Two whom I have collected in my time in Wisconsin are Chief Justice Shirley S. Abrahamson and Seventh Circuit Judge Diane S. Sykes, L’84. While I have previously alluded to their friendly competition with one another on the Wisconsin Supreme Court, as it seemed to me, I do not seek to remember them here: They are very much with us. Rather, each herself had occasion in the U.S. Courthouse in Milwaukee, in the past year or two, to remember a late predecessor and friend: Judge Myron Gordon (pictured here, courtesy E.D. Wis.) in Chief Justice Abrahamson’s case, and Judge Terence T. Evans, L’67, in Judge Sykes’s. With permission, I wish to share these remembrances here.

Myron Gordon I did not know, but the Chief’s remarks certainly gave me a strong sense of the man and the times. Gordon attended college at the University of Wisconsin and graduated from Harvard Law School in 1942. In his academic successes, the Chief—with some perspective on the matter—stated, “Myron Gordon lived the dream of Eastern European Jewish immigrant parents.” He became a Milwaukee County Civil Court judge in 1950, holding a seat on the state trial bench for eleven years; was a justice of the Wisconsin Supreme Court from 1961 to 1967; and served as a judge of the United States District Court for the Eastern District of Wisconsin from 1967 until his retirement several decades later.

Gordon seems not to have forgotten his forbears. The Chief recalled one incident to make a large point: “When Myron Gordon was on the Supreme Court, several prominent Madisonians wanted to nominate him for membership in a private eating club that discriminated against Jews. They wanted to eliminate religious discrimination and selected Myron Gordon and Gordon Sinykin as their nominees because Myron and Gordon were above reproach. Myron understood the publicity that would ensue (which was not pleasant) and ill will that might follow (and it did). Neither he nor Gordon needed to be a member of the club—it added little if anything to their lives. But discrimination should be battled wherever it raises its head. And if Myron and Gordon were asked to lead the battle, they would do so. A small win, but every little win makes a difference.”

I asked Chief Justice Abrahamson for a copy of her 2010 remarks, and I have made them available here.

Terry Evans I knew, though scarcely so well as did Judge Sykes, who was both his law clerk and, for some seven years, his colleague on the Seventh Circuit. Judge Evans attended Marquette University for both college and law school and was of Milwaukee in just about every other respect as well. He, too, became a trial judge in Milwaukee County at a young age (34 years old), before also being appointed to the federal district court here in Milwaukee (in 1979). Judge Evans joined the Seventh Circuit in 1995 and passed away quite unexpectedly this past year.

It is perhaps natural that Judge Sykes would especially remember Judge Evans as a trial judge, where he spent the majority of his time on the bench and she served as his law clerk for a year: “He was steeped in everything that is Milwaukee—its people, its traditions, and its institutions. Add to that his legendary sense of humor and his considerable powers of perspective and intuition and you’ve got a truly masterful trial judge. He could read the courtroom, size up each case really quickly, cut through the clutter, pull the story line from mountains of evidence, identify the real clash of interests, and articulate a concise and well‐reasoned decision that everyone could grasp. He did all this with a clarity of expression and wit rarely found in the world that we lawyers and judges inhabit.”

Judge Sykes has been kind enough to share her remembrance of Judge Evans.

Judges are a mixed lot—as is the case for any large category of individuals. Some are good, others less so. Some work hard; others are unwilling to do all the work that is the premise of an efficient litigation system (e.g., superintending discovery disputes), and the practice (along with the society) suffers for it. But, in all events, the role of the judge is at the heart of the legal system, and so it is a contribution to our continuing education that Chief Justice Abrahamson and Judge Sykes would spend, no doubt, a considerable amount of time preparing their remembrances of Judges Gordon and Evans and permit us to share these in written form. These writings may, indeed, teach us some of “the lessons of the law (and life).”

In response to the petition, an investigator tracked down the jurors to ask them what they recalled about November 29, 1995. The interviews took place between 2001 and 2006. (Evidently, the investigation was not exactly a high priority.) The results, as the Seventh Circuit put it with considerable understatement in an opinion last week, were a “mixed bag”:

The first question was: “The court records show that on one day one of the jurors did not appear. Do you recall any such time when that might have occurred?” Seven jurors said they did not recall a juror being absent; four jurors said they did. Of the four who did remember a juror’s absence, three recalled that an alternate juror replaced the absent juror, a claim wholly unsubstantiated by court records. One of the four thought the juror was absent on the day before Thanksgiving; another claimed the juror was absent on the first two days of deliberations. Two correctly recalled that the absent juror was male; one said the absent juror was female. The second question was: “Do you recall being sent home early because of this juror’s absence?” The jurors answered either “no” or that they did not recall.

Ultimately, the district judge decided that there was insufficient evidence that the jury had deliberated on November 29 and denied Webster’s petition. The Seventh Circuit affirmed last week, holding that the district judge’s fact-finding was not clearly erroneous. Webster v. United States (No. 09-2308).

What I find interesting about the case (apart from the absurdity of asking people about the details of their decade-old jury service and the predictably off-base answers) is the district judge’s admission into evidence of the jurors’ recollections of what happened during their deliberations. This seems to conflict with the basic thrust of Rule 606(b) of the Federal Rules of Evidence, which prohibits jurors from testifying about “any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith.”

As the Seventh Circuit observed, “Rule 606(b) codifies the common-law prohibition against using juror testimony to impeach a verdict, which exists to promote the finality of verdicts, protect jurors from harassment, and encourage full and frank discussion in the jury room.” These concerns have always struck me as a little exaggerated, particularly when measured against the need to ensure reliability in judgments in cases involving long prison terms, like Webster’s. However, the facts in Webster point to an additional concern: jurors’ memories are themselves apt to be pretty unreliable, particularly after the passage of a few years and perhaps all the more so when the topic of questioning is an event that, while legally significant, might pass with little notice from laypeople. (Assume, for instance, that Webster’s theory were true: a bailiff instructed the eleven jurors to go ahead and deliberate despite the absence of the twelfth. I suspect that most laypeople in these circumstances would trust the bailiff as a figure of authority and follow his directions without much question or concern.)

Although the Seventh Circuit could have affirmed in Webster without addressing the Rule 606(b) question, the court went out of its way to indicate that the district judge erred in admitting the jurors’ recollections about deliberations on November 29. There seems not to be much precedent on the application of the Rule in these sorts of circumstances, but the Seventh Circuit did cite one prior district court decision holding that Rule 606(b) prohibits testimony about deliberations during one juror’s temporary absence.

Is this the right answer? The Seventh Circuit characterized the jurors’ testimony as being about “matter[s] . . . occurring during the course of the jury’s deliberations,” which would bring the testimony within the literal terms of the Rule. It’s not clear to me, though, that the fact of deliberation constitutes a “matter . . . occuring during the course of the jury’s deliberations.” I think one could plausibly interpret the Rule to protect the content of deliberations, but not the fact that the jury did or did not deliberate on a particular day.

Then, too, there are the exceptions to the Rule 606(b) prohibition. Jurors may testify about: “(1) whether extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form.” Although the possibility seems not to have been raised or considered in Webster, I think there may be an argument that the alleged rogue bailiff counts as an “outside influence . . . improperly brought to bear upon any juror.”

None of this really matters to Webster because the juror testimony in his case was so unreliable and inconclusive. But courts and counsel in future cases in which the juror testimony is stronger might do well to note that the Seventh Circuit’s treatment of the Rule 606(b) issue in Webster was mere dicta.

Cross posted at Prawfs and Life Sentences.

In the new case, Vasquez v. United States (No. 11-199), the defendant’s cert. petition focused squarely on this ambiguity, arguing that the majority opinion below (635 F.3d 889 (7th Cir. 2011)) rested on one formulation, while the dissenting opinion rested on the other.  In Vasquez’s view, the choice of harmless error standard is more-or-less dispositive in his case, thus making the case an appropriate platform for deciding which standard is the right one.  In its response, however, the government disputes that there is any substantive difference between the standards.

Here are the (allegedly) competing standards.

On the one hand, there is the standard from United States v. Chapman, 386 U.S. 16, 22 (1967): “[t]he question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.”  On the other, there is the “overwhelming evidence of guilt” standard from Schneble v. Florida, 405 U.S. 427, 430 (1972): “[i]n some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the [erroneously admitted evidence] is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the [evidence] was harmless error.”

It requires some effort to appreciate a difference between the standards, but the formulations do indeed suggest two distinct ways of performing the analysis.  The first standard invites an assessment of what actually happened at trial and what the jury’s actual views of the case were.  The second standard invites more of an independent assessment by the appellate court of the strength of the government’s case.

In practice, though, I suspect that the distinction between the two standards collapses in most cases.  That is because the appellate court will rarely have any reliable basis for determining what really mattered to a particular jury.  Juries normally render bare-bones general verdicts — a simple declaration of guilty or not guilty — and formal examination of jurors about what happened during deliberations is almost always forbidden.  In light of these limitations, an appellate panel really has no alternative in most cases but to try to imagine what it would have done if it had been the jury.  This no doubt helps to explain why the courts have not felt it necessary to resolve the longstanding ambiguity.

It is possible, though, that there are some cases in which the formulation really does matter, and Vasquez just may be such a case.  Here’s what happened.  Vasquez drove to a Denny’s parking lot to meet Perez, who was attempting to complete a purchase of a kilogram of cocaine.  It turned out, however, that the seller was working with the police, and Vasquez soon found the car surrounded by cops.  Rather than surrendering, Vasquez attempted a getaway, crashing into a couple of police cars in the process.  After a chase by car and on foot, Perez and Vasquez were apprehended and prosecuted on drug charges in federal court.  Perez pled guilty, but Vasquez went to trial.

At trial, Vasquez’s defense was that he was simply in the wrong place at the wrong time.  Perez’s wife was his key witness. She testified that she had asked Vasquez to pick up Perez at the parking lot, apparently indicating that he did it as a favor for her, not as a knowing participant in a drug deal.

In order to undermine the testimony of Perez’s wife, the government played for the jury recordings of phone conversations between Perez and his wife while Perez was in jail following his arrest.  Through those recordings, the jury learned that Vasquez’s lawyer had advised his client that he would likely lose at trial and should plead guilty.  When Vasquez’s lawyer then stood up to deliver his closing argument a little while later, one imagines that he had very little credibility left with the jury.

On appeal to the Seventh Circuit, all three members of the panel agreed that the trial judge had committed an error in admitting the sensitive portions of the recordings, at least without an appropriate limiting instruction for the jury.  However, the majority concluded that the error was harmless, reasoning that the evidence of Vasquez’s guilt was “overwhelming.”  The majority particularly emphasized the importance of Vasquez’s getaway attempt as evidence of guilt.  The majority also cited some other items of evidence, including testimony indicating that Vasquez knew the car contained $23,000 in cash.

For the majority, the harmless error determination was quick and easy, requiring only a brief recounting of the evidence against Vasquez, with no attention to the question of what the jury actually thought about the evidence.  The dissenting judge provided much more extensive analysis, carefully parsing the trial record to determine what impact the evidence actually had on the jury.  Here’s a taste:

The [Chapman] standard is not easy to satisfy, and four factors here lead me to conclude this error was not harmless: the modest strength of the rest of the government’s case against Vasquez, the prejudicial character of the evidence that was admitted erroneously, the fact that the jury acquitted Vasquez of one of two charges, and the importance that the government itself attributed to its flawed rebuttal evidence.

. . .

Without the flight evidence and the MCC tapes erroneously admitted for their truth, then, the government had evidence that was legally sufficient to convict Vasquez, but the case was far from a slam-dunk. The dramatic evidence of the dangerous flight strengthened the case substantially and makes it easier for my colleagues to describe the district court’s error as harmless. But the flight evidence cannot carry that much weight, in my view. The Supreme Court and we have repeatedly cautioned against too much reliance on flight as evidence of guilt for the crime charged because there are so many links in the chain of inferences . . . .

We must also consider the prejudicial effect of the improper evidence. The evidence from the MCC tapes, admitted here erroneously for their truth and with no true probative value, was just about as prejudicial as one could expect to encounter in a trial. The jury heard that Vasquez’s lawyer — the man who would soon make a closing argument asking them to find reasonable doubt in the government’s case — had told Vasquez that he should plead guilty and had said that if he and his codefendants went to trial, “everyone is going to lose.” A juror who heard and believed that evidence would surely discount anything she heard from that lawyer. In terms of prejudice, these harpoons are comparable to evidence of a defendant’s own withdrawn guilty plea. Such a plea is virtually never admissible because of its powerful force.

We also have strong indications from both the jury and the government itself that the erroneous admission of the MCC tapes was not harmless. Even with the prejudicial and erroneous evidence, the jury still found Vasquez not guilty on the charge of attempted possession with intent to distribute. That verdict is hard to reconcile with the jury’s conviction on the conspiracy charge, and the split verdict certainly has the whiff of a compromise verdict in a close case. Such verdicts are permissible in criminal cases, of course, but when determining whether, beyond a reasonable doubt, a conceded error was harmless, we should not ignore that strong signal that the jury viewed the case as a close one, even with the evidence of flight and the improper rebuttal evidence.

The government also showed how important it believed the improper rebuttal evidence was by its extraordinary efforts to obtain its admission. The trial seemed nearly over when the government filed its emergency Sunday motion for a continuance to enable it to prepare this rebuttal case. The events of the next several days, including especially the government’s emphasis on the improper evidence in its closing argument, showed that the government believed that Mrs. Perez had seriously weakened its case and that the improper rebuttal evidence strengthened its case considerably.

