Seventh Circuit addresses SORNA challenges, and encourages defense to challenge supervised release conditions in all cases.

Posted on May 16, 2013 by Tom Wilmouth

United States v. Charles Goodwin, Case No. 12-2921

After pleading guilty to failing to register as a sex offender under the Sex Offender Registration and Notification Act (SORNA), the defendant was sentenced to 27-months imprisonment and a life term of supervised release, subject to conditions. The defendant made three (3) arguments on appeal: SORNA involves an unconstitutional delegation of legislative authority; the district court miscalculated the supervised release Guideline; and certain supervised release conditions were improvidently imposed.

Constitutionality of SORNA

The law grants the Attorney General the authority to specify the applicability of the registration requirement to sex offenders convicted before the 2006 enactment of SORNA. In July 2007, the Attorney General made a regulation that SORNA applied to all pre-enactment sex offenders. A delegation is “constitutionally sufficient if Congress clearly delineates [1] the general policy, [2] the public agency which is to apply it, and [3] the boundaries of this delegated authority.” Am. Power & Light Co. v. SEC, 329 U.S. 90, 105, 67 S.Ct. 133, 91 L.Ed. 103 (1946).

SORNA directs the Attorney General to exercise his discretion in a manner consistent with the intelligible principle of “protecting the public” from sex offenders and establishing a “comprehensive” registry; the statute identifies the Attorney General as the specific official to exercise this delegated authority; and the Attorney General’s discretionary authority is narrowly restricted to determining the applicability of SORNA to offenders whose crimes predate the statute’s enactment.

In Carr v. United States, 560 U.S. 438 (2010), the Supreme Court held that the SORNA section imposing criminal liability for failure to adhere to registration requirements does not apply to sex offenders whose interstate travel occurred before SORNA’s effective date. While Carr overruled the Seventh Circuit’s decision in United States v. Dixon, 551 F.3d 578 (7th Cir. 2008), which in part held that Congress did not violate separation of powers when it delegated for the Attorney General authority to specify SORNA’s applicability, it did so on other grounds and expressly declined to comment on the Court’s finding in Dixon that SORNA does not violate the Constitution. Dixon remains good law on the delegation issue.

The term of supervised release

The probation department relied on Guideline §§ 5D1.1(b)(2) to advise the Court that the Guidelines advise a supervisory period of five (5) years to life. The department recommended life supervision, which the Court imposed as a within Guideline term. Without objection in the district court, the defense argued plain error on appeal, and the government agreed, which the Court questioned at oral argument. But in the opinion, the Court came around.

Since Guideline §5D1.1(b)(2) provides for a maximum term of life imprisonment for a “sex offense,” the question hinges on whether the defendant’s failure to register under 18 U.S.C. §2250 qualifies as a sex offense.

Application Note 1 to the Guideline defines a sex offense as a crime “perpetrated against a minor” that includes offenses under 18 U.S.C. §2250. It cannot be derived from the Guideline that if the original offense that gave rise to the registration requirement were perpetrated against a minor, then the subsequent offense of failure to register should be considered a sex offense. The Guidelines and commentary offer no assistance as to how courts are to determine whether a given failure to register was perpetrated against a minor.

While the Court ordinarily grants “controlling weight” to the Sentencing Commission’s Guidelines as expressed in Application Notes, the Court does not defer to interpretations that are “plainly erroneous or inconsistent” with the relevant Guideline, federal law, or the Constitution. The illogic of the implication that registration offenses can be perpetrated against minors indicates that, to the extent that the Note purports to include failures to register as sex offenses, this portion of the Note is plainly erroneous as a definition of “sex offense” for purposes of U.S.S.G. § 5D1.2(b)(2).

If the Commission does in fact consider some failures to register to be sex offenses, it should say so plainly, and provide courts with guidance as to which failures to register qualify. Moreover, as a portion of the Adam Walsh Act, 18 U.S.C. § 3583(k), mandates that registry violations should be eligible for lifetime terms of supervised release regardless of whether they involve a minor victim, the Guidelines should explain the circumstances under which that outcome is within range.

In this defendant’s case, there was no specific victim of his failure to register. Nothing about this defendant’s failure to register demonstrates that it is a sex offense. The properly calculated advisory Guidelines “range” for this defendant’s offense appears to actually be a point: five years pursuant to 18 U.S.C. §3583(k).

In reaching the conclusion that errors concerning the application of U.S.S.G. § 5D1.2(b)(2) warrant re-sentencing, the district court is still authorized to impose a lifetime term of supervised release because 18 U.S.C. § 3583(k) clearly authorizes any term of years from five to life. But if on remand the district court imposes a supervised release term greater than five years, this term will have to be explained by something other than the currently available five-year Guidelines range.

