Criminal Law & Process – Page 145 – Marquette University Law School Faculty Blog

Seventh Circuit Criminal Case of the Week: When Is It a Crime to Stuff the Drawing Box?

Post author:Michael M. O'Hear
Post published:April 25, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Seventh Circuit

In April 2005, the Ho-Chunk casino in Baraboo, Wisconsin, sponsored a drawing in which one lucky winner would receive $10,000. The rules of the drawing identified a number of ways that participants could obtain entry forms, with each new entry increasing a participant’s odds of winning. Two participants, however, chose to circumvent the prescribed processes by photocopying thousands of entry forms and stuffing the drawing box. By the time of the drawing, Darwin Moore and Bruce Knutson had their names on more than sixty percent of the entry forms. Knutson won the drawing, but then faced federal criminal charges, thanks to snitching by Moore’s ex-girlfriend. Eventually, Moore and Knutson were both convicted of theft from an Indian gaming establishment, and each received a ten-month sentence.

On appeal, the two defendants argued that the indictment was insufficient because it failed to state an offense. They observed that the drawing rules did not expressly prohibit the submission of photocopied forms and asserted that they were merely exploiting a loophole, rather than committing a crime. The Seventh Circuit, however, affirmed their convictions in United States v. Moore (Nos. 08-1177 & 08-1615) (Evans, J.).

Seventh Circuit Week in Review: What If the Sentencing Judge Thinks the Sentence Doesn’t Matter?

Post author:Michael M. O'Hear
Post published:April 20, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Seventh Circuit

The Seventh Circuit had only one new opinion in a criminal case last week. In United States v. Smith (No. 08-1477), the defendant received a twenty-year sentence for distributing child pornography. On appeal, Smith challenged his sentence on various grounds, including (most notably) a truly remarkable colloquy between his lawyer and the sentencing judge, in which the judge indicated that the Bureau of Prisons had the authority to decide how much of Smith’s sentence would actually be served in prison. If the judge’s comments are taken at face value, then the judge’s understanding of the law was clearly wrong. (The judge was not referring here to the 15-percent reduction in sentence length available for “good time,” but to an alleged authority to release the defendant at “any time” up to the full twenty years.) Such a mistake would betray not only a disconcerting ignorance of the way the federal criminal justice system has operated since parole was abolished in the 1980’s — a full 85 percent of the sentence must now be served as a minimum in all cases — but would also raise questions about whether Smith’s sentence was set unnecessarily high. After all, the judge was apparently operating under the mistaken belief that prison officials could release Smith as soon as he no longer presented a danger to the community — given that premise, it is easy to imagine a judge erring on the side of a more severe sentence.

The Seventh Circuit (per Judge Manion) nonetheless affirmed.

When I Was Just a Baby, My Mama Told Me, Son/Always Be a Good Boy . . .

Post author:Richard M. Esenberg
Post published:April 14, 2009
Post category:Criminal Law & Process Legal Ethics

. . . but I internalized the norms of the legal profession early. I first became a lawyer at Badger Boy’s State. My first case was to defend a floormate who was accused of throwing water out a window on a counselor. I knew he did it because I was there. I also knew that he was far enough from the window that he could not be identified. Great cross (for a 17 year old) and an acquittal. Since then, I haven’t been clean a day in my life. My name is Rick E., and I believe in the adversarial system . . . .

I’m not stalking Mr. Samis through the Blog, but his post on the demands of confidentiality when a client has disclosed evidence of a past crime reflects a timeless ethical dilemma. Here’s another good one.

Assume that your client has told you that he committed the crime. You now can’t call him to deny it, but you were probably never going to do that anyway. How else should that impact the way in which you present a defense?