{"id":4680,"date":"2009-04-11T15:54:48","date_gmt":"2009-04-11T20:54:48","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=4680"},"modified":"2009-04-11T16:02:00","modified_gmt":"2009-04-11T21:02:00","slug":"seventh-circuit-week-in-review-corporate-criminal-liability-reconsideration-of-suppression-rulings-and-more","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2009\/04\/seventh-circuit-week-in-review-corporate-criminal-liability-reconsideration-of-suppression-rulings-and-more\/","title":{"rendered":"Seventh Circuit Week in Review: Corporate Criminal Liability, Reconsideration of Suppression Rulings, and More"},"content":{"rendered":"

\"\"<\/a>The Seventh Circuit had four new opinions in criminal cases this week.\u00a0 The cases addressed the mens rea requirements for corporate criminal liability, procedural aspects of suppression hearings, child pornography sentencing, and conditional guilty pleas.\u00a0 Taking the cases in that order:<\/p>\n

In United States v. L.E. Myers Co.<\/em> <\/a>(No. 07-2464), the defendant corporation was convicted of criminal OSHA violations in connection with the electrocution death of one its employees.\u00a0 The Seventh Circuit (per Judge Sykes) reversed and remanded for a new trial in light of erroneous jury instructions.\u00a0 The errors related to mens rea issues.\u00a0 Myers was convicted under a statute that\u00a0bases liability on\u00a0the knowing<\/em> creation of a hazardous condition in knowing <\/em>violation of an OSHA requirement.\u00a0<\/p>\n

The\u00a0problem is that a corporation, as a legal construct, cannot really\u00a0know <\/em>anything; the only way a corporation knows something is to the extent the law is willing to impute the knowledge of particular employees to\u00a0the corporation.\u00a0 Seventh Circuit precedent indicated that “corporations ‘know’ what their employees who are responsible for an aspect of the business know.”\u00a0 More specifically, the corporation was said to know what an employee knows if\u00a0the employee has a duty to report that knowledge to someone higher up in the corporation<\/em>.<\/p>\n

In light of this precedent, the Seventh Circuit determined that the knowledge instruction in Myers<\/em> was too broad.\u00a0 The instruction permitted the jury to convict based on any knowledge obtained by any employee within the scope of his or her employment, regardless of whether there was a duty to report the knowledge up the corporate ladder.<\/p>\n

The trial court also erroenously gave an\u00a0“ostrich” instruction.\u00a0 Such an instruction permits conviction where a defendant has “affirmatively avoided” obtaining information that would otherwise\u00a0provide a basis for liability.\u00a0 The Seventh Circuit determined that the instruction should not have been given because there was no evidence that Myers affirmatively acted <\/em>to avoid learning the truth: “there is evidence of deliberate indifference <\/em>to the facts, but there is no evidence of deliberate avoidance<\/em>, and the latter is required for the ostrich instruction.”<\/p>\n

In United States v. Ozuna <\/a><\/em>(No. 07-2480), the defendant was convicted of drug trafficking based on the discovery of cocaine in his truck by DEA agents.\u00a0 Ozuna argued that the search of his truck violated the Fourth Amendment.\u00a0 At a suppression hearing, the government relied on a\u00a0written consent to the search that was allegedly signed by Ozuna.\u00a0 The defendant, however, denied the signature was his, and the district court initially granted his motion to suppress.\u00a0 Following this decision, the government\u00a0requested reconsideration\u00a0based on a new handwriting analysis of the\u00a0signature.\u00a0 At a second suppression hearing,\u00a0handwriting experts testified for both the government and the defense, and the court ultimately reversed its earlier suppression ruling.\u00a0 On appeal, Ozuna argued that the government should not have been given a second hearing and that the court should have performed a Daubert <\/em>analysis regarding scientific reliability before admitting the testimony of the government’s handwriting expert.<\/p>\n

The Seventh Circuit (per Judge Kanne) affirmed.\u00a0 The court acknowledged that at least three other circuits impose special requirements for the government to justify a second hearing on suppression.\u00a0 (Such a standard would have been hard for the government to satisfy in Ozuna<\/em>, as there was no apparent reason why the government could not have performed a handwriting analysis before the first suppression hearing.)\u00a0 The Seventh Circuit, however, joined two other circuits that leave the matter more squarely within the discretion of the trial court.<\/p>\n