Supervised release conditions

Special conditions of supervised release must meet three (3) requirements. First, they must be reasonably related to the penological purposes set forth in 18 U.S.C. § 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D). See 18 U.S.C. § 3583(d). Specifically, special conditions “must be reasonably related to (1) the defendant’s offense, history and characteristics; (2) the need for adequate deterrence; (3) the need to protect the public from further crimes of the defendant; and (4) the need to provide the defendant with treatment. See 18 U.S.C. § 3553(a)(1)-(2). Second, they cannot involve a greater deprivation of liberty than is reasonably necessary to achieve the goals of deterrence, incapacitation, and rehabilitation. See 18 U.S.C. § 3583(d)(2). Third, the conditions must be “consistent with any pertinent statements issued by the Sentencing Commission.” 18 U.S.C. § 3583(d)(3). The Court also noted that supervised release fulfills rehabilitative ends, distinct from those served by incarceration. Instead of being a significant barrier to a full reentry into society, conditions should facilitate an offender’s transition back into everyday life of the community.

Setting aside the issue of standard of review (the government claiming plain error because the defense did not object to the imposition of conditions at the time of the ruling, while the defense claiming abuse of discretion because it did not have an opportunity to object because the PSR did not mention the conditions, citing FED. R. CRIM. P. 51(b)), the Court vacated most of the special conditions and remanded.

One condition addressed computer-related monitoring and searches and other warrantless searches of the defendant’s person and property by his probation officer. The Court found these broad restrictions were not reasonable related to the defendant’s offense, history or personal characteristics, or reasonably necessary to furthering the deterrence, public protection, and rehabilitative goals articulated in 18 U.S.C. § 3583(d)(2). The record did not show a computer played any role in either the underlying or the failure to register offense. There is no indication the defendant ever used a computer to commit any crime. The district court must provide some justification for these particular conditions.

Another condition prohibited the defendant from having any contact with minors, except in the presence of an adult aware of the prior sex offense and who has been approved by the probation office. Since there was no evidence in the record of incidents involving the defendant and minors in the almost two (2) decades since the underlying offense, the Court was skeptical such a sweeping condition could be reasonably related to the defendant’s offense, history and characteristics. The Court also held that “given the potentially severe restrictions on [the defendant’s] day-to-day life that this condition imposes, the district court’s lack of explanation of why it thinks this condition involves no greater deprivation of liberty than necessary to achieve the penological goals stated in 18 U.S.C. § 3553(a) is troubling.” The district court must provide an explanation how this condition is reasonably related to the offense and background or the goals of punishment, involving no greater deprivation of liberty than reasonably necessary.

Another condition prohibited the defendant from possessing material that depicts or alludes to sexual activity. The Court said that since the defendant’s failure to register and underlying offense has nothing to do with this conduct, it is unclear how this condition is reasonably related to any of the considerations set forth in 18 U.S.C. § 3583(d). The Court added the vagueness of this condition is also fatal because, if read literally, “the inclusion of this term could block [the defendant] from possessing much of the Western literary canon—or arguably even from possessing a slip copy of this opinion.”

Another condition placed content restrictions on the defendant’s use of the internet. While the condition’s reference to child pornography seems justifiable, it does not absolve the district court of the responsibility to provide an explanation. And since the content restrictions also related to sexually arousing material that is otherwise legal, this conditions suffered from the same over-breadth and vagueness infirmities as the prior condition.

Demonstrating the Court’s concern about the propriety of supervised release conditions, the Court sua sponte vacated two (2) additional supervised release conditions that were not even challenged on appeal: participation in sex offender treatment and mental health counseling. As with the other conditions, the Court noted the district court imposed these conditions without explanation. Given that the defendant’s instant offense is for a failure to register, the penological purpose of these treatment and counseling programs is far from clear.

So the Court affirmed the SORNA conviction, but vacated the supervised release portion of the sentence, remanding to the district court for reassessment of the length of supervised release and any special conditions imposed during this period.

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Court Approves Evidence of Child Molestation Under Rule 404(b) in Child Pornography Trial

Posted on May 10, 2013 by Joshua Uller

MIchael Roux was charged in federal court in Illinois with inducing or coercing a minor to create sexually explicit images in violation of 18 U.S.C. § 2251(a). Roux was alleged to have sexually abused the minor children of his live-in girlfriend, one of whom was depicted in the numerous pornographic images recovered from Roux’s computer and camera, over a period of several years. The government sought, by way of Federal Rule of Evidence 404(b), to introduce evidence of the sexual abuse as evidence of motive, opportunity, and identity in the child pornography trial. The district court conducted a hearing, at which time it analyzed the four criteria required under United States v. White, 698 F.3d 1005, 1017-18. The court concluded that (1) the government was offering the evidence for a purpose other than to establish Roux’s propensity to commit the crime charged, (2) the proffered testimony was sufficient to establish that the sexual abuse had occurred, (3) though very prejudicial, the danger of prejudice did not substantially outweigh the probative value, and (4) the abuse was sufficiently similar to the crime charged.

