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

Seventh Circuit Week in Review

The Seventh Circuit had two new opinions in criminal cases this week, with the government winning both.  (Since I started this Week in Review series three weeks ago, the government has gone 10-0 — an even better run than the Tennessee Titans have been enjoying.  Let’s hope the Packers don’t have the U.S. Department of Justice coming up on their schedule!) 

In United States v. Anderson (No. 07-3654), the court considered a bank robber’s request for appointment of an expert to evaluate his mental health.  The district court had denied the request, and the Seventh Circuit (per Judge Posner) affirmed.  Normally, we think of mental health evaluations in connection with the insanity defense or determinations of competency to stand trial, but Anderson wanted an expert to help him advance a sentencing argument, specifically, that he suffered from diminished mental capacity at the time of his bank robbery.  (And the fact that he did rob a bank provides prima facie evidence of diminished capacity: bank robbers are successfully apprehended at a much higher rate than most other criminals.  As I tell my students, if you want to steal money, there are a lot smarter ways to do it than to rob a bank!) 

Continue ReadingSeventh Circuit Week in Review