{"id":2423,"date":"2008-12-07T19:52:05","date_gmt":"2008-12-08T00:52:05","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=2423"},"modified":"2008-12-20T10:06:27","modified_gmt":"2008-12-20T15:06:27","slug":"seventh-circuit-week-in-review-what-do-a-myspace-predator-an-unrepresented-corporation-and-a-pair-of-meth-traffickers-have-in-common","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2008\/12\/seventh-circuit-week-in-review-what-do-a-myspace-predator-an-unrepresented-corporation-and-a-pair-of-meth-traffickers-have-in-common\/","title":{"rendered":"Seventh Circuit Week in Review: What Do a MySpace Predator, an Unrepresented Corporation, and a Pair of Meth Traffickers Have in Common?"},"content":{"rendered":"

\"\"<\/a>Answer: They all lost their appeals in the Seventh Circuit last week.\u00a0 In fact, our diligent Seventh Circuit judges issued\u00a0five new opinions in criminal cases last week, and the defendants lost in all of them.\u00a0 Here are the highlights:<\/p>\n

In the MySpace case, United States v. Morris <\/a><\/em>(No. 08-2329), the defendant attempted to contact a minor through the minor’s MySpace page.\u00a0 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.\u00a0 After\u00a0the mom\u00a0agreed to have sex with him,\u00a0Morris\u00a0mailed\u00a0a bus ticket to\u00a0her\u00a0so that they could meet.\u00a0 The mom\u00a0reported Morris to the FBI, resulting in his arrest and prosecution.\u00a0 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.\u00a0 However, it is well established in such cases that the defendant has no defense if his intended victim is really an undercover\u00a0law enforcement officer, and the\u00a0Seventh Circuit\u00a0(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.\u00a0<\/p>\n

<\/p>\n

The court did recognize, however,<\/p>\n

a\u00a0legitimate concern with vigilantism — with private citizens conducting stings without the knowledge or authorization of the authorities.\u00a0 The vigilantes’ aim might be to blackmail any offender whom they detect . . . . Or they might botch their investigation, alerting the offender in time for him to elude justice.<\/p><\/blockquote>\n

The court also observed that the Internet has enabled private stings in new ways, and (citing the group “Perverted Justice”) suggested that they may\u00a0become more common.\u00a0 The court concluded, however, that any concerns regarding vigilante abuses should not be addressed by giving their targets defenses, but by imposing criminal liability on the overreaching vigilantes themselves (e.g., through solicitation laws).<\/p>\n

In United States v. Hagerman <\/a><\/em>(Nos. 07-3874 &\u00a007-3875), the court decided a novel, if obscure, question of law: what happens if a corporate criminal defendant fires its lawyer after an appeal has been fully briefed and fails to hire a new one?\u00a0 This is a problem because corporations are not permitted to litigate pro se in federal court.\u00a0 The Seventh Circuit (per Judge Posner) ruled that the court may, but is not required to, dismiss the appeal under such circumstances.\u00a0 in this case, since the appeal was already fully briefed and the issues clear, the court chose not to dismiss the appeal, but to decide the case (against the defendants) on the merits.<\/p>\n

In United States v. Prieto <\/a><\/em>(Nos. 07-3484 & 07-3485), the court (per Judge Manion) rejected a grab-bag of evidentiary objections made by the defendant meth traffickers.<\/p>\n

