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

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.).

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

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

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. 

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

Seventh Circuit Week in Review: Corporate Criminal Liability, Reconsideration of Suppression Rulings, and More

The Seventh Circuit had four new opinions in criminal cases this week.  The cases addressed the mens rea requirements for corporate criminal liability, procedural aspects of suppression hearings, child pornography sentencing, and conditional guilty pleas.  Taking the cases in that order:

In United States v. L.E. Myers Co. (No. 07-2464), the defendant corporation was convicted of criminal OSHA violations in connection with the electrocution death of one its employees.  The Seventh Circuit (per Judge Sykes) reversed and remanded for a new trial in light of erroneous jury instructions.  The errors related to mens rea issues.  Myers was convicted under a statute that bases liability on the knowing creation of a hazardous condition in knowing violation of an OSHA requirement. 

The problem is that a corporation, as a legal construct, cannot really know anything; the only way a corporation knows something is to the extent the law is willing to impute the knowledge of particular employees to the corporation.  Seventh Circuit precedent indicated that “corporations ‘know’ what their employees who are responsible for an aspect of the business know.”  More specifically, the corporation was said to know what an employee knows if the employee has a duty to report that knowledge to someone higher up in the corporation.

Continue ReadingSeventh Circuit Week in Review: Corporate Criminal Liability, Reconsideration of Suppression Rulings, and More