Who Is a “Supervisor”? We Know One When We See One

Justice Potter Stewart famously eschewed a formal legal definition of pornography, and instead embraced the “I know it when I see it” test. Based on his opinion yesterday in United States v. Figueroa (No. 11-2594), Judge Posner seems to have a similar approach in mind for determining whether a drug trafficker is a “manager” or “supervisor.”

Under § 3B1.1 of the federal sentencing guidelines, a manager or supervisor of criminal activity receives a substantial sentence enhancement. An even larger enhancement is contemplated for some defendants who qualify as a “leader” or “organizer.” The guidelines suggest a seven-factor test for determining whether a defendant is a leader or organizer, but are silent on the meaning of manager and supervisor. However, in the Seventh Circuit and elsewhere, it has been common for courts also to look to the seven factors when making manager/supervisor determinations.

Writing for the panel in Figueroa, Judge Posner seemed to scoff at this approach: 

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Speedy Trial Act Does Not Require Articulation of Ends-of-Justice Findings at Time Continuance Granted

In general, the Speedy Trial Act requires federal criminal trials to commence within 70 days of the time a defendant is charged or makes an initial appearance (whichever occurs laters). However, the Act also permits continuances that do not count against the 70 days when a judge finds “that the ends of justice served by [a continuance] outweigh the best interest of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A). These ends-of-justice findings must be made on the record, either orally or in writing, but the statute does not specify when they must be made.

In United States v. Zedner, 547 U.S. 489 (2006), the Supreme Court indicated that the “best practice” is for the judge to articulate his or her findings at the same time that a continuance is granted. But are lower courts actually required to adhere to this “best practice”?

Earlier today, in United States v. Wasson (No. 10-2577), the Seventh Circuit affirmed that express ends-of-justice findings may await the defendant’s motion to dismiss on speedy trial grounds. 

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Seventh Circuit Affirms Money-Laundering, Conspiracy Convictions of Car Dealers for Cash Sales to Drug Traffickers

Amir Hosseini and Hossein Obaei, who operated three Chicago-area automobile dealerships, sold many luxury cars to drug dealers over a ten-year period. Hosseini and Obaei were apparently popular with this market segment because of their willingness to take large cash payments in small bills. Eventually, federal prosecutors caught up with them, and, following a five-week trial, they were convicted by a jury on 97 counts of conspiracy, money laundering, mail fraud, illegal transaction structuring, bank fraud, and aiding and abetting a drug conspiracy. The Seventh Circuit has now affirmed these convictions and the 15- and 20-year sentences that went along with them.

Had it been properly preserved, the most substantial legal issue on appeal would have been the question left open by United States v. Santos, 553 U.S. 507 (2008): whether, in a traditional money-laundering prosecution, the government must prove that the allegedly laundered proceeds are net profits, as opposed to gross receipts, of the underlying crime. (See my blog post about Santos here). However, since the Santos issue was raised for the first time on appeal, the court used plain-error review and found that the defendants could not satisfy the standard given the “unsettled state of the law.” (2)

Hosseini and Obaei also raised an interesting voir dire issue.

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