In United States v. Hearn <\/a><\/em>(No. 07-1613), the court (per Judge Ripple) responded to petitions for rehearing in a case that it decided last summer, denying the defendant’s petition\u00a0and granting the government’s.\u00a0 Hearn, convicted of possession of crack with intent to distribute, sought a rehearing as to the use of a prior conviction as evidence against him at trial.\u00a0 As I observed in a recent post<\/a>, prior convictions issues have been presented in several recent Seventh Circuit cases, resulting in a series of decisions that are neither entirely satisfactory nor entirely consistent with one another.\u00a0 In general, though, it seems in the recent cases as if the Seventh Circuit will affirm the use of prior drug trafficking convictions in a new drug trafficking\u00a0trial as long as there is any plausible\u00a0basis for concluding that\u00a0intent was at issue in the new trial.\u00a0 Thus, in denying Hearn’s petition for rehearing, the court relied mainly on the fact that\u00a0Hearn’s counsel had “questioned the Government’s proof on the issue of intent on a number of occasions in his opening and closing statements.”\u00a0 Defense lawyers take note: beware of saying the word “intent” at trial if you hope to keep your client’s criminal history out of the evidence!<\/p>\n

In granting the government’s petition for rehearing, the Hearn <\/em>panel determined that it had incorrectly remanded the case for resentencing the first time around.\u00a0 As a crack defendant, Hearn sought to take advantage of the Supreme Court’s 2007 decision in Kimbrough v. United States, <\/em>which held that the crack sentencing guidelines are not binding even in routine cases.\u00a0 Although the Seventh Circuit has been granting Kimbrough <\/em>remands as a matter of course in cases in which the issue was properly preserved, the government objected in Hearn’s case because he was sentenced under the career offender guideline, which may trump the crack guideline where it is applicable.\u00a0 Other Seventh Circuit decisions have denied Kimbrough <\/em>remands to career offenders, and the Hearn <\/em>panel, on rehearing, agreed that crack defendants sentenced as career offenders do not generally qualify for resentencing.<\/p>\n

Finally, in United States v. Wayland <\/a><\/em>(No. 08-2194), the court addressed another provision of the federal sentencing guidelines, the “sophisticated means” enhancement.\u00a0 Wayland defrauded Medicaid of a little more than $100,000 through false claims for payment for services\u00a0purportedly provided to\u00a0his disabled mother by one Cyril Sturm.\u00a0 Sturm was\u00a0actually deceased.\u00a0 Wayland set up a\u00a0bank account in Sturm’s name and collected the money paid to Sturm by Medicaid.\u00a0 At Wayland’s sentencing, the court increased his prison time based on his use of “sophisticated means” to perpetrate the fraud.\u00a0 Specifically, he set up a bank account and post office box, and then filed tax returns in the dead man’s name so that the IRS would not get suspicious.<\/p>\n

To me, it seems a bit of a stretch to characterize this as sophisticated means, defined in the guidelines’ application notes as “especially complex or especially intricate offense conduct.”\u00a0 This was not Enron — not even close.\u00a0 Millions of Americans have opened bank accounts, rented post office boxes, and filed tax returns — in\u00a0contrast to setting up corporate shells and offshore financial accounts (two examples of sophisticated means mentioned in the application notes).\u00a0 At the least, I am puzzled that the district court judge seemed to treat this as a no-brainer: “If this wasn’t a sophisticated means of perpetrating a fraud, I don’t know what is.”\u00a0 Once that conclusion was reached, however, reversal in the Seventh Circuit was unlikely, because the determination of sophisticated means is a finding of fact that is reviewed under the deferential clear error standard.\u00a0 And, indeed, the Seventh Circuit did affirm.<\/p>\n","protected":false},"excerpt":{"rendered":"

Answer: They all lost their appeals in the Seventh Circuit last week.\u00a0 In fact, our diligent Seventh Circuit judges issued\u00a0five new opinions in criminal cases last week, and the defendants lost in all of them.\u00a0 Here are the highlights: In the MySpace case, United States v. Morris (No. 08-2329), the defendant attempted to contact a […]<\/p>\n","protected":false},"author":7,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[32,30,28,74,23],"tags":[],"class_list":["post-2423","post","type-post","status-publish","format-standard","hentry","category-computer-law","category-criminal-justice","category-criminal-law-process","category-federal-sentencing","category-seventh-circuit","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/2423","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=2423"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/2423\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=2423"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=2423"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=2423"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}