The Seventh Circuit had a busy week, with six new opinions in criminal cases. The government won all six. I’ll provide just a brief description of each. At the outset, though, it is interesting to note that five of the six involved gun charges. Even in the wake of the Supreme Court’s recognition of an individual constitutional right to possess firearms in District of Columbia v. Heller, 128 S.Ct. 2783 (2008), it still appears to be business as usual in the world of gun prosecutions.
In United States v. Whitaker (No. 08-1259), the court (per Judge Ripple) affirmed the defendant’s conviction of being a felon in possession of a firearm. On appeal, Whitaker argued that his Fourth Amendment rights had been violated by the search of his car that turned up the incriminating firearm. The search followed two 911 calls, in which tipsters alerted police to an altercation in a parking lot. One of the tipsters further indicated that a man involved in the altercation was carrying a gun. When police officers arrived on the scene, they found Whitaker and (after a search of Whitaker’s nearby parked car) the gun. In seeking to have the gun suppressed, Whitaker relied on Florida v. J.L., 529 U.S. 266 (2000), in which the Supreme Court held that stopping an individual solely on the basis of an anonymous tip usually falls beyond the bounds of reasonableness. However, the Seventh Circuit distinguished J.L. based primarily on the fact that the tipsters in Whitaker alterted police to an ongoing altercation; “when the police respond to an emergency as a result of a 911 call, the exigencies of the situation do not require further pre-response verification of the caller’s identity before action is taken.”
In United States v. Brandt (No. 08-1215), the court (per Judge Kanne) affirmed the defendant’s conviction for making false statements to a federal agent in connection with a gun investigation. The court reserved for another day the interesting question of whether the false statement statute requires the government to prove that the defendant knew it was illegal to lie to a federal agent. Instead, the court held the evidence sufficient to establish that Brandt did have such knowledge, thereby providing a basis to affirm Brandt’s conviction even if his interpretation of the statute were accepted.
In United States v. Franklin (No. 06-4109), the court (per Judge Flaum) affirmed the defendant’s conviction and sentence on drug trafficking and gun charges. The court held that the defendant’s guilty plea to a violation of 18 U.S.C. § 924(c)(1) was not rendered invalid by the failure of the indictment to specify that an element of the crime is carrying a gun “in relation to” a drug crime. The court also rejected the defendant’s argument that his right to counsel was violated when he was not represented at court hearings on his lawyer’s motion to withdraw from the case.
In United States v. Miller (No. 08-1069), the court (per Judge Easterbrook) affirmed two defendants’ convictions and sentences under the felon-in-possession statute. The most interesting issue in the case was whether one defendant (Miller) qualified for a sentence reduction under a provision of the federal sentencing guidelines that covers gun defendants who “possessed all . . . firearms solely for . . . collection” (§ 2K2.1(b)(2)). The district court judge refused to apply this provision because Miller had sold some of his guns and used the proceeds to buy others. The Seventh Circuit, however, rejected the proposition that sales automatically take a defendant outside the category of “collector”: “Collectors — whether of coins, stamps, baseball cards, comic books, paintings, or guns — regularly buy and sell in order to shed duplicates or less desirable items and acquire replacements that they value more highly.” Miller nonetheless failed to qualify for the collector reduction because he conceded that he kept one of his 34 guns in the house for security against intruders; thus, on a literal reading of the gun collector guideline, not “all” of the firearms were possessed for collection.
In United States v. Castaldi (No. 07-3452), the court (per Judge Flaum) affirmed the defendant’s conviction of mail fraud and embezzlement over various sufficiency of the evidence challenges and objections to evidentiary rulings at trial.
In United States v. Jackson (No. 07-2421), the court (per Judge Tinder) upheld a defendant’s above-guidelines sentence, which had been justified by the district court judge based on the defendant’s “astounding” criminal history. Of greatest concern to the Seventh Circuit panel was the sentencing judge’s failure to address the defendant’s argument that his “borderline intellectual functioning” should be regarded as a mitigating factor. Judge Tinder affirmed that “diminished mental capacity is a ground of recognized legal merit in seeking a lower sentence,” and that a “district court’s failure to even mention such an argument sometimes requires a remand for resentencing.” Jackson was not entitled to a remand, however, because his diminished capacity argument “was neither fully developed nor supported by a compelling factual basis.”
This is part of an ongoing series of weekend posts reviewing new Seventh Circuit opinions in criminal cases.