In light of the considerations highlighted by the dissenting judge, I think Vasquez does have a plausible argument that the choice of which harmless error test to use was critical in his case.

On the other hand, it’s not clear to me that Vasquez must necessarily lose under the “overwhelming evidence” test.  It really comes down to how much weight you want to give the flight evidence: does this really demonstrate in an “overwhelming” way that Vasquez was conspiring to deal drugs?  I’m skeptical, although I’d really like to know more about the circumstances of the flight.  Minority men (based on his surname, I’m assuming that Vasquez is Hispanic) have plenty of reason to fear encounters with the police even if they are not doing anything illegal.  Although trying to bull his way through a cordon of police cars was stupid and dangerous on many levels, Vasquez seems to have made a snap decision in a high-stress setting that may not really say much at all about what he was thinking when he drove to the parking lot.

So, the Court may be able to dodge sorting out the harmless error standard yet again.

If it does resolve the ambiguity, which way will it go?  Given the restrictions on finding out what a jury was actually thinking, I’m dubious that the sort of approach exemplified by the dissenting judge in Vasquez can really work on its own terms.  Applying the test will almost always seem a highly speculative exercise.  And it may be one that actually works against defendants in some cases.  For instance, if a jury convicts on all counts with only a very short period of deliberation, that would seem rather compelling evidence that the jury did not find the case at all close and would help to support a finding of harmlessness.  (This would be the flipside of the compromise verdict in Vasquez.)

Our normal approach is to handle jury verdicts in a highly formalistic way: a guilty verdict is a guilty verdict is a guilty verdict, and we rarely recognize the possibility that deliberations may fall short of the rational, conscientious ideal.  (The prejudice test from Strickland is a good example, expressly removing from consideration the possibility of an idiosyncratic jury.)  The “overwhelming evidence” test seems most consistent with this jurisprudential tradition; it avoids any exploration of the “sausage-making” that takes place in the jury room, and treats juries as so uniform and predictable in their operation that an appellate panel can readily stand in for a jury without any need to consider evidence of the inclinations of the actual jury.

Cross posted at Life Sentences.

The decision rests on a line of Seventh Circuit cases going back to United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005).  These cases, which have not been followed in some other circuits, require district judges to address nonfrivolous arguments for a sentence below what is recommend by the sentencing guidelines.  As I discussed in this article, I think the Cunningham rule should be adopted more widely and enforced more rigorously.  For that reason, I’m glad to see the Seventh Circuit reaffirm the rule in Robertson.

Although it does not purport to break any new legal ground, the decision nonetheless has some noteworthy aspects.  

First, the court strongly embraced self-motivated rehabilitation as a sentencing factor.  Here’s some of the language:

The Supreme Court recently reiterated “the principle that ‘the punishment should fit the offender and not merely the crime.’” Pepper v. United States, 131 S. Ct. 1229, 1240 (2011), quoting Williams v. New York, 337 U.S. 241, 247 (1949). “Highly relevant — if not essential — to [the] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.” Pepper, 131 S. Ct. at 1235, quoting Williams, 337 U.S. at 247. This aim is codified in 18 U.S.C. § 3553(a), which requires that any sentence imposed be “sufficient, but not greater than necessary” to serve the sentencing goals of punishment, deterrence, protection of the public, and rehabilitation, and which requires the court to consider “the history and characteristics of the defendant.” Adequate consideration of a defendant’s evidence of rehabilitation fits squarely within these parameters. Demonstrated self-motivated rehabilitation is direct and relevant evidence of “the need for the sentence imposed . . . to afford adequate deterrence to criminal conduct; to protect the public from further crimes of the defendant; [and to] provide the defendant with needed educational or vocational training . . . or other correctional treatment in the most effective manner.” 18 U.S.C. § 3553(a)(2)(B)-(D).

The power of evidence of self-rehabilitation was evident inGall, where the Supreme Court noted that it was reasonable for the district court to attach “great weight” to a defendant’s decision to change his life and withdraw from a drug distribution conspiracy: “Compared to a case where the offender’s rehabilitation occurred after he was charged with a crime, the District Court here had greater justification for believing [the defendant’s] turnaround was genuine, as distinct from a transparent attempt to build a mitigation case.” 552 U.S. at 57. Such self-motivated rehabilitation “lends strong support to the conclusion that imprisonment [is] not necessary to deter [a defendant] from engaging in future criminal conduct or to protect the public from his future criminal acts.” Id. at 59.  (12-13)

It’s interesting to see such reliance on the Supreme Court’s recent decision in Pepper.  As I discussed here, Pepper strikes me as a potentially significant break from the Court’s recent federal sentencing jurisprudence.  If lower courts were to read Pepper for all it’s worth, we might start to see a real shift in federal sentencing practices.

Also notable in Robertson is the fact that the defendants’ arguments were not entirely passed over in silence, as they were in Cunningham.  Whereas some Cunningham-type cases involve district judges who literally say nothing to indicate that they have even heard a defendant’s argument, the judge in Robertson expressly indicated some awareness of the facts emphasized by Mr. and Mrs. Robertson:

Concerning the Robertsons’ criminal histories, the court acknowledged that Henry had not committed any crimes since 2002 and that Elizabeth lacked any criminal history. But other than noting, without further detail or explanation, that Elizabeth had provided “excellent service . . . as a professional in the medical field,” it is not apparent that the sentencing court considered the Robertson’s unusually strong evidence of self-motivated rehabilitation over the past ten years. Because the court’s silence makes it impossible to discern that it appropriately balanced the Robertsons’ rehabilitated lives and characters against the seriousness of their offense for purposes of 18 U.S.C. § 3553(a), we find this minimal treatment to be insufficient.

. . . The probation office and the government agreed that it would be appropriate to treat Henry’s criminal history as overstated due to the passage of time, yet the district court’s only acknowledgement of this argument was its comment that Henry was not “youthful or immature” when he committed the reckless driving offense in 2002.  (15-16)

I think it unfortunate that the Cunningham rule is sometimes treated as satisfied when there is mere acknowledgement of a defendant’s argument, as opposed to substantive responsiveness.  I’m glad to see Robertson suggesting a more rigorous approach to Cunningham.

In this regard, I thought it interesting that the Seventh Circuit made nothing of the fact that “the district judge agreed to modify Elizabeth’s date to report to prison to allow her to continue to work as a nurse long enough to become eligible for retirement benefits.”  (15 n.3)  This contrasts with the Sixth Circuit’s opinion in United States v. Liou, 491 F.3d 334 (6th Cir. 2007), in which the district judge’s decision to give the defendant a more favorable report date was held to constitute an adequate response to the defendant’s argument for a below-guidelines sentence.

An interesting question about Robertson is why the Seventh Circuit formally treated the district judge’s error as merely procedural, remanding for a resentencing at which the original sentence could be reimposed.  It is seems clear enough that the panel felt the district judge erred substantively, not just procedurally, in imposing multiyear prison sentences on two defendants who led exemplary lives for a decade after their crimes were committed.  For instance, it’s hard not to read this view between the lines of the final words of the Seventh Circuit’s opinion: “the [district] court should carefully weigh and explain its consideration of the Robertsons’ evidence of self-motivated rehabilitation.”  (17)  Why not end the possibility of misunderstanding or mischief at the district court level and forthrightly hold that a guidelines sentence would be substantively unreasonable in this case?

Appellate courts have been loathe to hold guidelines sentences substantively unreasonable.  (As a side note, it is actually a debatable question whether the Robertsons’ sentences can be fairly characterized as guidelines sentences, since their guidelines ranges were calculated using a newer and harsher version of the guidelines than existed at the time they committed their crimes.)  This reluctance doubtlessly owes much to the presumption of reasonableness that may be accorded guidelines sentences under Rita v. United States, 127 S. Ct. 2456 (2007), and to the underlying premise of Rita that the guidelines embody the research and expertise of the Sentencing Commission.  Appellate courts should recognize, however, that is does no violence to the logic of Rita to hold guidelines sentences substantively unreasonable in unusual circumstances that the Commission did not contemplate in crafting the guidelines.  To start holding more guidelines sentences substantively unreasonable — where there are sound, principled grounds for doing so — would in effect start to build the common law of sentencing for which many scholars have been advocating for a very long time.  Such a common law holds out the hope for greater transparency, consistency, and proportionality in federal sentencing.

But are there persuasive grounds for holding the Robertsons’ sentences substantively unreasonable?  But my lights, this is a complex and uncertain question.  The underlying principle would be that defendants who have led productive, crime-free lives for many years before being charged present almost no recidivism risk, rendering multiyear prison terms a needless burden on the both the defendants and our overcrowded federal prison system.

However, as someone who believes that punishment should be based more on the severity of the crime than the risk of the criminal, this principle leaves me a little cold.

On the other hand, as I’ve been exploring in some of my recent writing, I also think that retributive approaches to punishment may be compatible with crediting defendants for acts that have a penitential character.  I don’t know, though, whether anything the Robinsons did could fairly be characterized as penitential.

Aside from the questions relating to self-motivated rehabilitation, Robinson also raised a couple of other interesting questions.  First, the Seventh Circuit adhered to its precedent in holding that the Ex Post Facto Clause is not violated when defendants are sentenced under a harsher version of the guidelines adopted after their crimes were completed.  Several other circuits take a contrary view, which may make the question ripe for Supreme Court consideration.

Second, the Seventh Circuit noted, but felt it did not have to resolve, continuing uncertainty over whether the aggravating role enhancement of U.S.S.G. § 3B1.1 requires that the defendant have exerted control over other participants in a criminal activity.

Cross posted at Life Sentences.

Your honor I am asking that John Taylor [Campbell's court-appointed lawyer] be removed from my case. I am requesting that you appoint another lawyer to complete the process. If not I would like to proceed pro se.

As my Criminal Procedure students have heard me discuss at length, defendants do indeed have a Sixth Amendment right to represent themselves.  Yet, Campbell’s request was not satisfied: Taylor continued to serve as his lawyer through the time of his trial and conviction.  Campbell then raised the issue on appeal, but the Seventh Circuit nonetheless affirmed his conviction earlier this week (United States v. Campbell (No. 10-3002)).  The court held, in effect, that Campbell should have renewed his request to go it alone, rather than sitting quietly throughout the trial as his lawyer continued to represent him.

Critical to the court’s reasoning was the disfavored status of self-representation:

Because the assistance of counsel is a critical component of an effective defense, courts will indulge every reasonable presumption against the waiver of counsel.  United States v. Miles, 572 F.3d 832, 836-37 (10th Cir. 2009); Buhl v. Cooksey, 233 F.3d 783, 790 (3d Cir. 2000). Any waiver of that right to counsel must be unequivocal.  Oakey, 853 F.2d at 553; Miles, 572 F.3d at 836.  (8)

Even with that standard in mind, however, the Seventh Circuit was critical of the trial judge’s failure to conduct a more thorough inquiry into Campbell’s wishes:

[Campbell's] initial request in the March 19 letter was unequivocal though conditional. He requested that Taylor be removed from his case, and requested the appointment of another lawyer. He then stated that if another lawyer would not be appointed, he would like to proceed pro se. That is sufficient to at least raise the issue of self-representation. At that point, the district court should have engaged in a colloquy to address that request. See United States v. Todd, 424 F.3d 525, 531 (7th Cir. 2005). The questioning that did occur regarding the matter was insufficient to elicit the relevant information. The only question regarding whether Campbell indeed desired to proceed without the assistance of counsel was a leading question asked by the judge in the context of a hearing regarding a motion to continue the case. In determining whether Campbell needed additional time to review evidence provided by the government, the court interrupted the defendant as he explained his need for time and queried “Well, you’re not going to try the case yourself are you?” Campbell responded in the negative to that leading question, and continued with his explanation.  A leading question such as that one—raised in the context of an unrelated issue— is an inherently unreliable indicator of Campbell’s true state of mind. If that is all that we had before us, Campbell would have a strong argument that he was denied his Sixth Amendment right to represent himself.  (9-10)

Despite the trial judge’s questionable response to Campbell’s request, Campbell’s subsequent failure to renew the request doomed his Sixth Amendment claim on appeal:

As was mentioned, Campbell responded to the court’s question at the hearing by indicating that he did not intend to represent himself. Although the context of the question would cause us to question the validity of the response, at a minimum it casts some doubt as to whether Campbell sought to waive counsel. In a discussion with Campbell’s counsel at the close of the hearing, the court made it clear that it interpreted Campbell’s response as indicating that he did not want to represent himself. Although present during that discussion, Campbell said nothing to rebut that characterization. In fact, Campbell never raised the matter again. The initial answer, followed by the silence and the subsequent acceptance of representation throughout the trial, indicate that Campbell in fact desired to retain counsel despite his earlier misgivings about Taylor. There is no unequivocal waiver of the right to counsel or unequivocal demand to proceed pro se, and therefore no Sixth Amendment violation of the right to self-representation.  (11)

The Seventh Circuit’s willingness to find a waiver of the right to self-representation through Campbell’s silence highlights how devalued the right is.  The court would not find a valid waiver of other procedural rights (such as the Sixth Amendment right to a jury trial) on the basis of silence.  I don’t think this sort of second-class treatment is what the Supreme Court had in mind when it recognized the right to self-representation in Faretta v. California, 422 U.S. 806 (1975).  On the other hand, Campbell seems quite consistent with the Supreme Court’s recent retreat from Faretta in Indiana v. Edwards, 554 U.S. 164 (2008).  It appears that the views of the Faretta dissenters are winning out in the long run, including Justice Blackmun’s memorable parting shot:

If there is any truth to the old proverb that “[o]ne who is his own lawyer has a fool for a client,” the Court by its opinion today now bestows a constitutional right on one to make a fool of himself.

