Federal Law & Legal System – Page 180 – Marquette University Law School Faculty Blog

Seventh Circuit Week in Review: More and More on the Use of Prior Crimes Evidence

Post author:Michael M. O'Hear
Post published:November 22, 2008
Post category:Criminal Law & Process Federal Criminal Law & Process Seventh Circuit

The Seventh Circuit had two new opinions in criminal cases in the past week, with the government winning both appeals. By some coincidence, both cases involved the use of prior crimes evidence at trial, a topic that was also the focus of my last “Week in Review” post. Indeed, one of this past week’s cases was strikingly similar in its facts to Perkins from the previous week, but was analyzed in a rather different manner.

United States v. Webb (No. 08-1338) was the new case similar to Perkins. Webb was arrested in connection with the discovery of drugs in the house of his friend Hartman. At Webb’s trial on drug trafficking charges, the government introduced into evidence Webb’s 1996 conviction for distributing cocaine. Following his conviction on the new charges, Webb argued on appeal that this evidence violated Federal Rule of Evidence 404(b), which prohibits the use of prior crimes evidence for the purpose of establishing a defendant’s propensity to commit new crimes. In response, the government argued (precisely as it had in Perkins) that the prior crimes evidence helped to establish intent and absence of mistake, which are two permissible purposes for such evidence. In last week’s post, I argued that the Seventh Circuit accepted these arguments too uncritically in Perkins; based on the reasoning of that case, it was hard for me to see how prior drug trafficking convictions would ever be kept out of evidence in new drug distribution cases.

But in Webb, the Seventh Circuit (per Chief Judge Easterbrook) correctly recognized how tenuous the government’s intent/mistake theory was. The court also recognized the “tension” in its prior cases regarding the use of prior drug crimes evidence.

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

Post author:Richard M. Esenberg
Post published:November 17, 2008
Post category:Federal Civil Litigation Religion & Law

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.

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

Post author:Michael M. O'Hear
Post published:November 16, 2008
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Seventh Circuit

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.