Eight years later, Christianson and Rivera pled guilty to destroying government property and were sentenced to two and three years of prison, respectively.  On appeal, Rivera challenged the district judge’s decision to apply the terrorism enhancement of the sentencing guidelines.  He argued that he was not a terrorist because his motivation was “the hope of saving our earth from destruction.”  The Seventh Circuit, however, rejected his argument and affirmed the sentence in United States v. Christianson (No. 09-1526) (Manion, J.). 

Following the application notes contained in the guidelines, the court relied on the definition of terrorism set forth in 18 U.S.C. § 2332b(g)(5)(B): the commission of a listed crime (including destruction of government property) ”calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.”  In light of that definition, it was not hard to conclude that Rivera qualified as a terrorist:

Here, the purpose behind defendants’ actions was to further ELF’s political agenda: the end to industrial society. . . . Because the defendants do not look the part of our current conception of a terrorist does not separate them from that company.  Indeed, it doesn’t matter why the defendants oppose capitalism and the United States government — if they use violence and intimidation to further their views, they are terrorists.

I agree there is little legal (or, I suppose, moral) basis to distinguish criminals who are motivated by extremist environmental views from criminals who are motivated by extremist religious views.  But I think it is an interesting question whether a passionate desire to reform society (on environmental, religious, or any other grounds) ought to be treated as an aggravating sentencing factor.

Imagine a hypothethetical variation on Christianson: Although Rivera was motivated by a desire to change government policy on genetic engineering, Christianson was only in it for the thrill of sneaking into a government facility in the middle of the night and destroying something.  Is it right that Rivera ought to be punished more severly than Christianson based on his motive?  At least he was seeking the greater good and not acting in a purely self-interested manner — arguably, his motives are mitigating, not aggravating, relative to hers.

Two and a half years after his first conviction, federal agents searched Schultz’s home and found a shotgun.  He was convicted of being a felon in possession of a firearm and sentenced this time to eighteen months in prison.

On appeal, Schultz argued that his telecoms offense, although a felony, did not expose him to liability under the felon-in-possession statute.  He relied on an exception in the law for prior convictions “pertaining to antitrust violations, unfair trade practices, restraints of trade, or similar offenses relating to the regulation of business practices.”  However, the Seventh Circuit rejected this argument and affirmed the conviction in United States v. Schultz (No. 09-1192) (Bauer, J.). 

The court seemed remarkably disinterested in exploring the underlying policy rationale for the business regulation exception.  The statute’s reference to “similar offenses” cries out for a theory to explain what the listed offenses (antitrust violations, unfair trade practices, and restraints of trade) have in common and why Congress deemed it appropriate to carve these offenses out of the general criminal prohibition on gun possession by a felon.  For instance, it strikes me that the listed offenses are similar in that all are nonviolent and are commonly perpetrated by otherwise legitimate business enterprises.  Thus, those who commit such offenses are not presumptively dangerous in ways that would warrant special restrictions on their right to own guns.  Based on this analysis, a court might determine whether a prior conviction counts as a “similar offense” by considering whether the offense was nonviolent and of the sort commonly perpetrated by otherwise legitimate business enterprises.  (Such an approach would, among other things, have the benefit of helping to ensure that some substantial state interest warrants the infringement on Second Amendment rights imposed by the felon-in-possession statute.)

Rather than attempting to discern a coherent congressional purpose behind the business regulation exception, the Seventh Circuit instead cobbled together a handful of holdings from other circuits to reach this test:

In order for the exclusion to apply under “regulation of business practices,” the government would have been required to prove, as an element of the predicate offense, that competition or consumers were affected; possible incidental affects are not relevant.

Because Schultz’s telecoms offense did not have as an element “that competitition or consumers were affected,” it qualified as a predicate offense. 

Interestingly, Schultz’s offense did, in fact, have as an element that his conduct affected interstate commerce.  But the court dismissed the significance of this element, observing simply that “many criminal statutes include such a jurisdictional nexus.” 

Absent is any discussion of why it makes sense to treat business regulatory offenses differently based on whether competition or consumers were affected.  Stealing cable is hardly laudable conduct, but why should the person who cheats the cable company get treated so much more harshly than the person who cheats real live consumers?

At trial, the government thus relied heavily on the testimony of the confidential informant, Anderson, who recounted a series of interactions with Cannon and Harris.  Perhaps most damaging to Harris was testimony that Cannon told Anderson that his cousin was coming to Milwaukee with a signficant amount of cocaine.  This testimony, of course, was hearsay: Cannon himself did not testify, and Harris had no ability to cross-examine him.  In order to overcome the hearsay problem, the government relied on the exception for statements by co-conspirators.  But this required the government to prove that Cannon and Harris were indeed co-conspirators, and the strongest evidence of that were the very statements whose admissibility was at issue.  The government’s argument thus had something of a boot-strapping character. 

Making the argument even more awkward on appeal, the jury convicted Harris of possession with intent to distribute, but actually acquitted him on a conspiracy charge. 

The Seventh Circuit nonetheless rejected Harris’s hearsay argument and affirmed his conviction in  United States v. Harris (No. 08-4026) (Flaum, J.).

In order for co-conspirator statements to be admissible, the government must prove the existence of the conpiracy by a preponderance of the evidence, not the higher beyond-a-reasonable-doubt standard that governs the guilt determination at trial.  Even so, the Seventh Circuit conceded that it was a “close question” whether the government satisfied its burden of proof:

[T]he government’s evidence of the conspiracy centers around the disputed hearsay statements themselves (and while Bourjaily permits this kind of bootstrapping, it is not the strongest evidence of a conspiracy) and Harris’s presence in the Excursion when the police officers discovered a kilogram of cocaine.  (p. 9)

The court ultimately found the evidence sufficient, relying on the facts that Harris drove the Excursion from Arkansas to Milwaukee, Harris was carrying “an exceedingly large quantity of cash,” and Anderson’s statements were corroborated in a number of other respects.

As an aside, it is interesting to see the court use the possession of a large amount of cash as a basis for inferring drug activity.  This may be perfectly appropriate in the circumstances, but I wonder to what extent drawing this sort of inference unfairly disadvantages people who live in communities that are underserved by banks or who otherwise lack access to the sorts of financial services that many of us take for granted.  As I discussed in an earlier post, this is not the first time this fall that the Seventh Circuit has been confronted with the question of when criminal activity can be inferred from carrying cash.  Notably absent from these cases is any empirical research on how commonly and in what sorts of circumstances large sums of cash are carried for lawful purposes.

However, a host of recent trends in criminal law are putting tremendous pressure on the old act-based approach and pointing to a new paradigm in which a defendant is punished based on his propensity to commit crime, with little or no regard to the severity of the particular act of which he has been convicted (if, indeed, there has been a conviction at all).  Some examples include the use of relevant conduct in the federal sentencing guidelines, three strikes laws and other sentence enhancements based on prior convictions, felon-in-possession laws, civil commitment of sex offenders, and preventive detention of terrorism suspects.  Such innovations are suggestive of a system in which we punish bad people, not bad acts.  To be sure, there is a wide gray area in which it is unclear whether we are punishing acts or people, but when (for instance) we impose what is effectively a life sentence for the theft of three golf clubs (as was done under the California three strikes law), there can be little doubt that the person, not the act, is the target of our condemnation.

Although sentencing law may most dramatically reveal the competition between the act and propensity paradigms, evidence law is also implicated – perhaps most importantly in Federal Rule of Evidence 404(b), which seems pretty clearly to embrace the act paradigm.  More specifically, the rule states that evidence of other bad acts is not admissible to show the character of a defendant or his propensity to commit crime.  Yet, to judge by recent Seventh Circuit cases, it seems that evidence of uncharged drug offenses  and prior drug convictions are routinely used against defendants in drug cases.  (See, for instance, my post here.) 

Last week, the court shed some light on the Rule 404(b) exceptions in United States v. Conner (No. 07-3527) (Kanne, J.). 

Conner was charged with distribution of crack cocaine in a single transaction on December 20, 2006.  Yet, during Conner’s trial, the government presented the jury with evidence regarding other drug transactions involving Conner before and after that date.  The trial court admitted the evidence as “intricately related” to the charged crime.  The Seventh Circuit, however, determined this to be an improper use of the “intricately related” doctrine.

The doctrine was characterized by the Seventh Circuit this way:

Evidence of other bad acts is admissible when those acts are so intricately related to the charged conduct that they help the jury form a more complete picture of the crime.  Under this “intrictately related” doctrine, courts have admitted evidence that is necessary to fill a conceptual or chronological void, or that is so blended or connected that it incidentally involves, explains the circumstances surrounding, or tends to prove any element of, the charged crime.

Because the other bad acts used against Conner involved some of the same cast of characters as the December 20 transaction, the government argued that the evidence established context and showed the relationship among the co-consprirators.  But Conner was not actually charged with conspiracy — only with the substantive crime of drug distribution.  As to the one transaction that was at issue in the case, the other bad acts did not actually serve to “complete the story.”  Thus, the Seventh Circuit characterized the government’s use of the evidence as a “circumvent[ion]” of Rule 404(b).

The court’s analysis suggests that the “intricately related” doctrine might have more play in a case in which conspiracy was actually charged.  On the other hand, the court seemed generally skeptical of the propriety of the doctrine, characterizing it as “unhelpfully vague” and quoting earlier decisions in which courts had expressed the concern that the doctrine “threatens to override Rule 404(b).”

But, what the Seventh Circuit gives with one hand (narrow interpretation of the intricately related doctrine), the court takes away with the other (expansive interpretation of the knowledge/intent/mistake exception to Rule 404(b)).  Conner lost because, in the court’s view, his other bad acts went to establish his state of mind.

Rule 404(b) does indeed permit the use of prior bad acts to prove knowledge, intent, or absence of mistake.  Thus, for instance, it would be proper to use a defendant’s earlier drug transactions to rebut his claim that he had no idea the white powder in his possession was cocaine.

However, Conner did not present a mistake defense or otherwise clearly contest knowledge or intent.  No matter, said the Seventh Circuit: “By pleading not guilty to the charge and denying any wrongdoing, Conner placed the burden on the government to prove each element of the crime [including intent] beyond a reasonable doubt.”  The court concluded, “Thus, we find that the evidence of Conner’s previous drug transactions was properly directed at an issue other than his propensity to commit the crime.”

The court seems to suggest that the usefulness of prior bad acts in establishing intent negates the possibility that the evidence is being used for propensity purposes.  But these purposes are not mutually exclusive.  Indeed, Conner’s own bad acts seem most clearly relevant to intent only insofar as Conner’s intent to commit other drug crimes supports an inference that he also intended to commit a drug crime on December 20, 2006 — in other words, that he has a propensity to commit drug crimes.

The analysis in Conner contains no clear limiting principle on the admissibility in drug dealing cases of evidence of other drug transactions.  The same criticism that Conner levels against the intricately related doctrine might be leveled against its own expansive interpretation of the knowledge/intent/mistake exception.