Roux went to trial, during which the testimony of his girlfriend’s daughters was presented. Roux testified in his own defense, but was found guilty. Roux appealed.

The Seventh Circuit, in this opinion, affirmed Roux’s conviction, finding that the district court did not abuse its discretion in admitting the 404(b) evidence. While the court conceded that the evidence was highly prejudicial, it concluded that it was not unfairly prejudicial. The district court, the opinion concluded, had carefully weighed the relevance of the testimony along with its prejudice. The court appropriately provided an instruction limiting the consideration of the other acts evidence and the government did not abuse or overstep its bounds by suggesting it should be considered for Roux’s propensity.

The court also disposed of Roux’s remaining three arguments with some brevity. Roux had objected to the admission of two booking photos, which had been introduced to demonstrate that Roux had lost weight in between his arrest and trial, a fact relevant to corroborate the government’s contention that the man in the photographs engaged in sexual activity with the victim was in fact, Roux. Secondly, Roux objected to the reference to “jail calls” by the prosecutor. Both of these items, Roux argued, undermined his presumption of innocence. The court disagreed, noting that it should not be surprising to the jury that Roux had been arrested after being charged with these offenses and that the jury had been appropriately instructed as to the presumption of innocence.

Finally, Roux testified that at some point during the course of the alleged abuse and production of pornography, he was discharged from the hospital and told not to engage in any sexual activity. He also testified that he had been employed and working at times when the government suggested he had been home alone. On cross-examination, the prosecutor asked about the existence of records of his medical care and employment which would corroborate his claims. After indicating that records would exist, the prosecutor elicited testimony from Roux about his inability to procure them or other witnesses to corroborate them. The defense objected and moved for a mistrial, on grounds that the questions improperly shifted the burden of proof to the defendant to prove his innocence. The court denied the motion and the Seventh Circuit found no error in doing so, concluding that the court’s reminder in front of the jury to the prosecutor that the defendant need not produce evidence to establish his innocence sufficiently cured the problem.

Roux will therefore, continue to serve his 30 year prison sentence.

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Heroin Conviction Affirmed on Plain Error Review Over Claims of Prosecutorial Misconduct and Improperly Admitted “Dual Capacity” Testimony

Posted on May 2, 2013 by Brian Mullins

United States v. Tucker, Case No. 12-1281 (April 30, 2013)

With a judiciary filled with former prosecutors and a body of case law often indifferent to the rights of criminal defendants, defense counsel frequently walk into court assuming the government has a home field advantage. That home field advantage equates to playing for the Lee Elia-vintage Chicago Cubs in the Bronx against the 1927 Yankees when trying to overturn a guilty verdict on plain error review.http://www.leeelia.com/. But even Elia’s Cubs were entitled to a consistent strike zone; not so a convicted heroin dealer now serving a 40-year prison sentence when he asked the Seventh Circuit to apply its 1974 precedent and require district courts to sua sponte declare a mistrial when a prosecutor argues facts that were not presented to the jury as evidence. Instead, the Court overruled its precedent and affirmed the conviction on plain error review.

Ivy Tucker was charged with nine others for conspiring to distribute more than one kilogram of heroin from 2008 to 2009, which resulted in one death. All of Tucker’s co-defendants pled guilty; Tucker proceeded to trial, at which nearly all of his co-defendants testified against him – the informants’ testimony was the bulk of the evidence against Tucker. He was convicted and sentenced to 40 years imprisonment by United States District Court Judge Rudolph T. Randa.

On appeal, he argued that he was denied his Fifth Amendment right to a fair trial because of prosecutorial misconduct and because “dual capacity” testimony was admitted without sufficient safeguards. None of these issues were raised in the trial court, so the Court of Appeals reviewed for plain error.

A. Prosecutorial Misconduct

Tucker argued that the prosecutor acted improperly when he 1) referred to prior witness statements not in evidence; 2) improperly commented on Tucker’s decision not to testify; 3) misconstrued the nature of the co-conspirators’ plea agreements; and 4) improperly referred to the jurors’ familial experiences with heroin that were revealed during voir dire.

1. Witness’ Prior Statements Not In Evidence

During closing arguments, the prosecutor rebutted defense counsel’s suggestion that the informants were not credible:

But we’re supposed to trust that they’re smart enough that they all get together somewhere, somehow – some of these people are in jail. They’re all over the place. But they all sit down shortly after their arrest and say this is what happened. And – what? All their stories are the same? It’s the same guy? It’s Mr. Tucker.

Tucker argued that the prosecutor’s comments amounted to misconduct because they suggested that all of Tucker’s co-defendants made statements after their arrest that implicated Tucker when in fact no prior statements existed. The Seventh Circuit agreed that “it was dangerous for the prosecutor to allude to witness statements that were not offered in evidence.”

