Seventh Circuit Week in Review: Cloak and Dagger

The Seventh Circuit had only one new opinion in a criminal case last week: United States v. Latchin (Nos. 07-4009 & 08-1085).  Latchin emigrated from Iraq to the United States in the early 1990’s and became a naturalized U.S. citizen in 1998.  However, documents seized by American forces in Baghdad in 2003 revealed that Latchin was in the employ of the Iraqi government.  The documents indicated that Latchin had been sent to the U.S. as a sleeper agent for the Saddam Hussein regime.  It is not clear whether he ever conducted any covert actitivities once inside the U.S., but, somewhat chillingly, he did manage to obtain a job at O’Hare Airport in Chicago.  In any event, once his connections to Saddam were exposed, Latchin was prosecuted for procuring citizenship illegally by making false statements on his naturalization application in violation of 18 U.S.C. § 1425(a).  He was convicted and then appealed.

The legal issues on appeal were not nearly so colorful as the underlying facts.  Most significantly, the court had to determine what it means to “procure” citizenship through a false statement. 

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Seventh Circuit Week in Review: A Sentencing Remand Based on Mental Disability

The Seventh Circuit had only one new opinion in a criminal case last week.  United States v. Williams (No. 07-1573) arose from a series of bank robberies.  Four codefendants were convicted and sentenced to lengthy terms of imprisonment, ranging from 221 months to life.  All four defendants appealed on a variety of different issues, although only one, Clinton Williams, obtained any relief.  Williams was sentenced to 552 months’ imprisonment, notwithstanding evidence that he suffered from significant mental impairments and had become involved in the robberies only as a result of manipulation by his brother.  In light of this mitigating evidence, which was not seriously contested by the government, Williams’ lawyer argued for a sentence at the low end of the 519- to 552-month guidelines range.  However, the sentencing judge did not squarely address this evidence.  Instead, the judge selected a sentence at the top of the range in light of a report by an expert who evaluated Williams and found that he was exaggerating his disability.

The Seventh Circuit (per Judge Williams) vacated and remanded for resentencing.  As the court sensibly observed, there is no logical inconsistency between the evidence that Williams suffered from a mental disability and the observation that he was exaggerating the disability.  Indeed, the very expert who made the obervation estimated Williams’ IQ at 72, which is considered borderline mentally retarded.  The sentencing judge was required to address this and the other evidence of mental disability, as well as the related claim that Williams’ diminished capacity made him susceptible to manipulation by his brother.

Williams thus joins an interesting line of recent Seventh Circuit cases that require sentencing judges to explain why they reject defendants’ arguments for leniency.  I have a forthcoming article about these cases in the Florida State Law Review.  As I explain in the article, there are good procedural justice reasons to favor the Seventh Circuit approach.  It is unfortunate that other circuits have not adopted as robust an explanation requirement.

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O’Hear to Chair the Federal Nominating Commission

Since 1979, Wisconsin’s senators have used some form of what they term a “Federal Nominating Commission” to recommend individuals for vacant federal judgeships and U.S. Attorney’s positions. (One can see the current charter from the senators here.) Whether this approach is good public policy is a worthy question, but not my topic here.

Rather, I wish to make an observation concerning leadership of the Federal Nominating Commission: Where there is a vacancy, the charter calls for the dean of the law school in the federal judicial district (Marquette in the Eastern District and the UW-Madison in the Western District) or his designee to chair the commission. I have thus chaired the commission on occasions in the past.

With respect to the current vacancy in the U.S. Attorney’s position in the Eastern District, occasioned by the departure of Steve Biskupic, L’87, for private practice, I this week exercised my option to delegate my responsibilities. This occurs from time to time (e.g., the late Dean Howard B. Eisenberg tapped our colleague, Professor Peter K. Rofes, on one occasion in the 1990s, and a similar thing has occurred on occasion in the Western District).

Specifically, I have turned to my colleague, Michael M. O’Hear, Professor of Law, Associate Dean for Research, and (least relevantly) managing editor of this blog. My principal reason, besides other demands on my attention, is my belief that Professor O’Hear — a leading legal academic in the area of criminal sentencing — is unusually well qualified to help guide this search.

I hope that Professor O’Hear will consider using this blog as one of the means of disseminating information about the Federal Nominating Commission’s important undertakings. In all events, the commission’s recommendation of four to six individuals to serve as the U.S. Attorney in Milwaukee is due to the senators under the charter near the end of March.

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