Seventh Circuit Week in Review: More and More on the Use of Prior Crimes Evidence

The Seventh Circuit had two new opinions in criminal cases in the past week, with the government winning both appeals.  By some coincidence, both cases involved the use of prior crimes evidence at trial, a topic that was also the focus of my last “Week in Review” post.  Indeed, one of this past week’s cases was strikingly similar in its facts to Perkins from the previous week, but was analyzed in a rather different manner.

United States v. Webb (No. 08-1338) was the new case similar to Perkins.  Webb was arrested in connection with the discovery of drugs in the house of his friend Hartman.  At Webb’s trial on drug trafficking charges, the government introduced into evidence Webb’s 1996 conviction for distributing cocaine.  Following his conviction on the new charges, Webb argued on appeal that this evidence violated Federal Rule of Evidence 404(b), which prohibits the use of prior crimes evidence for the purpose of establishing a defendant’s propensity to commit new crimes.  In response, the government argued (precisely as it had in Perkins) that the prior crimes evidence helped to establish intent and absence of mistake, which are two permissible purposes for such evidence.  In last week’s post, I argued that the Seventh Circuit accepted these arguments too uncritically in Perkins; based on the reasoning of that case, it was hard for me to see how prior drug trafficking convictions would ever be kept out of evidence in new drug distribution cases.

But in Webb, the Seventh Circuit (per Chief Judge Easterbrook) correctly recognized how tenuous the government’s intent/mistake theory was.  The court also recognized the “tension” in its prior cases regarding the use of prior drug crimes evidence.

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Pitfalls of Plea Bargaining

One of my former students recently sent me this link to a great Frontline program on plea bargaining. The program is four years old, but remains a timely and engaging exploration of some of the important plea-bargaining issues that I cover with my Criminal Procedure students, including the liberal use of “trial penalties” (i.e., longer sentences for defendants who exercise their constitutional right to go to trial) by judges and prosecutors to induce guilty pleas, the poor advice provided by some defense lawyers in connection with plea offers, the intense pressure experienced by even innocent defendants to plead guilty when they are unable to make bail and are forced to endure months of jail while awaiting trial, and the difficulty of correcting false guilty pleas once they are made. Although there are many abuses and miscarriages of justice associated with the American plea-bargaining system, it is too simplistic to say that plea-bargaining should be banned. Many of the same factors that lead to guilty pleas by innocent people (incompetent defense counsel, prosecutors more concerned about securing convictions than doing justice, an overstretched and often careless court system) seem just as likely to lead to convictions of innocent people at trial. As I have argued elsewhere, the goal should not be to abolish plea-bargaining, but to make the plea-bargaining system work better, particularly by insisting that prosecutors appreciate that they are functioning in a quasi-adjudicatory capacity when they decide what deals to offer which defendants — and hence ought to observe basic principles of procedural justice that are now too frequently ignored in the rush to secure convictions.

Thanks to Jessica Franklin for sending me the link!

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Seventh Circuit Week in Review, Part II: Determining Drug Quantity for Sentencing

This post wraps up the review of new Seventh Circuit criminal opinions that I began yesterday.  In United States v. Fox (Nos. 07-3830 & 07-3831), defendants Fox and Sykes were convicted of various drug trafficking offenses.  Fox was in the habit of getting high with Sykes at Sykes’s house.  In order to support his habit, Sykes sold drugs to others, and, on an uncertain number of occasions, had Fox make drug deliveries to customers on his behalf.  Fox and Sykes were arrested after they participated in a drug sale to an undercover cop, and forty grams of crack cocaine were found by police in Sykes’s house.  The main issue on appeal was whether Fox should be held responsible for those forty grams at sentencing.

Under the Federal Sentencing Guidelines, the quantity of drugs possessed or distributed by a defendant normally dominates the sentencing calculus.  Moreover, a defendant is responsible not just for the drugs that he himself possessed or distributed, but also for the drugs foreseeably possessed or distributed by coconspirators in connection with “jointly undertaken criminal activity.”  This is a controversial — and, in my view, misguided — feature of the Guidelines that can result in very long sentences for small players in large drug trafficking operations.  (My Criminal Law students will recognize parallels between this feature of the Guidelines and the so-called “Pinkerton Rule,” which results in criminal liability for crimes foreseeably committed by one’s coconspirators in furtherance of the conspiracy.)

In Fox, the district court judge determined that Sykes’s possession of forty grams of crack was foreseeable to Fox, and accordingly sentenced Fox as if he had been found in possession of that sizeable quantity of the drug himself.  Fox’s sentence was essentially doubled as a result of this decision.

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