SCOTUS: No Automatic Reversal of Conviction When Judge Improperly Participated in Plea Discussions

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Category: Criminal Law & Process, Federal Criminal Law & Process, Public, Seventh Circuit, U.S. Supreme Court
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Federal Rule of Criminal Procedure 11 sets forth various requirements and prohibitions relating to guilty pleas, including a ban on judges participating in plea discussions. If there is a violation, Rule 11(h) specifies that a “variance from the requirements of this rule is harmless error if it does not affect substantial rights” — no harm, no foul. However, at least two circuits have adopted a rule of automatic vacatur of the guilty plea if the judge participated in plea discussions. Other circuits, including the Seventh, have applied the general 11(h) harmless error rule in these situations.

Earlier today, in United States v. Davila (No. 12-167), the U.S. Supreme Court unamimously resolved the circuit split in favor of the general harmless error rule. As the Court saw it, the legal question was an easy one: “[N]either Rule 11 itself, not the Advisory Committee’s commentary on the Rule singles out any instructions [in Rule 11] as more basic than others. And Rule 11(h), specifically designed to stop automatic vacaturs, calls for across-the-board application of the harmless-error prescription . . . .”

The Court declined to adopt any bright-line rules regarding the application of the harmless-error rule: “Our essential point is that particular facts and circumstances matter.” Having determined that the lower court should have applied the harmless-error rule, the Court chose to remand for further consideration of the “particular facts and circumstances.” At the same time, the Court did say, “Had Davila’s guilty plea followed soon after the Magistrate Judge told Davila that pleading guilty be the ‘best advice’ a lawyer could give him, this case may not have warranted our attention.” The suggestion seems to be that a guilty plea entered “soon after” the judge recommended such a course of action would pretty clearly not fall into the category of harmless error. What made Davila’s case more difficult was the three-month delay between the Rule 11 violation and the guilty plea.

Cross posted at Life Sentences.

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Seventh Circuit Honors the Late Judge John L. Coffey at Eckstein Hall

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Category: Federal Law & Legal System, Judges & Judicial Process, Public, Seventh Circuit
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coffeyforwebJudge John L. Coffey, a man of strong conviction and strong faith, was remembered for his positive impact on family, the courts, and the legal profession in a ceremony April 17 in the Appellate Courtroom of Eckstein Hall.

Nine judges of the United States Court of Appeals for the Seventh Circuit were on the bench at the ceremonial session in memory of Coffey, who died last November at 90. Chief Judge Frank H. Easterbrook said the location was appropriate because Coffey “thought the world of this school—this is where Jack Coffey would have wanted this celebration.” Coffey graduated from Marquette University in 1943 and from Marquette Law School in 1948 and was well known for his loyalty to Marquette.

Beginning in 1954, Coffey served as a judge in Milwaukee County, until he became a member of the Wisconsin Supreme Court in 1978. He joined the federal appeals court in 1982. In 2012, he announced he would not take part in cases—although, as was noted during the session, he didn’t really say he was retiring either.

“Jack did not see much ambiguity,” Easterbrook said. He described Coffey as a passionate advocate who once emphasized a written point he was making by underlining, bold-facing, and italicizing the passage. “He missed only the opportunity to put it in a larger font,” Easterbrook said.

Coffey was “a rock when it came to defending his principles,” Judge Rudolph T. Randa of the United States District Court for the Eastern District of Wisconsin told the audience of about 200.

Marquette Law School Dean Joseph D. Kearney said, “Jack Coffey focused relentlessly on the future,” including the future of the Law School. Coffey was one of the first alumni to encourage Kearney to consider leading the Law School out of Sensenbrenner Hall.

Francis Schmitz, who was a law clerk for Coffey in 1983-84, said that working for Coffey “was not unlike the parental concept known as tough love.” The judge was a demanding, no-excuses, no- cutting-corners boss who cared greatly and compassionately about those who worked for him, Schmitz said.

Peter Robbins, a grandson of the judge, said Coffey asked for divine guidance every day because he sat in judgment of others. He believed in hard work—“he always endeavored to know more”—but his family meant everything to him, Robbins said.

Coffey’s son, Peter Coffey, recounted how his father was one of ten children, all of whom graduated from Marquette.

Easterbrook said that Coffey had a reputation of being a dissenter, but during Coffey’s time on the federal appeals bench, there were 93 cases heard en banc and Coffey was in the majority in 78. He wrote the opinions in 11, which, Easterbrook said, was more than his share. “We miss his presence in our circles,” Easterbrook said.