But the Court of Appeals did not find the statements justified a new trial under the plain error standard of review. In doing so, the Court overruled United States v. Fearns, 501 F.2d 486 (7^th Cir. 1974), which the Court acknowledged could be interpreted to hold that a district court has a duty to sua sponte declare a mistrial when a prosecutor refers to alleged prior consistent statements that were not put before the jury as evidence. The Court observed that this result was not in harmony with the balance of the Court’s case law that allegations of prosecutorial misconduct are not reviewed in a vacuum but in the larger context of the parties’ closing arguments and the trial itself. “Therefore, we now overrule Fearns to the extent that it imposes such a burden on the district court, and reaffirm our position that even if we determine a comment to be improper when read in isolation, unless the remark, when interpreted through the full context of the record, so infects the trial with unfairness as to make the resulting conviction a denial of due process, we will not reverse under the plain error test.”

Having disposed of Fearns, the Court agreed that the prosecutor’s statements were improper, but concluded that when considered in the whole context of the record, there was nothing to suggest Tucker was denied his right to a fair trial. The Court noted that the district court instructed the jury that statements of the attorneys are not evidence, and “jurors are presumed to follow limiting and curative instructions unless the matter improperly before them is so powerfully incriminating that they cannot be reasonably expected to put it out of their minds.”

The Court disagreed with Tucker’s argument that, but for the prosecutors’ comments, the jury would have discredited the informants’ testimony because of their plea agreements with the government. “The nine co-conspirators gave detailed testimony against Tucker describing both the nature and scope of his heroin distribution ring. There is nothing in the record to suggest that the result of this trial would have been different absent the prosecutor’s unfortunate remarks.”

2. Comment Regarding Defendant’s Silence

During rebuttal argument, the prosecutor said:

You know, it’s one person’s witness against another. And in this case its nine witnesses against Tucker, saying that he was involved in this role, in this conspiracy.

Tucker argued that the prosecutor asked the jury to draw a negative inference from the defendant’s decision not to to testify. The Supreme Court holds that it violates the Fifth Amendent privilege against self-incrimination for a prosecutor to directly and adversely comment on the defendant’s failure to testify on his own behalf. Griffin v. California, 380 U.S. 609 (1965). An indirect comment is also considered improper if the prosecutor refers to the lack of evidence offered by the defense and a jury would “naturally and necessarily take the remark for a comment on the defendant’s silence.” See United States v. Mietus, 237 F.3d 866, 871 (7^th Cir. 2001).

The Court concluded that the prosecutor did not directly comment on the defendant’s silence, “but on his assertion – evidenced by his not guilty plea – that he was not involved in a drug ring.” Neither did the Court consider the prosecutor’s statement an indirect comment on the defendant’s silence. Although the Court holds that a prosecutor’s comment insinuating that the government’s evidence is uncontradicted is considered an indirect comment on the defendant’s silence if the only witness who can provide contrary testimony is the defendant, here Tucker offered a stipulation from a witness who said if he were called to testify he would rebut the government’s theory that Tucker was the central supplier in the drug ring.

3. Prosecutor Vouching for Government Witnesses by Placing Authority of District Court Behind Testimony

During rebuttal argument, the government explained how plea agreements might affect the testifying co-conspirators:

They testified as to their deal. Their deal – their deal isn’t made with the government. They’re still facing long prison terms. And their deal and their ultimate sentence isn’t decided by the Government. It’s not decided by the United States Attorney’s Office. It’s decided by one man. That’s Judge Randa, who’s sitting in there. Who’s listening to this testimony. Who’s examining what these witnesses say. And he’ll make the ultimate determination.

Tucker did not object at trial. Tucker argued that the prosecutor misrepresented the nature of the Government witnesses’ plea agreements by implying that the district court vouched for the reliability of their testimony. Although the government conceded the statements were “inartfully phrased,” and the Court acknowledged that the “prosecutor’s maladroit handling of his rebuttal argument is regrettable,” the Court found no plain error because “it is apparent that the prosecutor was attempting to convey to the jury that the judge makes the ultimate determination of the testifying co-conspirators’ sentence but does not determine their credibility.”

4. Prosecutor’s Comment on Effect of Heroin on Jurors’ Families

During the opening statement, the prosecutor told the jury:

Heroin is a highly addictive drug . . . and some of the people told us during jury selection, it’s a drug that can kill you. It can kill you the first time you use it.

During closing argument, the prosecutor said:

It would be easy for you to look at Mr. Tucker and say okay, well, this is a case about heroin distribution in the central city. What does it have to do with me. But don’t kid yourself, drugs are destroying this community.

Tucker argued that the comments were improper because the prosecutor referred to experiences shared by jurors during voir dire. The Court has held it improper for a prosecutor to specifically refer to a juror’s family or children. See United States v. Zanin, 831 F.2d 740, 743 (7^th Cir. 1987). But the Court found no plain error because “the prosecutor’s comments centered around the seriousness of heroin use generally, not the effect of the drug on specific juror’s family or friends.”

