Seventh Circuit Week in Review: What Do a MySpace Predator, an Unrepresented Corporation, and a Pair of Meth Traffickers Have in Common?

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Answer: They all lost their appeals in the Seventh Circuit last week.  In fact, our diligent Seventh Circuit judges issued five new opinions in criminal cases last week, and the defendants lost in all of them.  Here are the highlights:

In the MySpace case, United States v. Morris (No. 08-2329), the defendant attempted to contact a minor through the minor’s MySpace page.  The minor’s mother responded by creating her own MySpace page, in which she posed as a 15 year old, and began a series of communications with the defendant.  After the mom agreed to have sex with him, Morris mailed a bus ticket to her so that they could meet.  The mom reported Morris to the FBI, resulting in his arrest and prosecution.  After his conviction for attempting to transport a minor across state lines to engage in illegal sexual conduct, Morris raised a single issue on appeal: that the person he intended to transport across state lines was neither a minor nor a law enforcement officer posing as a minor, but a private citizen conducting her own sting operation.  However, it is well established in such cases that the defendant has no defense if his intended victim is really an undercover law enforcement officer, and the Seventh Circuit (per Judge Posner) found no basis for distinguishing undercover private citizens: in either situation, the criminal justice system appropriately punishes the defendant for his demonstrated dangerousness. 

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Seventh Circuit Week in Review: Machine Guns and Cocaine (And What Thanksgiving Is Complete Without Those?)

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The Seventh Circuit had three new opinions in criminal cases in this holiday-shortened work week, with the government winning on all of the major issues in each appeal. 

In the first, United States v. Carmel (No. 07-3906), the Seventh Circuit (per Judge Manion) affirmed the defendant’s conviction for possessing an unregistered machine gun in violation of 26 U.S.C. § 5861.  In addition to raising some case-specific issues relating to a search warrant, the defendant also argued that § 5861 was invalid in light of 18 U.S.C. § 922(o), which criminalizes possession of machine guns.  In essence, Carmel argued that § 5861, which punishes people for not registering their machine guns, makes no sense when § 922(o) effectively precludes registration.  The Tenth Circuit bought this argument in United States v. Dalton, 960 F.2d 121 (10th Cir. 1992), but it was subsequently rejected in seven other circuits.  And now the Seventh Circuit makes eight.  It’s not clear to me, though, why the government would ever charge a defendant like Carmel under § 5861 when § 922(o) is also applicable and carries the same maximum penalty — why not render the Dalton issue moot by using § 922(o) exclusively in these cases?

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

Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Seventh Circuit2 Comments on 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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Seventh Circuit Week in Review

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The Seventh Circuit had a busy week, with six new opinions in criminal cases. The government won all six.  I’ll provide just a brief description of each.  At the outset, though, it is interesting to note that five of the six involved gun charges.  Even in the wake of the Supreme Court’s recognition of an individual constitutional right to possess firearms in District of Columbia v. Heller, 128 S.Ct. 2783 (2008), it still appears to be business as usual in the world of gun prosecutions.

In United States v. Whitaker (No. 08-1259), the court (per Judge Ripple) affirmed the defendant’s conviction of being a felon in possession of a firearm.  On appeal, Whitaker argued that his Fourth Amendment rights had been violated by the search of his car that turned up the incriminating firearm.  The search followed two 911 calls, in which tipsters alerted police to an altercation in a parking lot.  One of the tipsters further indicated that a man involved in the altercation was carrying a gun.  When police officers arrived on the scene, they found Whitaker and (after a search of Whitaker’s nearby parked car) the gun.  In seeking to have the gun suppressed, Whitaker relied on Florida v. J.L., 529 U.S. 266 (2000), in which the Supreme Court held that stopping an individual solely on the basis of an anonymous tip usually falls beyond the bounds of reasonableness.  However, the Seventh Circuit distinguished J.L. based primarily on the fact that the tipsters in Whitaker alterted police to an ongoing altercation; “when the police respond to an emergency as a result of a 911 call, the exigencies of the situation do not require further pre-response verification of the caller’s identity before action is taken.”

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