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Sentence Not Improperly Enhanced Based on Defendant’s Silence, Seventh Circuit Rules

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Category: Criminal Law & Process, Federal Sentencing, Public, Seventh Circuit
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At sentencing, defendants are expected to express remorse for their crimes.  Indeed, the defendant who fails to impress the judge with the sincerity of his contrition is apt to face a longer sentence on that basis.  But what if the defendant chooses to say nothing at all at sentencing?  On the one hand, a judge might infer a lack of remorse from the defendant’s silence.  But, on the other, there seems some tension between penalizing a defendant’s failure to speak and the Fifth Amendment privilege against self-incrimination.

The Seventh Circuit addressed this tension earlier today in United States v. Keskes (No. 12-1127) (Tinder, J.).  Convicted of mail fraud, Keskes apparently declined the opportunity to allocute at his sentencing.  The district judge then made note of this in finding a lack of remorse and increasing Keskes’ sentence on that basis.  On appeal, Keskes argued that the sentence violated his right to remain silent.  The Seventh Circuit, however, affirmed.

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Seventh Circuit Affirms Life Sentence Notwithstanding Supreme Court’s Recent Eighth Amendment Decisions

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Category: Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Public, Seventh Circuit, U.S. Supreme Court
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From the time of its decision in Harmelin v. Michigan (1991), affirming a mandatory sentence of life without parole for a drug trafficking offense, through its decision in Ewing v. California (2003), affirming a de facto life sentence for shoplifting, the Supreme Court showed little interest in using the Eighth Amendment Cruel and Unusual Punishments Clause as a basis to limit the length of prison sentences.  More recently, however, the Court has begun to extend the principles it developed to regulate capital sentencing into the noncapital realm.  First, in Graham v. Florida (2010), the Court banned life without parole for juveniles not convicted of homicide.  Then, in Miller v. Alabama (2012), the Court banned the use of mandatory “LWOP” sentences for all juveniles — even those convicted of homicide.

The Court’s trajectory seems to threaten Harmelin.  Even if the logic of Graham permits LWOP for drug trafficking, the logic of Miller arguably requires a consideration of mitigating circumstances before the sentence can be imposed — prohibits, in other words, LWOP as a statutory minimum for a drug offense.

While the Supreme Court might eventually reach this destination, the Seventh Circuit has decided not to try to get there first.   Read more »

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Defendant Can Challenge Attorney’s Failure to Appeal Despite 2255 Waiver, Seventh Circuit Says

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Category: Criminal Law & Process, Federal Criminal Law & Process, Public, Seventh Circuit
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Charged in federal court with drug trafficking, Fred Dowell decided to enter into a plea agreement with the government.  The deal included various stipulations as to his sentence, but reserved for Dowell the right to challenge the government’s contention that he should be sentenced as a career offender under the federal sentencing guidelines.  Assuming the stipulations were accepted by the sentencing judge, Dowell waived his right to appeal the sentence, except that he expressly reserved the right to appeal an adverse career offender determination.  Dowell also surrendered his right to mount a collateral attack on the sentence under 28 U.S.C. §2255.

Dowell was, in fact, sentenced as a career offender.  By his account, he instructed his lawyer to appeal this decision, as he had reserved the right to do.  No appeal was filed.  By the time Dowell realized this, it was already too late for an appeal to be taken.  Accordingly, he tried a §2255 motion in the district court, contending that his lawyer’s failure to appeal constituted ineffective assistance of counsel in violation of the Sixth Amendment.  Sorry, said the district court, but you waived your rights under §2255 in the plea agreement.

Earlier today, the Seventh Circuit reversed in Dowell v. United States (No. 10-2912).   Read more »

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Seventh Circuit to Form 19: Drop Dead!

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Category: Intellectual Property Law, Public, Seventh Circuit
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Last week I bemoaned how the Seventh Circuit had thoroughly botched the already confusing state of affairs that is the elements of a prima facie copyright infringement claim. But as a bonus, the Peters v. West opinion also had troubling things to say about what is now required to successfully plead a copyright infringement claim under the new “plausibility” regime announced by the Supreme Court in Twombly and Iqbal.