One might wonder whether the court is just going around in circles when it narrowly interprets the intricately related doctrine, but then expansively interprets the knowledge/intent/mistake exception.  The court makes clear, however, that it believes there is a real difference between admitting other bad acts under an intricately related theory and an intent theory: in the latter setting, the defendant is entitled to a limiting instruction highlighting for the jury that it should not use the bad acts for propensity purposes.  So, the court apparently does see itself as doing something to preserve the traditional act-orientation of criminal law by channeling other bad acts evidence into the knowledge/intent/mistake exception.  Whether jurors actually pay attention to limiting instructions is another question . . . .

Without a mandatory minimum, a judge is free to impose a reasonable sentence under 18 U.S.C. § 3553(a), which tells judges to account for the nature of the crime; the history, characteristics, and rehabilitative needs of the defendant; the public interest in protection, deterrence, and punishment; the type of sentences available; the applicable Sentencing Guidelines (including pertinent policy statements); the need for uniformity in sentencing similar defendants for similar crimes; and restitution.  When a mandatory minimum must be imposed, however, most courts have held that only the defendant’s assistance may be considered when imposing a sentence below the minimum.

The Seventh Circuit has recently addressed this issue in the context of both 3553(e) and Rule 35.  See United States v. Johnson, No. 08-3541 (7^th Cir. September 4, 2009); United States v. Shelby, No. 08-2729 (7^th Cir. October 20, 2009). 

In both cases, the court ruled that only a defendant’s substantial assistance can be considered when determining the extent of the reduction, and that other factors normally relevant under § 3553(a) can be used only to reduce or leave in place that reduction, but never to increase it.  At least one other circuit has criticized this as an unfair “one way ratchet” in applying § 3553(a) factors to these cases.  See United States v. Grant, 567 F.3d 776 (6^th Cir. 2009) (which is also now in flux as on October 16 the Sixth Circuit vacated that decision and ordered a re-hearing en banc).

Does it make sense to limit sentencing judges’ discretion in these cases to considering only substantial assistance for the extent of the reduction?  For 3553(e) motions it may because the language of that statute states that a court has limited authority to sentence a defendant below a statutory minimum so as to reflect a defendant’s assistance.  Rule 35(b) contains no such language and states a defendant’s sentence can be reduced if the defendant provided substantial assistance, but does not otherwise limit the factors that can be considered.  The Shelby court found that despite this difference in language, it does not make sense to treat Rule 35(b) motions differently from those filed under 3553(e), and did so largely on various policy grounds.

Judge Terrance Evans wrote an interesting dissent in Shelby.  He wrote that United States v. Booker, 543 U.S. 220 (2005), which held that the United States Sentencing Guidelines were no longer binding on sentencing courts, and Kimbrough v. United States, 128 S.Ct. 558 (2007), which held that judges can legally disagree with the disparity between how crack and powder cocaine are treated under the guidelines, represented a “sea change” in federal sentencing law.  He criticized the “one-way ratchet” approach, stating, “If it’s kosher to rely on the § 3553(a) factors in giving only 50 percent of a sentence reduction sought by the government in a Rule 35 resentencing, why can’t those factors also be considered in giving the defendant more of a reduction?”  He fears that judges will now just “fudge” these hearings when they want to grant reductions larger than what may be deserved based solely upon the defendant’s assistance by exaggerating the assistance and disingenuously cloaking their reasoning in factors related only to assistance.

Evans also criticized the government for bringing the appeal, saying, “I would hope it has much better things to do.  Without an appeal, Shelby’s sentence would have passed under the radar screen without notice,” and further noting, “After all, it’s not like we’re running out of people behind bars.”  He cited a Pew Charitable Trust study that found America’s prison population has increased by 700 percent since 1970, and that America now incarcerates more people than Russia, South Africa, Mexico, Iran, India, Australia, Brazil, and Canada combined — at an average cost of $22,650 per year per inmate.

Does it make sense to base federal sentencing jurisprudence on the prison population?  Or on minor differences in wording between statutory provisions that ostensibly accomplish the same thing (i.e., reducing sentences for cooperation, with the only difference that one governs cooperation given before sentencing and one given after sentencing)?  Should we base it on individual judges’ discretion and wisdom, the very thing the Sentencing Guidelines were supposed to limit when they were enacted in the mid-1980’s? 

The uncertainty in federal sentencing is representative of the uncertainty inherent in the criminal justice system as a whole.  I remember back to my first-year criminal law class taught by Professor O’Meara (with a generous recent refresher discussion via email), where he talked about criminal justice as an area of law “without an effective theory.”  He borrowed this term from Columbia University Professor George Fletcher, and it refers to the observation that the criminal justice field does not seem to have an overarching goal or objective to address the problem of criminal conduct in our society.  Are we trying to primarily deter crime?  Achieve retribution and punish the criminal?  Incapacitate them (commonly referred to as “warehousing” them in prison)?  Do we want to rehabilitate them and have them (hopefully) return to society as productive citizens?

The criminal justice system seems to try to address all of these concerns without really accomplishing any of them.  The long federal mandatory minimum sentences for drug crimes have been in effect for over twenty-five years without much decline in drug dealing.  Almost none of my federal clients (many of whom are no strangers to the state criminal justice system) have any concept that ten-, fifteen-, and twenty-year mandatory minimum sentences are common in federal court until after they are indicted.  Punishment doesn’t seem to work well either because many criminal defendants reoffend, which also indicates they have not been rehabilitated.  Perhaps the goal the federal system accomplishes best is warehousing criminals, keeping them out of the community and stopping them from committing crimes for at least as long as they are in prison. 

Ultimately, the criminal justice system may be incapable of having an overriding theory because it is a purely reactive system: it operates only after a crime is committed, a victim is identified (whether it is an individual or the community), and a defendant is charged with a crime.  I’ve often thought that the only real way to address crime would be to go after its root cause, whatever it may be: poverty, lack of education, lack of family support, mental illness, drug-addiction, etc.  The problem is that the cause of crime is as varied as the individual committing it.  Until this can be truly addressed, federal sentencing law (as an example), and the criminal justice system as a whole, will continue to struggle with finding an effective theory of addressing crime.

By the statute’s literal terms, there can be no doubt that the prosecutor in United States v. Williams (No. 09-1924) failed to comply.  In the § 851 notice he served on Williams, the prosecutor identified only one prior conviction (not the requisite two) and then merely stated, “Further information concerning the defendant’s criminal history can be obtained from the United States Probation Office and specifically the Pretrial Services Report in this matter . . . .”  The Pretrial Services Report, which listed a second drug conviction, was not actually served on the defendant until after trial.  Indeed, it appears that the prosecutor himself had not even received and read the Report before his attempt to incorporate it by reference into the § 851 notice.  This was very sloppy work, and the Seventh Circuit righly chastised both the individual prosecutor and his office (the Northern District of Indiana), which lacked any protocol on how to make § 851 notices.  But sloppiness, even inexcusable sloppiness, is not the same thing as reversible error, and the court (per Judge Posner) affirmed Williams’ life sentence. 

Relying on prior cases, the court characterized the legal standard this way: “[A]s long as the defendant has actual notice of the intended use of a prior conviction to enhance his sentence, the statute has been substantially complied with and that is good enough.”  And Williams could not prevail on this “substantial compliance” test:

[T]he notice says that the government would rely on all “applicable” convictions in the pretrial services report, and it was apparent that the second felony drug conviction was “applicable,” that is, a basis for enhancement.  It was the only other felony drug conviction in the list of 19 dispositions [contained in the report]; . . . a lawyer reading the list would notice that in about fifteen seconds; and if the defendant’s lawyer had had any doubt about which conviction the prosecutor was planning to rely on for an enhancement he could have sought clarification from the prosecutor, and he didn’t — doubtless because it was clear.

Although Williams lost on his § 851 claim, the court made clear that it was not adopting a rule that any attempt at notice would always be sufficient:

We can imagine a notice and a list of convictions that were so confusing that the defendant and his lawyer could not be expected to pick out the one or ones that the government might try to use to enhance the defendant’s sentence. . . .

The government takes a risk by sloppy compliance . . . : the risk that either the court will hold that the government failed to provide the defendant with adequate notice or that the defendant will have a claim that by failing to interpret a confusing notice correctly his lawyer rendered ineffective assistance of counsel.

Interestingly, the Eleventh Circuit seems to be taking a very different view of § 851 compliance.  For instance, United States v. Bowden, No. 08-11935, 2009 WL 32755 (11th Cir. Jan. 7, 2009), apparently employs a strict compliance standard and holds that a failure to meet the standard deprives the sentencing court of jurisdiction to impose the mandatory life sentence.  Williams reports that the Solicitor General recently filed a petition for certiorari in Bowden, so the § 851 issue may be in the news again soon.

But now the court has significantly limited the significance of Head in United States v. Anderson (No. 09-1958). 

For conditions of supervised release, 18 U.S.C. § 3583 (in its pre-2008 form) authorized a sentencing court to select just about any of the permissible conditions of probation (except assignment to a halfway house) and “any other condition it considers to be appropriate.”  In Anderson, the Seventh Circuit (per Judge Wood) held that this latter language, the “catch-all provision,” permits assignment to a halfway house.  In Head, the court had rejected this reading of the catch-all provision, reasoning that the inclusion of the halfway-house condition in the probation statute and the lack of specific authorization for the condition in the supervised release statute decided the question; a general catch-all provision could not overcome the negative implication created by the statute’s failure to authorize the condition expressly. 

Anderson downplayed this aspect of Head:

Head indicated in a footnote that the catch-all provision did not recapture the power to impose the halfway-house condition . . . . This theory, however, had not been pressed by the Government . . . .

In effect, Anderson seems to treat Head’s analysis of the catch-all provision as mere dicta and adopts a quite different interpretation: the “any other condition” language means what it says, “confer[ring] broad discretion on the district courts to fashion appropriate conditions of release that compl[y] with the broad goals of sentencing.”  Thus, it turns out (per Anderson) that Head only held that the halfway-house condition was not expressly authorized by the supervised-release statute; Head did not really decide whether the condition was prohibited.  Anderson now tells us that the condition is not prohibited.

Anderson’s interpretation of Head strikes me as rather strained.  But the Anderson panel circulated its opinion to the full court, and not one judge voted to hear the case en banc.  It seems odd that the court has so thoroughly undermined such a recent decision as Head, which is only nine months old, without a single voice raised in protest.  I suppose this is a rather arcane aspect of sentencing law, and perhaps no one really cares.  Or perhaps something in the new cases convinced the judges that Head had sacrificed too much by way of sound corrections policy in the name of textualist purity.  Perhaps the overwhelming weight of contrary precedent in the other circuits also contributed to the judges’ discomfort with Head.

But the intermediate federal appellate courts have been slow to follow Booker to its logical conclusion — which is why Kimbrough was necessary in the first place.  Even after Kimbrough, several circuits, including the Seventh, have maintained that policy choices contained in § 4B1.1, the career offender guideline, remain binding on district court judges.  This is particularly important, and unfortunate, to the extent that § 4B1.1 contains the infamous 100:1 disparity in the treatment of crack and powder forms of cocaine.  That is a policy choice that district court judges ought to reject, and many doubtlessly would reject, if they were free to do so.

Last year, in United States v. Liddell, 543 F.3d 877 (7th Cir. 2008), a panel of the Seventh Circuit suggested that the court might be willing to reconsider its precedent on § 4B1.1.  But then Friday’s decision in United States v. Welton (No. 08-3799) slammed the door shut. 