Cross posted at Life Sentences.

The question has particular importance in fentanyl cases, as illustrated by the Seventh Circuit’s recent decision in United States v. Alvarado-Tizoc (No. 10-1613). In sentencing the wholesaler-defendants, the district court chose to attribute to them the full retail quantities, which were 11 to 16 times greater than the wholesale quantities.

This was improper, the Seventh Circuit held.  

The district court had relied on the relevant conduction provision of the guidelines, which makes defendants responsible for the reasonably foreseeable acts of others in furtherance of a “jointly undertaken criminal activity.” However, drawing on established principles of conspiracy law, the Seventh Circuit held that wholesalers and retailers do not necessarily engage in a “jointly undertaken criminal activity.” In general, a buyer-seller relationship does not establish a conspiracy – a point my Criminal Law students will immediately recognize (I hope) – and the same principle applies to the “jointly undertaken criminal activity” guideline. Moreover, the record in Alvarado-Tizoc did not indicate anything special in the relationship between wholesaler-defendants and their buyers so as to warrant a finding that they were jointly engaged in the retail sale of fentanyl.

The courts have not always been clear or consistent in their description of the relationship between the vicarious liability doctrine for coconspirators and the relevant conduct provision of the sentencing guidelines. For that reason, the unusually lucid treatment of the topic in Alvarado-Tizoc (penned by Judge Posner) warrants quoting at length:

The only vulnerable point in the sentencing of two of these defendants . . . was the judge’s finding that the jointly undertaken criminal activity included the retail sale of the fentanyl. There was insufficient evidence that the retailers to whom the defendants sold heroin and fentanyl were, so far as their relation to the defendants was concerned, anything more than buyers. The government points out that the defendants “specifically sought out, and received, information about [the retailers’] heroin business . . . and thus purposefully kept apprised of their operation. For instance, they asked specific questions about how much money [one of the retailers] made from the heroin he obtained from them” and informed them that “the ‘new heroin’ [which was actually fentanyl] could be diluted even further.” All this just shows a wholesaler’s natural motivation to gauge demand for his product and if possible increase that demand and so be able to raise his price. The government also notes that the defendants were “exclusive supplier[s]” of the retailers and therefore had a “vested interest in the success and profitability” of the operation. But exclusive dealing is common and every wholesaler has a vested interest in the success of his retailers. And finally the fact that the buyers diluted the fentanyl they received (and that this was foreseeable to the defendants) no more proved a conspiracy than the fact that a seller of chocolate syrup to a soda fountain knows that the syrup will be mixed with milk or soda to make chocolate milk shakes or chocolate sodas rather than being sold in its original, undiluted form makes the seller a conspirator in the retail sale of adulterated chocolate drinks.

A seller is not a party to a conspiracy with a mere buyer from him. E.g., United States v. Vallar, 635 F.3d 271, 286-87 (7th Cir. 2011); United States v. Colon, 549 F.3d 565, 567-71 (7th Cir. 2008). And while the applicable Sentencing Guideline as we know uses the term “jointly undertaken activity” rather than “conspiracy,” and indeed provides that the jointly undertaken activity need not be “charged as a conspiracy,” the case law generally treats the terms “jointly undertaken activity” and “conspiracy” as interchangeable.  See, e.g., Gray-Bey v. United States, 156 F.3d 733, 740-42 (7th Cir. 1998); United States v. McDuffy, 90 F.3d 233, 235-36 (7th Cir. 1996). The concept of conspiracy is frequently employed in criminal cases without a conspiracy actually being charged, as when proof of a conspiracy is used to render a statement by a coconspirator admissible against the defendant; and so it is with the Guidelines’ equivalent, a “jointly undertaken activity.”

Some cases point out that “jointly undertaken activity” should not be equated to “conspiracy” because a defendant could have joined a conspiracy without having joined in or agreed to all the activities undertaken by it. United States v. Soto-Piedra, supra, 525 F.3d at 531-32, and cases cited there; U.S.S.G. § 1B1.3 Application Note 2. But there is no actual conflict; the cases we cited earlier (Gray-Bey andMcDuffy) impose a sentencing enhancement on a conspirator for a jointly undertaken activity only if the activity was reasonably foreseeable to him, for foreseeing or being charged with foreseeing an activity makes him a joint participant with the other conspirators. United States v. Hernandez-Santiago, 92 F.3d 97, 100 (2d Cir. 1996). But this qualification on equating conspiracy to jointly undertaken activity cannot help the government; if there was no conspiracy between the defendants and the retailers, a fortiori the former were not engaged in a jointly undertaken activity with the latter.  (5-8)

But Posner also had a bigger and more challenging point to make about sentencing in cases involving fentanyl and other highly potent drugs.  As Posner sees it, since the guidelines’ drug equivalency table already takes into account differences in drug potency, there is potentially a form of double counting whenever a defendant is held responsible for the full weight of the diluted form of a drug:

But a point of more general significance for cases involving fentanyl and other superstrong narcotics is that attributing the amount of the diluted retail product to the seller (whether the seller is a retailer, or a wholesaler conspiring with a retailer) in computing the Guidelines sentence involves double counting. The quantity of the diluted retail product, if attributed to a wholesaler defendant, will already account, in part anyway, for the fact that fentanyl is more potent than heroin; if the same weight of fentanyl and heroin bought by a retailer makes 50 retail doses of fentanyl versus 5 of heroin, the seller of fentanyl will be “credited” with 10 times the quantity as the seller of heroin. To multiply 10 by 2.5 is to double count— more precisely to 2.5-count. And double or other multiple counting—at least when the judge is unconscious of doing it—is improper . . . .

Thus, irrespective of the fact that the quantities sold by the retailers could not be attributed to the defendants on the theory that they were conspiring with the retailers (rather than merely supplying them), the fact that by selling fentanyl instead of heroin the defendants were responsible for a larger number of doses sold to the ultimate consumers was a basis for a higher sentence—but a basis already partly reflected in the drug equivalency tables in the Guidelines.  (8-9)

In light of dilution-based difficulties with the weight-based sentencing guidelines, Posner invited district judges to use their post-Booker discretion to use a more sensible dose-based approach: sentences should not vary based on weight alone, but also take into account potency and purity.  The real question to answer in determining the relative gravity of a drug trafficking offense is not the weight sold, but the number of doses sold.  (10)  Posner observed:

Adjusting for potency makes more sense than adjusting for weight. Emphasis on the weight of a defendant’s drugs (in this case the weight of the dilute drugs sold by customers of defendants), whether or not they are diluted, has the perverse effect of giving drug dealers an incentive to possess and sell drugs of high purity or potency and makes the length of sentences depend perversely on the weight of the inactive ingredients in the drugs. Jonathan P. Caulkins et al., “Mandatory Minimum Drug Sentencee: Throwing Away the Key or the Taxpayers’ Money?” 22 (RAND Corp. Drug Policy Research Center 1997).  (11)

Cross posted at Life Sentences.

Yes and no, the Seventh Circuit answered last week in Vinning-El v. Evans (No. 10-1681). 

Here’s the factual background:

While he was confined at Pinckneyville Correctional Center, Mondrea Vinning-El asked for a vegan diet. He told the prison’s chaplain, Rick Sutton, that he adheres to the Moorish Science Temple of America. Sutton turned Vinning-El down, observing that the tenets of Moorish Science require a non-pork diet, which can include dairy products and many kinds of meat and fish. Vinning-El, who contends that his religious beliefs require a vegan diet no matter what other members of his sect believe, then filed this suit against Sutton [and warden John Evans] . . . . (1-2)

Although Vinning-El initially made claims based on both the Free Exercise Clause and RLUIPA, the latter statutory claim was eliminated by the fact that Vinning-El was later moved to another prison and given a vegan diet there; money damages (the sole remedy still on the table) were not available for the RLUIPA claim.

The defendants partially lost a summary judgment motion in district court and took an interlocutory appeal.

In deciding the appeal, the Seventh Circuit indicated that, at least in principle, idiosyncratic religious beliefs are fully protected by O’Lone and the Free Exercise Clause:

A personal religious faith is entitled to as much protection as one espoused by an organized group. Frazee v. Illinois Department of Employment Security, 489 U.S. 829, 834 (1989); see also Hernandez v. CIR, 490 U.S. 680, 699 (1989). Hierarchical religions, such as the Roman Catholic Church, believe that only the group’s leaders can establish and articulate the group’s tenets on central issues of faith. But non-hierarchical religions, such as most Protestant and Islamic sects, believe that every worshipper has a direct connection to God. This doctrine of the “priesthood of believers” was one of the major reasons for the Protestant schism from the Catholic Church. No state is entitled to insist that the Catholic Church is right and that adherents to every faith therefore must espouse all, and only, those beliefs that have the support of a sect’s leadership. If chaplain Sutton refused to approve religious diets for inmates who differ on dietary questions from their church’s leaders, he violated clearly established rules of constitutional law . . . . (4-5)

This seems a strong endorsement of protection for idiosyncratic beliefs, but then the court identified a subtle way that an inmate’s orthodoxy might actually count in the constitutional analysis:

Sincere religious beliefs must be accommodated (at least when failure to accommodate a particular belief would amount to discrimination against one sect, or a personal faith), but non-religious beliefs need not be. See, e.g., Thomas v. Review Board, 450 U.S. 707, 713 (1981); United States v. Seeger, 380 U.S. 163, 185 (1965); Kaufman v. McCaughtry, 419 F.3d 678, 681 (7th Cir. 2005); Fifth Avenue Presbyterian Church v. New York City, 293 F.3d 570, 574 (2d Cir. 2002). A prison is entitled to ensure that a given claim reflects a sincere religious belief, rather than a preference for the way a given diet tastes, a belief that the preferred diet is less painful for animals, or a prisoner’s desire to make a pest of himself and cause trouble for his captors. And although sincerity rather than orthodoxy is the touchstone, a prison still is entitled to give some consideration to an organization’s tenets. For the more a given person’s professed beliefs differ from the orthodox beliefs of his faith, the less likely they are to be sincerely held. Very few people who identify themselves as Baptists sincerely believe that a halal or vegan diet is obligatory on religious grounds. Such a belief isn’t impossible, but it is sufficiently rare that a prison’s chaplain could be skeptical and conduct an inquiry to determine whether the claim was nonetheless sincere. (5-6)

Is it really true that “the more a given person’s professed beliefs differ from the orthodox beliefs of his faith, the less likely they are to be sincerely held”? Could be, I suppose, but I’m not sure how one would prove it.

In any event, the court decided that the key to Chaplain Sutton’s qualified immunity defense was whether he had refused to accommodate Vinning-El’s dietary request purely because of the inmate’s lack of orthodoxy, or because he saw in the lack of orthodoxy evidence of insincerity. This was not how the district judge had framed the issue, so the Seventh Circuit remanded the case for a hearing on Sutton’s true motivations.

Cross posted at Life Sentences Blog.

I’m hard pressed to see a good justification for this prosecution.

It is just barely possible that Lara may actually be guilty of the crime charged (although, as discussed below, the Seventh Circuit has some pretty serious doubts as to even that), but his culpability is at most quite marginal — especially in relation to the sentencing exposure he faces as a federal drug trafficking defendant. Does this prosecution constitute wise stewardship of limited criminal-justice resources? Does it seem likely to inspire respect for the law and the legal system?

Even apart from the questions it raises about prosecutorial discretion, the Seventh Circuit’s decision overturning Lara’s conviction, United States v. Pillado (No. 10-1081), would make a great teaching case in Criminal Law. The court’s analysis focused on two questions: (1) whether Lara was entitled to a jury instruction on the lesser included offense of simple possession, and (2) whether Lara was entitled to an instruction on entrapment.

On the lesser included offense, the government’s position was that the large quantity of marijuana involved necessarily ruled out the possibility that Lara possessed for personal use. This may be so, but the Seventh Circuit correctly observed that personal use is not the only rational basis for a simple possession charge:

The district court concluded that “given the large quantity of marijuana in the truck, no reasonable jury could infer that the defendants possessed the marijuana for anything other than to distribute.” The court also observed that Lara’s failure to say that he possessed the marijuana for personal use meant that the only plausible alternative was distribution. We cannot agree. This line of reasoning, which the government pursues on appeal, presumes that a person can do only one of two things with marijuana in her possession: consume it or sell it. Of course it is preposterous to think that anyone could personally use a ton of marijuana, and Lara makes no such argument; to the contrary, he says that he is not a drug user. We thus agree with the district court that the personal use option is off the table. But the record in Lara’s case plainly suggests another alternative: abandonment. Lara unloaded the truck following persistent requests from government agents to get the cargo out of the truck, reinforced by a government-induced appeal from his landlord to comply. After unloading the marijuana, Lara walked away empty-handed. A jury could have found that he was indifferent to what happened next: it could have stayed there for days, it could have been rained on, it could have been stolen, or the police could have collected it. (10-11)

The court’s analysis thus does a nice job of reminding us that “possession with intent to distribute” is not just “possession of a large quantity,” but is a specific intent crime as to which the defendant’s purpose is crucial. Given the government’s failure to rule out abandonment as a purpose, Lara was entitled to his lesser included instruction.

