Federal Law & Legal System – Page 135 – Marquette University Law School Faculty Blog

Seventh Circuit Criminal Case of the Week: Other Bad Acts and the “Intricately Related” Doctrine

Post author:Michael M. O'Hear
Post published:October 26, 2009
Post category:Criminal Law & Process Evidence Federal Criminal Law & Process Seventh Circuit

seventh-circuit51 Criminal law and procedure are structured around the act requirement: a defendant is prosecuted for performing a specifically identified unlawful act, the criminal trial is designed to determine whether the defendant actually committed that act, and, once the defendant has been convicted and punished, we commonly say that he has paid his debt to society and should be relieved from any additional punishment for the act (a principle that is roughly codified in the Double Jeopardy Clause). The act, not the person, is the basic unit of analysis.

However, a host of recent trends in criminal law are putting tremendous pressure on the old act-based approach and pointing to a new paradigm in which a defendant is punished based on his propensity to commit crime, with little or no regard to the severity of the particular act of which he has been convicted (if, indeed, there has been a conviction at all). Some examples include the use of relevant conduct in the federal sentencing guidelines, three strikes laws and other sentence enhancements based on prior convictions, felon-in-possession laws, civil commitment of sex offenders, and preventive detention of terrorism suspects. Such innovations are suggestive of a system in which we punish bad people, not bad acts. To be sure, there is a wide gray area in which it is unclear whether we are punishing acts or people, but when (for instance) we impose what is effectively a life sentence for the theft of three golf clubs (as was done under the California three strikes law), there can be little doubt that the person, not the act, is the target of our condemnation.

Although sentencing law may most dramatically reveal the competition between the act and propensity paradigms, evidence law is also implicated — perhaps most importantly in Federal Rule of Evidence 404(b), which seems pretty clearly to embrace the act paradigm. More specifically, the rule states that evidence of other bad acts is not admissible to show the character of a defendant or his propensity to commit crime. Yet, to judge by recent Seventh Circuit cases, it seems that evidence of uncharged drug offenses and prior drug convictions are routinely used against defendants in drug cases. (See, for instance, my post here.)

Last week, the court shed some light on the Rule 404(b) exceptions in United States v. Conner (No. 07-3527) (Kanne, J.).

Federal Sentencing and the Lack of Theory in Criminal Justice

Post author:Chris Donovan
Post published:October 21, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Seventh Circuit

Defendants in federal criminal cases often cooperate with the government to get their sentence reduced, especially when facing an extremely high statutory mandatory minimum (it is not uncommon for federal defendants to face mandatory minimums of ten years or higher). In these cases, to get below the mandatory minimum, the government must file a motion to credit the defendant for his or her assistance. If this is done before sentencing, it is filed pursuant to 18 U.S.C. § 3553(e); if after sentencing, it is filed pursuant to Fed. R. Crim. Pro. 35(b). A recent emerging issue in federal sentencing law has been what factors a judge may consider when reducing a sentence under either of these provisions.

Without a mandatory minimum, a judge is free to impose a reasonable sentence under 18 U.S.C. § 3553(a), which tells judges to account for the nature of the crime; the history, characteristics, and rehabilitative needs of the defendant; the public interest in protection, deterrence, and punishment; the type of sentences available; the applicable Sentencing Guidelines (including pertinent policy statements); the need for uniformity in sentencing similar defendants for similar crimes; and restitution. When a mandatory minimum must be imposed, however, most courts have held that only the defendant’s assistance may be considered when imposing a sentence below the minimum.

The Seventh Circuit has recently addressed this issue in the context of both 3553(e) and Rule 35. See United States v. Johnson, No. 08-3541 (7^th Cir. September 4, 2009); United States v. Shelby, No. 08-2729 (7^th Cir. October 20, 2009).

Seventh Circuit Criminal Case of the Week: Good Enough for Government Work

Post author:Michael M. O'Hear
Post published:October 19, 2009
Post category:Circuit Splits Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Seventh Circuit

seventh-circuit51 Under 21 U.S.C. § 841(b)(1)(A), certain drug offenders face a mandatory sentence of life imprisonment if they have two prior drug felony convictions. As befits such a draconian statute, special procedural protections have been adopted to ensure that the mandatory minimum does not take defendants by suprise at sentencing. Thus, 21 U.S.C. § 851(a)(1) requires that “before trial . . . the United States attorney [must] . . . serve[] a copy of [an] information on the [defendant] . . . stating in writing the previous convictions to be relied upon.” But the statute does not specify under what circumstances, if any, a failure to comply with the rule precludes imposition of the mandatory minimum.

By the statute’s literal terms, there can be no doubt that the prosecutor in United States v. Williams (No. 09-1924) failed to comply. In the § 851 notice he served on Williams, the prosecutor identified only one prior conviction (not the requisite two) and then merely stated, “Further information concerning the defendant’s criminal history can be obtained from the United States Probation Office and specifically the Pretrial Services Report in this matter . . . .” The Pretrial Services Report, which listed a second drug conviction, was not actually served on the defendant until after trial. Indeed, it appears that the prosecutor himself had not even received and read the Report before his attempt to incorporate it by reference into the § 851 notice. This was very sloppy work, and the Seventh Circuit righly chastised both the individual prosecutor and his office (the Northern District of Indiana), which lacked any protocol on how to make § 851 notices. But sloppiness, even inexcusable sloppiness, is not the same thing as reversible error, and the court (per Judge Posner) affirmed Williams’ life sentence.

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