Writing for the Welton panel, Judge Bauer expressly disavowed Liddell “to the extent that Liddell is inconsistent with [earlier holdings] that a district court may not rely on the 100:1 crack/powder disparity embedded in  § 4B1.1 as a basis for imposing a non-Guidelines sentence.”  Moreover, because of the avowed overruling of Liddell, Welton was circulated to the entire court, and only three judges voted to rehear the case en banc.  (On behalf of these three dissenters, Judge Williams wrote what seems to me a quite persuasive opinion in Welton arguing the basic “advisory means advisory” point.)

The majority’s position seems to boil down to this: the Sentencing Commission did not come up with § 4B1.1 on its own, but instead followed a directive contained in 28 U.S.C. § 994(h) that the guidelines “specify a sentence to a term of imprisonment at or near the [statutory] maximum” for career offenders.  The court thus sees  § 4B1.1 as embodying a congressional policy choice, which is binding on district judges because it is not merely a Commission policy choice.

There is no question that Congress could write a statute requiring district judges to sentence career offenders “at or near the statutory maximum.”  But Congress has not written such a statute.  By its terms, § 994(h) is a directive to the Sentencing Commission, not district judges.  And, if there is anything we have learned from Justice Scalia and his New Textualism, it is that Congress’s mere “policy choices” are not binding on anyone; it is only through the written law, as contained in statutes enacted through constitutionally mandated procedures, that Congress can make binding policy decisions. 

Instead of issuing a directive on career offenders to district judges, Congress chose to issue its directive to the Sentencing Commission, recognizing that its policy choice regarding career offenders would be embedded within, and necessarily qualified in all sorts of uncertain ways, by a larger structure of sentencing guidelines.  Rather than pass a stand-alone mandatory minimum statute, Congress evidently believed that it was best for the specifics of career-offender sentencing to be worked out in a way that cohered with the rest of the federal sentencing system.  Post-Booker, such coherence means that the career offender guideline should be treated as no less advisory than any other guideline.

Moreover, treating § 994(h) as binding on judges risks reversing Booker by the back door.  Section 994(h) is not the only congressional directive to the Sentencing Commission; the whole of § 994 is chock full of them.  Indeed, very nearly all of the guidelines could be fairly characterized as embodying one congressional policy choice or another.  (There is, in fact, an interesting debate in the scholarly literature over whether the worst features of the federal guidelines are due more to Congress’s or the Commission’s policy choices.)  Once we start saying that congressional policy choices embodied in the guidelines are binding, it is not clear where a principled line is to be drawn to save Booker.

In fact, the whole point of Booker is that Congress does not get to have its way when it comes to sentencing guidelines.  The Sixth Amendment trumps congressional preferences.  And the Sixth Amendment prohibits courts from treating the policies contained in sentencing guidelines as binding in the absence of jury fact-finding.

Judge Williams concluded her dissent with a call for the Supreme Court to address the § 4B1.1 problem in light of the disagreement it has sparked within the lower courts.  I heartily agree.

In the meantime, I take solace in the fact that there remains some interest and ability on the part of the Seventh Circuit to impose other sorts of limits on the mandatory application of the § 4B1.1 100:1 ratio, as evidence by the court’s recent decision in United States v. Knox, which held that the ratio is not binding on defendants convicted merely of conspiracy to commit a crack offense.  (My post on Knox is here.)

In practice, the federal courts have interpreted the law expansively so as to encompass a broad range of circumstances beyond actual possession.  Thus, under the doctrine of ”constructive possession,” a felon may indeed be convicted based on the discovery of a firearm in his home. 

But,  as the Seventh Circuit made clear last week in United States v. Katz (No. 08-2341), even the doctrine of constructive possession has its limits. 

Katz, a felon, had some sort of altercation with Grice, his girlfiend, at her home.  Responding to 911 calls, police arrived at the scene, detained Katz, and searched Grice’s home.  The search revealed, among other items of interest, drugs and a shotgun with Katz’s fingerprints on it.  At trial, Katz stipulated that he had been convicted of a felony prior to the incident at Grice’s home, and a jury subsequently found him guilty of being a felon in possession. 

On appeal, Katz argued that the evidence was insufficient to estabish his guilt beyond a reasonable doubt.  The Seventh Circuit, per Judge Rovner, agreed.

Although Katz’s fingerprints were on the shotgun, it was impossible to tell how old the fingerprints were.  Nor did the evidence at trial establish when exactly Katz had become a felon, other than that it happened sometime before the altercation with Grice.  For all the Seventh Circuit could tell, Katz might have handled the gun long before his felony conviction.  Thus, the evidence was insufficient to establish actual possession of a firearm by a felon.

What of constructive possession?  If the gun had been found in Katz’s residence, then the government would have been home free.  But are we prepared to extend the constructive possession doctrine to the residence of a felon’s girlfriend?  Is it fair to infer that a guy really has control over all of the property in his girlfriend’s home?

The Seventh Circuit answered no, at least on the facts of Katz:

There is no evidence whatsoever that Katz resided at the premises, or even that he had ever stayed at the home for any period of time.  The only evidence presented indicates that the home belonged to Grice exclusively: the lease was in her name; she did not want to leave him in the home when she left for work; she called police to have him removed from her home; and she possessed the keys.  He apparently did not have keys because he took hers when he left the premises.  There are none of the indicia of joint possession of the premises that we have found in other cases.  (7)

In trying to show constructive possession of the premises, the government relied on the fact that Katz carried $1,800 in cash at the time of his arrest.  The goverment’s theory was that (a) drug dealers often carry large amounts of cash, (b) drugs were found in Grice’s home, (c) therefore, Katz was dealing drugs from Grice’s home, (d) drug dealers often keep guns around the places where they deal drugs, and (e) therefore, the gun at Grice’s home must have been Katz’s.  Just stating the government’s argument reveals how speculative the reasoning was, and the Seventh Circuit appropriately found it insufficient to support a criminal conviction.  Interestingly, then, this is the second week in a row in which the Seventh Circuit has rejected inferences of specific criminal activity drawn from the fact the defendant happened to be carrying a few hundred dollars at the time of his arrest.  (For last week’s case, see my post here.)

When a person is caught in a lie, we normally assume that he is covering something up.  But, if a defendant in a criminal case lies on the witness stand, is it fair to assume that he actually did what he was accused of doing?  Such was the question in United States v. Edwards (No. 08-1124).

Edwards was arrested after making arrangments to sell crack to a government informant.  The intended sale did not actually take place, but that is no barrier to conviction for drug trafficking.  And, once convicted, a drug dealer becomes responsible under the federal sentencing guidelines for the entire quantity of drugs he has ever sold that counts as “relevant conduct.”  (For an earlier post on the pitfalls of relevant conduct, see here.)  In order to establish the amount that Edwards sold, the sentencing judge relied on, among other things, $765 in cash that Edwards was carrying at the time of his arrest.  Edwards tried to explain away the cash with an unsubstantiated and seemingly implausible story about selling his minivan, but the judge was not convinced.  If the minivan story was fabricated, then Edwards must have earned the money from selling crack, right?  The sentencing judge concluded as much, and increased Edwards’ drug quantity accordingly.

On appeal, however, the Seventh Circuit held that the judge moved to this conclusion too quickly.   Judge Posner, writing for the panel, sensibly observed,

The falsity of the defendant’s testimony makes reasonably clear that the $765 was proceeds of an illegal transaction of some sort, but does not show that it was proceeds from selling crack.  For all one knows, the defendant sold other illegal drugs (he had been convicted in the past of possession of marijuana) or other contraband, such as guns, but did not want to acknowledge other illegal behavior, which he might have thought would get him into even worse trouble than he was in.

In light of these possibilities, it appeared that too much crack might have been attributed to Edwards when his guidelines sentence was calculated.  The Seventh Circuit thus vacated Edwards’ sentence and remanded for resentencing.

It is true that Edwards’ false testimony does not logically require an inference that the $765 came from crack sales, but it is still surprising to see the Seventh Circuit not permit the inference.  After all, what was at issue was a district court’s finding of fact, to which appellate courts are supposed to show some deference.  Indeed, the First Circuit upheld a district court’s decision on similar facts in United States v. Jackson, 3 F.3d 506 (1st Cir. 1993).  However, the Seventh Circuit felt that Jackson was inconsistent with other cases that reject “the automatic inference from disbelief in one part of a witness’s testimony to disbelief in the rest.”

Although the Seventh Circuit may not have shown its typical deference to district-court fact-finding in Edwards, the lower court’s piling on of relevant conduct is a reminder of why the drug sentencing guidelines have provoked so much criticism.  Quantity tends to overwhelm other considerations in drug sentencing, and the determination of quantity under the guidelines makes no distinction between what was proven to a jury beyond a reasonable doubt and what was proven to a judge by a preponderance of the evidence.  The diminished burden of proof under the guidelines invites dramatic increases in punishment on the basis of the sort of flimsy inferences used in Edwards.  This is especially troubling when the defendant is being sentenced under the crack guideline, which is widely recognized to be unjustifiably harsh.

It turns out that the armed bank robbery statute, 18 U.S.C. § 2113(d), can be satisfied in either of two different ways.  First, a robber qualifies for increased punishment by committing an assault.  As the Seventh Circuit indicated many years ago in United States v. Smith, 103 F.3d 600 (7th Cir. 1996), the assault prong of the statute is satisfied when a teller has a reasonable fear of imminent bodily injury.  Brandishing a gun — loaded or unloaded — seems almost certain to create such a fear.

The second prong, though, raises a closer question. 

Under this prong, a robbery qualifies as armed if the robber “puts in jeopardy the life of any person by the use of a dangerous weapon or device.”  This prong turns, not on the teller’s belief that his or her life is in jeopardy, but on the objective reality of the danger.  And the danger is surely far less when a robber carries an unloaded than a loaded weapon.

Because of the availability of the assault prong, it would seem to be academic whether carrying an unloaded weapon triggers the in-jeopardy prong.  But, for reasons not clear to me, prosecutors in United States v. Simmons (No. 08-2207) charged the defendant bank robber only under the in-jeopardy prong.  His conviction and subsequent appeal thus presented the Seventh Circuit with an opportunity to address whether carrying an unloaded weapon puts a teller’s life in jeopardy.  The First and Ninth Circuits had previously answered in the affirmative a closely related question (whether carrying a fake gun puts a life in jeopardy).

The Seventh Circuit (per Judge Tinder) reached the same conclusion.  Although the unloaded weapon was obviously of little direct threat to anyone, jeopardy was nonetheless established by the “potential violent reaction of the victim or law enforcement” to the apparent (but not actual) threat posed by the weapon.

I find it hard to quarrel with the result, but the case does illustrate a “missing category” problem in the bank robbery statute.  Although it is more dangerous (and thus more blameworthy and more suitable for enhanced punishment) for a robber to carry an unloaded gun than it is for a robber to leave his gun at home, it also surely more dangerous for a robber to carry a loaded than an unloaded gun.  An important distinction in offense severity seems lost without an intermediate offense category for carrying an unloaded (or fake) weapon.  Fortunately, a sentencing judge may exercise his or her discretion to make the appropriate distinctions.

