Seventh Circuit – Page 42 – Marquette University Law School Faculty Blog

Seventh Circuit Week in Review: A Good Week for Defendants

Post author:Michael M. O'Hear
Post published:December 14, 2008
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Seventh Circuit

The Seventh Circuit had two new opinions in criminal cases last week, both of which delivered partial wins to the defendant. In United States v. Colon (No. 07-3929), the defendant was arrested after purchasing cocaine from two sellers, Saucedo and Rodriguez, who happened to be under police surveillance at the time. Colon was then charged and ultimately convicted of (1) possessing cocaine with intent to distribute, (2) conspiring with Saucedo and Rodriguez to distribute cocaine, and (3) aiding and abetting the conspiracy. However, the Seventh Circuit (per Judge Posner) ultimately found that the evidence did not support convictions on the latter two charges.

Criminal law students (at least my criminal law students) will immediately recognize the basic legal issue: when does a buyer-seller relationship give rise to conspiracy and complicity liability?

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

Post author:Michael M. O'Hear
Post published:December 7, 2008
Post category:Computer Law Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Seventh Circuit

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.

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

Post author:Michael M. O'Hear
Post published:November 27, 2008
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Seventh Circuit

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?