As to entrapment, here’s how the court summarized the basic law:

The defense has two elements: government inducement of the crime and a lack of predisposition on the part of the defendant. . . . In order to obtain an entrapment instruction, a defendant must proffer evidence on both elements. See United States v. Santiago-Godinez, 12 F.3d 722, 728 (7th Cir. 1993). Once a defendant meets this threshold, the burden shifts to the government to prove that the defendant was not entrapped, meaning “the prosecution must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.” Jacobson, 500 U.S. at 549. (14)

In rejecting Lara’s request for an entrapment instruction, it seems that the district court conflated entrapment with duress:

The court was persuaded by the government’s argument that because the defendants failed to present evidence of “extraordinary inducement” by government agents, they were not entitled to an entrapment instruction. The court reasoned that Lara’s concessions that Agent Warran had not threatened or made promises to him to induce his participation defeated his request for the instruction. . . . As the court saw things, because Lara “was not forced to unload” the marijuana and he “could have walked away,” no reasonable jury could have inferred that Lara was entrapped. (15)

After rejecting the proposition that coercion is necessary for entrapment (16), the Seventh Circuit took up the question of whether Lara was required to present evidence of ”extraordinary inducement,” as the district court had indicated. Here, the Seventh Circuit helpfully clarified the entrapment analysis, putting the emphasis squarely on the predisposition prong:

We recognize that where there is insufficient evidence of inducement—either because there is no such evidence at all, or because the government did nothing more than offer a standard market deal in a sting—there is no need to consider predisposition. But predisposition will often be the more efficient place to start. If the defendant can point to inducement from a sting, rather than become embroiled in the question whether the government offered only a standard deal or something much better, the court would do better to begin by considering predisposition to commit the crime. As we have noted before, if there is sufficient evidence that a defendant was predisposed to commit the crime, a request for an entrapment instruction may be rejected without considering government inducement. See Santiago-Godinez, 12 F.3d at 728. But the converse is not true: the court may not, as it did here, begin and end the inquiry with government inducement unless it is confident either that the government did nothing at all or that the record demonstrates that the government’s actions simply provided an opportunity for a person who was already ready and willing to commit the offense.

There is an additional reason why it is sensible to begin the inquiry with predisposition. Whether a defendant is predisposed to commit the crime charged informs the nature and level of government inducement that must be identified to warrant an entrapment instruction. As we explained in United States v. Hollingsworth, 27 F.3d at 1200, when a defendant is so “situated by reason of previous training or experience or occupation or acquaintances that it is likely that if the government had not induced him to commit the crime some criminal would have done so,” then he may be required to point to “extraordinary inducements” to raise the entrapment defense. This rule makes sense, because it deters criminal suspects who have been properly targeted in a sting operation, such as a known gun dealer who distributes to the local street gang, from raising an entrapment defense when apprehended. When there is independent evidence that the person was predisposed to commit the crime charged, there is little risk that an innocent person has been transformed into a criminal by the government’s presentation of an ordinary opportunity to engage in a particular criminal activity.

We use the term “ordinary” in this context to mean something close to what unfolds when a sting operation mirrors the customary execution of the crime charged. For example, federal agents offering to sell illegal guns to our hypothetical arms distributor at the going rate on the streets have simply created an “ordinary” inducement to commit the crime. In contrast, it would be “extraordinary” for the agents to approach the same person with an offer to sell as many guns as the buyer wanted for only one penny per piece. In the latter scenario, the defendant would be entitled to present an entrapment defense to the jury even though he was predisposed to buy guns, because the government employed extraordinary inducements to get him to commit the crime. This is because there is a good chance that the government’s out-of-the-ordinary offer induced the buyer to purchase guns when he may have refrained from crime on that occasion. The entrapment defense resolves that concern by having the fact-finder determine whether the defendant was—based on the evidence presented at trial—entrapped. The upshot is that once a court has concluded that a person was predisposed to commit a crime, a defendant must do more to earn the instruction than assert that the government provided an ordinary opportunity to commit the crime; he must show extraordinary inducement.

Significantly, however, what we have set forth above does not exhaust the possible applications of the entrapment defense. The most important function of the doctrine, the one that the Supreme Court has repeatedly affirmed, is to ensure that people who are not predisposed to commit a crime are not transformed into criminals by the government. . . . Suppose the rule was that every defendant, even one not predisposed to committing the crime charged, was required to make a showing of extraordinary inducement before the defense could be presented to the jury. Government agents would be free to target perfectly law-abiding individuals with inducements that are subtle, persistent, or persuasive—yet not extraordinary—and those individuals would never be able to present the entrapment defense to the jury.

. . . [W]hen the record reveals that a defendant was predisposed to commit the crimes charged, she is not entitled to an entrapment instruction unless she can show that the government provided an opportunity to commit the crime that was out of the ordinary. But if the evidence is thin that a defendant was predisposed to commit a crime, even minor government inducements should entitle the defendant to present her defense to the jury. (17-21)

So, the key to Lara’s case was whether he was predisposed to commit the crime of possession with intent to distribute marijuana. The court noted the following factors are used to determine predisposition:

(1) the defendant’s character or reputation; (2) whether the government initially suggested the criminal activity; (3) whether the defendant engaged in the criminal activity for profit; (4) whether the defendant evidenced a reluctance to commit the offense that was overcome by government persuasion; and (5) the nature of the inducement or persuasion by the government. Hall, 608 F.3d at 343. No single factor controls, but most significant is whether the defendant was reluctant to commit the offense. (22)

In light of Lara’s reluctance to help unload the drugs, as well as other circumstances, the court concluded there was “no hint” in the record of predisposition. (22) Nor did the court have any difficulty in finding the inducement element satisfied.

What next in the case? Lara gets a new trial, at which prosecutors will have the burden of proving predisposition beyond a reasonable doubt. Can they actually succeed in doing so? The Seventh Circuit did not predetermine the issue, but seemed pretty skeptical:

We stop short, however, of holding that Lara is entitled to a judgment of acquittal based on a finding that he was entrapped as a matter of law. The district court approached this case with a mistaken understanding of the relevant legal standards. Because of that error, the record was not developed properly, nor did the district court make its ruling with the proper principles in mind. On remand, the district court should consider the question anew based on the record presented to the second jury. After those proceedings are completed, Lara will naturally have all avenues of appeal available to him. (24-25)

Let’s hope prosecutors take the hint and drop the case.

Cross posted at Life Sentences Blog.

Paul filed a series of complaints, each of which was initially dismissed without prejudice under FRCP 8(a)(2) for failure to provide a “short plain statement of the claim showing that the pleader is entitled to relief.” In none of the cases did Paul take advantage of the opportunity to file a new complaint in compliance with the rule. The district court then dimissed each case for failure to prosecute. Paul finally obtained the assistance of a fellow inmate who had better drafting skills and managed to file a complaint that did state a claim. However, the district court dismissed the new complaint based on the PLRA three-strikes rule and Paul’s failure to prepay his fees.

On appeal, the Seventh Circuit indicated that the earlier cases should have been dismissed for failure to state a claim instead failure to prosecute (5). But, given that the dismissal orders nowhere used strike-triggering language, the court held that they should not be counted against Paul:

[W]e think the plaintiff was entitled to take the previous dismissals at face value, and since none of them was based on any of the grounds specified in section 1915(g), to infer that he was not incurring strikes by the repeated dismissals. The statute is explicit, and the case law confirms, . . . that classifying a dismissal as a strike depends on the grounds given for it; since most prisoners litigate their civil claims pro se, they should not be required to speculate on the grounds the judge could or even should have based the dismissal on. (7-8)

Cross posted at Life Sentences Blog.

The Seventh Circuit’s position followed that of the Department of Justice.  However, since the initial retroactivity ruling, DOJ has changed its position and now supports partial retroactivity.  Additionally, three other circuits have since rejected the Seventh Circuit’s position.  In light of these developments, one of the Seventh Circuit judges proposed that the initial ruling be reconsidered en banc.  Last week, however, the court announced that the initial ruling would stand.

Remarkably, the court was split 5-5, just barely short of the majority required for rehearing.  One wonders how the late Judge Evans would have voted if he had lived a little while longer.  To be sure, he was part of the panel that initially rejected retroactivity, but both of the other members of the panel switched sides and supported rehearing.  (I can’t recall ever seeing such a switch by multiple panel members in connection with a rehearing decision — it is perhaps an indication of how important DOJ’s switch was in the minds of some of the judges.)

Judge Easterbrook wrote an opinion opposing rehearing, while Judge Williams wrote the principal opinion for rehearing.  United States v. Holcomb (No. 11-1558).  These are both remarkably lucid, cogent opinions.  They effectively present quite different approaches to statutory interpretation and touch on some deep jurisprudential questions.  This would make a very nice teaching case in a statutory interpretation class.

The general rule is against retroactivity for a new statute repealing penalties, although Congress is free to override the general rule.  As to the FSA, the Williams position is basically this: in the statute, Congress made clear that the Sentencing Commission should move as quickly as possible to reduce crack penalties in the sentencing guidelines, with the understanding that the reduced guidelines penalties would apply to everyone sentenced after the new guidelines took effect (Nov. 1, 2010).  Why, Williams asked, would Congress want the new guidelines sentences to be applied as quickly as possible to all new sentencings, but not want the same prompt implementation of the new statutory sentences?  Retroactivity for both types of sentence reductions is the only way to make sense of Congress’s intentions.

Ours is not to question why, responded Easterbrook.  For all we know, what seems an arbitrary distinction between retroactivity for guidelines changes and retroactivity for statutory changes was part of a backroom deal that was necessary to secure the FSA’s passage.  Bringing principled coherence to the law lies beyond the judicial role in interpreting statutes.  Arbitrary though the result may be, nothing in the FSA provides a sufficiently clear signal that Congress wanted retroactivity for the changes in the statutory penalties.

Cross posted at Life Sentences Blog.

As the Chaidez majority observed, the key legal issue is whether Padilla announced a new rule, or merely provided an application of the established principles of ineffective assistance from Strickland v. Washington, 466 U.S. 668 (1984).  Under Teague v. Lane, 489 U.S. 288 (1989), a new rule may not be applied retroactively unless it falls into one of two exceptions that plainly do not encompass the Padilla holding.

Teague and least some of its progeny suggest what seems effectively a strong presumption in favor of a “new rule” finding (and hence against retroactivity).  Here is how the Chaidez majority characterized the law:

A rule is said to be new when it was not “dictated by precedent existing at the time the defendant’s conviction became final.” Teague, 489 U.S. at 301 (emphasis in original). . . . Thus, the Court has explained that Teague“validates reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions.” Saffle v. Parks, 494 U.S. 484, 488 (1990) (quoting Butler v. McKellar, 494 U.S. 407, 414 (1990)). The pertinent inquiry here is whether Padilla’s outcome was “susceptible to debate among reasonable minds.” Butler, 494 U.S. at 415. Put differently, “our task is to determine whether a . . . court considering [Chaidez’s] claim at the time [her] conviction became final”—pre-Padilla—“would have felt compelled by existing precedent to conclude that [Padilla] was required by the Constitution.” Saffle, 494 U.S. at 488.  (7-8)

With the question framed this way, it is hard to disagree with the majority’s bottom-line conclusion.  The fact that the lower courts had been overwhelming lined up against the  Padilla rule seems almost dispositive of the question — under those circumstances, how can one conclude that this was not an issue over which reasonable jurists might have differed?

Writing in dissent, though, Judge Williams argued that the majority’s “reasonable jurists” test did not accurately reflect the governing law:

[T]his narrow conception of the “dictated” language fromTeague is not the relevant inquiry in the Strickland context. “The often repeated language that Teague endorses ‘reasonable, good-faith interpretations’ by state courts is an explanation of policy, not a statement of law.” Williams v. Taylor, 529 U.S. 362, 383 (2000) (plurality) (quoting Butler, 494 U.S. at 414). As the Court has stated, and as the majority today recognizes, “the Strickland test provides sufficient guidance for resolving virtually all ineffective-assistance-of-counsel claims,” id. at 391 (opinion of the Court) (emphasis added). “[W]here the starting point is a rule of general application such as Strickland, “it will be the infrequent case that yields a result so novel that it forges a new rule, one not dictated by precedent,” Wright v. West, 505 U.S. 277, 308-09 (1992) (Kennedy, J., concurring). (23)

Judge Williams did not see Padilla as one of those “infrequent cases” referred to by Justice Kennedy, but rather as a straightforward application of Strickland:

The analytical mechanism by which the Court applied Strickland does not detract from the fact that Strickland is the general test governing ineffective assistance claims, and that the Padilla Court did no more than recognize that removal is the type of consequence that a defendant needs to be informed of when making the decision of whether to plea.  (24)

The clash between majority and dissent in Chaidez highlights what is so analytically unsatisfactory about the ”new rule” test of Teague.  Because every case presents a fact pattern that is in some respects unique, every holding can in some sense be thought of as articulating a new rule.  But because every case also purports to rely on established legal principles, every case can also be thought of as mere application.  Rather than an either-or question, the “newness” question is really one of degree, and it is not clear how and where to draw a line on the spectrum for purposes of retroactivity.

Given the emerging split in the lower courts, Chaidez might be a good case for Supreme Court review.  And, if the Court does take the case, I hope the Court will use it as an occasion to revisit the wisdom of Teague itself.  I appreciate that Teague was intended to preserve the finality of state judgments by making it harder for state defendants to take advantage of favorable new Supreme Court decisions in federal habeas proceedings.  But, since Teague, Congress has erected a host of new barriers to habeas relief that accomplish the same end, e.g., the one-year statute of limitations for habeas petitions, restrictions on second and successive habeas petitions, and the “clearly established law” requirement of 28 U.S.C. § 2254(d)(1).  Add to that the forfeiture and procedural bar doctrines, which predated Teague, and there is a formidable obstacle course for habeas petitioners to traverse before they are able to take advantage of new Supreme Court decisions.  Teague is an unnecessary overlay that complicates habeas litigation to no good effect.