The Seventh’s Circuit opinion last week in United States v. Noel (No. 07-2468) reveals a substantial division over how to handle violations of a defendant’s right to address the court at sentencing.  As now codified in Federal Rule of Criminal Procedure 32, the Supreme Court has held that defendants must be personally invited to address the court before being sentenced; it is not enough for defense counsel to be given an opportunity to speak.  I have long thought this right of allocution to be a Rorschach test of sorts, revealing fundamental disagreements in the way that criminal procedure rights are conceptualized. 

According to one view – probably the most common — criminal defendants have procedural rights so to ensure the accurate sorting of the guilty from the innocent.  Thus, for instance, we give defendants a right to counsel so that falsely accused defendants are able to mount a successful defense.  On this view of procedural rights, though, the right to allocute appears a largely empty technicality.  By the time of sentencing, the defendant’s guilt has already been established, and the selection of a sentence is not the sort of decision that has a singular right answer.  It is hard to see how allocution fits the accuracy-enhancement paradigm.  Perhaps defendants may occasionally use their opportunity to speak in ways that persuade an otherwise skeptical judge of their remorse, and perhaps the sentences these defendants receive are improved as a result.  Even so, allocution still seems to be making a rather weak contribution to the search for “right answers” in the criminal justice system; other rights (such as the rights to counsel, to obtain exculpatory evidence in the government’s possession, to confront accusers, and to suppress coerced confessions) seem far more weighty.

On a competing view, though, the rights of criminal defendants are not exclusively (or perhaps even primarily) about accuracy-enhancement, but about showing respect for defendants’ essential human dignity.  (I discussed this point of view in religious terms here.)  Central to the dignitary paradigm is giving defendants the opportunity to tell their side of the story before punishing them.  From this perspective, allocution is not merely a peripheral, “technical” right, but a core right — indeed, it is perhaps the most important right in our plea-bargaining-dominated system that rarely gives defendants an opportunity to tell their side of the story at trial. 

It is interesting to read Noel against this backdrop of accuracy versus dignitary views of criminal procedure.  Noel was convicted of possessing and producing child pornography.  He appealed both his conviction and sentence.  The Seventh Circuit (per Judge Kanne) affirmed, but only narrowly so.  For one thing, the court indicated that a police officer improperly testified at trial that Noel’s images fit the legal definition of pornography.  Although the court scolded the government for presenting this testimony, the error did not warrant reversal because Noel did not object to the testimony at trial, and the testimony did not rise to the level of plain error. 

Likewise, although the court noted a nationwide debate on the propriety of the jury instruction used by the trial judge to define child pornography (the so-called Dost instruction), any problems with the instruction did not support a finding of plain error.

This brings us to the allocution issue.  The trial judge solicited a statement from Noel’s attorney, but not Noel himself.  Once again, the Seventh Circuit found error, but not one warranting reversal. 

Because Noel failed to object in the district court, he could not win on appeal unless he showed (1) a plain error that (2) affected his substantial rights and (3) seriously affected the “fairness, integrity, or public reputation of the judicial proceedings.”  And the court did find plain error that affected substantial rights.  With respect to the latter element, the court relied on United States v. Luepke, 495 F.3d 443 (7th Cir. 2007), which held that the court “presume[s] prejudice when there is any possibility that the defendant would have received a lesser sentence had the district court heard from him before imposing sentence.”

But Noel lost on the third element.  In finding that the error did not seriously affect the “fairness, integrity, or public reputation of the judicial proceedings,” the court relied on the following facts: the sentencing judge twice mentioned Noel’s right to allocute (even though he did not personally solicit a statement from Noel), Noel’s lawyer read a letter from him at sentencing, the letter was structured much as an allocution would be, everyone at the sentencing overlooked the error, and Noel received a sentence far below the recommended guidelines range.

Chief Judge Easterbrook wrote a concurring opinion arguing that the Luepke rule of presumed prejudice should be overturned and the burden of proving prejudice placed on the defendant.  Luepke reflected a concern that defendants would have an unduly hard time showing prejudice: how could a defendant really show that he would have received a different sentence if allowed to speak?  But Easterbrook did not share this concern: “[T]he reason it is hard to show injury is that violations of [Rule 32] usually are inconsequential.”  In the same vein, he characterized a violation of the right to allocute as merely “technical.”  His emphasis on prejudice, of course, is characteristic of the accuracy paradigm in criminal procedure.  One wonders if he will be looking for an opportunity to press his desire to overturn the Luepke rule in future cases.

Judge Williams wrote a dissenting opinion with two purposes.  The first was to take issue with the majority’s conclusion that the allocution error did not seriously affect the fairness of the sentencing proceeding.  In particular, Judge Williams was far less impressed than the majority with the fact that defense counsel read the letter from Noel, which was not apparently written with the intention that it be presented in lieu of an in-court statement. 

Judge Williams’ second purpose was to defend Luepke.  In her view, “the importance of the right to allocute cannot be minimized.”  She noted the contribution of allocution to the “perceived equity” of the sentencing process, and suggested that allocution implicated “core values” of sentencing.  Plainly, Judge Williams has much more of the dignitary perspective on process than Chief Judge Easterbrook.  

The importance she would attach to the right to allocute contributed to her conclusion that the rules of appellate review should give defendants a realistic opportunity to enforce the right.  More specifically, because the burden of proving prejudice would be ”almost insurmountable for defendants,” the Luepke presumption plays an important role in ensuring that the right to allocute is something more than an “unenforced honor code” for district judges. 

Other new opinions in criminal cases were:

United States v. Johnson (No. 08-3541) (Kanne, J.) (affirming district court’s denial of Franks hearing and affirming sentence).

United States v. Plummer (No. 07-4031) (Rovner, J.) (affirming finding in drug case that substance involved was crack cocaine).

United States v. Zahursky (No. 08-1151) (Tinder, J.) (in child enticement case, reversing enhancement of defendant’s sentence under U.S.S.G. § 2G1.3(b)(2)(B) because defendant did not engage in prohibited sexual conduct).

United States v. Winbush (No. 08-1602) (Kanne, J.) (affirming sentence and conviction in drug trafficking case)

United States v. Meece (No. 09-1211) (Bauer, J.) (affirming conviction and sentence in felon-in-possession case).

United States v. Anderson (No. 08-2925) (Ripple, J.) (affirming conviction and sentence in telemarketing fraud case).

United States v. Garcia (No. 07-3964) (Kanne, J.) (affirming conviction and sentence in drug trafficking case).

At least three circuits have answered the question in the affirmative, but the Seventh Circuit has not yet provided its answer.  Last week, though, the court came close, holding in United States v. Villegas-Miranda (No. 08-2308) (Williams, J.) that district judges must at least respond when a “consecutive sentences” argument is one of a defendant’s principal arguments for a reduced sentence. 

Villegas-Miranda follows in a very interesting line of cases from United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005), which held that a district judge must “give reasons for its sentencing decision and address all of a defendant’s principal arguments that ‘are not so weak as to not merit discussion.’”  (Page 5, quoting  Cunningham.)  (My recent article on what I call the “Cunningham explanation requirement” just appeared in print at 36 Fla. St. U. L. Rev. 459; an earlier draft on SSRN is here.)

Although a consecutive sentences argument was one of Villegas-Miranda’s two principal arguments at sentencing, the district judge in his case did not respond to it.  On appeal, however, the government contended that the consecutive sentences argument did not trigger Cunningham because it was “so weak as to not merit discussion.”  Villegas-Miranda thus illustrates how Cunningham creates an opportunity for the Seventh Circuit to provide a preliminary assessment of a sentencing argument without definitively ruling on its strength. 

In the end, the court agreed with Villegas-Miranda that his consecutive sentences argument should have been addressed, relying particularly on the fact that several other circuits had previously found the argument to have merit.

Other new opinions in criminal cases were:

United States v. Thyfault (No. 07-2769) (Bauer, J.) (reversing dismissal of charges on issue preclusion grounds).

United States v. Hart (No. 07-3395) (Ripple, J.) (”[W]e hold that a violation of 18 U.S.C. § 751(a), as a categorical matter, is not a crime of violence under the Sentencing Guidelines.”).

United States v. Hargrove (No. 06-2883) (Bauer, J.) (affirming constitutionality of mail fraud statute over vagueness challenge).

United States v. Elst (No. 09-1175) (Tinder, J.) (affirming denial of motion to suppress based on good-faith exception to exclusionary rule).

United States v. Oros (No. 08-2511) (Williams, J.) (affirming conviction and sentence for bribery).

United States v. Gibbs (No. 08-2186) (Wood, J.) (vacating sentence based on district court’s failure to calculate sentencing guidelines range).

United States v. Salem (No. 08-2034) (Tinder, J.) (remanding for hearing on Brady issue).

United States v. Deloney (No. 07-3451) (Bauer, J.) (affirming reasonableness of sentence in crack trafficking case).

United States v. Canady (No. 08-1267) (Williams, J.) (affirming conviction and sentence in felon-in-possession case).

United States v. Fouse (No. 07-3945) (Rovner, J.) (affirming conviction and sentence for conspiracy to distribute cocaine).

United States v. Shabaz (No. 08-3751) (Wood, J.) (affirming denial of motion to suppress confession).

United States v. Corson (No. 08-2094) (Tinder, J.) (affirming defendants’ robbery convictions).

United States v. Booker (No. 07-3094) (Williams, J.) (”[W]e remand for resentencing because Booker’s prior involuntary manslaughter conviction does not qualify as a ‘crime of violence.’”).

When a lawyer is making what is clearly a losing argument, a judge will sometimes throw the lawyer a lifeline, using a question to suggest a more fruitful line of attack.  An astute lawyer will follow the judge’s cue and adapt his or her argument accordingly.

Such does not seem to be the case with the lawyer in United States v. Foster (No. 08-1914).

Last year, in United States v. Smith, 544 F.3d 781 (7th Cir. 2008), the Seventh Circuit held that a conviction for criminal recklessness in Indiana does not count as a prior “crime of violence” for purposes of triggering the fifteen-year mandatory minimum of the Armed Career Criminal Act.  Darryl Foster, however, was given the ACCA sentence enhancement based on a prior conviction for criminal recklessness in Indiana.  Looks like a slam-dunk issue on appeal, right? 

To be sure, the briefs in Foster were submitted before Smith was decided, which might possibly excuse defense counsel’s failure to challenge the ACCA sentence in his written filings.  On the other hand, briefing occurred after the Supreme Court’s decision in Begay v. United States, 128 S. Ct. 1581 (2008), which threw open the whole question of which prior convictions count as “crimes of violence” and paved the way for Smith.  In the aftermath of Begay, it is hard to see why any defendant with an ACCA sentence and a pending appeal would not raise the “crime of violence” issue.

Nor was Foster’s lawyer holding back on ACCA in his brief in order to push an even stronger issue.  His brief focused only on whether the evidence was sufficient to support a different sentence enhancement — a line of attack the Seventh Circuit later characterized as “frivolous.”

