Seventh Circuit Week in Review: What Do a MySpace Predator, an Unrepresented Corporation, and a Pair of Meth Traffickers Have in Common?

Answer: They all lost their appeals in the Seventh Circuit last week.  In fact, our diligent Seventh Circuit judges issued five new opinions in criminal cases last week, and the defendants lost in all of them.  Here are the highlights:

In the MySpace case, United States v. Morris (No. 08-2329), the defendant attempted to contact a minor through the minor’s MySpace page.  The minor’s mother responded by creating her own MySpace page, in which she posed as a 15 year old, and began a series of communications with the defendant.  After the mom agreed to have sex with him, Morris mailed a bus ticket to her so that they could meet.  The mom reported Morris to the FBI, resulting in his arrest and prosecution.  After his conviction for attempting to transport a minor across state lines to engage in illegal sexual conduct, Morris raised a single issue on appeal: that the person he intended to transport across state lines was neither a minor nor a law enforcement officer posing as a minor, but a private citizen conducting her own sting operation.  However, it is well established in such cases that the defendant has no defense if his intended victim is really an undercover law enforcement officer, and the Seventh Circuit (per Judge Posner) found no basis for distinguishing undercover private citizens: in either situation, the criminal justice system appropriately punishes the defendant for his demonstrated dangerousness. 

The court did recognize, however,

a legitimate concern with vigilantism — with private citizens conducting stings without the knowledge or authorization of the authorities.  The vigilantes’ aim might be to blackmail any offender whom they detect . . . . Or they might botch their investigation, alerting the offender in time for him to elude justice.

The court also observed that the Internet has enabled private stings in new ways, and (citing the group “Perverted Justice”) suggested that they may become more common.  The court concluded, however, that any concerns regarding vigilante abuses should not be addressed by giving their targets defenses, but by imposing criminal liability on the overreaching vigilantes themselves (e.g., through solicitation laws).

In United States v. Hagerman (Nos. 07-3874 & 07-3875), the court decided a novel, if obscure, question of law: what happens if a corporate criminal defendant fires its lawyer after an appeal has been fully briefed and fails to hire a new one?  This is a problem because corporations are not permitted to litigate pro se in federal court.  The Seventh Circuit (per Judge Posner) ruled that the court may, but is not required to, dismiss the appeal under such circumstances.  in this case, since the appeal was already fully briefed and the issues clear, the court chose not to dismiss the appeal, but to decide the case (against the defendants) on the merits.

In United States v. Prieto (Nos. 07-3484 & 07-3485), the court (per Judge Manion) rejected a grab-bag of evidentiary objections made by the defendant meth traffickers.

In United States v. Hearn (No. 07-1613), the court (per Judge Ripple) responded to petitions for rehearing in a case that it decided last summer, denying the defendant’s petition and granting the government’s.  Hearn, convicted of possession of crack with intent to distribute, sought a rehearing as to the use of a prior conviction as evidence against him at trial.  As I observed in a recent post, prior convictions issues have been presented in several recent Seventh Circuit cases, resulting in a series of decisions that are neither entirely satisfactory nor entirely consistent with one another.  In general, though, it seems in the recent cases as if the Seventh Circuit will affirm the use of prior drug trafficking convictions in a new drug trafficking trial as long as there is any plausible basis for concluding that intent was at issue in the new trial.  Thus, in denying Hearn’s petition for rehearing, the court relied mainly on the fact that Hearn’s counsel had “questioned the Government’s proof on the issue of intent on a number of occasions in his opening and closing statements.”  Defense lawyers take note: beware of saying the word “intent” at trial if you hope to keep your client’s criminal history out of the evidence!

In granting the government’s petition for rehearing, the Hearn panel determined that it had incorrectly remanded the case for resentencing the first time around.  As a crack defendant, Hearn sought to take advantage of the Supreme Court’s 2007 decision in Kimbrough v. United States, which held that the crack sentencing guidelines are not binding even in routine cases.  Although the Seventh Circuit has been granting Kimbrough remands as a matter of course in cases in which the issue was properly preserved, the government objected in Hearn’s case because he was sentenced under the career offender guideline, which may trump the crack guideline where it is applicable.  Other Seventh Circuit decisions have denied Kimbrough remands to career offenders, and the Hearn panel, on rehearing, agreed that crack defendants sentenced as career offenders do not generally qualify for resentencing.

Finally, in United States v. Wayland (No. 08-2194), the court addressed another provision of the federal sentencing guidelines, the “sophisticated means” enhancement.  Wayland defrauded Medicaid of a little more than $100,000 through false claims for payment for services purportedly provided to his disabled mother by one Cyril Sturm.  Sturm was actually deceased.  Wayland set up a bank account in Sturm’s name and collected the money paid to Sturm by Medicaid.  At Wayland’s sentencing, the court increased his prison time based on his use of “sophisticated means” to perpetrate the fraud.  Specifically, he set up a bank account and post office box, and then filed tax returns in the dead man’s name so that the IRS would not get suspicious.

To me, it seems a bit of a stretch to characterize this as sophisticated means, defined in the guidelines’ application notes as “especially complex or especially intricate offense conduct.”  This was not Enron — not even close.  Millions of Americans have opened bank accounts, rented post office boxes, and filed tax returns — in contrast to setting up corporate shells and offshore financial accounts (two examples of sophisticated means mentioned in the application notes).  At the least, I am puzzled that the district court judge seemed to treat this as a no-brainer: “If this wasn’t a sophisticated means of perpetrating a fraud, I don’t know what is.”  Once that conclusion was reached, however, reversal in the Seventh Circuit was unlikely, because the determination of sophisticated means is a finding of fact that is reviewed under the deferential clear error standard.  And, indeed, the Seventh Circuit did affirm.

This Post Has 2 Comments

  1. Brian Borkowicz

    I’ve got to ask: didn’t the mother in Morris violate MySpace’s terms of service, and will she be prosecuted for doing so?

  2. Andrew Golden

    Way to steal my line, Brian 🙂

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