“And He Causeth All, Both Small and Great, Rich and Poor, Free and Bond, to Receive a Mark”

So says Revelation 13:16. There are many interpretations of the wild events recounted in the Revelation to John. I am most familiar — and comfortable — with the view of the book as an allegory about persecution and redemption, but some folks think that it describes, in some more or less literal way, events that are still to occur.

I don’t know what the Amish view is but they — and certain other denominations — apparently read the text as calling for believers to resist receiving the forecast mark of the beast. This lawsuit, brought in federal court in Michigan, seeks relief from the federally sponsored program (voluntary for the states, but now adopted in Michigan) that requires the placing of RFID chips in cattle to facilitate the tracking of bovine and other livestock diseases. The plaintiffs make a variety of administrative law claims, as well as claims under the National Environmental Policy Act and the Fifth Amendment, but I’m interested in the claims made under the federal Religious Freedoms Restoration Act (RFRA) and a “supplemental” claim under the Michigan Constitution’s Free Exercise Clause. The requisite chips are claimed to require the plaintiffs to take the mark of the beast or to infringe their divinely ordained dominion over the cattle and all other living things. (Genesis 1:26-28.)

We know that the federal RFRA cannot be applied to the states. The plaintiffs try to get around that by arguing that Michigan is acting to implement federal law (and, it seems, receiving some type of federal grant in return for participation in the program, although the complaint is a bit unclear). If the feds are mandating this in some way as a condition of federal funding, then RFRA may apply.

Continue Reading“And He Causeth All, Both Small and Great, Rich and Poor, Free and Bond, to Receive a Mark”

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.

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

Seventh Circuit Week in Review, Part I: Use of Prior Convictions

The Seventh Circuit had two new criminal opinions in the past week, including a partial defendant win that broke a string of at least eleven consecutive victories by the government.  The two opinions focus on the admissibility of a defendant’s prior convictions at trial and the application of the crack cocaine sentencing guidelines, respectively.  Because I have a bit more than usual to say about the two cases, I will just cover the prior convictions case here, and leave the crack case (featuring a partial defendant victory) for another post tomorrow.

In United States v. Perkins (No. 07-3383), a jury in the Southern District of Illinois convicted Perkins of various drug trafficking offenses.  During his trial, the prosecutor introduced into evidence Perkins’ three prior convictions for cocaine-related offenses, as well as testimony that Perkins had attempted to hide cocaine in his mouth when he was arrested in connection with one of the earlier convictions.  On appeal, Perkins argued that the evidence should have been excluded under Federal Rule of Evidence 404(b).  Although the Rules do indeed prohibit the use of prior convictions to establish a defendant’s propensity to commit new crimes, the Seventh Circuit (per Judge Bauer) rejected Perkins’ argument.  More specifically, the court held that Perkins’ prior convictions were admissible because they helped to establish “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake” — all acceptable purposes of prior convictions evidence under Rule 404(b).

For what it’s worth, my own view is that propensity evidence actually should be admissible as such.

Continue ReadingSeventh Circuit Week in Review, Part I: Use of Prior Convictions
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