Whether or not there was a good excuse for the counsel’s failure to raise the ACCA issue at the briefing stage, it is hard to see any justification for what happened at oral argument, which occurred nearly three full months after Smith was decided.  With Foster’s lawyer continuing to push the same losing argument he had put in the brief – or perhaps “push” is too strong a word, as we are told that “Foster’s attorney all but admitted the folly of this appeal during oral argument” — the court advised him of its holding in Smith and invited him “to consider the appropriateness of Foster’s ACCA enhancement.”  The lifeline was tossed . . . and Foster’s lawyer declined to take it.  His response: “I think the case law is clear that firing a handgun in and of itself under the circumstances of a case such as this is, can be considered a crime of violence.” 

In light of counsel’s express waiver of the issue, the Seventh Circuit (per Judge Cudahy) refused to consider it: “We cannot make a party’s arguments for him, or force him to make arguments he seems determined not to raise.”

The case raises difficult questions about the waiver doctrine and the limits of the adversarial system.  The Seventh Circuit framed the issue as one of party autonomy (”We cannot . . . force him to make arguments he seems determined not to raise.”), and I am quite sympathetic to the basic principle of antipaternalism.  One of my favorite cases to teach in Crim Pro is Faretta v. California, 422 U.S. 806 (1975), which recognized the right of defendants to represent themselves at trial — even if it means that they face a greater risk of conviction as a result.  As I see it, Faretta stands for the proposition that defendants have legitimate interests not just in maximizing their chances of a favorable outcome, but also in ensuring that their cases are presented in ways that are consistent with their personal values and beliefs.  Defendants should not be required to present defenses with which they disagree. 

But it seems a bit odd to invoke antipaternalism in Foster.  It is hard to believe there was an informed decision by Foster to surrender a strategic opportunity, as there was by Faretta in surrendering his right to counsel.  Why challenge one sentence enhancement on appeal, but not the other?  Instead, this seems pretty clearly an instance of uninformed waiver – counsel simply did not understand that the governing law had recently changed in ways that mattered to his client’s case.  Whatever we might say about the importance of respecting informed choices, decisions that are based on a mistake are not entitled to the same deference.

The real animating value in Foster is not autonomy, but efficiency.  In Foster itself, it would not have been hard for the Seventh Circuit to make the argument that the lawyer did not make, but where would the line be drawn in future cases?  Making the lawyers’ arguments for them would obviously impose a heavy burden on the court — even more so to the extent that the court would have to disentangle which waivers were truly informed and which were due to misunderstanding.  It is much easier to indulge the legal fiction that the client has given informed consent whenever the lawyer waives a potentially winning argument.  Easier on the court, that is.  When the costs of defendants sitting in prison for unnecessarily long periods of time are factored in, it may not be so clear which direction the efficiency value cuts.

Other new criminal cases last week were:

United States v. Cox (No. 08-1807) (Wood, J.) (”[T]he Government need not prove in a prosecution under 18 U.S.C. § 2423(a) that the defendant knew that the person being transported was under the age of 18.”).

United States v. Gear (Nos. 07-4038 & 07-4039) (per curiam) (holding that prior conviction for reckless discharge of a firearm in violation of 720 ILCS 5/24-1.5(a) does not trigger sentencing guidelines enhancements based on prior convictions for crimes of violence).

United States v. Dooley (No. 08-4131) (Ripple, J.) (reversing defendant’s conviction on wire fraud count based on lack of causal connection between defendant’s actions and communication at issue).

United States v. Bright (No. 08-1770) (Bauer, J.) (affirming defendant’s conviction and sentence over challenges to admission of eyewitness identification evidence, admission of “guilt-by-assocation” evidence, and sentence enhancement based on obstruction of justice).

United States v. Nurek (No. 07-3568) (Sykes, J.) (affirming 20-year sentence for defendant who pled guilty to receiving child pornography over objections to determination of guidelines range and general reasonableness).

John Orozco was convicted of drug and gun offenses based, in part, on evidence found in his home while police executed a search warrant.  On appeal, he argued that the evidence should have been suppressed because the warrant was issued without probable cause. 

In applying for the warrant, the government relied on an affidavit from an FBI agent.  The affidavit recited information indicating that Orozco was involved in high-volume drug-dealing and asserted, based on the agent’s ten years of experience in narcotics investigations, that high-ranking gang members often keep drug transaction records and other evidence of drug- and gang-related activity in their homes. 

Prior to Orozco’s trial, the district court judge ruled that the search warrant was not supported by probable cause because police had no specific information connecting Orozco’s house to his criminal activity, but the evidence obtained pursuant to the search was admitted anyway because the police acted in good faith.  Both sides appealed, and the Seventh Circuit (per Judge Sykes) ruled that the district court erred in finding no probable cause.  United States v. Orozco, No. 06-4235, 2009 WL 2461341 (7th Cir. Aug. 13, 2009).

Orozco relied on the Sixth Circuit’s decision in the factually similar case of United States v. Schultz, 14 F.3d 1093 (6th Cir. 1994).  In Schultz, police obtained a warrant to search the defendant’s safe deposit boxes based on general information that the defendant was dealing drugs and an officer’s affidavit asserting that “[b]ased on his training and experience . . . it is not uncommon for the records, etc., of such [drug] distribution to be maintained in safe deposit boxes.”  The Sixth Circuit held the affidavit insufficient to establish probable cause.

The Seventh Circuit distinguished Schultz on the ground that the affidavit in Orozco was stronger.  More specifically, the Orozco affidavit noted the affiant’s decade of experience in narcotics investigations and expressed a higher degree of confidence that evidence “will be found” (in contrast to the more guarded “it is not uncommon” language of Schultz).  This seems a rather muscular distinction, and one that may elevate form over substance in the probable cause analysis.  I wonder how many narcotics investigation units there are that lack an officer with several years’ experience who would be willing to state in an affidavit that drug-transaction records “will be found” in the home of a suspected high-volume drug dealer.  Do we now in effect have a rule that automatically permits searches of drug-dealer homes — at least as long police officers remember to recite their experience and optimism?

Brief summaries of last week’s other new Seventh Circuit criminal cases are here.

United States v. Daniel (No. 08-2672) (Wood, J.) (conviction affirmed over Brady objection; material not disclosed to defendant before trial was not material).

United States v. Evans (No. 08-2424) (per curiam) (defendant’s prior conviction for aggravated battery does not count as “crime of violence” for sentence enhancement).

United States v. Smith (No. 08-1369) (Wood, J.) (conviction affirmed over defendant’s claims of juror misconduct and error in denying Franks hearing).

United States v. Orozco (No. 06-4235) (Sykes, J.)

United States v. Betts (No. 08-3555) (Williams, J.) (district court did not err in finding substance defendant sold was crack).

United States v. Mendoza (No. 08-2403) (Tinder, J.) (affirming reasonableness of defendant’s sentence).

United States v. Pansier (No. 07-3771) (Williams, J.) (affirming conviction over Speedy Trial Act and other objections).

United States v. Deberry (No. 09-1111) (Posner, J.) (affirming defendant’s sentence over claim that government should have made motion for additional reduction in offense level under 3E1.1(b)).

United States v. Smith (No. 07-4045) (Dow, J.) (affirming defendant’s bank robbery conviction over claims that evidence was insufficient and that delays violated Speedy Trial Act).

United States v. Wilborn (No. 08-3891) (Rovner, J.) (district court did not err in finding substance defendant sold was crack).

United States v. Dean (No. 08-3287) (Ripple, J.) (remanding for district court to determine amount of meth that should be attributed to defendant for sentencing purposes).

United States v. Morris (No. 08-2979) (Kanne, J.) (evidence was sufficient to support defendant’s conviction of drug and firearm offenses).

The Armed Career Criminal Act and § 4B1.1 of the federal sentencing guidelines both provide for lengthened prison terms for certain defendants with three or more prior convictions for crimes of violence.  It’s clear that certain prior convictions qualify (e.g., rape and armed robbery), but there are a surprisingly large number of offenses in the gray area between violent and nonviolent. 

As I discussed in an earlier post, the Supreme Court recently developed a new definition for “crime of violence” in Begay v. United States, 128 S. Ct. 1581 (2008), in which the Court held that prior DUI convictions do not trigger ACCA’s fifteen-year mandatory minimum.  Begay cast a lot of circuit-court precedent into doubt, and the Seventh Circuit has been struggling ever since to develop a consistent, coherent approach to identifying what types of offenses count as ”violent.”  (See, for example, this post.)  Meanwhile, the Supreme Court has also remained active in this area.  Last term, for instance, the Court held that failure to report to prison and walkaway escapes are not crimes of violence in Chambers v. United States, 129 S. Ct. 687 (2009).  And the Court recently granted cert in Johnson v. United States to decide whether a battery offense counts as violent.

Reflecting the turbulence in this area of the law, the Seventh Circuit had three — count ‘em, three – notable new opinions dealing with the “crime of violence” question last week. 

In one, United States v. Patterson (No. 08-2240), the court (per Judge Flaum) held that transporting a minor for prostitution is a crime of violence.  But in another, United States v. High (No. 08-1970), the court (per curiam) held that second-degree reckless endangerment under Wisconsin law is not.

The most important of the three, though, was United States v. Woods (No. 07-3851).  In Woods, the court (per Judge Wood) self-consciously sought to clarify the Seventh Circuit’s post-Begay approach to “crime of violence.”  Reflecting the opinion’s importance, Woods was circulated in draft form to the full court.  Seven judges approved Judge Wood’s opinion, while just three voted to hear the case en banc.  (Chief Judge Easterbrook authored a thoughtful dissenting opinion on behalf of the three.)

Much of Woods focuses on the so-called “categorical approach” developed by the Supreme Court for use in “crime of violence” cases.  Under this approach, offenses are categorized as violent or nonviolent based not on the particular facts of the defendant’s conduct, but on the formal elements of the crime of which the defendant was convicted.  For instance, a defendant convicted of failure to report to prison may have violently resisted police when finally apprehended, but the conviction would still count as nonviolent because all failure-to-report convictions are treated the same under the categorical approach, and the Supreme Court held in Chambers that failure to report is not violent.  The categorical approach has efficiency on its side; if sentencing judges had to evaluate the conduct underlying prior convictions, the result would be a great deal of collateral litigation regarding things the defendant may have done years earlier.

The big question with the categorical approach (which has produced a few seemingly inconsistent post-Begay opinions in the Seventh Circuit) is under what circumstances the sentencing judge can look beyond the bare elements of the offense of conviction and consider such additional sources as the charging document, the plea agreement, and the guilty plea colloquy. The Supreme Court has sometimes permitted recourse to such documents as a limited exception to the categorical approach, but the Court has not clearly delineated the scope of the exception.   

Woods now clears up the matter in the Seventh Circuit: “[T]he additional materials . . . may be used only to determine which crime within a statute the defendant committed, not how he committed that crime” (10).  Thus, the “expanded inquiry” may be made only when a defendant has been convicted under a statute that is “‘divisible’ — that is, expressly identifies several ways in which a violation may occur” (14).  For instance, a single burglary statute will sometimes list several different types of structures (house, vessel, garage, etc.) whose unlawful entry constitutes the crime of burglary.  The statute is thus divisible, and the additional materials may be consulted for the limited purpose of determining which type of structure the defendant entered.  It is possible that burlary of certain types of structures would be treated as violent, while burlary of others would not.

Having clarified how to use the categorical approach, Woods turned to the specific offense at issue, involuntary manslaughter under Illinois law (720 ILCS 5/9-3(a)).  The key language from the statute was:

A person who unintentionally kills an individual . . . commits manslaughter if his acts . . . which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.