To make this a little more concrete, Chaidez received the fateful counsel from her lawyer in 2003.  There was nothing that happened between 2003 and 2010, when Padilla was decided, that transformed what might have been good advice into bad advice — her legal representation fell below professional norms in 2003 as much as it would have in 2010.  The question we should be asking is not the unanswerable question of whether Padilla announced a new rule, but the question of whether Chaidez was so prejudiced by the bad counsel she received that she should be given an opportunity to withdraw her guilty plea.

Cross posted at Life Sentences Blog.

Here’s what happened.  Winston was charged with sexual assault of a fifteen-year-old girl and convicted by an all-woman jury.  His lawyer had used his seven peremptory strikes to remove six men and one woman from the jury.  As Winston’s post-conviction counsel later discovered, the trial lawyer struck the male jurors because he thought that females would be more critical of the victim.

Apart from the fact that such gender discrimination is illegal, trial counsel’s strategy may actually have been a good one.  Indeed, the jury acquitted Winston of an intercourse charge.

No matter, the Seventh Circuit ruled.  Competent counsel (in the constitutional sense) does not discriminate against men in the exercise of peremptory strikes.  Period.

Because Winston’s claim arose in a habeas challenge to his state-court conviction, the Seventh Circuit had to sort out the complex interaction between the Batson line of cases on discriminatory use of peremptory strikes, the Strickland line of cases on ineffective assistance of counsel, and the limitations on habeas relief imposed by the Antiterrorism and Effective Death Penalty Act.

In order to establish a Sixth Amendment violation, Strickland requires that a defendant show both that his lawyer provided unreasonably poor performance and that he was prejduced by that poor performance.  The court had little difficulty concluding that Winston satisfied the performance prong:

Intentionally violating the Constitution by discriminating against jurors on account of their sex is not consistent with, or reasonable under, “prevailing professional norms.” Strickland, 466 U.S. at 688. To the contrary, Wisconsin forbids lawyers from engaging in unlawful representation. See WIS. RULES OF PROF’L CONDUCT, at Preamble (“A lawyer’s conduct should conform to the requirements of the law.”); id. at R. 3.1(a) (“In representing a client, a lawyer shall not . . . knowingly advance a claim or defense that is unwarranted under existing law.”). . . . In light of these well-established professional norms, we have no trouble concluding that trial counsel’s decision to strike jurors based solely upon their gender constituted deficient performance.  (21-22)

The prejudice prong was the more difficult one, for prejudice is not normally required for a defendant to obtain relief on a Batson-type claim.  Here’s how the court resolved the tension:

[W]hile a direct Batson claim would be viewed as a structural error and thus not subject to a harmless-error rule, a Strickland argument requires an examination of prejudice. But the Supreme Court has said that structural errors fall within “a limited class of fundamental constitutional errors that defy analysis by harmless error standards.” Neder, 527 U.S. at 7 (internal quotation marks deleted). If, therefore, analysis is impossible for harmless-error purposes, then it is hard to see how it would be possible for purposes of Strickland prejudice—after all, prejudice is the central inquiry in a harmless error inquiry. But a closer look at Neder reveals that the Court was not so much dispensing with harmless error as it was finding that structural errors “are so intrinsically harmful as to require automatic reversal.” Id. Translated into Strickland’s terms, it was saying that such errors inevitably “undermine[] confidence in the outcome” of a proceeding. 466 U.S. at 694.  (24)

But this finding of per se prejudice did not end the matter, for AEDPA limits relief to cases in which a state court has unreasonably applied a clearly established Supreme Court precedent.  The problem for Winston, as the Seventh Circuit saw things, is that the Supreme Court did not clearly establish the principle of automatic reversal for Batson violations until Rivera v. Illinois, 129 S. Ct. 1446, 1455 (2009) — two years after the state courts had rejected Winston’s Strickland claim.  Thus, although we can now see in hindsight that the state courts made a mistake in failing to give relief to Winston, he is precluded from getting a remedy for that error in federal court.

Cross posted at Life Sentences Blog.

That the explanation requirement would apply here is perhaps not a given, since, as the court observed, the district judge has even more discretion in this setting than in an original sentencing.  (4)  The court ruled, however, that the district judge must indeed “say something that enables the appellate court to infer that he considered both [the recommendations of the sentencing guidelines and the statutory sentencing factors].”  (4)

In Robertson, the guidelines recommended a term of 12-18 months following the defendant’s revocation for growing marijuana, but the district judge instead imposed a sentence of 34 months.  Here is the “explanation” for the sentence that the Seventh Circuit found inadequate:

The judge didn’t give a reason for the 34-month term, and made just four, brief remarks that might supply clues to his thinking. The first is that he was “baffled” that the defendant would continue growing marijuana after spending eight years in prison for that crime. The second remark, which followed immediately and merely repeated the first in different words was: “why did you even consider doing this again?” The defendant replied that he had grown marijuana because “he just liked the way the plant looked” and he “liked to smoke it,” whereupon the judge asked him sarcastically whether he had “ever thought about growing gardenias or something legal versus growing marijuana” and added (this was his fourth remark) “you could have grown roses.” Without further explanation the judge stated: “with respect to the revocation, the Court is going to sentence you to 34 months.”  (2-3)

Sending a man to prison for nearly three years surely requires more of an explanation than a couple of sarcastic observations about his horticultural preferences.  The Seventh Circuit properly vacated the sentence and remanded for resentencing.

Cross posted at Life Sentences Blog.

Judge Evans was profiled here in the Marquette Lawyer, along with his Seventh Circuit colleagues Judge John L. Coffey ’48 and Judge Diane S. Sykes ’84.  Judge Evans’ Journal Sentinel obituary is here.  A webcast of an “On the Issues” conversation he had with Mike Gousha and Judge Sykes is here.  (The picture above comes from that exchange.)

I never had the pleasure of meeting Judge Evans in person, but I’ve read many of his opinions.  They do have a distinct style and sensibility — once you’ve read a few, you are not likely to mistake an Evans opinion for that of any of his colleagues.  The opinions reflect a sharp wit, an eye for the telling factual detail, and a commonsensical approach to judging.  I doubt there are many judges on the federal bench whose opinions would be more accessible and engaging for the lay reader.

The Wisconsin Public Defender’s On Point website has collected some wonderful personal reminiscences of Judge Evans here.  Among the many notable tributes is one from his former clerk Daniel J. O’Brien ’78, who observed:

No one – NO ONE – enjoyed life more than “The Judge.” Luckily, for those of us privileged to spend time with him, that joie de vivre (borrowed from Judge Easterbrook’s marvelous tribute) was contagious. . . .

The Judge’s skill as a jurist was surpassed only by his warmth as a person. The word “mentor” is far down the list of adjectives describing his impact on my life [Others that come to mind: Marquette recruiting analyst, legal writing tutor (“To be a good legal writer,” he’d often say, “write like a journalist, not a lawyer”), comedian, Brewer fan, role model, expert on “greasy spoon” diners, and friend].

Visitation is today from 4:00 to 8:00 at Feerick Funeral Home, 2015 E. Capitol Dr.  Additional parking is across the street at Atwater School and at St. Roberts Catholic Church, which is about one block to the west.

For instance, in the new Seventh Circuit case, United States v. Mandel (No. 09-4116), the defendant planned a hit on his business partner with one of his employees, who turned out to be a confidential informant. A jury convicted Mandel on six counts of violating § 1958(a). In four, the “use of a facility of interstate commerce” was a cell phone conversation with the c.i. (three of which were actually initiated by the c.i.). In the other two, the “use of a facility of interstate commerce” was driving around in a car with the c.i. while the hit was discussed.

In all of these counts, what triggers federal jurisdiction seems only incidental to the offense; it is not the use of a cell phone or a car that made the defendant’s conduct dangerous and his intentions blameworthy. Mandel would merit no less punishment if he had communicated with the c.i. by sign language or smoke signals, or if he had gotten around by roller-skating. It is this lack of a meaningful connection between the jurisdictional element and the wrongfulness of the defendant’s conduct that gives federal prosecution such an arbitrary character in so many cases. But, for better or worse, that is where we are in the modern world of Commerce Clause jurisprudence. (Note, though, the Supreme Court’s efforts to maintain some sort of principled limitations on federal criminal jurisdiction in its interesting decision last term in Fowler v. United States.)

Mandel contested the jurisdictional issues on appeal, but to no avail.

With respect to the cell-phone counts, Mandel’s argument sounded in entrapment, since it was the c.i. who initiated the calls. (Mandel did not challenge his conviction based on the one call he had initiated.) However, the court did not buy Mandel’s assertion that he was not predisposed to use the cell phone:

Whether the defendant is predisposed to commit the charged crime depends on a number of factors, see, e.g., United States v. Orr, 622 F.3d 864, 870 (7th Cir. 2010), cert. denied, 131 S. Ct. 2889 (2011), “the most important of which is ‘whether the defendant evidenced reluctance to engage in criminal activity which was overcome by repeated Government inducement.’” King, 627 F.3d at 650 (quoting United States v. Blassingame, 197 F.3d 271, 281 (7th Cir. 1999)).

. . .

Mandel posits that he would not have discussed the murder scheme on a cell phone but for Dwyer taking the initiative in contacting him on his cell, but the evidence suggests otherwise. First, the cell phone was Mandel’s own phone, and although use of such telephones was rare thirty years ago, it is commonplace today—in both law-abiding and criminal domains. Second, Mandel took Dwyer’s calls (and, as the call underlying Count Three demonstrates, returned them) and readily discussed the scheme to kill Antoniou without any apparent reluctance or hesitation. Third, Mandel was not simply a passive recipient of the calls. The call underlying Count Five is one that Mandel himself placed to someone other than Dwyer in order to determine when Antoniou’s visitation with his son would be ending and Antoniou would be returning to his usual abode, so that an appropriate date for the hit could be determined. Mandel’s self-initiated use of his cell phone in that instance puts the lie to the notion that he would not have used the phone in furtherance of the scheme but for Dwyer’s prompting. Finally, to the extent that Dwyer’s calls to Mandel’s cell phone could be characterized as inducement to use that phone to discuss the scheme, they were hardly the sort of extraordinary inducement that is necessary to show entrapment. (13, 15-16)

Mandel relied on an old Second Circuit case, United States v. Archer, 486 F.2d 670 (2d Cir. 1973), which, in the words of the Seventh Circuit, “presupposes that it is improper for a government agent to initiate some action in interstate commerce for the sole purpose of ginning up federal jurisdiction over an offense, even if, as in Archer, the defendant himself willingly reciprocates the agent’s interstate action.” (17) However, the Seventh Circuit noted the lack of subsequent support, even in the Second Circuit, for this broad proposition. Thus, the court indicated that standard entrapment analysis of predisposition should govern claims that the United States has “manufactured jurisdiction.”

With respect to the driving counts, Mandel argued that purely intrastate use of an automobile should not suffice for federal jurisdiction. Under the terms of the statute, however, what is important is not the defendant’s use of something in interstate commerce, but the defendant’s use of something that counts as a “facility of interstate commerce.” That requirement seems satisfied on a per se basis by the use of an automobile: “Automobiles are designed to move people and goods over distances both long and short, and as such they play a crucial role in interstate commerce.” (23)

So, the statute was satisfied.  But, so interpreted and applied, was the statute constitutional? The Seventh Circuit seemed at least a little sympathetic to Mandel’s arguments on this score:

Mandel’s contrary position, that a private automobile must actually be used in interstate commerce in order for it to come within the scope of the commerce power, is not wholly without support. The Eleventh Circuit, in Garcia v. Vanguard Car Rental USA, Inc., 540 F.3d 1242, 1249-50 (11th Cir. 2008), declined to sustain the Graves Amendment, 49 U.S.C. § 30106, which shields car rental and leasing firms from vicarious liability for injuries to persons or property arising from their customers’ use of the lent vehicles, as a valid regulation of instrumentalities of interstate commerce. The court was concerned that if a car’s status as an instrumentality of interstate commerce were by itself sufficient to support the exercise of the commerce power, there would be no limit to the aspects of automobile use that Congress could regulate. “If cars are always instrumentalities of interstate commerce . . . Congress would have plenary power not only over the commercial rental car market, but over many aspects of automobile use” including “such quintessentially state law matters as traffic rules and licensing drivers.” Id. at 1250. (24-25)

Despite some apparent constitutional concern, the Seventh Circuit rejected Mandel’s argument because it was not made below and the issue was not so clear-cut in his favor as to satisfy the requirements for plain error. Defense counsel, take note: if the issue is properly preserved, the Seventh Circuit seems to have left itself some room to rule in a defendant’s favor in a later case.

Cross posted at Life Sentences Blog.

As the Casey Anthony trial/cultural moment/media feeding frenzy reached its denouement last week, two of the biggest trials of 2006 collided in the Seventh Circuit.  Five years ago, Illinois Gov. George Ryan and Enron President Jeffrey Skilling were both convicted of mail fraud.  From there, the two cases took quite different paths.  Ryan’s conviction was affirmed by the Seventh Circuit, and the Supreme Court denied certiorari, but Skilling managed to win a partial reversal in the Supreme Court a year ago, as the Court substantially narrowed the reach of the mail-fraud statute.  Ryan immediately sought another review of his conviction through a 28 U.S.C. § 2255 motion, arguing that the jury in his case was improperly instructed in light of Skilling.  The district court denied relief, and the Seventh Circuit affirmed the decision last Wednesday.  Ryan v. United States (No. 10-3964).

