Criminal Law & Process – Page 147 – Marquette University Law School Faculty Blog

Seventh Circuit Week in Review: A Lawful Stop, But Just Barely

Post author:Michael M. O'Hear
Post published:April 3, 2009
Post category:Criminal Law & Process Seventh Circuit

There is not much to report from the Seventh Circuit front this week. The court issued only one new opinion in a criminal case, and it was not one that broke any new legal ground. In United States v. Brewer (No. 08-3257), the defendant was convicted of unlawfully possessing a firearm. A police officer responding to a call about gunfire in an apartment complex saw Brewer driving away from the complex. Brewer’s car was stopped on that basis, resulting in discovery of the incriminating weapon. On appeal, Brewer argued that the gun should have been suppressed because the underlying stop was unconstitutional. The court (per Judge Posner) agreed that it was at least a close call (“the case is on the line between reasonable suspicion and pure hunch”), but ultimately determined that the “unusual circumstances” of the case met the test for reasonability.

Sex Crimes Issue of Federal Sentencing Reporter

Post author:Michael M. O'Hear
Post published:April 3, 2009
Post category:Criminal Law & Process Legal Scholarship

I’ve worked for almost a year on the new issue of the Federal Sentencing Reporter, which covers recent developments in the punishment and management of sex offenders. My copies arrived in the mail yesterday. (I have a few extras, which I would be happy to distribute free of charge; just send me an email if interested.) My introductory essay is available on SSRN. Here is a summary of the other articles:

Sex Offender Treatment: Reconciling Criminal Justice Priorities and Therapeutic Goals

Professors Mary Ann Farkas and Gale Miller of the Marquette University Department of Social and Cultural Sciences identify important tensions in the therapist’s role when sex offenders are required to undergo treatment by the criminal justice system. “Divided loyalties may arise,” they argue, “when treatment professionals feel a conflict between their professional responsibility to facilitate client change and their legal/criminal justice responsibilities.” For instance, if an offender tells his therapist about a previously undisclosed offense, the therapist may be obliged to report the offense for possible prosecution. Likewise, the therapist’s ability to sanction clients for noncompliance with the treatment program also puts therapists into a more punitive and less therapeutic role. In light of such concerns, the authors call for treatment providers to modify their programs in various ways when they serve “involuntary” clients.

Seventh Circuit Week in Review: Crook Impersonates Cop, Cop Impersonates Teenager

Post author:Michael M. O'Hear
Post published:March 29, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Seventh Circuit

The Seventh Circuit had only two new opinions in criminal cases last week, with both focusing on sentencing issues. The first, United States v. Abbas, clarified the harmless error doctrine as it relates to mistaken sentencing calculations. The second, United States v. Nagel, considered the constitutionality of a ten-year mandatory minimum for enticement of a minor. By some coincidence, both cases involved impersonation.

In Abbas (No. 07-3866), the defendant was convicted of several crimes, including impersonating an FBI agent. Falsely claiming the power to make various immigration and criminal problems go away, Abbas tricked several desperate victims into paying him for assistance. A jury found him guilty of a number of charged offenses, but acquitted him of extortion under color of official right in violation of the Hobbs Act. Curiously, though, the district court judge sentenced Abbas based on the federal sentencing guideline for extortion under color of official right. (As I discussed with my Sentencing students just last week, the guidelines permit defendants to be punished for crimes of which they have been acquitted. Sound strange? You would not be alone in so thinking!)

On appeal, Abbas argued that “extortion under color of official right” only applies when someone who is actually a public official abuses his authority, and does not cover private citizens who are merely pretending to be public officials. In effect, Abbas argued that he was really only guilty of fraud, not the more serious offense of extortion. And, had he been sentenced for fraud, his guidelines range would have been only 15-21 months, instead of the actual 24-30 months.

The Seventh Circuit (per Judge Tinder) agreed . . . but still declined to order a resentencing. Abbas won the battle, but not the war.