Because the statute did not specify different means by which it could be violated, it was not “divisible”; hence, the “expanded inquiry” was impermissible. 

In determining whether the elements of the statute established a crime of violence, Woods reaffirmed the important holding of United States v. Smith, 544 F.3d 781 (7th Cir. 2008), that a crime is not violent if its mens rea is merely negligence or recklessness.  Because the key mens rea element of involuntary manslaughter is recklessness, the court determined that the offense was not a crime of violence.

The government tried to distinguish Smith by arguing that the Illinois statute required that the defendant perform an intentional act; the recklessness requirement pertained only to the consequences of the act.  But, as anyone who has taken first-year Criminal Law should appreciate, the requirement of a volitional act is a basic requirement that applies to nearly all crimes.  Thus, as the Seventh Circuit observed, the government’s reasoning would “obliterate[]” the “classic line that has been drawn between the actus reus and mens rea of a criminal offense” (23). 

Other new opinions in criminal cases last week were:

United States v. Williams (Nos. 08-1470 & 08-1493) (Wood, J.) (reversing conviction because district court abused discretion in denying request for continuance).

United States v. Ramirez (No. 08-3216) (Tinder, J.) (affirming conviction in wire fraud case over defendant’s objection that “ostrich instruction” was improper).

United States v. Aguilar-Huerta (No. 08-2505) (Posner, J.) (”[W]e do not think a judge is required to consider . . . an argument that a guideline is unworthy of application in any case because it was promulgated without adequate deliberation.”).

United States v. Wescott (No. 08-1211) (Rovner, J.) (holding that defendant in Section 922(g)(8) case may not “wage a collateral challenge to the predicate state court hearing”).

United States v. Jackson (No. 08-2295) (Cudahy, J.) (holding that police had probable cause to arrest defendant and affirming sentence).

United States v. Gearhart (No. 08-1558) (Cudahy, J.) (affirming conviction over objections based on rights to speedy trial and counsel of one’s choice).

United States v. Peleti (No. 08-1507) (Wood, J.) (holding that district court did not abuse discretion in refusing to permit defendant to withdraw guilty plea).

On the one hand, we have grown accustomed to think of judges as case managers.  We want them to dispose of cases efficiently, and splitting the difference is often the quickest way to get to a result that everyone can live with.  On the other hand, we also think about the court system as a place where objective truth is sought in an uncompromising way.  This ideal is connected, I think, to the common metaphor of judge as umpire.  In a baseball game, we would be shocked if an umpire began to award “half-strikes” for close pitches.  Or — a better comparison still — imagine a football game in which it was unclear whether a receiver cleanly caught or merely trapped a low pass in the end zone.  The ref announces, “I could take a look at the replay, but that would be a lot of trouble and probably wouldn’t provide a good angle on the play anyway, so I’ll just split the difference and call it a field goal.”  We would think such a call fundamentally inconsistent with the integrity of the game and a proper understanding of the referee’s role.  Should we feel any more comfortable when a judge simply splits the difference, rather than resolving a disputed question of fact?

The Seventh Circuit addressed this question last week in United States v. Dean (No. 08-3287).  A jury convicted Jeffery Dean of conspiring to distribute methamphetamine.  In a special finding, the jury found that the weight of the meth was less than 500 grams.  However, for purposes of determining the appropriate sentencing range under the federal guidelines, the sentencing judge is not bound by jury findings.  In preparing a presentence investigation report, the probabation officer found that Dean should actually be held responsible for more than 150 kilograms of meth. 

The difference between the jury’s finding of 500 grams and the probation officer’s finding of 150 kilograms was a very significant one.  If the judge accepted the jury’s view, then Dean’s maximum sentence under the guidelines would be 121 months, but if the probation officer’s finding prevailed the minimum sentence would be 235 months. 

Rather than expressly resolving the dispute over quantity, the judge stated that she would simply “split the difference.”  Dean then received a sentence of 156 months.

The Seventh Circuit (per Judge Ripple) held that this was an improper way to resolve the dispute and remanded for fact-finding on quantity.

In general, I am sympethetic to the view that judges ought to resolve disputes in a more principled fashion than by splitting the difference.  My own sense of the judge’s proper role is closer to the umpireal than the managerial, which leaves me with real doubts about the legitimacy of difference-splitting adjudication.

Still, two aspects of the result in Dean give me pause.  First, the federal sentencing guidelines have been merely advisory, and not binding on judges, since 2005.  The judge could have almost certainly imposed a sentence of 156 months regardless of the quantity of meth involved.  The legitimacy problem with difference-splitting adjudication seems rather less when the adjudication is not outcome-determinative. 

To go back to the football hypo: if the dispute was not about whether the ball was cleanly caught, but about whether the receiver caught the ball with one hand or two, we would not care how the dispute was resolved — it just doesn’t matter in any way that is significant to the outcome of the game.  Arguably, fact-finding disputes under the federal sentencing guidelines should now be seen as equally inconsequential. 

Indeed, the Seventh Circuit itself indicated earlier this year in United States v. Sanner that sentencing judges need not resolve all factual disputes and are free, in the words of Jon Deitrich, to “skip to the chase.”  (Jon’s insightful post on Sanner is here.)  There seems some tension between Dean and Sanner.  They might be reconciled, however, on the ground that the judge in Dean did not say that the fact-finding on quantity was irrelevant.  Perhaps the lesson for sentencing judges is this: you can skip unnecessary fact-finding, but if you choose to resolve a factual dispute and treat the fact-finding as important to the outcome, then you better find the facts on some more principled basis than splitting the difference.

Second, Dean implicates one of the enduring and powerful criticisms of the federal sentencing guidelines: the guidelines authorize judges to override jury fact-finding.  Thus, for instance, Dean would have faced the exact same sentencing range if the 150 kilos were found by a jury beyond a reasonable doubt as if they were found by a judge using the lower preponderance-of-the-evidence standard.  This approach seems to devalue the constitutional rights of criminal defendants to jury fact-finding beyond a reasonable doubt.  For this reason, there have been repeated calls for the guidelines to be modified so that judges cannot override jury determinations.  A compromise approach would, in effect, split the difference: judges could find facts inconsistent with jury verdicts, but such facts would be given reduced weight in the guidelines calculus.  (This approach has been suggested, for instance, by former Chief Judge Jon Newman of the Second Circuit – one of the most knowledgeable authorities on sentencing on the federal bench.) 

The record in Dean is not entirely clear, but it may be that the sentencing judge was trying to implement just such a weight-reduction concept.  (The judge stated, “It seems reasonable to me to make an adjustment in light of [the jury's] finding.”)  If so, then the judge split the difference not as a matter of convenience, but based on a principled belief about the best way to show respect for important constitutional values in the sentencing process.  Put differently, the judge was making a policy decision, not a decision about historical fact.  (It may seem odd for a judge to make a policy decision, but this is now a permissible aspect of the judge’s sentencing authority under the Supreme Court’s 2007 holding in Kimbrough v. United States.)  If such was the sentencing judge’s intent, then we might think about her decision to “split the difference” in very different terms.  After all, splitting the difference is a common and accepted way of making policy.

The other new Seventh Circuit opinion in a criminal case last week was:

United States v. Hurt (No. 08-2986) (Bauer, J.) (affirming conviction and sentence in drug case).

It has been widely recognized for years that federal sentences for the crack version of cocaine are unjustifiably harsh relative to sentences for the powder version.  As far back as 1995, the United States Sentencing Commission — a body not generally known for its lenience — called for equalization between crack and powder sentences.  However, progress in softening the so-called 100:1 crack-powder disparity has proceeded at a glacial pace.  In 2007, the Commission finally succeeded in reducing (but not eliminating) the disparity as it exists in § 2D1.1 of the sentencing guidelines, but statutory disparities will require congressional action to correct.  Fortunately, a bipartisan House bill cleared subcommittee last week, and the prospects for legislative reform appear unusually strong this term.

 As reformers have argued their case in the Commission and Congress, the 100:1 disparity has collided with the Supreme Court’s reinvigorated Sixth Amendment jurispudence.  In light of constitutional concerns, the Court transformed the sentencing guidelines from mandatory to advisory in 2005.  Then, in 2007, the Court affirmed what should have been obvious (but had been rejected by the Seventh Circuit and other intermediate courts of appeals): the crack-powder disparity contained in § 2D1.1 is no more binding on sentencing judges than any other aspect of the guidelines. 

But the Seventh Circuit remains resistant to the new world of advisory guidelines.  The 100:1 ratio still lives on in § 4B1.1, the career offender guideline.  And, in United States v. Harris, 536 F.3d 798 (7th Cir. 2008), the Seventh Circuit held that district court judges still may not act to correct or soften the crack-powder disparity when sentencing career offenders.  The court reasoned that the disparity in § 4B1.1 was congressionally mandated, while the disparity in § 2D1.1 was not. 

Last week, though, the Seventh Circuit limited the reach of Harris in United States v. Knox (Nos. 06-4101, 06-4376 & 07-1813) (Tinder, J.). 

In Knox, the court held that the crack-powder disparity is not binding on crack offenders convicted of just conspiracy to distribute crack, as opposed to distribution or possession with intent to distribute.  Although conspirators are covered by § 4B1.1, the Commission went beyond what was congressionally mandated in this regard.  Since application of the crack-powder disparity to conspirators is only the Commission’s policy choice, and not Congress’s, it is not binding on sentencing judges.

It strikes me as a bit odd to distinguish between defendants convicted of conspiracy to distribute and defendants convicted of possession with intent to distribute, but I am happy to see further chipping away at the unjust crack-powder disparity.  Better still would be a reversal of Harris.  The basic point of the relevant Supreme Court jurisprudence is that the sentencing guidelines are now advisory.  Period.  It should not matter whether a particular provision of the guidelines was mandated by Congress or not — the whole package is nonbinding. 

Other new criminal cases this past week were:

United States v. Hensley (No. 08-1204) (Manion, J.) (affirming conviction and sentence in solicitation of minor case).

United States v. McNeil (No. 08-1772) (Cudahy, J.) (finding plain error when sentencing court did not supplement presentence investigation report with information regarding status of state sentences).

United States v. Carter (No. 09-1608) (Flaum, J.) (finding that evidence was improperly suppressed by district court; underlying search was illegal, but connection to suppressed evidence too attenuated).

United States v. Alexander (No. 07-3718) (Tinder, J.) (holding that motion to suppress was properly denied by district court).

United States v. Alviar (Nos. 07-2333, 07-2336, 07-2366 & 07-2385) (Flaum, J.) (affirming convictions and sentences of multiple defendants in drug trafficking case).

United States v. Polak (No. 08-3381) (Williams, J.) (upholding appellate waiver’s validity notwithstanding Rule 11 error in acceptance of guilty plea).

Plaintiff Gary Mitchell had a job filming the meetings of his local Board of Commissioners and he also volunteered at the local public access television station. Due to a brouhaha over indecent programming, the Board of Commissioners had proposed to cut public access funding. Commissioner Rhonda Storms was leading the morality crusade, so Mitchell decided to have some fun at her expense. During the open comment period of a supervisors’ meeting, Mitchell took to the podium wearing a beret with a thunderbolt on top and announced that he was a member of a fictitious political support group called the Thunderheads. He then gave a speech praising Storms and concluded with a question: given her preoccupation with women’s body parts, did she prefer the nickname “Vagi” or “Gina”?