The court did not stake out any new ground legally in Ryan, but the opinion does provide a helpful roadmap of some of the opportunities and pitfalls that face defendants who try to take advantage of a new, narrowing construction of a criminal statute after their direct appeals have been exhausted.

Forfeiture is one of the major pitfalls.  Defendants will not normally anticipate potentially favorable rulings in other cases in the future, which means that arguments based on those rulings will not be made and preserved at trial.  Such forfeiture usually prevents the arguments from being made later in a collateral challenge.  ”With respect to arguments that were not made at trial, the appropriate standard on collateral review for evaluating the content of jury instructions is ’cause and prejudice.’”  (4)

Ryan argued that the “cause” prong was satisfied in his case because the arguments he might have made regarding jury instructions were foreclosed by pre-Skilling Seventh Circuit precedent.  No dice.  ”‘[C]ause’ in the formula ’cause and prejudice’ means some impediment to making an argument.  That the argument seems likely to fail is not ’cause’ for its omission.”  (6)

Having failed to satisfy the cause and prejudice test, one possibility remained for Ryan: “[F]orfeiture is not conclusive when a person is innocent.”  (7)  Thus, the court observed, “If Skilling establishes that Ryan is innocent of mail fraud, then he is entitled to relief notwithstanding his lawyers’ failure to anticipate its holding.”  (8)

But what exactly was Ryan required to prove in order to show his innocence?  ”The right question . . . is whether, applying current legal standards [i.e., post-Skilling law] to the trial record, Ryan is entitled to a judgment of acquittal.  If yes, then the mail fraud convictions must be vacated; if no, then they stand.”  (9)

As instructed, Ryan’s jury could have convicted him based on the receipt of any secret financial benefit.  Today, however, Skilling requires an actual bribery or kickback scheme.  Did the evidence at trial show bribery?  The Seventh Circuit had little difficulty answering the question in the affirmative:

The record shows compellingly — indeed, Ryan admits — that he received substantial payments from private parties during his years as Secretary of State and Governor. . . . [T]here is no doubt that a properly instructed jury could have deemed the payments bribes or kickbacks; the inference that they were verges on the inescapable.  The district court’s opinion canvasses the evidence and demonstrates why a reasonable jury could find that Ryan sold his offices to the high bidders.  (10-11)

Cross posted at Life Sentences Blog.

The Supreme Court’s recent decisions in Begay and Chambers substantially narrowed the reach of the Armed Career Criminal Act’s fifteen-year mandatory minimum.  (For background, see this post.  Ironically, shortly after Narvaez was decided, the Court issued its opinion in Sykes v. United States, which seemed to back away from Begay.)  Five years before Begay, Luis Narvaez pled guilty to bank robbery and was sentenced as a career offender under the sentencing guidelines based on his prior convictions for “violent felonies,” including two convictions for failure to return to confinement in violation of Wis. Stat. § 946.42 (3)(a).  Later, in Chambers, the Supreme Court ruled that the Illinois crime of failing to report for confinement did not count as a “violent felony.”  Narvaez then filed a motion under 28 U.S.C. § 2255 to vacate his sentence in light of Chambers.  The district judge held that Chambers did not apply retroactively, but granted Narvaez a certificate of appealability.

On appeal, the government conceded that Begay and Chambers, as decisions of substantive criminal law, applied retroactively, and that, under Chambers, Narvaez’s failure-to-return convictions were not “violent felonies” for purposes of the career offender guideline.  However, the government argued that Narvaez could not take advantage of Chambers because he raised only a statutory issue in his petition — in order to get a certificate of appealability, a § 2255 petitioner must make “a substantial showing of the denial of a constitutional right.”

The Seventh Circuit rejected the government’s theory, finding that, as a result of Chambers, Narvaez’s sentence violated the Due Process Clause:

We have recognized that sentencing errors are generally not cognizable on collateral review. See Scott v. United States, 997 F.2d 340, 342-43 (7th Cir. 1993). Mr. Narvaez’s case, however, does not come within this general rule.  It presents a special and very narrow exception: A post-conviction change in the law has rendered the sentencing court’s decision unlawful. See Welch, 604 F.3d at 412–13 (recognizing that relief is available “where a change in law reduces the defendant’s statutory maximum sentence below the imposed sentence”). In Begay and Chambers, the Supreme Court resolved an open question regarding the kinds of crimes that fall within the meaning of “violent felony” under the ACCA, and, by implication, the career offender guideline. See Templeton, 543 F.3d at 380. The Court’s pronouncements did not simply constitute an “intervening change in the law” in the traditional sense. Rather, the decisions make clear that, at the time of his sentencing, Mr. Narvaez did not qualify as a career offender under the guidelines. An additional five years of incarceration was imposed upon him without any legal justification. Such gratuitous infliction of punishment is a fundamental defect in the court’s judgment that clearly constitutes a complete miscarriage of justice and a violation of due process.  (9-11)

The Seventh Circuit’s reasoning here seem quite broad and might open up collateral relief any time any time the Supreme Court adopts a narrowing construction of a guidelines provision.  There is perhaps a limitation, though, to sentences imposed when the guidelines were mandatory.  Consider this argument by the government and Seventh Circuit’s response:

The Government submits, however, that the sentencing court’s error in this case does not warrant § 2255 relief. Unlike the situation under the ACCA, Mr. Narvaez’s 170- month sentence was actually within the authorized 20-year statutory maximum for his crime. Therefore, the Government reasons that, because Mr. Narvaez would be exposed to the full range of punishment authorized by Congress for his crime at resentencing, and would remain eligible for the identical 170-month sentence under the advisory guidelines, his claim does not present a fundamental defect.

We cannot accept this argument. The fact that Mr. Narvaez’s sentence falls below the applicable statutory-maximum sentence is not alone determinative of whether a miscarriage of justice has occurred. The sentencing court’s misapplication of the then-mandatory § 4B1.1 enhancement in Mr. Narvaez’s case was central to its guidelines calculation. Nothing in the record indicates that the court would have sentenced Mr. Narvaez to five additional years of incarceration had the judge not been under the legal misapprehension, shared by the rest of the circuit, that Mr. Narvaez was a career offender and that the corresponding guidelines required such an enhancement. The application of the career offender provision increased the sentencing range for Mr. Narvaez. Speculation that the district court today might impose the same sentence is not enough to overcome the fact that, at the time of his initial sentencing, Mr. Narvaez was sentenced based upon the equivalent of a nonexistent offense. This error clearly constitutes a miscarriage of justice and a due process violation.  (12-13)

Whether and under what circumstances the retroactivity ruling of Narvaez would apply to defendants sentenced post-Booker thus remains an open question.

Cross posted at Life Sentences Blog.

Here’s what happened:

Sellers initially retained attorney David Wiener to represent him against the drug and gun charges.  Apparently, shortly after Sellers engaged Wiener, Wiener approached attorney Michael Oppenheimer and asked him to appear as secondary counsel. Oppenheimer, by all indications, was a stranger to Sellers, having never been hired by him. Nevertheless, Oppenheimer filed an appearance, Wiener did not. (3)

Trial was set for May 12, 2008.  On May 7, Sellers requested a continuance so that he could proceed with counsel of his choice, David Weiner, who was scheduled to try another case in state court on May 12.  The district judge ultimately moved the federal trial back to May 19, but that conflicted with yet another case Weiner was scheduled to try in state court.

On May 16, Sellers informed the court that he wished to fire Oppenheimer and retain new counsel.  On May 19, the date trial was supposed to begin, Sellers informed the court that he had a new lawyer, but the new lawyer would only file an appearance if a continuance were granted so that he could adequately prepare for trial.  The court denied this request, requiring Sellers either to proceed pro se or with Oppenheimer.  Sellers chose Oppenheimer, and he was convicted and sentenced to fifteen years in prison.

The Seventh Circuit, however, held that the denial of a continuance violated Sellers’s right to counsel of his choice.

Here’s how the court articulated the legal standard:

The right to counsel and the right to engage counsel of one’s choosing, however, are not absolute. A court retains wide latitude to balance the right to choice of counsel against the needs of fairness to the litigants and against the demands of its calendar. Gonzalez‐Lopez, 548 U.S. at 152; United States v. Smith, 618 F.3d 657, 666 (7th Cir. 2010); United States v. Carrera, 259 F.3d 818, 824‐25 (7th Cir. 2001). This means, of course, that trial courts have broad discretion to grant or deny a request for a continuance to substitute new counsel. Carlson, 526 F.3d at 1025. “Only an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay” violates the Sixth Amendment right. Carrera, 259 F. 3d at 825. In determining whether the decision was arbitrary, we consider both the circumstances of the ruling and the reasons given by the judge. United States v. Santos, 201 F. 3d 953, 958 (7th Cir. 2000).  (9)

As might be expected with a “reasonableness” sort of test, the court’s holding in Sellers was based on a variety of case-specific facts, which makes it hard to gauge its importance for future cases.  The court’s analysis, however, does suggest a number of red flags that might be raised by a district judge’s explanation for a denial of a continuance.

For instance, it is pretty clear that the Seventh Circuit was particularly troubled by one statement that was repeated several times by the district judge:

We begin with the court’s repeated statement — reiterated four times — that the continuance would be denied, in part, because “it is typically this Court’s rule that new counsel take the case as they find it.” This is not, however, the rule in this Circuit. Quite the opposite. The Sixth Amendment demands that a district court may not arbitrarily and unreasonably deny a continuance to provide for choice of counsel. Carlson, 526 F.3d at 1024. Adhering to a rigid rule that “a lawyer must take the case as he finds it” is exactly the type of arbitrary rule that the Sixth Amendment prohibits. See id. at 1026. Thus a myopic insistence on proceeding with a scheduled trial date in the face of a valid request for a continuance is arbitrary and unreasonable. United States v. Miller, 327 F.3d 598, 601 (7th Cir. 2003).  (11)

The Seventh Circuit was also concerned about the district judge’s emphasis on scheduling convenience without any apparent recognition of legitimate countervailing interests:

The district court spoke generically of how continuances burden other litigants and the court’s calendar. But the fact that the district court failed to inquire of either Oppenheimer, or later Volpe, how long substitute counsel would need to prepare adequately for trial evidences a failure to actually balance the right to choice of counsel against the needs of fairness, and suggests that the district court unreasonably viewed any delay as unacceptable. See United States v. Williams, 576 F.3d 385, 390 (7th Cir. 2009) (“The failure to inquire how long the defense needs to prepare suggests that the district court unreasonably considered any delay unacceptable: That sort of rigidity can only be characterized as arbitrary.”); see also Carlson, 526 F.3d at 1026. A district court’s schedule, although a significant consideration, does not automatically trump all other interests. Smith, 618 F.3d at 666. As this court has noted, trial dates frequently open when cases settle and defendants plead. Carlson, 526 F.3d at 1026. Although the district court had a two‐to‐three week political corruption trial set to begin May 26 (i.e. a week after Sellers’s trial began), even the inconvenience of pushing a trial back a month or so can easily be outweighed by a defendant’s interest in having counsel of choice. See Carlson, 526 F.3d at 1026.

The record provides no evidence that the court balanced any of these circumstances against the needs of fairness and the demands of its calendar. See Gonzalez‐Lopez, 548 U.S. at 152. It seems instead that the court stood on unyielding principle — the principle that new counsel must “take the case as he finds it;” the principle that continuances will not be granted for those who request them at the eleventh‐hour and miss other deadlines; and the principle that delay of one case will unfairly backlog other cases.  (16-17)

I am particularly struck by the strong endorsement of the value of the underlying Sixth Amendment right in the court’s statement that “even the inconvenience of pushing a trial back a month or so can easily be outweighed by a defendant’s interest in having counsel of choice.”

Finally, the (Indiana) district judge’s generally negative views of the (Illinois) lawyer also raised a red flag:

[The judge's] opinion and oral rulings are riddled with indications of generalized annoyance with defendant’s counsel that smack of an arbitrary application of the rule as retribution for both counsel’s own errors, and the errors of others. Most strikingly, the district court confessed:

“I also ran into the problem where there were other cases with Illinois counsel, who just happened some were Illinois counsel, and they were counsel that were appearing at the 11th hour and asking for continuances because of new counsel. So if I got excited with you, that was one of the reasons you caught my wrath because of the dilemma that was being caused by that.”

There can be no more arbitrary and unreasonable application of a rule than as punishment for the missteps of another lawyer in an unrelated case.  (18)

Cross posted at Life Sentences Blog.

The Court created the state-of-mind problem in Begay v. United States, 553 U.S. 137 (2008), which held that a prior conviction does not count as a “violent felony” under the ACCA unless the crime was “purposeful, violent, and aggressive.”  This is a rather mysterious phrase.  Although the word “purposeful” is a familiar culpability term, it is not clear what “violent” and “aggressive” are meant to connote in this context.  And even “purposeful” has some ambiguity, as any law student who has ever wrestled with the elusive distinction between “general intent” and “specific intent” will tell you.

Begay itself indicated that DUI does not satisfy the PVA test because DUI is a strict liability offense.  This teaches that some culpability is indeed required for an offense to count as a “violent felony,” but Begay provided little guidance beyond that.

Then came Chambers v. United States, 129 S. Ct. 687 (2009).  

Chambers held that the crime of failing to report to serve a sentence did not count as a violent felony.  The Court’s relatively brief analysis paid very little attention to state-of-mind considerations, but focused more on objective dangerousness, including data showing low levels of violence associated with the offense.  Indeed, the Court approvingly cited Justice Scalia’s concurring opinion in Begay, which rejected a culpability requirement in favor of a purely objective approach.  Remarkably, the Court made no mention of the subjective-objective debate in Begay. Based on the citation to Scalia’s concurrence and the use of an objective approach in Chambers, I’ve wondered whether the Court is quietly moving towards Scalia’s view.  Scalia himself did not write in Chambers, suggesting that he is satisfied with the Court’s trajectory from Begay to Chambers.