B. “Dual Capacity” Testimony

Oak Creek, Wisconsin police officer Jason Baranek was the lead investigator on the case and testified as a “dual capacity” witness – he offered both expert opinion and factual testimony. For example, his “factual” testimony referred to controlled purchases of heroin and debriefs of suspects; his “expert” testimony referred to how drug dealers use stash houses.

Tucker argued that the district court erred because it did not give the jury any guidance on how to properly evaluate such testimony.

A witness may testify in his dual capacities as a factual and expert witness, but because of the inherent danger that the jury will unduly credit the opinion testimony of an investigating officer, a district court must take precautionary measures to ensure the jury understands how to properly evaluate the evidence. Such safeguards include cautionary jury instructions, a properly structured direct examination that makes clear when the witness is testifying as to facts or when he is offering expert opinion, establishing the proper foundation for the expert component of the testimony, and allowing for “rigorous” cross examination of the dual capacity witness. See United States v. York, 572 F.3d 415, 425 (7^th Cir. 2009).

Although the Court observed that “the record in this case would surely not serve as a model on how to properly manage a dual capacity witness,” the government established the officer’s qualifications as an expert and Tucker had an opportunity to cross examine him. Despite the fact that no cautionary jury instruction was provided and the direct examination was evidently not properly structured, “given that the safeguards taken (although they could have been better) helped to alleviate the risk of jury confusion, we do not find a miscarriage of justice in the blending of dual testimony.”

For those scoring at home, the Court grudgingly acknowledged that three issues were won by Tucker on appeal. But plain error review saved the conviction. The opinion was written by Judge Bauer, and joined by Judge Hamilton and District Judge Tharp (N.D. Ill.) sitting by designation.

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Posted on April 30, 2013 by Tom Wilmouth

Court comments on application of Circuit Rule 36: Reassignment of Remanded Cases.

Case Nos. 12-1964, 12-1965 & 12-1966.

The defendant was on supervised release after convictions for bank fraud and illegal re-entry in district A when he was arrested and indicted in district B for illegal re-entry. At the same time, he was indicted in the Central District of Illinois with new bank fraud offenses. The district A and B cases were transferred to the Central District of Illinois. The defendant pleaded guilty to the new illegal re-entry and new bank fraud offenses, and admitted he violated his supervised release.

The probation department in the Central District of Illinois strangely prepared separate Presentence Investigation Reports (PSRs) for the bank fraud and illegal re-entry offenses, calculating separate Guideline ranges of 24 to 30 months for each offense. A separate supervised release revocation memorandum capped the Guideline range at a statutory maximum of 24 months for the felony class of violation. The defense did not object to any of the probation department’s calculations.

Indicating the defendant was the “poster child for an extended sentence for illegal aliens” who come back and forth to the country on numerous occasions to commit crimes, versus support family, Chief Judge James Shadid sentenced the defendant to an aggregate sentence of 84 months, the high end of the PSR-calculated guideline ranges for the bank fraud and illegal re-entry offenses, and the statutory maximum on the supervised release violation, and consecutive to one another.

On appeal, the defendant and government agreed the district court committed plain error when it failed to determine a single combined offense level for the bank fraud and illegal re-entry offenses, which led to a sentence based on an improper Guidelines range and which error affected the defendant’s substantial rights. Judge Bauer, writing for the Seventh Circuit, agreed and vacated the sentences in the bank fraud and illegal re-entry cases.

Ch. 3, Part D of the Guidelines instruct district courts to determine a single offense level that encompasses all the counts of conviction, even those contained in different indictments, if sentences are to be imposed at the same time or in consolidated proceedings. Guideline § 3D1.4 (Determining the Combined Offense Level) dictated a Guideline range of 30 to 37 months, with all counts running concurrently as instructed in Guideline §5 G1.2 (Sentencing on Multiple Counts of Conviction). So when the district court imposed 30-month consecutive sentences on the bank fraud and illegal re-entry offenses, amounting to 60 months, this was 23 months greater than the correct Guideline range. Judge Shadid did not explain any such upward departure, and the Seventh Circuit held it had no way of determining whether the judge would have imposed the same sentence but for the procedural error.

With that background of plain error, the case is significant because the defendant asked for reassignment to a different judge on re-sentencing pursuant to Circuit Rule 36 (Reassignment on Remanded Cases). That Rule is set out below:

CIRCUIT RULE 36. Reassignment of Remanded Cases. Whenever a case tried in a district court is remanded by this court for a new trial, it shall be reassigned by the district court for trial before a judge other than the judge who heard the prior trial unless the remand order directs or all parties request that the same judge retry the case. In appeals which are not subject to this rule by its terms, this court may nevertheless direct in its opinion or order that this rule shall apply on remand.

