of his guilty plea. The Court of Appeals noted that in United States v. Knox, 287 F.3d 667 (7^th Cir. 2002), it held that counsel "should not present (or even explore in an Anders submission) a Rule 11 argument unless they know after consulting their clients, and providing advice about the risks, that the defendant really wants to withdraw the guilty plea." Noting that some of the court’s nonprecedential orders might be read to indicate that the burden rests on the client to alert counsel about his desire to withdraw the plea, the court clarified that Knox does not place that burden on the defendant. Rather, Knox instructs counsel both to consult with the client and provide advice about the risks and benefits of any proposed course of action. Only if, after counsel has taken that step, the defendant confirms that he is not interested in withdrawing the plea, may counsel refrain from exploring possible arguments related to Rule 11. In the present case, the court could not tell whether appellate counsel followed the process outlined in Knox. Upon it’s own review of the record, however, the court concluded that any challenge to the plea would be frivolous, as well as any other arguments, and therefore dismissed the appeal.

PRACTICE NOTE: In cases where we have consulted with the client and he or she has indicated a desire not to withdraw the plea, we typically include the following language in the brief, which the court has found sufficient to address holding in Knox: "An unconditional guilty plea generally waives all non-jurisdictional defects in the proceedings. United States v. Markling, 7 F.3d 1309, 1312 (7th Cir. 1993). ________ entered into an unconditional plea in the present case, and the only potential issue would therefore be whether that plea was enforceable as knowing and voluntary. However, in United States v. Knox, this Court noted that where a defendant does not move to withdraw a guilty plea in the district court, counsel need not address the voluntariness of the plea in an Anders brief if, after consultation with the defendant and advisement of any risks associated with the withdrawal of the plea, the defendant indicates that she does not wish to challenge her plea on appeal. United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002). Following this court’s direction, counsel consulted ________ as to whether __ wished to seek a withdrawal of ___ guilty plea. _________ indicated to counsel that ___ did not wish to do so. Therefore, whether _________’s guilty plea was knowing and voluntary is not a potential issue for appeal or consideration in an Anders brief."

In United States v. Bahena-Navarro, ___ F.3d ___ (7^th Cir. 2012; No. 1-1348), the Seventh Circuit held that the district court did not err in refusing to accept the defendant’s guilty plea where the defendant was unwilling to knowingly and voluntarily waiver certain trial rights. The defendant was charged with illegal re-entry and sought to enter a guilty plea. However, during the Rule 11 colloquy, the defendant repeatedly expressed confusion or an unwillingness to waiver certain trial rights. After several recesses and attempts to obtain a waiver from the defendant, the court finally rejected the defendant’s efforts to enter a guilty plea and set the matter for trial. On the day of trial, the district court gave the defendant another opportunity to plead guilty, but the same problems with the colloquy persisted. Accordingly, the defendant went to trial and was convicted. On appeal, the defendant argued that because he provided a factual basis for his plea, the district court erred in refusing to accept it. However, the Court of Appeals held that while admitted to a factual basis to support a plea is necessary before a guilty plea is accepted, it is not sufficient. The defendant must also knowingly waive his trial rights, which the defendant clearly did not do in this case. After concluding that the district judge made adequate inquiries into the defendant’s refusal to waiver his trial rights, as well as providing a sufficient rationale for the rejection of the plea, the Court of Appeals affirmed the defendant’s conviction.