But there is another possibility.  Rather than selecting an objective approach over a subjective approach, Chambers may instead tacitly endorse a two-prong test: to count as an ACCA predicate, an offense must satisfy both a subjective culpability requirement and an objective dangerousness requirement.  Because the offense in Chambers failed the objective test, there was no need to get into the subjective test – on this view, the Court’s silence on culpability did not indicate that culpabilty has fallen out of the equation generally, but only on the specific facts of Chambers.

Although I’ve not seen much express consideration of the question, my impression is that the lower federal courts have generally understood Chambers in the latter, both/and sense.

In the immediate aftermath of Begay, I wrote here in favor of Scalia’s purely objective approach.  Now I’m not so sure.  For one thing, Scalia’s opinion was framed as an either/or choice between the objective and subjective approaches.  If the question is presented that way, I suppose I would still favor the objective approach as more consistent with the statutory language.  But, as a third option, the two-pronged approach does have some appeal.  In the past, I (like Scalia) may have been a little too dismissive of the culpability requirement as lacking a clear textual basis.

Here’s the relevant statutory language:

[T]he term “violent felony” means any crime punishable by imprisonment for a term exceeding one year . . . that . . . is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another . . . .

The italicized portion constitutes the so-called residual clause, the interpretation of which has been the task of Begay, Chambers, and now Sykes. The way that this clause is paired up with three familiar crimes that do have substantial culpability requirements (burglary, arson, and extortion) provides support for interpreting the residual clause also to have a culpability requirement.  Doing so is also consistent with the evident purpose of the ACCA, which is to deliver extended incapacitation to the most dangerous offenders; recidivists whose record indicates a pattern of intentionally dangerous or harmful conduct would seem more suitable for incapacitation than those who have only acted, say, negligently.  Yet, a purely objective approach might draw serial carelessness into the ACCA’s incapacitation scheme.

Indeed, if we are to ascribe any significance to the title of the statute, the phrase “career criminal” — consistent with the references to burglary, arson, and extortion — connotes a repeat offender who is committing crime for a living, i.e., is motivated to achieve pecuniary gain by wrongfully depriving others of their property.  Again, this points to an interpretation of the residual clause that would require a truly blameworthy state of mind (although, to be fair, I’m not so sure Begay’s “purposeful, violent, and aggressive” standard precisely captures the nature of the culpability suggested by the phrase “career criminal”).

There may also be some appeal to a subjective prong insofar as it permits some priors to be knocked out as ACCA predicates quickly and easily without requiring the extensive litigation that might be required to answer the complex empirical question of how dangerous a given category of crime is.  This was the dynamic in Begay itself, in which the Court used the culpability requirement as a way to avoid answering the uncertain question of how dangerous is the typical instance of DUI.  Although I’ve not yet noticed any indication of this in the case law, such questions of objective dangerousness seem to invite the use of expert witnesses on statistics and criminology.  Again, judges and lawyers alike might appreciate the ability to resolve the status of some priors without going down the path of such complex litigation.

Whatever the merits of a subjective prong, Sykes may provide a good opportunity for the Court to clarify whether such a prong exists and, if so, what exactly the PVA standard means.

Sykes was convicted of the Indiana crime of using a vehicle while knowingly or intentionally fleeing from a law enforcement officer after being ordered to stop.  Was this a “violent felony”?  The Seventh Circuit held yes, although at least one other circuit has concluded that a similar crime was not.

In Chambers, the Court was able to avoid answering any hard questions about the culpability required for an offense to count as a “violent felony” because the offense at issue in that case did not satisfy the requirement of objective dangerousness.  The Court is less likely to reach a similar conclusion in Sykes.

Having read the government’s brief, I’m impressed that there is a much more solid case for objective dangerousness in Sykes than inChambers.  Not airtight, mind you, but still pretty strong.

The key to the government’s argument is the assumption that police typically give chase when a motorist refuses an order to pull over, because there is a fair bit of data showing that police pursuit is a rather dangerous proposition.  And it does seem at least plausible that pursuit typically ensues, although I suppose it is also possible that (a) many motorists who initially refuse to pull over think better of it pretty quickly, obviating the need for pursuit; and (b) that many orders to pull over are for such minor infractions that officers (either as a matter of their own discretion or departmental policy) decline to initiate pursuit.  I don’t think the government has nailed down how common (a) and (b) are.  Still, the dangerousness argument here seems considerably stronger than in Chambers, which means that the Court is likely to have to confront the state-of-mind questions.

The threshold question is whether the Begay culpability requirement survives Chambers.  Assuming it does, the Court may then have an opportunity to explain more clearly what state of mind is implied by Begay’s ”purposeful, violent, and aggressive” test.

The government’s position on culpability seems to be that it is enough that Sykes was convicted of a crime having as an element that he “knowingly or intentionally” fled from a law enforcement officer.

Sykes, however, cites Judge Posner’s cogent dissent in another ACCA case involving a similar Illinois fleeing statute, Welch v. United States, 604 F.3d 408, 434 (2010).  Here is Posner’s position:

Thus I don’t agree that just because the defendant intended to flee from the police his action was “purposeful” within the meaning of the Supreme Court’s formula. Given that the purpose of the catch-all provision in the Armed Career Criminal Act is to enable courts to identify crimes that are similar to the enumerated ones, “purposeful” should be interpreted to mean trying to harm a person’s person or property, which is characteristic of the enumerated crimes. Burglary requires proof of intent to commit a crime following unlawful entry, arson proof of intent to destroy property without legal authority, extortion proof of intent to obtain another person’s property by a threat. These crimes do not merely create a risk of harm, as aggravated fleeing does.

It’s not that the enumerated crimes necessarily are motivated by a desire to hurt anyone. The criminal may simply want the victim’s property. (In an arson case, the victim is often an insurance company-and arsonists don’t dislike insurance companies-rather the contrary!) But to get what he wants he has to harm the victim; purpose to harm is intrinsic to the crime although it often is not the motive. That is not true in a flight case any more than it is true in a DUI case. In both the perpetrator is behaving in a dangerous manner but in neither is he trying to take anything from anyone or otherwise harm anyone. And “although the [fleeing] statute does require intent, the required mental state is only intent to be free of custody, not intent to injure or threaten anyone. It is easy to violate [such a statute] without intending or accomplishing the destruction of property or acting in an aggressive, violence-provoking manner that could jeopardize guards or bystanders.” United States v. Templeton, supra, 543 F.3d at 383.

Dismuke calls aggravated fleeing “aggressive” because it involves defiance of authority. 593 F.3d at 595. But that is true of all escapes-the point of Chambers was that we can’t treat all escapes alike. Dismuke calls fleeing “active” rather than “passive,” id., but all actions are active, yet most are not aggressive. To fail to report to prison when ordered is to defy the authority of the sentencing judge and the Bureau of Prisons. Many acts of civil disobedience are emphatically active and defiant of authority at their core, but are miles away from being aggressive. Dismuke notes the possibility of a future confrontation with authority but that is also a likely consequence of a walkaway escape or a failure to report and is an especially likely consequence of many acts of civil disobedience. Adopting a rule that would exclude from the category of “violent felony” a crime that while it may be dangerous does not involve any intention of harming anyone would go some distance toward clarifying the meaning of “violent felony” and by doing so perhaps check the avalanche of litigation over that meaning.

Assuming the Court plans to stick with a culpability requirement, Posner’s formulation strikes me as quite sensible and consistent with the best understanding of the statute’s purpose.

The key to solid legal writing, per Judge Easterbrook, is to be brief and articulate: write in short, simple, straight-forward prose. Outline your problem as you would for an intelligent lay person, mindful of the fact that judges are generalists, not specialists. (Judge Easterbrook also noted that judges—unlike those drafting the statutes and regulations judges interpret—are supposed to be out of touch.) To sharpen your writing skills off the clock, read good novels. Read persuasive literature. Challenge your ideological predispositions: conservatives, read the New Republic; liberals, read the Weekly Standard. Don’t read the New Yorker, though: too many attorneys read this publication, according to the judge.

Specifically regarding legal writing, Judge Easterbrook opines that the following books should be present on every attorney’s bookshelf:

1. “Making Your Case: The Art of Persuading Judges,” by Antonin Scalia & Bryan Garner.

2. “The Elements of Style,” by William Strunk & E. B. White.

3. “The Elements of Legal Style,” by Bryan Garner.

4. “The Party of the First Part: The Curious World of Legalese,” by Adam Freedman.

Contrary to the judge’s advice, my legal writing can be overcomplicated and long-winded. The culprit is the way I think; to more fully understand an issue, I write. By allowing myself to formulate the best theories fully on paper, I can identify what works. Perhaps my self-diagnosis is simply a reflection of so often hearing advice like Judge Easterbrook’s. Or perhaps I am in good company? Judge Easterbrook joked about the style guides that Strunk & White could do in only 105 pages (Strunk’s original version? Just 56!) what took Garner 236—noting a lawyer’s tendency to overdo it. So I asked Judge Easterbrook about this problem, questioning whether he, too, has to draft several opinions before getting his mind around an issue. Do you, like me, judge, have to write up an issue to fully understand your own take? No, he answered flatly. Oh.

The thought of populating a blank screen with gold the first go-round daunts. For now, a mere year and a half into courting the jealous mistress, I take comfort in the fact that legal issues I explore will require less of a mental work-up with more practice and exposure. Or perhaps with a bookshelf lined by works of Judge Easterbrook’s writing gurus? Marquette community: what are your recommended legal writing guides?

*Judge Easterbrook reads materials in the following order to prepare an opinion: (1) the district court opinion (for sense); (2) the appellant’s brief—beginning with the summary of the argument section; (3) the facts and holding from the district court’s opinion, specifically checking whether the lower court addressed a different issue than that framed within the appellant’s brief; (4) cited opinions; (5) the appellee’s brief, which may, per Judge Easterbrook, provide answers absent in the district court’s opinion. On what the judge calls an “extended process of getting more information and doing more thinking,” a week before oral arguments—with his tentative views formed—Judge Easterbrook consults his clerks. The case is then argued, the panel meets and discusses the appeal, and then the writing judge goes to work on his or her portion of the legal writing conversation: the judicial opinion.

Here’s what happened.  Jennifer Krieger was prescribed fentanyl, a powerful opioid, to help her with severe back pain.  She gave some of the drug to her friend Jennifer Curry for recreational use.  Curry misused the fentanyl, as well as a variety of other substances, and died the next day.  Krieger was then indicted for distributing fentanyl with death resulting.  That’s when things got really weird. 

It turns out that the government’s main witness, the medical examiner who concluded that Curry died of fentanyl toxicity, had some serious legal problems of his own and fled the country. 

Eventually, the government returned a superseding indictment removing the “death resulting” language and charging only distribution.  Krieger pled guilty.  The pre-sentencing report recommended a sentencing range of ten to sixteen months.

At sentencing, however, the government once again pushed the “death resulting” provision (21 U.S.C. § 841(b)(1)(C)) that it had removed from the indictment.  The provision requires a minimum sentence of twenty years.  The government managed to produce the errant medical examiner for the sentencing hearing, and the judge found by a preponderance of the evidence that death had resulted from Krieger’s distribution of fentanyl.  With the 841(b)(1)(C) mandatory minimum, the judge felt compelled to sentence Krieger to twenty years, even though he believed the sentence was “too harsh.”  Indeed, the judge went so far as to indicate that he would not have found that death had resulted from fentanyl beyond a reasonable doubt; it was only because death was a “sentencing factor” (hence found using the preponderance standard) and not an element (which would be subject to the higher BRD standard) that Krieger received the concededly too harsh sentence.  Rarely is the significance of burden of persuasion made so clear.

The sentencing judge also nicely captured the “this just can’t be right” flavor of the case: “Krieger, while convicted of distribution of divers amounts of narcotics, is being sentenced for homicide.”  (7)

The Seventh Circuit nonetheless affirmed.  Although Apprendi indicates that a defendant has a right to jury fact-finding using the BRD standard when facts increase the range of punishment, Harris later specified that Apprendi only applies when a fact increases the maximum sentence, not the minimum.  As a result, the BRD standard governs when a fact increases the maximum by only a small amount (as might happen in a system of mandatory sentencing guidelines), but not necessarily when a fact increases the minimum by an enormous amount — as in Krieger, where causing death increased the minimum from zero to twenty years.  In practice, Harris means that Apprendi does not apply precisely where it could be of greatest benefit to defendants.

Interestingly, the Krieger court went out of its way to criticize the current state of the jurisprudence, echoing Justice Stevens’ concurring opinion last May in United States v. O’Brien, 130 S. Ct. 2169 (2010).  Although O’Brien was decided on statutory grounds, Stevens took advantage of the opportunity to reiterate his opposition to Harris and to highlight a provocative comment by Justice Breyer at oral argument (“Well, at some point I guess I have to accept Apprendi, because it’s the law and has been for some time.”).  The comment is important because Breyer was the crucial fifth vote in the Harris majority, and his vote was premised on his continued disagreement with Apprendi.  If he now accepts Apprendi, then it would seem likely that he would reverse his position on mandatory minimums.

In any event, by pointing the finger of blame at the Supreme Court for the current state of the constitutional law, the Seventh Circuit distracts attention from the statutory analysis that was equally important to the outcome in Krieger – analysis that may actually be more troubling to me than the constitutional analysis.

