Who Is a “Supervisor”? We Know One When We See One

Justice Potter Stewart famously eschewed a formal legal definition of pornography, and instead embraced the “I know it when I see it” test. Based on his opinion yesterday in United States v. Figueroa (No. 11-2594), Judge Posner seems to have a similar approach in mind for determining whether a drug trafficker is a “manager” or “supervisor.”

Under § 3B1.1 of the federal sentencing guidelines, a manager or supervisor of criminal activity receives a substantial sentence enhancement. An even larger enhancement is contemplated for some defendants who qualify as a “leader” or “organizer.” The guidelines suggest a seven-factor test for determining whether a defendant is a leader or organizer, but are silent on the meaning of manager and supervisor. However, in the Seventh Circuit and elsewhere, it has been common for courts also to look to the seven factors when making manager/supervisor determinations.

Writing for the panel in Figueroa, Judge Posner seemed to scoff at this approach: 

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Another Habeas Slap-Down From the Supreme Court; Where Is Habeas Law Heading?

The Supreme Court summarily overturned yet another habeas grant earlier this week in Coleman v. Johnson (No. 11-1053).  Johnson was convicted in Pennsylvania state court as an accomplice and co-conspirator in a murder.  Without getting into all of the details, let’s just say that the state’s case against Johnson was circumstantial and something less than airtight.  Johnson thus sought to have his conviction overturned in state court on the ground that the evidence was insufficient to support the jury’s verdict, invoking Jackson v. Virginia, 443 U.S. 307 (1979).  The state courts rejected this claim, as did a federal district court, but the Third Circuit reversed.

The Supreme Court overturned the Third Circuit’s decision in a brusque per curiam opinion.

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Speedy Trial Act Does Not Require Articulation of Ends-of-Justice Findings at Time Continuance Granted

In general, the Speedy Trial Act requires federal criminal trials to commence within 70 days of the time a defendant is charged or makes an initial appearance (whichever occurs laters). However, the Act also permits continuances that do not count against the 70 days when a judge finds “that the ends of justice served by [a continuance] outweigh the best interest of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A). These ends-of-justice findings must be made on the record, either orally or in writing, but the statute does not specify when they must be made.

In United States v. Zedner, 547 U.S. 489 (2006), the Supreme Court indicated that the “best practice” is for the judge to articulate his or her findings at the same time that a continuance is granted. But are lower courts actually required to adhere to this “best practice”?

Earlier today, in United States v. Wasson (No. 10-2577), the Seventh Circuit affirmed that express ends-of-justice findings may await the defendant’s motion to dismiss on speedy trial grounds. 

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