Citing Judge Shadid’s “poster child for an extended sentence” comment and admitted first-time refusal to recommend a specific Bureau of Prison placement, the defendant claimed Judge Shadid could not be impartial on re-sentencing. The Seventh Circuit declined to apply the Circuit Rule, setting a sort of standard for application. The Court held that Judge Shadid’s comments “were not unreasonably inflammatory, provocative, or disparaging,” nor did they “demonstrate the judge would be unable to follow our instructions on remand.” Given the defendant’s repeated disregard for the laws, the Seventh Circuit said Judge Shadid’s comments demonstrated “consideration of the requisite sentencing factors and attempt to explain the rationale behind the sentence imposed.”

An interesting side note to these cases is that the parties noted, and Seventh Circuit agreed, that the Central District of Illinois probation department’s committed yet another error. The calculation of the statutory maximum sentence for the supervised release revocation was 36 months and not the 24 months Judge Shadid relied upon and imposed, consecutively. But when the case comes back before Judge Shadid for re-sentencing, he cannot increase the sentence imposed in that case to get back to the aggregate sentence he first imposed by procedural error because the defense moved to dismiss with prejudice the appeal on the supervised release case, which was granted, there was no cross-appeal, and so there was no remand of that matter. That sentence is in place.

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Aggravated Stalking is a “crime of violence” under the Armed Career Criminal Act; To defendants challenging ACC predicate offenses, mere denials don’t suffice – Bring some proof.

Posted on April 22, 2013 by Martin Pruhs

Appeal No.: 12-1860

Randy Meherg was arrested on an outstanding warrant, and was found to have been carrying a gun and ammunition moments earlier. He pleaded guilty to possessing a firearm after having previously been convicted of a felony, in violation of 18 U.S.C. §922(g)(1). Unfortunately for Mr. Meherg, the district court found that he was an armed career criminal under the Armed Career Criminal Act, 18 U.S.C.§924(a), because his record included two Illinois state convictions for manufacture or delivery of 1-15 grams of cocaine, and a conviction for aggravated stalking. He received the mandatory minimum sentence of 180 months.

Mr. Meherg appealed his sentence by challenging the predicate offenses for the district court’s finding that he was an ACC. With regard to the two prior drug convictions, Mr. Meherg alleged that the Illinois state court documents on which the Presentence Report writer had relied had certain scrivener’s errors which made his offenses of conviction unclear and, based on those writings, possible he had been convicted of a lesser offense. However, he did not produce any evidence that he had been convicted of anything other than the ACC qualifying “serious drug offenses” found by the district court, and indeed did not deny that those were his actual convictions.

Ruling against Mr. Meherg, the Seventh Circuit wrote, “We see no reason for a defendant to submit evidence that is indirect to the issue when [the defendant] himself could have produced direct evidence by simply stating that he was not convicted of the crimes with which he was charged or that he was actually convicted of a lesser offense.” (citing United States v. Black, 636 F.3d 893, 897 (7th Cir. 2011), cert denied, 132 S. Ct. 1600 (2012).

Mr. Meherg also challenged that his prior conviction for aggravated stalking was a crime of violence under the ACCA. The district court had found that an Illinois conviction for aggravated stalking was a crime of violence under the “residual clause” of the ACCA in that it “otherwise involves conduct that presents a serious potential risk of injury to another.” In holding that ordinary stalking is not a “crime of violence” under the ACCA, but aggravated stalking is, the Seventh Circuit emphasized that aggravated stalking in Illinois requires actually confining or restraining the victim, which ordinary stalking does not. “Because the crime of aggravated stalking requires confinement or restraint of the victim, we conclude that it presents a serious potential risk of physical injury, just like the crimes of unlawful restraint, false imprisonment, and those enumerated in Section 924(e)(2)(B)(ii).”

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Defendant Assumed Risk in Questioning Government’s Witness

Posted on April 22, 2013 by Christopher Donovan

I am posting this on behalf of new contributor Tom Wilmouth:

Ronald Zitt was convicted in a heroin conspiracy after jury trial in the Hammond, IN Division of the Northern District of Illinois, Judge Rudy Lozano presiding. A government informant testified on direct examination at trial about his own prior convictions. On cross-examination, the defense asked whether the defendant had known the informant had gone to prison in a certain year. The informant answered, “I was in prison while he’s locked up.”

The defense moved for mistrial, arguing that the jury would assume the non-testifying defendant had a criminal history and be prejudiced by that knowledge. The government argued without challenge that it had cautioned the informant to not address the defendant’s prior convictions. The prosecution reported without challenge that it was not aware the informant and defendant were ever in jail together. The defense never explained why it asked the particular question, and did not offer a reason on appeal.

Judge Lozano declined to order a mistrial, but indicated the defense could have a recess to investigate the truth of the response (whether the two had ever been in jail together) and a limiting jury instruction (admonishment to the jury that the answer was irrelevant). The defense declined each remedy.

