Seventh Circuit Week in Review, Part I: Search & Seizure, Interrogation, and Sentencing

Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Seventh Circuit

The Seventh Circuit had a busy week, with seven new opinions in criminal cases.  Two dealt with the same question of what constitutes a criminal attempt to entice a minor to engage in sexual activity.  I’ll discuss those two opinions in a separate post.  The remaining five, considered below, addressed a diverse range of issues relating to Fourth Amendment rights, police interrogation, and the application of the federal sentencing guidelines.

In United States v. Budd (No. 08-1319), the defendant was convicted of possessing child pornography on his home computers.  After Budd left one of his computers at a shop for repairs, a shop employee found a file titled, “A Three Year Old Being Raped,” and reported the matter to police.  An officer took custody of the computer, but police otherwise did almost nothing on the case for the next month.  Eventually, Budd contacted the police department himself to report what he believed to be the theft of his computer by the repair shop.  Budd’s phone call led to his interrogation at the police station, a search of his apartment (where another computer was found), and (finally) a search warrant for the computers.  After he was charged, Budd moved to suppress incriminating statements he made to police, as well as images found on the computers, contending that these were all “fruits of the poisonous tree” of the illegal seizure of the first computer.  The district court denied the motion. 

On appeal, Budd again argued that the incriminating statements and images were illegally obtained in violation of his Fourth Amendment rights.  The Seventh Circuit (per Judge Bauer) was willing to assume for the sake of argument that the seizure of the first computer was illegal because the computer was held for an unreasonably long time before a search warrant was obtained.  Nonetheless, the court affirmed Budd’s conviction, holding that the “poisonous tree” doctrine did not extend to the incriminating statements and images.  Although police may have obtained the statements and images as a result of an illegal seizure, the “poisonous tree” doctrine requires more than “but-for” causation.  Here, the police were not attempting to exploit the illegal seizure — they were just too busy to act more quickly — and Budd himself initiated the communications that resulted in his incriminating statements.  Also, Budd voluntarily consented to the search of his apartment, and a search warrant was eventually obtained for the computers.  Taking these and other facts into account, the court concluded that suppression was not required.

In United States v. Jackson (No. 08-1421), the defendant’s supervised release was revoked as a result of two DWI convictions.  The sentencing guidelines recommended a range of 27-33 months of imprisonment for a defendant who was revoked after committing a new “crime of violence.”  Following Seventh Circuit precedent, the district court determined that DWI was a crime of violence and sentenced Jackson to 27 months.  After this decision, however, the Supreme Court held in Begay v. United States, 128 S. Ct. 1581 (2007), that DWI is not a crime of violence.  (For my take on Begay, see this post.)  Thus, Jackson argued on appeal that his sentence was excessive.  However, the sentencing judge (aware that Begay was pending) had made clear that he would have imposed 27 months even without the guidelines recommendation.  In light of this record, as well as the high level of discretion accorded the sentencing judge in imposing a new prison term after revocation, the Seventh Circuit (per Judge Coffey) affirmed.

In United States v. Bruce (No. 07-3675), the defendant appealed his conviction and sentence for possession with intent to distribute crack.  After drugs were found at his girlfriend’s house, Bruce was interrogated by Madison, Wisconsin, police officers.  Although the officers recorded the first part of the interrogation, they turned the recorder off midway through the questioning, in apparent violation of Wisconsin law.  Later, in Bruce’s federal prosecution, statements from both the recorded and unrecorded portion of the interrogation were used against him.  On appeal, Bruce argued that the jury should have been instructed to view the post-recording statement “with caution” because of the state-law violation.  However, the Seventh Circuit (per Judge Ripple) ruled that, because federal law does not require the recording of interrogations, the state-law violation was “irrelevant” to the federal prosecution and no instruction on state law was required.

Bruce fared better with the appeal of his sentence.  Bruce was sentenced under the controversial crack sentencing guideline, which treats crack offenses much more harshly than powder cocaine offenses.  However, between the time of his sentencing and his appeal, the Supreme Court ruled in Kimbrough v. United States, 128 S. Ct. 558 (2007), that district court judges may decline to follow the crack guideline even in routine cases.  Thus, the Seventh Circuit had to determine whether Bruce sufficiently preserved the issue at his original sentencing so as to merit a resentencing in light of Kimbrough.  Although Bruce’s lawyer at sentencing did not specifically discuss the crack-powder disparity (an important basis for the holding in Kimbrough), the Seventh Circuit found it was enough that Bruce’s lawyer mentioned a then-pending amendment to the crack guideline intended to reduce the disparity.  As a result, Bruce’s sentence was vacated and the case remanded for resentencing. 

In United States v. Bangsengthong (No. 08-1389), the district court judge imposed an 88-month sentence to run consecutively with a state prison sentence the defendant was already serving.  On appeal, Bangsengthong argued that the sentencing judge instead should have imposed a concurrent sentence.  In rejecting this contention, the Seventh Circuit (per Judge Easterbrook) emphasized the discretionary nature of the consecutive/concurrent decision, especially in the wake of United States v. Booker, 543 U.S. 220 (2005).  However, the court indicated that what the sentencing judge did in this case should not be viewed as the best approach: “Instead of relying on costly guesswork about what will happen to the state sentence, a federal judge generally should impose the sentence appropriate under federal law, to run concurrently with the state sentence . . . .”

In United States v. Dean (No. 07-3627), the defendant, convicted of being a felon in possession of a firearm, challenged the district court’s refusal to suppress the incriminating gun found in his home.  The police officers who searched the home testified that Dean orally consented to the search, while Dean testified that he did not.  In such a pure credibility contest, the district court’s decision to believe the officers was highly unlikely to be reversed on appeal.  And, as expected, the Seventh Circuit (per Judge Coffey) affirmed.

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