I perhaps can understand the efficiency argument in this case (though it is certainly not a slam dunk), but I don’t agree at all that this is not speech on a matter of public concern.  As Robert [Loblaw] points out, that would be like saying Jonathan Swift’s Modest Proposal was really about cannibalism.

The 11th Circuit found that Mitchell’s speech was not a matter of public concern, and even if it was, the efficiency concerns of the employer in ensuring co-worker harmony outweighed any First Amendment rights Mitchell would have had.

Well, the humor of the federal courts has not improved in three years.  Not even in my hometown. 

Witness Milwaukee Deputy Sheriff’s Association v. Clarke, No. 08-3298 (7th Cir., July 21, 2009).  The case also concerns sarcastic remarks by a public employee:

The dispute in this case is what one’s mother might have in mind when she imparts the classic phrase, “Sticks and stones may break my bones, but words will never hurt me.” Apparently, Milwaukee County Sheriff David A. Clarke, Jr., did not take this childhood lesson to heart. In the summer of 2005, Sheriff Clarke posted on a roll-call bulletin board a quote that at least one deputy, Michael Schuh, considered an offensive challenge to his and his fellow officers’ courage. Schuh fired back by publishing a two-sentence statement challenging Sheriff Clarke’s courage. Sheriff Clarke, apparently afraid that words would hurt him, quickly responded by reassigning Schuh to a newly created mission in one of Milwaukee’s most crime-ridden neighborhoods . . . .

We are sympathetic to Schuh’s position, and we consider Sheriff Clarke’s response against Schuh to be excessive. But there are limits to the First Amendment’s protections when a public employee speaks, and because we find that Schuh was speaking on a matter of purely private concern, we agree with the district court that summary judgment in Sheriff Clarke’s favor was appropriate.

The statement, you wonder?

Deputy Schuh’s article mirrored Sheriff Clarke’s quote from Deuteronomy, with a few additions that Moses never uttered while outside of the Promised Land:

Union Member’s Response:

If you are afraid or you have lost your courage and need two deputies and a sergeant to escort you every time you fly in and out of the airport and patrol deputies to drive by your house when you’re out of town you should resign and go home! Then you would lift the morale of this whole department (a.k.a. office).

Now, the comment was clearly made to criticize the Sheriff’s use of police personnel for his own personal business — what could be more about public concern than how the taxpayers money is being used by the Sheriff?  Was the mere sarcastic nature of the remark dispositive in suggesting that the interaction between the Sheriff and his deputy was purely personal?

If the court had allowed this dispute to survive the Connick matter of public concern test, the next step would have been the Pickering balance of the public employee’s right to free speech against the efficiency concerns of the police department.

My own take on this is that it is unlikely that this episode caused that much upheaval in the department since the Sheriff’s practices were already well known. I would have been inclined to find the balance for the employee and held the Department at least liable for the Sheriff’s conduct (whether the Sheriff could qualify for qualified immunity might be a closer question as far as individual liability).

In any event, and as I said three years ago, “One does not need to speak seriously in order to make one’s publicly important point.  Sometime satire is much more powerful and makes that point much more effectively.”

Hat Tip: Victor Forberger

Cross-Posted on Workplace Prof Blog.

In January 2003, Milwaukee police officers found two guns in the home of the estranged wife of Rashid Salahuddin.  Salahuddin himself was arrested shortly afterwards.  Now, more than six years later, after many rounds of legal proceedings in state and federal court, Salahuddin still awaits final resolution of criminal charges stemming from the discovery of the guns.   

In October 2008, Judge J.P. Stadtmueller of the Eastern District of Wisconsin summoned the United States Attorney and the Federal Defender to his office for an off-the record conversation about the case, which he characterized as “a total breakdown of justice.”  Following this conversation, the government asked Stadtmueller to recuse himself from the case.  When Stadtmueller refused, the government initiated proceedings in the Seventh Circuit to compel the district judge’s removal. 

The Seventh Circuit has now agreed with the government that Stadtmueller’s statements at the October 2008 meeting required his recusal.  In re United States of America (No. 09-2264) (Ripple, J.). 

The case raises two questions in my mind.  First, was  there indeed a “total breakdown of justice” in Salahuddin?  And, second, what is the broader significance of the Seventh Circuit’s decision for the way judges and prosecutors interact?

“Breakdown” may not be much of an exaggeration.  Not only has there been an extraordinary lapse of time from the initial arrest without any resolution of the charge (felon in possession of a firearm), but the case’s history has also included some other troubling features.  For instance, prosecutors only initiated federal proceedings after the same charge (felon in possession) was dismissed in state court for lack of probable cause.  It is always questionable for the feds to take over a case following a failed state prosecution; such recharging smacks of forum-shopping and raises the same fundamental fairness concerns that animate the Double Jeopardy Clause (although the Clause has – unfortunately, in my view – been interpreted so as to give very wide latitude for successive state-federal prosecutions).  To be sure, there are some unusual circumstances where reprosecution seems justified, as when sham prosecutions of crimes against African-Americans and civil rights workers were conducted in state courts in the South of an earlier era.  Perhaps there were comparable special circumstances in Salahuddin, but it is not clear what they were.

Another troubling feature of the case is the government’s attempt to have Salahuddin sentenced under the Armed Career Criminal Act, which would result in a mandatory minimum sentence of fifteen years.  To be sure, Salahuddin does have a long rap sheet.  But a fifteen-year mandatory minimum seems at least questionable for what appears to be a marginal felon-in-possession charge (remember, the guns were found in the estranged wife’s house, not on or near Salahuddin’s person and not during the commission of a crime).  Indeed, after federal charges were filed, the assistant United States attorney on the case sent a letter to Salahuddin’s attorney indicating that Salahuddin did not qualify as an armed career criminal.  It was only after Salahuddin pled guilty and was awaiting sentencing that the government changed its position and informed Salahuddin that it was seeking the ACCA fifteen-year minimum.  Given that crucial change in his sentencing exposure, Salahuddin was properly permitted to withdraw his guilty plea.  Thus was lost an opportunity to resolve the case more than three years ago.

Since then, the case has bounced around the chambers of practically every judge and magistrate judge in the Eastern District and made two trips to the Seventh Circuit. 

In fairness to the government, I know nothing about the case beyond the information that is contained in the (unusually long) fact section of the Seventh Circuit’s latest opinion.  It is entirely possible that there are compelling circumstances in this case that warrant federal reprosecution following a state court’s finding of no probable cause, the imposition of a fifteen-year mandatory minimum prison term, and the extraordinary investment of prosecutorial and judicial resources required by four years of federal litigation (and counting).  But it does not strike me as unfair for citizens (and taxpayers) to question whether the case has been handled appropriately.

May the presiding judge, however, raise this question?  The Seventh Circuit said no, at least in the specific context of the October 2008 meeting in chambers: “We must conclude that the Judge’s actions, assessed in their totality, are such that a reasonable, well-informed observer would question his partiality” (24).  The court took care, though, to emphasize it was not finding that Judge Stadtmueller was biased, only that a hypothetical reasonable observer would question his partiality.

With the holding presented this way, it is hard to know what to make of it.  There is no bright-line rule – just one panel’s conclusion about how an imaginary “reasonable, well-informed observer” would react to one rather unusual and convoluted fact pattern.

But I do have some misgivings about the potential chilling of judicial commentary on the charging and plea-bargaining practices of prosecutors. 

Yes, Federal Rule of Criminal Procedure 11(c)(1) prohibits judges from “participat[ing] in [plea] discussions.”  And, yes, the Seventh Circuit seemed to base its holding, in part, on a conclusion that Judge Stadtmueller violated Rule 11 by recommending a particular plea deal at the October meeting.  But it is hardly self-evident that the judge was “participat[ing] in [plea] discussions” when he was having a private conversation with supervisory personnel, not the line attorneys assigned to the case, and when, to all appearances, the case was headed for trial.

And, in any event, it is clear that the Seventh Circuit’s concerns were not limited to Rule 11 and the recommendation of a plea deal:

Here we must conclude that the Judge did more than simply participate in a plea bargain.  He questioned the Government’s decision to prosecute the matter as a federal case in terms that a reasonable observer might well interpret as critical of the Government’s position in the case.  (21)

 The Seventh Circuit characterized the judge’s criticism as tantamount to a violation of separation of powers:

[T]he Judge questioned why this case was accepted for federal prosecution, expressed concern abut the time that had passed between Mr. Salahuddin’s initial arrest and the commencement of federal proceedings, and suggested that this case was an embarrassment to the justice system and an inefficient allocation of taxpayer resources. . . .

In expressing these views and insisting that action be taken to conform the future course of litigation to those views, the Judge misapprehended the limits of his authority as the presiding judicial officer and undertook to participate in determinations that are in the proper domain of the Department of Justice. . . . Judges do not possess, and should not attempt to exercise, prosecutorial discretion.  (22-24)

It is surely an overstatement to equate the mere articulation of views by a judge “that are critical of the Government’s position in the case” with an “attempt to exercise prosecutorial discretion,” but there is a risk that the Seventh Circuit’s opinion will be understood along those lines.  And I do think it would be unfortunate if judges felt precluded from commenting critically on the way that prosecutors exercise discretion. 

Properly understood, separation of powers does not involve hermetically sealed branches of government, but a dynamic system of interbranch checks and balances that helps to protect individuals from arbitary government action and assures that elected and unelected officials face some measure of public accountability for their decisions.  In recent years, much critical scholarly attention has been focused on the high levels of discretionary power and low levels of transparency and accountability enjoyed by unelected federal prosecutors.  It is very difficult for members of the lay public to understand the full range of charging and plea-bargaining options available to federal prosecutors and to evaluate the quality of the decisions they make.  To be sure, if prosecutors occasionally abuse their power, defense lawyers can call them on it, but defense lawyers have limited credibility with the public and, in any event, must always think carefully about the effect of public criticism on their ability to deal in favorable ways with prosecutors in the future.  District judges are thus uniquely well situated to deliver well-informed, independent, credible criticism when prosecutors exercise their awesome discretionary power in ways that are unfair or arbitrary.  And district judges around the country do make headlines from time to time by delivering just such criticism, for instance, when rejecting proposed plea deals. 

Moreover, while I think about these things primarily in terms of public accountability, even private admonishment (like that delivered by Judge Stadtmueller) has a potentially helpful role to play.  Jury trials are often said to provide a feedback mechanism for prosecutors: if prosecutors charge a case that should not be charged (even if the defendant did technically break the law), the jury can signal its disapproval through acquittal.  But criminal jury trials have become a rare occurence in federal court.  In the absence of jury feedback, judicial feedback may perform a similar function.

With all that in mind, I hope that In re United States will be understood, not as a general discouragement of judicial commentary on prosecutorial performance, but as a narrowly focused response to a specific, highly unusual set of facts. 

Other new criminal cases this past week were:

United States v. Calabrese (No. 08-2861) (Evans, J.) (affirming gangster’s conviction and sentence, with generous sprinkling of references to “the 1990 movie classic Goodfellas”).

