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This website is maintained by the Federal Public Defender for the Central District of Illinois, on behalf of the six independent Federal Defender offices located in the districts of the Seventh Circuit.  These offices include the Northern District of Illinois Federal Defender Program, Inc.; the Federal Public Defender for the Central District of Illinois; the Federal Public Defender for Southern District of Illinois; Federal Defender Services of Wisconsin, Inc.; the Northern District of Indiana Federal Community Defender, Inc.; and the Southern District of Indiana Federal Community Defender, Inc.  To access the website for a particular office, please select from one of the tabs at the top of this page.  For questions, comments, or information concerning this website, please contact Federal Public Defender for the Central District of Illinois, Jonathan E. Hawley at jonathan_hawley@fd.org.

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Seventh Circuit and Supreme Criminal Court Case Digest
 

Supreme Court Activity Since Last Update

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

Seventh Circuit Activity Since Last Update

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

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

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

Supreme Court Activity Since Last Update

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

Seventh Circuit Activity Since Last Update

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sentenced vacated where court rejected arguments for variance without explanation.  United States v. Banas, No. 12-1499.  Anthony Banas bilked investors out of more than $70,000,000 and lined his own pockets with the health care savings of people who trusted him. He also showed extraordinary contrition—he admitted his guilt, accepted responsibility for his actions, and he worked hard to secure some degree of restitution.  The district court sentenced him to 160 months imprisonment, a sentence below the Guideline range.  On appeal, the defendant argued that the sentence was both procedurally and substantively unreasonable.  Procedurally, the defendant argued that the court failed to consider two of his principal arguments in mitigation, to wit: that he was manipulated by another individual and that he fully cooperated with the government.  The court rejected this argument, noting that the court in fact referenced both of these arguments and gave them meaningful consideration.  On the substantive reasonableness argument, the defendant argued that the sentence was unreasonable because the court failed to account for various mitigating factors and the sentence was disproportionately long compared to his co-defendant’s sentence.  The court noted that the sentence imposed was below the Guideline range, and the court considered all the factors in mitigation.  Regarding his argument related to his co-defendant’s sentence, the court noted that the defendant in fact received a lower sentence than his codefendant, making the argument borderline frivolous.  NOTE:  Probably not a good idea in the future based on the language in this case to argue your client’s sentence is disproportionate to a codefendant’s sentence when your client’s sentence is actually lower than the co-defendant’s sentence. 

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

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

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

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

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

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

Supreme Court Grants of Certiorari this week

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

Burt v. Titlow, No. 12-414

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

Kansas v. Cheever, No. 12-609

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

Seventh Circuit Criminal Opinions this Week

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

COLLATERAL ATTACKS

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

SENTENCING

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

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

New Supreme Court Opinions

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

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

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

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

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

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

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

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

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

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

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

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

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

New Seventh Circuit Criminal Opinions

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

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

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

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

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.

In Peugh v. United States, No. 12-62), the Supreme Court finally agreed to consider the following issue: "Whether it is a violation of the Constitution's Ex Post Facto clause for a federal judge to impose a criminal sentence based on federal Guidelines in effect at the time of sentencing, if that sentence is longer than the Guidelines had specified at the time the crime was committed?" The Seventh Circuit in United States v. Demaree, 459 F.3d 795 (7th Cir. 2006) hold that after Booker, the Ex Post Facto Clause no longer applies to the Guidelines. This holding has been contradicted by several other circuits, and the Supreme Court will finally resolve the split. Follow this link to read the pleadings in the case, including an excellent Amicus Brief filed by the Illinois Association of Criminal Defense Lawyers: http://www.scotusblog.com/case-files/cases/peugh-v-united-states/

In Maryand v. King, 12-207, the Court will consider the following question: "Whether it violates the Fourth Amendment rights of an individual who is arrested and charged with a serious crime, but not convicted, for police to take an involuntary DNA sample?" To read the pleadings in this case, follow this link: http://www.scotusblog.com/case-files/cases/maryland-v-king/ 

I have updated the listing of all criminal issues now pending before the Supreme Court, and you can access the updated list through our website or HERE.

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.

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