Given the absence of constitutional constraint, the key question in the case was whether § 841(b)(1)(C) ought to be interpreted such that it created an element of a new offense or merely a sentencing factor.  Harris itself involved a parallel question of statutory interpretation, and the Seventh Circuit relied on the analysis in Harris, as well as in the Supreme Court’s more recent O’Brien decision, in determining that “death resulting” was merely a sentencing factor.  The court treated Harris and O’Brien as interchangeable in this regard, characterizing O’Brien as simply a “reiterat[ion]” of Harris (13).

From Harris and O’Brien, the court derived a five-factor test.  Although the court found that two factors (fairness and severity of the sentence) cut “sharply” in Krieger’s favor, the court ultimately concluded that it was

hard pressed to ignore the most important considerations: first, the clear command of the language listing “death resulting” in the “penalties” section of the statute, and second, our precedent (at least when considering drug quantity) of defining the considerations in § 841(b) as sentencing factors . . . . (18-19)

I find the analysis here troubling in at least three respects.

First, it is not clear to me why we should have a special five-factor test for deciding whether a statute creates an element or a sentencing factor.  This is a question of statutory interpretation that ought to be decided using all of the normal tools of statutory interpretation, including traditional canons of construction.  Here, in particular, the “rule of lenity” might appropriately come into play to resolve a question that Congress did not speak to in a clear manner in the statute.  (The avoidance canon might also come into play, given that the increase in Krieger’s minimum sentence was so much greater than the increases found constitutional in Harris and McMillan.)  Although O’Brien did enumerate and consider the five factors, it did not hold that these were intended to supplant conventional interpretive approaches or that they should be regarded as an exhaustive list of considerations in all “sentencing factor” determinations.  Indeed, Harris treated the factors in an even less formal, nonenumerated fashion, and expressly considered the relevance of at least one canon (the avoidance canon).  In Krieger, it seems that a loose listing of considerations from prior cases is hardening into a formal test.   

Second, even if we regard the five O’Brien factors as constituting a controlling test, I see no basis in O’Brien for treating the first two factors as “the most important considerations.”  Indeed, if anything, I think O’Brien meant to lay special emphasis on the fourth factor, the severity of the sentencing increase.  O’Brien dealt with an increase in a mininum sentence from five years to thirty years, which seems hard to distinguish from the zero to twenty in Krieger.  Here’s what the Court said about the five-to-thirty increase:

But the severity of the increase in this case counsels in favor of finding that the prohibition is an element, at least absent some clear congressional indication to the contrary.  (2178)

This important language went undiscussed in Krieger, but I would read it as creating a presumption that “death resulting” is an element, at least in cases with such enormous increases in the minimum. 

Finally, I find it merely question-begging that the “death resulting” language appears under the heading “penalties.”  (I should also note that O’Brien downplayed the significance of formal aspects of statutory structure in deciding whether something is a sentencing factor.  In this regard, O’Brien arguably marks an important departure from Harris, which ultimately laid controlling significance on formal structure.)  No one seems to think that Congress actually contemplates these procedural issues when enacting mandatory minimum statutes.  So why should “penalty” be equated with “sentencing factor” — a technical term of art invented by the Supreme Court, whose procedural significance would not be guessed at even by most lawyers, let alone laypeople and politicians?  There is certainly no “plain meaning” warrant for reading into the term “penalties” an intent for judicial fact-finding using the civil evidence standard.  Indeed, if anything, the term “penalties” might conjure for most people the image of the full panoply of procedural protections that have traditionally attended the imposition of punishment.

Last week, in Turley v. Gaetz (No. 09-3847), the Seventh Circuit backed away from dicta in earlier decisions that seemed to embrace an exceptionally and unnecessarily broad reading of the three strikes bar.  Had the court adhered to the earlier dicta, it would have opened a circuit split on a very important prisoner rights issue.

Here’s what happened. 

In 2001, Illinois inmate Gregory Turley filed a federal lawsuit alleging that he had been a victim of unlawful retaliation by prison officials.  The district court judge dismissed some claims for failure to state a claim, but other claims in the complaint withstood the initial screening, and Turley eventually won a jury verdict.

In 2002, Turley filed a second lawsuit alleging deliberate indifference by prison officials to his medical needs.  Once again, some claims were screened out, but other claims were found legally adequate.  Ultimately, Turley lost at the summary judgment stage for lack of sufficient evidence to support his surviving claims.

In 2003, Turley filed another retaliation lawsuit.  In this case, some claims were dismissed for failure to state a claim, while others were later rejected at the summary judgement stage for failure to exhaust administrative remedies.

In 2009, Turley filed the present lawsuit, again alleging retaliation in connection with his earlier litigation.  He asserts that he has endured a range of retaliatory actions, including physical assaults, threats, trumped-up disciplinary charges, confinement in segregation without a valid reason, interference with his access to the grievance system, and removal of his personal property.

The district judge denied his application to proceed IFP in light of the dismissal of claims from his earlier complaints.  On appeal, however, the Seventh Circuit (per Judge Ripple) reversed.

The court relied on the plain language of § 1915(g):

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury (emphasis added).

As the court observed, the term “action” has a precise meaning to lawyers this is different than the meaning of ”claim” — a civil “action” may contain several discrete ”claims.”  By the statute’s own terms, an inmate does not incur a strike unless an “action” is dismissed.  In Turley’s 2001, 2002, and 2003 lawsuits, some claims were dismissed at the initial screening stage, but the action as a whole was permitted to proceed.  The fact that Turley lost at the summary judgment stage in the latter two lawsuits does not mean the complaints were frivolous, and, the Seventh Circuit held, neither is properly treated as a strike.  Of course, there would be something truly perverse about treating the 2001 lawsuit as a strike when Turley actually won a jury verdict in the action.

The analysis seems straightforward enough, and conforms to similar pronouncements by the Fifth, Sixth, Eighth, Ninth, and D.C. Circuits.  However, it is inconsistent with prior statements by the Seventh Circuit in George v. Smith, 507 F.3d 605 (2007), and Boriboune v. Berge, 391 F.3d 852 (2004), both of which suggested that the § 1915(g) should be applied through a claim-by-claim analysis — the dismissal of a single claim, rather than an entire action, would amount to a strike.

Fortunately, the key statements in George and Boriboune were not central to the holdings of either case, permitting the court in Turley to discount them as dicta.  The Seventh Circuit now joins its sister circuits in adopting the whole-action approach.

Another notable holding in Turley focuses on the 2003 lawsuit and the significance of Turley’s failure to exhaust administrative remedies.  Specifically, the court made clear that the dismissal of a claim for failure to exhaust does not constitute a strike:

[A] dismissal for failure to plead adequately exhaustion is distinct from a dismissal for failure to state a claim, and neither the dismissal of a complaint in its entirety for failure to exhaust nor the dismissal of unexhausted claims from an action containing other viable claims constitutes a strike under § 1915(g).  A prisoner’s failure to exhaust administrative remedies is statutorily distinct from his failure to state a claim upon which relief may be granted.  The dismissal of an action for failure to exhaust therefore does not incur a strike.  Thus, consistent with the plain language of the PLRA, we conclude that the dismissal of an action, in part for failure to exhaust and in part as frivolous, malicious or for failure to state a claim does not constitute a strike under § 1915(g).

Cross posted at Life Sentences Blog.

At least sixteen districts, including the Mexican border districts, have developed fast-track programs that offer extraordinary sentencing benefits for illegal reentrants who plead guilty in an especially expedited fashion.  (For background, see my article at 27 Hamline L. Rev. 357.)  However, many other districts, including all of the Seventh Circuit districts, do not offer defendants the fast-track option, which creates wide sentencing disparities in illegal reentry cases.  When the federal sentencing guidelines were converted from mandatory to advisory in 2005, many defendants in non-fast-track districts argued that judges ought to give them the fast-track benefit in order to mitigate the disparities.  Appellate courts, however, uniformly rejected these arguments prior to 2007, when the Supreme Court reemphasized the discretionary nature of federal sentencing in Kimbrough v. United States, 552 U.S. 85.  Post-Kimbrough, three circuits, now joined by the Seventh, have ruled that sentencing judges may consider the fast-track disparities.   

For the reasons set forth in Reyes-Hernandez, I think this position is clearly the correct position if Kimbrough is taken seriously.  The Kimbrough Court held that sentencing judges are permitted to take into account the disparities created by the guidelines’ harsher treatment of crack than powder cocaine, notwithstanding various intimations from Congress that it approved of the disparities.  (For more recent developments in the area of crack sentencing, see my posts here and here.)  Likewise, the subtle ways in which Congress has arguably approved of fast-track disparities should not be enough to overcome the broad discretion sentencing judges have in the post-Booker advisory system.  If attempting to mitigate crack-powder disparities is permissible as a matter of law, then so should attempting to mitigate fast-track disparities.

As the Seventh Circuit made clear, Reyes-Hernandez only permits, and does not require, judges to take fast-track disparities into account.  Moreover, the court signaled some doubt about the appropriateness of giving a below-guidelines sentence based solely on fast-track disparities:

[W]e provide a word of caution that a departure from the guidelines premised solely on a fast-track disparity may still be unreasonable.  To withstand scrutiny, a departure should result from a holistic and meaningful review of all relevant § 3553(a) factors.  (33)

Although now permitted to do, it is a separate (and more difficult) question whether judges should take the fast-track disparity into account.  The problem with lowering one reentrant’s sentence in a non-fast-track district is that it exacerbates disparities relative to other defendants in non-fast-track districts at the same time that it mitigates disparities relative to fast-track districts.  One solution that I proposed a few years ago (see the article here) would be to select a sentence based on the national average sentence imposed in all illegal reentry cases, which would presumably be somewhere between the fast-track and non-fast-track norms.

The Reyes-Hernandez court suggested another way of thinking about the problem, in light of the parsimony principle embodied in § 3553(a).  As the court put it, “It has been observed even by strong defenders of the guidelines that the sentencing ranges called for under the guidelines for unlawful reentry cases are often unreasonably harsh and disproportionate to the seriousness of the offense” (32).  The steep discount in fast-track programs helps to confirm that the full guidelines sentence is not really necessary to achieve proportionality objectives in illegal reentry cases.  This gives sentencing judges a good reason to err on the side of lenience in deciding which set of disparities are most worthwhile to mitigate.

Cross posted at Life Sentences.

In United States v. Glosser (No. 08-4015), the judge made a promise to the defendant at his change-of-plea hearing that he would impose the statutory minimum 120-month sentence in the case, notwithstanding the prosecutor’s suggestion that the government might seek more.  And, indeed, it turned out that the government sought a 210-month sentence in light of firearms found at Glosser’s resident.  The judge, however, mostly stuck to his promise and imposed a 121-month sentence.  The government appealed. 

Although predetermining the sentence before hearing a party’s arguments is not exactly the same thing as passing over a party’s arguments in silence, they seem functionally much the same.  And, in Glosser, the Seventh Circuit indeed indicated that the former is a reversible procedural error.  The government’s success in Glosser thus suggests the government has much the same opportunity to challenge sentence explanations as defendants.

Another aspect of Glosser also strikes me as noteworthy, that is, the court’s consideration of whether the error was harmless.  The sentence explanation cases do not often include express consideration of harmlessness, which is not surprising because a failure to address a party’s sentencing arguments does not lend itself to a harmlessness analysis — post-Booker federal sentencing is so discretionary that it is difficult to see how harmlessness could be either proven or disproven.

The Glosser court seemed ambivalent about whether harmless error analysis was appropriate.  On the one hand, the court did conclude (in a rather conclusory way) that the error was not harmless (“Although the district court have several reasons at the sentencing hearing for imposing a below-guidelines sentence of 121 months, we are not confident that it would have done so if it had not decided it would impose the mandatory minimum sentence when Glosser changed his plea to guilty.” (14)).  On the other hand, the court also suggested that the error might be more properly analyzed as “fundamental procedural error” that would not require harmless error analysis (15).  Because the outcome would be the same either way, the court did not need to definitively resolve whether the error was fundamental or not — an interesting open question.

Cross posted at Life Sentences.

Given the expansively interpreted exceptions set forth in Rule 404(b) itself, the inextricable intertwinement exception seemed to me an unnecessary and confusing addition to the law.  The Seventh Circuit has now indicated its agreement with that view.  

In United States v. Gorman (No. 09-3010) (Kanne, J.), the court held:

[T]he inextricable intertwinement doctrine has . . . become overused, vague, and quite unhelpful.  To ensure that there are no more doubts about the court’s position on this issue — the inextricable intertwinement doctrine has outlived its usefulness.  Henceforth, resort to inextricable intertwinement is unavailable when determining a theory of admissibility. (15-16)

The Gorman case itself illustrates why the inextricable intertwinement doctrine is unnecessary and confusing.  The government charged Gorman with perjury based on a statement he made to a grand jury in which he denied that he “had” a particular car in his garage.  At trial, the government introduced evidence that Gorman stole the car from the garage.  Gorman objected that this was evidence of another bad act (a theft) that could not properly be used against him in a trial on perjury charges.  The trial court admitted the evidence under the inextricable intertwinement rule, but, as the Seventh Circuit pointed out, the theft was really simply direct evidence that Gorman’s grand jury testimony was false — it tended to show that Gorman “had” the car that he denied having.  There was no need to figure out whether the theft evidence somehow “completed the story” (which would go to establish inextricable intertwinement).

So long, inextricable intertwinement — the alliteration makes it fun to say, but otherwise I don’t think we will miss this particular doctrine.