On April 17, 2012, the Seventh Circuit decided United States v. Fleming, ___ F.3d ___ (7^th Cir. 2012; No. 11-1404), holding that the defendant could not appeal an issue arising from a re-sentencing hearing after the grant of a 2255 petition without first seeking a certificate of appealability. After the defendant’s conviction for drug offenses was affirmed on direct appeal, the defendant filed a 2255 petition alleging he received ineffective assistance of counsel. Among other things, he argued that his counsel failed to challenge the government’s late notice of sentencing enhancement (which resulted in a mandatory life sentence) and that counsel should have challenged his possession conviction because none of the controlled buys individually involved 50 or more grams of crack cocaine, as charged in the indictment. The district court held a hearing and concluded that the defendant was entitled to re-sentencing in light of the failure to challenge the late notice of enhancement. The district court, however, denied the defendant’s challenge to the aggregation of the drug transactions to reach the 50 grams as charged in the indictment. The court then re-sentenced the defendant, and he appealed the denial of his aggregation issue. On appeal, the government asserted that the Court of Appeals lacked jurisdiction to consider that issue because the defendant did not have a certificate of appealability that would have permitted an appeal of the district court’s partial denial of his 2255 petition. The Court of Appeals noted that insofar as he is now appealing from the new sentence imposed after the partial grant of the 2255 petition, he is essentially brining a direct appeal for which he needs no certificate of appealability. However, the question was whether he needed a certificate of appealability for his challenge to the aggregation ruling, which was part of the case that was rejected in his 2255 proceeding. Commenting that it had never addressed this issue before, the court found that every circuit to have considered the issue have unanimously held that a certificate of appealability is needed for the part of the case that challenges the denial of collateral relief. The Seventh Circuit joined these other circuits. The Court of Appeals also refused to issue a certificate of appealability, finding that the petitioner could not demonstrate counsel’s strategic choices on the issue in question deviated from prevailing professional norms. Have resolved this issue, the Court then went on to consider the direct appeal of the defendant’s new sentence, this portion of the appeal not requiring a certificate of appealability. Here, the defendant argued that the district court incorrectly calculated the drug quantity in the case, an issue which the Court of Appeal rejected.

On Friday the 13th, the United States Sentencing Commission voted to promulgate amendments on a wide variety of subjects.  These amendments will become effective November 1, 2012, provided Congress does not reject them.  Prior to them becoming effective, you can, of course, use the pending amendments as a basis for 3553(a) arguments.  Read a summary of the amendments HERE.

On Thursday, the Seventh Circuit issued an amended opinion in United States v. Raupp, ___ F.3d ___ (7th Cir. 2012; No. 11-2215), considering the question of whether a Indiana's conspiracy to commit robbery is a "crime of violence" under the Guidelines. Robbery in Indiana is both a "crime of violence" under the Guidelines and a "violent felony" under the ACCA. Application note 1 to section 4B1.2 of the Guidelines states that an inchoate offense such as conspiracy is a "crime of violence when the underlying crime is one. The defendant, however, asked the court to ignore the application note in light of Begay and its progeny. Specifically, a conspiracy is an agreement--an exchange of words--and there is nothing violent or aggressive about an agreement necessarily. Moreover, although the Supreme Court in James v. United States, 550 U.S. 192 (2007), held that attempted burglary was a violent felony under the ACCA, the defendant argued that an attempt often involves a substantial step toward commission of a crime--a step that could be violent or aggressive--and, consequently, attempts should be treated differently than conspiracy. The Court of Appeals noted that Begay and its progeny were interpreting the ACCA statute and not the Guidelines. Although the ACCA and the Guidelines are interpreted the same when they both use the same language, the Guidelines contain some language that is not in the ACCA. If the Sentencing Commission wants to have a list of qualifying offenses that differs from the ones in the statute, it is entitled to do so. Moreover, application notes are treated as authoritative unless the notes conflict with the text to which they apply. Looking only to the text of 4B1.2(a) and the application note (and ignoring Begay which does not interpret the Guidelines), the Court concluded that there was no conflict between the application note and the Guideline text. Accordingly, the Court of Appeals held that a conspiracy to commit an underlying offense can be a "crime of violence" under the Guidelines if the substantive offense is a crime of violence. Judge Wood dissented.

The Seventh Circuit Thursday also decided United States v. Mount, ___ F.3d ___ (7th Cir. 2012; No. 11-2616). In this case, the defendant "disappeared" for three months while awaiting trial. After being captured, he eventually pleaded guilty. The defendant received two points for acceptance of responsibility, and the government moved that the defendant receive the additional 1-level reduction because the defendant provided the government with timely notice of his intention to plead guilty. Relying on the defendant's flight, the district court refused to give the defendant the additional level off. The defendant argued on appeal that once the government makes the motion, the district court is required to give the one-level off, and the Court of Appeals agreed. After looking at some precedents which did not directly address the issue, the Court of Appeals concluded that the language of the Guideline was clear; it was clearly mandatory for the court to give the 1-level reduction if the government makes the motion. This decision directly conflicts with the view of the Fifth Circuit in United States v. Williamson, 598 F.3d 227 (7th Cir. 2010). Of course, once the district court correctly computes the guideline sentence, it still retains the discretion to vary from the guidelines, which might include an upward variance to account for the escape while awaiting trial.  Andy McGowan, of our office, litigated this appeal.