The standard of review is abuse of discretion. United States v. Keskes, 703 F.3d 1078, 1086 (7th Cir. 2013). The crux of Judge Anne Williams’ decision is the following:

“Examining another party’s witness entails risk in deciding what to ask and how to craft questions, see Holman v. Gilmore, 126 F.3d 876, 884 (7th Cir. 1997), and after [the informant] gave an answer that surprised everyone, [the defendant] decided his gamble did not pay off…A logical answer to the question of whether [the defendant] had known that [the informant] was in prison at the same time as [the defendant] is yes, because [the informant] was in prison at the same time as [the defendant]. [The informant] gave an answer that was responsive, fair, and entirely proper given the line of questioning [the defense lawyer] was pursing. See United Stats v. Powell, 652 F.3d 702, 909 (7th Cir. 2011)…[The defense lawyer] invited the answer [the informant] gave, and thus the district court did not abuse its discretion by denying [the defendant’s] motion for mistrial.”

Assuming the testimony was improper, the Court said is was not so prejudicial to deny the defendant a fair trial, amounting to harmless error. There was overwhelming, untainted evidence of guilt: a confession, audio and videotaped controlled buys, and testimony from co-conspirators and conspiracy customers. The defense’s decision to decline the district court’s remedies weighs against finding an abuse of discretion, citing 7th Circuit cases. There was no danger the jury was prevented from fairly evaluating the evidence because of the fleeting answer by the informant. United States v. Garvey, 693 F.3d 722, 726 (7th Cir. 2012). Judge Williams suggested that with particular witnesses a district court could directly inform or remind the witness before the witness testifies and outside the presence of the jury about the prohibited testimony. The district court could advise the witness to request a sidebar if the witness believes honestly answering a question would require her to give the prohibited testimony. But note defense counsel should not rely on the district court’s or a government witnesses concern with prejudicial testimony, and take steps herself to address potential prejudicial testimony before the examination begins. But even a successful motion in limine barring evidence will not result in mistrial if defense counsel elicited the barred evidence on cross-examination. The limiting instruction was a tough call, not wanting to highlight the evidence, and so should not be held against the defense.

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Seventh Circuit Affirms Above-Guideline Five Year Sentence For Bomb Threat Hoax

Posted on April 17, 2013 by Brian Mullins

On the tenth anniversary of the September 11 attacks, a pastor in Florida gained his 15 minutes of fame when he threatened to burn 200 copies of the Quran to mark the anniversary. The pastor abandoned his plans only after international protests, denunciations by political and religious leaders, and even a personal phone call from Secretary of Defense William Gates.

But a copycat threatened to carry out a version of the Florida pastor’s Quran bonfire in the Illinois suburbs of St. Louis (although he claimed the pastor stole his idea). Roman Otto Conaway posted on Facebook his plan to burn the Quran and encouraged anyone with a camera or video camera to witness the event at his home, the address to which he also published on Facebook. Conaway called the imam of a St Louis area mosque and told him that he intended to videotape himself burning the Quran and send the tape to St Louis television stations, that he wanted to start a war between Christians and Muslims, that he planned to kill President Obama to start the war, and other incendiary remarks showing his displeasure with Muslims, the United States government, and North Korean strongman Kim Jong Il. Conaway repeated these threats to the offices of the Illinois Attorney General, Congressman John Shimkus, the United States Department of State, and the White House.

Law enforcement was dispatched to Conaway’s home, where Conaway appeared in the doorway wearing a belt and “what appeared to be a suicide vest, and holding something that looked like a detonator.” Conaway shouted to police that he had a bomb capable of blowing up the entire block.

At least 15 federal and state law enforcement agencies and over 100 individual agents eventually responded to the scene at Conaway’s house. The entire street on which Conaway lived was evacuated and police set up a “command center” to coordinate law enforcement’s response.

After a seven-hour standoff, Conaway surrendered in exchange for a psychiatric evaluation and two cigarettes. Conaway’s plan, it turned out, was a hoax as he had no explosives or weapons of any kind; although he had placed a new Quran on top of his barbecue grill next to a gas can and matches (is it just me, or does all of this sound like Homer Simpson in a particularly grumpy mood or Michael Douglas in the film Falling Down). Conaway told agents that earlier that day, his daughter and grandchildren had received an order of protection against him in an Illinois state court. Conaway explained that by threatening to strap a bomb to himself, he hoped to get an audience with the Illinois Attorney General to express his displeasure in person with the “dysfunctional St. Clair County judicial system.”

Conaway pled guilty to making false threats with an explosive device (18 U.S.C. § 1038(a)(1)), and influencing a federal official by threat (18 U.S.C. § 115(a)(1)(B)). The guideline sentencing range was 46 to 57 months; Conaway asked for a 30-month sentence based on his diminished mental capacity, the government suggested a 50-month sentence. The district court for the Southern District of Illinois, Chief Judge David R. Herndon presiding, imposed a 60-month sentence.

