Federal Criminal Law & Process – Page 17 – Marquette University Law School Faculty Blog

Why Is This Guy Being Prosecuted? Seventh Circuit Orders New Trial for Forklift Operator Swept Up in Drug Sting

Post author:Michael M. O'Hear
Post published:September 20, 2011
Post category:Criminal Law & Process Federal Criminal Law & Process Public Seventh Circuit

As part of a drug sting, an undercover federal agent drove a truckload of marijuana to an industrial park in McHenry, Illinois, on March 18, 2008. The agent had arranged to deliver the drugs to Irineo Gonzalez, a target of the sting. Although Gonzalez showed up to meet the agents, there were some difficulties with getting him to accept and unload the shipment. After a time, the owner of one of the businesses at the industrial park, Cardenas, decided to check out what was going on. He apparently had no connection to Gonzalez or the government, and simply assumed that the truck was carrying legitimate goods. In order to assist with the unloading, he summoned three of his employees, including Leobardo Lara. After the truck was opened, however, it immediately became apparent to everyone what the contents were. Cardenas ordered the truck off the premises, but the federal agent — seeing the opportunity for a successful sting slipping away — refused to go. Cardenas then left the scene to call the landlord. The agent tried without success for several minutes to convince the three employees to unload the truck. Gonzalez also tried, offering to pay them with marijuana. Still, they refused. Finally, the agent called the landlord, who (unbeknownst to Cardenas or his employees) was being paid by the government for the right to use his industrial park as the site of the sting. The landlord reassured the employees that it was fine for them to unload the drugs and that he would “take responsibility” for whatever happened. Only then did the employees help with the unloading, receiving no payment for their work. Lara, who contributed his forklift to the unloading operation, was then arrested and eventually convicted of possession with intent to distribute — even though the government conceded he had no connection to the drug shipment before his employer summoned him to unload the truck.

I’m hard pressed to see a good justification for this prosecution.

DOJ Changes Its Mind, Seventh Circuit Does Not

Post author:Michael M. O'Hear
Post published:August 30, 2011
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Public Seventh Circuit

As I discussed in this post, the Seventh Circuit earlier this year rejected retroactivity for the Fair Sentencing Act of 2010, which softened the mandatory minimum penalties for crack cocaine offenses. In the Seventh Circuit’s view, any crack offenses committed prior to August 3, 2010, when the FSA was signed into law, must still be sentenced under the harsh pre-FSA system. Given the lag time between the commission of an offense and the conviction and sentencing of the offender, district judges in the Seventh Circuit are even now probably still imposing sentences that Congress has declared to be unfair.

The Seventh Circuit’s position followed that of the Department of Justice. However, since the initial retroactivity ruling, DOJ has changed its position and now supports partial retroactivity. Additionally, three other circuits have since rejected the Seventh Circuit’s position. In light of these developments, one of the Seventh Circuit judges proposed that the initial ruling be reconsidered en banc. Last week, however, the court announced that the initial ruling would stand.

Seventh Circuit Rejects Retroactivity for Padilla

Post author:Michael M. O'Hear
Post published:August 28, 2011
Post category:Circuit Splits Criminal Law & Process Federal Criminal Law & Process Public Seventh Circuit

In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Supreme Court held that a lawyer provides ineffective assistance of counsel by failing to inform a client of the deportation risks that result from a guilty plea. However, the Court did not clearly indicate whether its holding must be applied retroactively to cases on collateral review, leaving the lower courts to sort out the mess. A handful of district courts have already split on this issue. Now, with the Seventh Circuit’s ruling last week in Chaidez v. United States (No. 10-3623), the circuits are also split. A divided panel in Chaidez rejected both retroactivity and the Third Circuit’s reasoning to the contrary in United States v. Orocio, 645 F.3d 630 (3d Cir. 2011).

As the Chaidez majority observed, the key legal issue is whether Padilla announced a new rule, or merely provided an application of the established principles of ineffective assistance from Strickland v. Washington, 466 U.S. 668 (1984). Under Teague v. Lane, 489 U.S. 288 (1989), a new rule may not be applied retroactively unless it falls into one of two exceptions that plainly do not encompass the Padilla holding.

Teague and least some of its progeny suggest what seems effectively a strong presumption in favor of a “new rule” finding (and hence against retroactivity). Here is how the Chaidez majority characterized the law: