Marquette University Law School Faculty Blog

Seventh Circuit Criminal Case of the Week: More on Other Bad Acts Evidence

Post author:Michael M. O'Hear
Post published:November 27, 2009
Post category:Criminal Law & Process Evidence Federal Criminal Law & Process Seventh Circuit

seventh-circuit5 The Seventh Circuit had only one new opinion in a criminal case this week, and it is not one in which the court broke new legal ground. In United States v. Harris (No. 07-4017) (Williams, J.), the court affirmed the defendant’s convictions for drug trafficking and unlawful gun possession. The defendant raised various evidentiary objections on appeal, including a challenge to the use of other bad acts evidence against him. Specifically, the government introduced evidence of prior drug sales perpetrated by Harris in order to show that he intended to distribute the drugs he was charged with possessing.

Litigation over other bad acts seems a routine feature of appeals in drug-trafficking cases. As I suggested in this earlier post, it strikes me that the Seventh Circuit has pretty well interpreted the Rule 404(b) restrictions on evidence of other bad acts out of existence, at least in drug cases. Although not as broadly worded as some other opinions, nothing in Harris seems inconsistent with the view that drug defendants are unlikely to find success with their Rule 404(b) arguments on appeal.

Open Quantity Contracts: Beyond Good Faith

Post author:Michael M. O'Hear
Post published:November 27, 2009
Post category:Legal Scholarship

Business concerns sometimes enter into sales agreements that do not specify a particular quantity to be sold. This might be helpful, for instance, if a manufacturer would like to secure a commitment from a supplier to meet the manufacturer’s needs, but it is not certain what the needs will be. These business relationships do not always work out over the long term, however, and litigation often results. In these cases, courts have struggled to establish clear, consistent standards with respect to the validity and terms of open quantity contracts. Many of these cases turn on the application of amorphous “good faith” standards, raising concerns about unpredictability and the possibility that the courts are effectively imposing requirements on the parties that they never actually contemplated.

Bravely seeking to bring some coherence and clarity to this difficult area of the law, Shelley Smith has a helpful new article on SSRN entitled “A New Approach to the Identification and Enforcement of Open Quantity Contracts: Reforming the Law of Exclusivity and Good Faith.” She describes her three-part reform agenda as follows:

Federalism and Criminal Law

Post author:Michael M. O'Hear
Post published:November 27, 2009
Post category:Criminal Law & Process Federal Sentencing Federalism U.S. Supreme Court

This is the fourth in a series of posts reviewing last term’s criminal cases in the United States Supreme Court and previewing the new term.

Habeas corpus presents the classic federalism problem in criminal law: how can federal courts overturn flawed state-court judgments while maintaining due respect for state sovereignty and the autonomy of state criminal-justice systems? But federalism issues can also appear in criminal cases that originate in federal court. In its new term, the Supreme Court has at least two such cases.

First, in United States v. Johnson, the Court will consider whether a battery conviction in Florida state court counts as a violent crime for purposes of the Armed Career Criminal Act, a federal sentencing statute. (I have posted several times about ACCA in the past year, most recently here.) Although “battery” normally evokes images of serious violent crime, Florida law defines battery so that it includes any nonconsensual touching, regardless of risk of injury. For that reason, the Florida Supreme Court has already ruled that battery is not a violent crime for state-law purposes. Thus, in Johnson, the United States Supreme Court is confronted with a question of whether it should defer to state-court characterizations of state crimes for purposes of implementing a federal statute.

Second, in United States v. Weyrauch, the Court must decide whether a state official can be convicted of honest-services fraud based on a conflict of interest that did not violate state law. (This is one of three new cases in which the Court will consider various dimensions of the federal crime of honest-services fraud.)