As a refresher, here’s how the Peters court defined the element of infringement (the other element for a claim of copyright infringement being ownership of a valid and registered copyright):

Fundamentally, proving the basic tort of infringement simply requires the plaintiff to show that the defendant had an actual opportunity to copy the original (this is because independent creation is a defense to copyright infringement), and that the two works share enough unique features to give rise to a breach of the duty not to copy another’s work.

Note that the court is discussing what the plaintiff must ultimately prove, which even after Twombly and Iqbal is not necessarily what the plaintiff must allege. Swierkiewicz v. Sorema, which distinguished between those two, is still good law; Iqbal simply requires that the plaintiff allege enough to make a claim plausible, which may or may not require pleading specific facts. Nevertheless, many courts even pre-Twombly have been requiring plaintiffs to march through the elements in their complaints, and now post-Iqbal, each of those elements must be “plausible.”

So what does a plaintiff, according to the Seventh Circuit, now have to plead in order to plausibly allege infringement? Read more »

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Why Milwaukee’s Parking Enforcement System Might Be Unconstitutional

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Category: Constitutional Law, Milwaukee, Public, Seventh Circuit
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When it comes to parking enforcement, the City of Milwaukee has a problem. Local media have concluded from interviews and public records that the City issues parking tickets without paying close attention to whether they are warranted. In 2011 alone, the City reportedly canceled over 38,000 parking tickets, often because they were plainly unjustified. Nearly 8,000 tickets, for example, were issued for “expired” parking meters that in fact had not expired. Given personal experience, I have little doubt that these figures are accurate.

The extremely high number of unwarranted tickets is not an accident. Instead, it appears to be the result of a policy to issue tickets indiscriminately for the singular purpose of revenue enhancement. The City’s manager for parking enforcement practically admits as much; he recently told a local news station that the policy “is to issue the citation and straighten it out later.” Media coverage suggests that the City implements this policy through an informal quota system: Several employees of the Department of Public Works have revealed that supervisors expect enforcement personnel to issue certain numbers of tickets per shift for specified areas, and that supervisors punish those who fail to meet quotas by handing out undesirable shift hours. In other words, enforcement personnel are under the gun; unless they want to work at 3:00 in the morning, they have to issue bushels of tickets. Because this system appears to give credit even for unjustified citations, there is little incentive for personnel to make sure that they issue citations only when deserved. So the high error rate is no surprise. The effect is to impose upon thousands of law-abiding residents the burden of either paying a fine or establishing the absence of a violation. For many, the hassle is worse than the dollar value of the fine. Read more »

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Peters v. West: Three Strikes

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Category: Intellectual Property Law, Public, Seventh Circuit
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In my previous post, I dissected the problematic recent Seventh Circuit copyright decision in Peters v. West. I won’t recap that long post here, except to say that the Seventh Circuit appears to have collapsed the traditional two-part inquiry for infringement in the prima facie case for copyright infringement to one part, with proof of access as a weird (and optional?) hanger-on. As the Peters court summarizes the test that will govern going forward: “[P]roving” — and, I guess, pleading — “the basic tort of infringement simply requires the plaintiff to show that the defendant had an actual opportunity to copy the original . . . , and that the two works share enough unique features to give rise to a breach of the duty not to copy another’s work.”

There are at least three bad consequences to this: it gives jury determinations to the judge; it makes the already controversial “sliding scale” doctrine incoherent; and it sounds the death-knell for substantive limits on liability for copying outside of fair use.

First, the two different sub-elements of the infringement half of the prima facie case have been understood at least since 1945, and even in the Ninth Circuit’s jumbled version of the test, to allow a division of labor between judge and jury in a copyright infringement case. Actual copying, including (if necessary) a showing of “probative similarity,” is a merely forensic task, one that stands at the gate of the field where the ultimate liability determination will be fought out. The issue is to determine whether there’s been any copying at all as a factual matter. It is to copyright law as “causation” is to negligence law. I may have been speeding, but if I didn’t actually hit your car, the case is over. As a forensic rather than policy determination, courts have long allowed the component works to be examined in microscopic detail for evidence of actual copying, including hearing from expert witnesses. After receiving this evidence, the judge can determine that there’s no genuine issue of material fact as to actual copying and grant summary judgement for the defendant — or nowadays, I suppose, can determine on a motion to dismiss that the complaint does not adequately plead a plausible case of actual copying.

