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April 2012 Through September 2012 7th Circuit Criminal Case Digest

Click HERE for a Digest of all Seventh Circuit opinions in criminal cases decided in the last six months. The cases are organized by topic, along with a Table of Contents, Table of Authorities, and one-sentence summary of the essential holding in each case.

bulletWeek ending July 27, 2012

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

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

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

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

In United States v. Dooley, ___ F.3d ___ (7th Cir. 2012; No. 11-2256), the Seventh Circuit vacated the defendant's sentence, finding that the district court plainly erred when it failed to consider Application Note 2(B) of guideline section 5G1.2 when imposing consecutive sentences for 3 aggravated identity theft convictions under 18 U.S.C. ß1028A convictions. The defendant pleaded guilty to nine total counts, three of which were aggravated identity theft convictions. Section 1028A requires that every conviction under the statute is punished by exactly two years in prison. The statute also requires that the two-year sentence must run consecutively to every sentence for a different crime--though sentences for multiple aggravated-identity-theft convictions may run concurrently with each other. The district court had three options at sentencing: he could have added 24-months to the underlying convictions for all three 1028A offenses (running them all concurrently with each other); added 48 months (running two of them concurrently with each other and one consecutively to the other two); or 72 months (running all three consecutively to each other). The district court chose to run all three consecutively to the underlying convictions and to each other. Although 1028A does not offer any guidance about which option to choose, it does direct that "discretion shall be exercised in accordance with any applicable guidelines and policy statements issued by the Sentencing Commission." Application Note 2(B) to Guideline section 5G1.2 in turn lists a number of factors the court must consider when deciding whether to run the 1028A convictions consecutively or concurrently to each other. At sentencing, neither the PSR, defense counsel, the prosecutor, nor the district court ever mentioned the Application Note, indicating that everyone was unaware of the relevant Application Note. Given that the statute ties itself to the guideline considerations in this case, failure to consider Application Note 2(B) was a plain error. Moreover, the defendant's substantial rights were affected; an extra 48 months in prison is substantial by any measure. Therefore, the court remanded for reconsideration in light of the factors set forth in Note 2(B). NOTE: This appeal was litigated by our University of Illinois College of Law extern, Christopher Quinlan, under the supervision of AFPD John Taylor. Chris will be joining our staff as a lawyer (pending admission to the Bar) at the end of August.

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

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

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

bulletWeek ending July 20, 2012

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

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

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

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

bulletWeek ending July 13, 2012

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

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

In United States v. McKinney, ___ F.3d ___ (7th Cir. 2012; No. 11-3722), the court affirmed the district court's sentencing enhancements for failing to report income exceeding $10,000 from criminal activity (U.S.S.G. ß2T1.1(b)(1)) and an obstruction of justice enhancement in a tax fraud case. Regarding the income enhancement, the defendant argued that the proceeds in question were obtained and pocketed by his wife, and here therefore was not accountable for them. The court noted that an individual whose spouse obtained income through illegal means shares the duty to report such income and may receive a sentence enhancement should that spouse fail to do so. Moreover, under general principles of federal income tax law, the defendant was jointly and severally liable for any deficiencies, penalties, and interest assessed against him and his wife regarding a joint return unless he was an "innocent spouse." The defendant clearly was not innocent in this case. On the obstruction of justice enhancement, the defendant argued that the false statements he made to IRS agents which formed the basis of the enhancement were made before a criminal investigation was initiated and, therefore, could not support the enhancement. The court stated that it did not matter that the statements were made to the IRS agents before a criminal investigation was begun. The fact that the investigation originated as civil, not criminal, does not legitimize the defendant's lies and attempts to frustrate the government's inquiries. Although providing false statements or incomplete or misleading information to law enforcement, if not under oath, does not constitute obstruction if the investigation is not actually obstructed or impeded, such conduct can form the basis of the enhancement if the disinformation was material and impeded the official investigation or prosecution of the offense in question. The misinformation in this case met this standard.

bulletWeek ending July 6, 2012

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

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

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

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

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

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

bulletWeek ending June 29, 2012

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

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

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

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

The one new grant of a petition for certiorari was in Henderson v. United States, 11-9307. The question presented is: " Whether, when the governing law is unsettled at the time of trial but settled in the defendantís favor by the time of appeal, an appellate court reviewing for ďplain errorĒ should apply Johnson v. United Statesís time-of-appeal standard, as the First, Second, Sixth, Tenth, and Eleventh Circuits do, or should apply the Ninth Circuitís time-of-trial standard, which the D.C. Circuit and the panel below have adopted."

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

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

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

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

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

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

bulletWeek ending June 22, 2012

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

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

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

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

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

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

bulletWeek ending June 15, 2012

The Supreme Court issued no opinions in argued criminal cases this week, although it did issue a summary reversal order of the Sixth Circuit's set aside of two murder convictions under the AEDPA. You can access that summary opinion here: http://www.supremecourt.gov/opinions/11pdf/11-845.pdf. The Court issued one new grant of certiorari in a criminal case. Specifically, in Evans v. Michigan, the Court will consider the following question: Whether the Double Jeopardy Clause bars retrial after the trial judge erroneously holds a particular fact to be an element of the offense and then grants a midtrial directed verdict of acquittal because the prosecution failed to prove that fact?

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

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

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

bulletWeek ending June 8, 2012

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

The Seventh Circuit issued three precedential criminal opinions last week.

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

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

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

bulletWeek ending June 1, 2012

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

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

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

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

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

bulletWeek ending May 25, 2012

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

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

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

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

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

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

bulletWeek ending May 18, 2012

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

bulletWeek ending May 11, 2012

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

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

bulletWeek ending May 4, 2012

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

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

The Supreme Court granted cert today on the retroactivity of Padilla. The case is Chaidez v. United States, No. 11-820. Question presented: "In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), this Court held 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. The question presented is whether Padilla applies to persons whose convictions became final before its announcement. Links to cert papers and the Seventh Circuit's opinion below can be found here: http://www.scotusblog.com/case-files/chaidez-v-united-states/

 

bulletWeek ending April 27, 2012

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

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

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

bulletWeek ending April 20, 2012

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

bulletWeek ending April 13, 2012

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

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

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

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

bulletWeek ending April 6, 2012

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

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

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

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

 
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Last modified: 09/18/12