Turning to the Daubert <\/em>question, the Seventh Circuit held that the court need not conduct a special analysis of the reliability of scientific evidence in the context of a suppression hearing.\u00a0 Daubert <\/em>was intended to keep junk science from being presented to juries, but there is no jury at a suppression hearing.\u00a0 It makes little sense to require a judge to act as a gatekeeper with respect to evidence that will be presented only to that judge.<\/p>\n

In United States v. Huffstatler <\/a><\/em>(No. 08-2622), the defendant was convicted of producing child pornography and given a sentence above <\/em>that called for by the federal sentencing guidelines.\u00a0 He appealed the sentence, arguing that the child pornography guidelines should not be followed because they were not the product of empirical research by the Sentencing Commission.\u00a0 Although the child pornography guidelines do indeed reflect politics more than research (a topic covered in the most recent issue of the Federal Sentencing Reporter<\/em><\/a>), and although\u00a0sentencing judges are authorized to take such considerations into account under Kimbrough v. United States<\/em>, 128 S. Ct. 558 (2007), Huffstatler’s argument was an odd one.\u00a0 After all, the judge in his case did not follow the guidelines<\/em>.\u00a0 Huffstatler thus seemed to be advancing the facially dubious claim the because the child pornography guidelines are poorly designed, child pornography defendants must always get a sentence below the guidelines level.\u00a0 Not surprisingly, the Seventh Circuit rejected this argument in a short per curiam opinion.<\/p>\n

With uncertainty still surrounding whether sentencing judges may<\/em> issue Kimbrough <\/em>variances in child pornography cases, I imagine that many Seventh Circuit defense lawyers were concerned about Huffstatler presenting a challenge to the child pornography guidelines in such an unfavorable procedural and factual context.\u00a0 In rejecting the proposition that\u00a0the sentencing judge must <\/em>vary downward in child pornography cases, the Seventh Circuit might have (intentionally or unintentionally) said things that would\u00a0discourage sentencing judges from using their Kimbrough <\/em>discretion in such cases.\u00a0 It appears, however, that the Seventh Circuit was careful not to send such signals: “Even assuming that district courts may exercise their discretion based solely on policy disagreements with the child-exploitation guidelines (an issue we need not decide here<\/em>), Huffstatler’s argument is without merit” (emphasis added).\u00a0<\/p>\n

Indeed, there is even some language in the opinion that is helpful to defendants:<\/p>\n

Huffstatler correctly submits that the child-pornography sentencing guidelines, U.S.S.G. \u00a7\u00a7 2G2.1-.2, like the drug guidelines at issue in Kimbrough v. United States<\/em>, 128 S. Ct. 558 (2007), are atypical in that they were not based on the Sentencing Commission’s nationwide empirical study of criminal sentencing.<\/p><\/blockquote>\n

Finally, in United States v. Kingcade <\/a><\/em>(No. 08-2447), the Seventh Circuit considered whether the defendant properly preserved his Fourth Amendment issue for appeal notwithstanding his guilty plea.\u00a0 Federal Rule of Criminal Procedure 11 permits defendants to enter conditional guilty pleas that preserve the ability to\u00a0appeal particular rulings by the trial court.\u00a0 Such a conditional plea must include a written agreement between the defendant and the government\u00a0stating which issues are\u00a0preserved.\u00a0 Kingcade’s problem was that he and his attorney made several pretrial suppression motions, and the conditional plea agreement referenced a different set of pretrial rulings than the ones Kingcade actually pursued on appeal.\u00a0 The Seventh Circuit (per Judge Kanne) cut him no slack.\u00a0 The court relied on principles of contract law to determine the scope of the conditional plea agreement.\u00a0 Because the court found no ambiguity in the language of the agreement, the court was unwilling to consider extrinsic evidence of any different intent than that which was expressed in the agreement.<\/p>\n","protected":false},"excerpt":{"rendered":"

The Seventh Circuit had four new opinions in criminal cases this week.\u00a0 The cases addressed the mens rea requirements for corporate criminal liability, procedural aspects of suppression hearings, child pornography sentencing, and conditional guilty pleas.\u00a0 Taking the cases in that order: In United States v. L.E. Myers Co. (No. 07-2464), the defendant corporation was convicted […]<\/p>\n","protected":false},"author":7,"featured_media":0,"comment_status":"open","ping_status":"closed","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":[85,30,28,74,23],"tags":[],"class_list":["post-4680","post","type-post","status-publish","format-standard","hentry","category-circuit-splits","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\/4680","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=4680"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/4680\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=4680"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=4680"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=4680"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}