United States v. York (No. 07-2032) (Tinder, J.) (holding that improper admission of “dual” testimony was harmless error).

United States v. Quintero (No. 08-4033) (Bauer, J.) (holding that addition of forfeiture order to sentence was merely correction of clerical error, which could be done at any time).

United States v. Terry (No. 08-3411) (Kanne, J.) (affirming denial of motion to suppress over defendant’s objection that his phone number was illegally obtained and monitored).

In 2006, Jarrett James robbed the same bank in Middleton, Wisconsin, on two different occasions, getting away with about $120,000.  He was later apprehended, convicted in federal court, and sentenced to 42 years in prison.  His appeal centered on the government’s warrantless seizure of a safe from his mother’s home.  The safe contained a gun matching a description of the weapon used in one of the robberies.  When the government sought to use the gun as evidence against him at trial, James argued unsuccessfully that the gun should be suppressed because it was obtained in violation of his Fourth Amendment protection against unreasonable searches and seizures.

In United States v. James (No. 08-3327), the Seventh Circuit (per Judge Flaum) also rejected the Fourth Amendment claim and affirmed James’ conviction.  Specifically, the court held that the seizure complied with the Fourth Amendment because James’ mother consented to a police officer taking the safe.  The holding is notable because James’ mother never expressly agreed to the seizure; the case thus illustrates circumstances in which Fourth Amendment consent may be inferred from silence.  The case also raises interesting questions regarding the mother’s motivations and the underlying parent-child dynamics.

With James a suspect in the two Middleton bank robberies, detective Darrin Zimmerman interviewed James’ mother, Linda Martin, in October 2006.  Martin informed Zimmerman that James was in police custody in Nebraska on another charge.  A week after this interview, Martin called Zimmerman to tell him that she had received a letter from James regarding a gun in a safe at her house.  Martin stated that she would not open the safe until police came over.  (Here, I wonder about the apparent betrayal of trust in the parent-child relationship.  Nothing in the Seventh Circuit opinion sheds much light on Martin’s motivations.  This was perhaps one of those wrenching cases of conflict between a person’s duties as citizen and as parent.)

Zimmerman proposed that he come to her house, and Martin did not object.  When he arrived, she showed him where the safe was.  (We are told that Martin’s lawyer was also present; I’m mystified as to why she retained a lawyer — perhaps it is an indication that she was having second thoughts about assisting the police gather evidence against her son.)  When Zimmerman stated his intention to seize the safe immediately and obtain a warrant to search its contents later, Martin and her lawyer remained silent.  Later, Martin provided Zimmerman with the keypad code for the safe.

In addressing James’ Fourth Amendment claim, the Seventh Circuit noted that third-party consent is a well-recognized exception to the general rule that police must obtain a warrant prior to seizing evidence.  Martin had legal authority to consent to the seizure because James permitted her to exercise control over the safe.  And she did give implied consent, the court decided, through her phone call to Zimmerman, by leading Zimmerman to the safe, and by failing to object to Zimmerman’s stated intention to seize the safe.

Other new criminal cases last week were:

United States v. Moore (No. 07-3978) (Tinder, J.) (evidence was sufficient to support defendant’s bank robbery conviction).

United States v. Brown (No. 08-2273) (Tinder, J.) (district court unambiguously accepted plea agreement).

United States v. Kincaid (No. 08-1953) (Ripple, J.) (defendant waived right to present Commerce Clause issue on appeal).

United States v. Lauderdale (No. 08-2428) (Bauer, J.) (district court did not abuse discretion in refusing to grant mistrial based on alleged prosecutorial misconduct).

Myers was tried on arson charges.  During closing arguments, defense counsel highlighted the fact that gasoline was not found by investigators on the floor of the building that Myers allegedly burned down.  In response, the prosecutor stated:

[A]ny speculation on the part of [defense counsel] about why or why there wasn’t gasoline can be easily explained by the fact that there were firefighters that were in there that night trying to extinguish that fire with water.  Water has a tendency to sweep through and remove all sorts of different things that might have been on the ground.  So, ladies and gentlemen, that’s an easy explainable different part of what [defense counsel] was trying to suggest.

On appeal following his conviction, Myers challenged this statement as prosecutorial misconduct. 

In addressing Myers’ argument, the Seventh Circuit noted that the government was free to argue “the mere possibility that water could have cleaned or diluted the surface of the carpet.”  The problem was that “the government did not couch its argument in such hypothetical terms.” 

The Seventh Circuit observed:

[T]he government stated that the absence of gasoline was “easily explained” by the water from the fire hoses and that water “has a tendency” to “remove all sorts of different things” from the ground.  In other words, the government may have crossed the line from suggesting that such a hypothetical event occurred to vouching for the fact that it did occur.

Although the court seemed uncomfortable with the prosecutor’s statement – ”this remark would have been better left unsaid” – the court nonetheless affirmed Myers’ conviction because Myers was unable to demonstrate prejudice.  The evidence against him was strong, the questionable statement was only tangential to the government’s case, and Myers’ lawyer invited the remark by arguing the absence-of-gasoline point — all of these considerations cut against him in the prejudice analysis. 

Other new opinions in criminal cases this past week were:

United States v. Huffstatler (No. 08-2622) (per curiam) (affirming sentence in child pornography case).

United States v. Cole (No. 06-2547) (Sykes, J.) (affirming validity of appeal waiver and dismissing appeal).

United States v. McGraw (No. 08-2705) (Sykes, J.) (affirming decision that defendant voluntarily consented to search).

First, the Seventh Circuit agreed with the government that the expense and stress of protracted litigation could not be considered as a mitigating factor for Presbitero.  Since Presbitero spent almost ten years (!) defending charges brought by the government, it is hard to see how anyone could qualify for a sentence reduction based on the burdens of protracted litigation if he does not.  The court cited concerns about encouraging defendants to overspend on expensive lawyers as a reason not to treat litigation costs as a mitigating factor.  There would also be equitable concerns in giving a sentence benefit to defendants who are able to spend a lot of money on private lawyers.  Still, I wonder if the court has given too little regard to the nonfinancial toll of litigation.  In some cases, as Malcolm Feeley famously observed in a book of the same title, “the process is the punishment.”  Although lawyers may make neat distinctions in their heads between the process by which guilt is determined and the punishment imposed afterwards, many defendants surely experience the process as deeply traumatic and stigmatizing in its own right.  In extreme cases, it may not be inappropriate to reduce the length of the formal sentence in recognition of the fact that the defendant has already suffered a great deal prior to the imposition of the sentence. 

Second, the Seventh Circuit rejected the government’s contention that Presbitero’s “obstinate behavior” should have been considered an aggravating factor. 

By “obstinate behavior,” the government apparently meant the defendant’s failure to make a personal expression of contrition at sentencing; rather than exercising his right to allocute, the defendant chose not to add anything to what his lawyer said.  The Seventh Circuit was properly skeptical that this was truly “obstinate,” and distinguished the case from others in which the defendant has continued to assert his innocence at sentencing.  Even in the latter cases, the court indicated that a lack of contrition could be, but is not required to be, treated as an aggravating factor. 

Finally, the Seventh Circuit rejected the government’s argument that Presbitero’s age (65) could not be considered a mitigating factor.  Thus, the district court did not abuse its discretion in finding that the defendant’s age, in combination with other factors, made him unlikely to recidivate.

Other criminal cases last week were:

United States v. Heckel (No. 07-3514) (Sykes, J.) (affirming sentence over various objections; district court correctly applied “mass-marketing” enhancement under sentencing guidelines).

United States v. Griggs (Nos. 06-4211, 06-4212, 06-4271, 07-1940, 07-2012) (Posner, J.) (in trial on conspiracy charges, jurors need not agree on a single overt act).

United States v. Hoke (No. 08-3883) (Ripple, J.) (district court did not abuse discretion in refusing to permit defendant to withdraw his guilty plea; defendant’s right to allocute not violated).

United States v. Taylor (No. 07-4013) (Kanne, J.) (district court did not abuse discretion is declaring mistrial).

United States v. Dodds (No. 08-2458) (Rovner, J.) (affirming various evidentiary rulings by district court).

United States v. Severson (No. 08-1508) (Bauer, J.) (affirming sufficiency of evidence to support conviction on fraud charges, jury instruction, and sentence).

But was his violation truly “willful”?  On appeal, the government conceded that ”willfully” means “with knowledge that a license is required,” but argued that the evidence established Pulungan had this knowledge.  The government relied chiefly on Pulungan’s dishonesty with business associates about what he intended to do with the riflescopes and his intent to violate the nonexistent embargo.  But Pulungan’s dishonesty is readily explained by his belief that he was violating the wrong law.  Thus, as the Seventh Circuit saw it in United States v. Pulungan (No. 08-3000), the government was really invoking the doctrine of transferred intent: “As the prosecutor sees things, an intent to violate one law is as good as the intent to violate any other.”  The court, per Chief Judge Easterbrook, was unmoved by this use of the transferred intent doctrine and overturned Pulungan’s conviction. 

Those who have taken first-year Criminal Law will recognize the transferred intent doctrine from their study of homicide.  The Seventh Circuit used this illustration: “If you set out to kill A by poisoning his whiskey, and B drinks from the glass first and dies, you are guilty of B’s premeditated murder: The intent to kill A is ‘transferred’ to B’s death.”  But this transfer occurs within a single type of offense: both the crime intended and the crime charged are murder.  The Seventh Circuit observed, “So far as we can tell, however, transferring intent from one genus of offense to another has never been permitted.”

Although casting doubt on the government’s attempt to expand the transferred intent doctrine, the Seventh Circuit did not ultimately have to reject it.  Since the government was obligated to show not only an intent to break the law, but also knowledge of the law’s coverage, the transfer of intent to violate the embargo would not in and of itself satisfy the government’s burden.  The only evidence the government had of knowledge that the riflescopes were regulated as “defense articles” was that Pulungan’s supplier stated on its website, “We cannot export this item outside the U.S.”  But, the Seventh Circuit noted, there might have been other reasons why the supplier had a restricted territory besides defense export laws; for instance, the manufacturer might have contractually limited the rights of different wholesalers to sell within particular territories.  The court thus concluded that no reasonable jury could infer from a “USA-only shipping label on a commercial website that a would-be buyer knows that the item is . . . a ‘defense article.’”

Pulungan thus stands as a nice illustration of a court carefully parsing the evidence to determine whether the government has actually satisfied the particular state-of-mind requirement of the law under which the defendant has been charged.  One sometimes gets the sense that judges and jurors may be a little too quick to find the requisite mens rea in cases in which defendants have acted in a sneaky or dishonorable manner.  (I blogged about such a case here.)  But, of course, it is not per se a crime to act dishonorably — even if one mistakenly thinks one is violating the law.  It is good to see a court taking care to ensure that a defendant is not punished for the wrong reasons.

(I might also note that Pulungan is a good counterexample to the criticism, discussed in this post, that federal appellate courts are preoccupied with law-declaration to the detriment of careful error-correction.) 

Other new opinions in criminal cases this week were:

United States v. Douglas (No. 08-2655) (Kanne, J.) (affirming sentence in drug case).

United States v. Turner (No.  08-2413) (Kanne, J.) (affirming another sentence in drug case).