Seventh Circuit Week in Review: A Good Week for Defendants

The Seventh Circuit had two new opinions in criminal cases last week, both of which delivered partial wins to the defendant.  In United States v. Colon (No. 07-3929), the defendant was arrested after purchasing cocaine from two sellers, Saucedo and Rodriguez, who happened to be under police surveillance at the time.  Colon was then charged and ultimately convicted of (1) possessing cocaine with intent to distribute, (2) conspiring with Saucedo and Rodriguez to distribute cocaine, and (3) aiding and abetting the conspiracy.  However, the Seventh Circuit (per Judge Posner) ultimately found that the evidence did not support convictions on the latter two charges. 

Criminal law students (at least my criminal law students) will immediately recognize the basic legal issue: when does a buyer-seller relationship give rise to conspiracy and complicity liability? 

The classic case I teach is People v. Lauria, 59 Cal. Rptr. 628 (Cal. App. 1967).  Lauria ran a telephone answering service that included several prostitutes among its clientele.  Based on his knowledge of this fact, Lauria was charged with conspiracy to commit prostitution.  The court dismissed the charge, however, based on the principle that merely selling a service to someone who uses the service to commit a crime is not enough to make the seller guilty of conspiracy to commit the crime.

Colon was in a somewhat different position than Lauria: Colon was a buyer, not a seller, and what he bought (cocaine) was not something that he could use for lawful purposes (unlike answering services).  Still, the Seventh Circuit  (here quoting an earlier Eleventh Circuit opinion) relied on essentially the same principle as the Lauria court:

[W]hat distinguishes a conspiracy from its substantive predicate offense is not just the presence of any agreement, but an agreement with the same joint criminal objective  — here the joint objective of distributing drugs.  The joint objective is missing where the conspiracy is based simply on an agreement between a buyer and a seller for the sale of drugs.  Although the parties to the sale agreement may both agree to commit a crime, they do not have the joint criminal objective of distributing drugs.

The government tried to show that such a “joint criminal objective of distributing drugs” existed because Colon intended to distribute the cocaine to others — in effect, he was a retail seller purchasing from a wholesaler — and he conducted “regular, standardized transactions” with Saucedo.  However, the Seventh Circuit rejected the suggestion that a wholesaler-retailer transaction gives rise to per se conspiracy liability, and dismissed the significance of the regular, standardized transactions: “If you buy from Wal-Mart your transactions will be highly regular and utterly standardized, but there will be no mutual trust suggestive of a relationship other than that of a buyer and seller.”  (Wal-Mart might dispute that its relationships with its customers are so purely mercenary and lack “mutual trust,” but Wal-Mart was not a party to the litigation — look for an amicus brief the next time this issue comes before the Seventh Circuit!)

As the court indicated, the case law suggests that a conspiracy conviction requires evidence of greater trust or mutual support than is found in a typical buyer-seller relationship, for instance, evidence of sales on credit or assistance in finding new customers.  Since such evidence was lacking in Colon, the conspiracy conviction could not stand.  The aiding and abetting charge also fell for similar reasons.

In the week’s second new case, United States v. Podhorn (No. 06-2139), the defendant was convicted of various charges in connection with his unlawful sales of firearms.  He raised a number of issues on appeal, including whether key evidence against him had been obtained in violation of his constitutional rights.  However, Podhorn had consented to the search that produced the evidence, and the Seventh Circuit found no basis to conclude that the consent was involuntary.  In this regard, the court observed that Podhorn had attended law school for two years, which was presumably relevant — the court was not entirely clear on this point — because it indicated Podhorn had the capacity to invoke his rights in the face of police pressure.  (I wonder now if some variation on the Miranda warnings ought to be given to students on their first day of law school: “Any knowledge you acquire in law school may be used against you in a court of law.”)

Although Podhorn’s conviction was affirmed, he did win a resentencing.  Under the federal sentencing guidelines, his sentence had been increased because some of the weapons he illegally sold were stolen.  However, two of his convictions were for the crime of selling stolen firearms; his sentence thus already took into account the stolen firearms, and the district court’s use of the stolen-firearm enhancement was impermissible double-counting.

The more interesting and significant sentencing question was whether Podhorn’s sentence could be enhanced under a different provision of the guidelines that increases punishment where the defendant “abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense.”  Podhorn lost on this issue, but seemingly because he framed it in an odd way based on how the “special skills” enhancement was presented to the jury.  The difficult question lurking in the background — not really addressed by the majority opinion, but thoughtfully explored in a concurring and dissenting opinion by Judge Ripple — was whether a licensed firearms dealer (as Podhorn was) necessarily qualifies for the “special skills” enhancement by violating the terms of his license (as Podhorn did).  This would only be so if giving a license is the same thing as putting a person in a “position of public trust.”  As Ripple demonstrates, however, the term is defined in the sentencing guidelines such that it should only apply to people who have discretionary power.  Ripple goes on to show that federal regulations actually leave licensed firearms dealers with very little discretion.  Based on his analysis, I would hope that the majority opinion will not be viewed as precedent for treating license violations as the basis for a special skills enhancement.

One final note unrelated to the substance of this week’s opinions: readers of this regular weekly feature may have noted difficulties in the past with using the links I provide to the Seventh Circuit opinions discussed.  I have recently learned how to fix this problem, so this week’s and last week’s links should be dependably functional.  I hope to fix the links in earlier installments some time in the next week or so.

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