The other “substantial similarity” test is supposed to be much different than that, one that the jury is especially adept at determining, at least in a music case like this one. Read more »

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There Is No Joy in Mudville

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Category: Intellectual Property Law, Public, Seventh Circuit
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At least, not if Mudville is populated by copyright professors; for the mighty Seventh Circuit has struck out. In Peters v. West (Kanye West, that is, or as LEXIS is now abbreviating the case name, “W.”), the Seventh Circuit, in an opinion written by the highly regarded Judge Wood, has badly bungled the already confused test for establishing a copyright infringement claim. I’ma let you finish, Judge Wood, but Judge Newman had one of the best explanations of this test of all time.

The elements of a prima facie copyright infringement claim have long been confusing to students, lawyers, judges — pretty much everyone. (A brief copyright lesson follows; if this is old hat to you, skip 4 paragraphs down.) Essentially, there are only two elements: ownership and infringement. But the second element is broken down further into a set of sub-elements, and courts have long had difficulty explaining the content and the relationship of the various sub-elements clearly. The basic idea, however, long ago expressed in Second Circuit opinions by Judges Learned Hand and Jerome Frank, is that proving infringement is supposed to be a two-part process: proving that the defendant actually copied material from the plaintiff’s work, and proving that the amount copied passes some sort of threshold for materiality.

There are two significant points of confusion with the test. Read more »

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Seventh Circuit Rejects Effort to Extend Padilla Beyond Deportation Context

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Category: Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Public, Seventh Circuit
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In Padilla v. Kentucky (2010), the United States Supreme Court held that an attorney renders constitutionally inadequate representation by failing to advise his or her client of the deportation consequences of a guilty plea. Prior to Padilla, many lower courts had adopted a distinction between “direct” and “collateral” consequences of a guilty plea. While defense counsel was required to advise the client of direct consequences (e.g., a potential prison sentence), counsel was not required to warn the client of collateral consequences (which included, in the view of some lower courts, the risk of deportation). Padilla, however, cast doubt on the existence and meaning of a direct/collateral distinction, which immediately raised questions about whether attorneys might be required to advise clients regarding other sorts of consequences that had previously been regarded as collateral.

Earlier today, in United States v. Reeves (No. 11-2328), the Seventh Circuit turned aside an effort to extend Padilla to the risk that a conviction in one case will be used to enhance the defendant’s sentence in a future case.

Here’s what happened.  Read more »

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Sentencing and the Limits of Actuarial Risk Assessment

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Category: Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Seventh Circuit
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As child molesters go, Cory Reibel seems a relatively low-risk proposition.  He is a first-time offender, was not sexually abused himself as a child, and victimized a girl instead of a boy — studies indicate that all of these factors point to a reduced risk of recidivism.  Yet, he was sentenced to the statutory maximum of 30 years in prison by a judge who wanted to prevent him from offending again.

The judge’s sentence seems to fly in the face of the science of risk assessment.  Actuarial risk assessment (that is, the determination of an offender’s risk based on a statistically sound analysis of recidivism data involving other offenders with similar characteristics) seems to be playing an increasingly prominent role in both pretrial release and post-conviction sentencing decisions.  Scientifically speaking, this is pretty clearly an advance on pure intuition as a basis for predicting risk.  However, actuarial risk assessment does present some important ethical difficulties when it is used as a basis for determining how severe a punishment should be.

These difficulties were on display earlier today when the Seventh Circuit turned aside Reibel’s challenge to the reasonableness of his sentence.   Read more »

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Seventh Circuit Weighs in on Aggravated Identity Theft Sentencing

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Category: Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Public, Seventh Circuit
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The aggravated identity theft statute (18 U.S.C. §1028A) specifies a sentence of two years — no more, no less — for each violation.  So, when a defendant is convicted of multiple violations of the statute, should the two-year sentences be imposed concurrently or consecutively?  Today, in United States v. Dooley (No. 11-2256), the Seventh Circuit recognized that the sentencing judge has discretion in making the decision, but held that the judge must consider the factors set forth in U.S.S.G. §5G1.2 Application Note 2(B).

Dooley was convicted in three separate counts of violating §1028A, leaving the judge to choose among three sentencing options: 24 months, 48 months, or 72 months.  (I leave out the effect of Dooley’s conviction of various other offenses, which did not play a significant role in the Seventh Circuit’s analysis.)  In selecting the 72-month option, the judge focused on the need to avoid disparities relative to another defendant.  However, the judge did not mention the Note 2(B) factors.  This, the Seventh Circuit held, was plain error.   Read more »

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