Finally, on Tuesday, the Seventh Circuit affirmed the sentences of two defendants in United States v. Cerna, ___ F.3d ___ (7th Cir. 2012; No. 10-2533). The Court rejected several routine sentencing arguments, including that that the district court erred in its finding that one defendant held a managerial role; that a defendant's sentence was unconstitutionally disparate from the sentences of his co-defendants; and that the court misapplied the § 3553(a) factors.

In United States v. Bradley, ___ F.3d ___ (7th Cir. 2012; No. 11-1773), the Seventh Circuit remanded a sentence for traveling in interstate commerce to engage in sex with a minor, where the sentence imposed was 169 months above the top of the Guideline range, and the judge failed to adequately justify the magnitude of the variance. The Court previously remanded the case where the same sentence was imposed because the judge based the sentence on presumed prior acts of the defendant and made unsupported assumptions about recidivism. The case was reassigned to a different judge on remand pursuant to Circuit Rule 36, but the new judge resentenced the defendant to the same 240 months, 169 months above the range of 57 to 71 months. The court did so notwithstanding even the government's recommendation of a sentence of 71 months. The Court of Appeals first noted that the district court voiced no disagreement with the policies underlying the guideline which determined the range and, accordingly, no such disagreement could have been the basis of the variance. Instead, the Court found that the district court's primary reason for the variance was purportedly the nature and circumstances of the defendant's offense. However, the factors cited by the district court were all inherent in every violation of the offense and could not support the magnitude of the variance in this case. Accordingly, the Court vacated the sentence and ordered that Circuit Rule 36 again apply on remand. 

In United States v. Burgard, ___ F.3d ___ (7^th Cir. 2012; No. 11-1863), the Seventh Circuit held that a seizure of a cell phone based upon probable cause that it contained child pornography was not unreasonable where the investigating officer waited six days to obtain a search warrant for the contents of the phone. Although a delay between seizure and obtaining a search warrant to search a cell phone can be unreasonable if too long, the court found it significant that the seizure was based upon probably cause, rather than reasonable suspicion, as well as the fact that the investigating officer had not been neglectful in precipitating the delay, but was rather attempting to follow up on other investigative matters in the case before seeking the search warrant. Although the district court had also upheld the search as reasonable under the Leon good faith exception, the Court of Appeals held that the Leon exception did not apply here. When an officer waits an unreasonably long time to obtain a search warrant, in violation of the Fourth Amendment, he cannot seek to have evidence admitted simply by pointing to that late-obtained warrant. If this were all that was needed, evidence would never be suppressed following these types of violations because, by definition, the police would always have a warrant before they searched. The court noted, however, that it was not categorically ruling out the possibility of a Leon argument in every case of this type. There may be a situation in which the unreasonableness of a delay is a very close call, and an officer could not be charged with knowledge that the delay violated the law. All the court is holding here is that the good-faith exception is not automatically available as soon as a warrant materializes.

On April 2, 2012, the Supreme Court granted cert in Moncrieffe v. Holder, No. 11-702, a case out of the 5th Circuit, to address this issue: "Whether a conviction under a provision of state law that encompasses but is not limited to the distribution of a small amount of marijuana without remuneration constitutes an aggravated felony, notwithstanding that the record of conviction does not establish that the alien was convicted of conduct that would constitute a federal felony."

A divided Court (5-4) also decided the same day that certain routine jail strip searches are constitutionally permissible. See Florence v. Board of Freeholders, No. 10-945. The opinion is available here: http://www.supremecourt.gov/opinions/11pdf/10-945.pdf

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Last modified: 09/05/12