On appeal, Conaway argued that his sentence was procedurally and substantively unreasonable. On April 16, 2013, the Seventh Circuit affirmed in United States v. Conaway, Case No. 11-3246.

Procedurally, Conaway argued, the district court erred because it imposed a six level enhancement under United States Sentencing Guidelines Manual § 3A1.2 because the offense was motivated by the fact that the victim was a government officer or employee. Conaway argued that the facts did not support the enhancement because his threats were a general harangue against everybody, rather than directed specifically at law enforcement or any government agency.

The Seventh Circuit, noting that it reviews the district court’s factual findings supporting a adjustment for clear error but its judgment that the facts support the adjustment de novo, affirmed. The Court found that the record “amply demonstrates” from the Facebook posts to the phone calls to state and federal officials that Conaway anticipated a response from law enforcement. The Court rejected Conaway’s argument that the enhancement should not apply because he was motivated by the court order that had been entered earlier in the day, rather than animus toward law enforcement. The Court found that the district court did not clearly err by concluding that Conaway “targeted law enforcement officials as a means to whatever end he had in mind.”

With regard to substantive unreasonableness, Conaway argued that given his well-established history of mental illness, a sentence below the guideline range was appropriate and anything above the range was unreasonable. The evidence was undisputed that Conaway suffers from bipolar disorder, paranoid personality disorder, and substance abuse. A psychiatrist concluded that Conaway’s mental illness was a major factor contributing to his actions at the time of the offense. Conaway asked the district court to consider his mental health a mitigating factor under U.S.S.G. § 5K2.13 (diminished capacity downward departure), and as part of his history and characteristics under 18 U.S.C. § 3553(e). On appeal, Conaway focused on the district court’s alleged failure to adequately consider his mental status under § 3553(e).

The Court of Appeals affirmed. With respect to § 5K2.13, the court found that the evidence supported the district court’s finding that Conaway knew and could control the consequences of his actions and that the nature of the offense and Conaway’s history demonstrated a need to protect the public.

The Court of Appeals also found that the district court adequately explained itself for purposes of § 3553(e) where the district court found that Conaway may have diminished capacity in some respects, but had a history of “threatening”, “aggressive,” and “anti-government behavior.” The district court pointed to Conaway’s past history from threatening to blow a woman’s head off and fire bombing her home to getting barred from a casino after kicking a machine. The Court of Appeals concluded that the district court considered the psychological reports describing Conaway’s diminished mental capacity but “simply concluded that it was appropriate to assign more weight to the extraordinary nature of the crime and the need to protect the public from what it viewed as Conaway’s escalating pattern of menacing behavior. This was not an abuse of the district court’s discretion.” The decision was written by Judge Rovner, and joined by Chief Judge Easterbrook and Judge Tinder.

Conaway does not break any new legal ground, although it provides guidance for applying the somewhat obscure enhancement under § 3A1.2 for official victim status. But I think Conaway demonstrates the seriousness with which sentencing courts are treating threats to public safety in this era of terrorism and mass shootings, even when the threats are a hoax. While Conaway caused law enforcement to use what sounds like an extraordinary amount of resources, he posed no likely physical threat to anyone other than himself. Further, his prior history and the psychological evidence demonstrated a man suffering from serious mental health problems. Nevertheless, the district court imposed a sentence above the guideline range even where the guidelines had already enhanced the base offense level by 12 for the number of threats, the official status of the victims, and substantial disruption to government services.

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480-month Child Pornography Sentence is Procedurally and Substantively Reasonable

Posted on April 12, 2013 by Brian Fahl

Brian Annoreno pleaded guilty to charges of conspiring to receive, transport, and distribute child pornography, receipt of child pornography, and possession of materials containing child pornography. Annoreno was sentenced to 480-months in prison, which was below the advisory guideline range. On appeal he challenged both the procedural and substantive reasonableness of his sentence. The Seventh Circuit affirmed.

Annoreno ran an internet chat room that trafficked in child pornography including the broadcasting of live videos of the sexual molestation of children. Eventually law enforcement identified Annoreno as the administrator of the site, obtained a warrant, and searched his home. Annoreno confessed to his conduct and helped identify other users of the chat room.

While in custody on the child pornography charges, Annoreno asked another inmate to procure child pornography for him. Shortly after, other inmates attacked Annoreno, leaving him nearly blind.

At sentencing, the district court conducted a two-day evidentiary hearing during which a user of Annoreno’s chat room testified that he witnessed Annoreno molest a one-year old child about five times.

Procedural Reasonableness
Annoreno raised a number of procedural challenges to his sentence: (1) the district court failed to explain why it adopted the guideline range proposed in the presentence report; (2) the district court impermissibly used evidence of Annoreno’s diminished capacity as an aggravating factor; and (3) the district court improperly used Annoreno’s need for treatment as a factor favoring longer confinement.

Annoreno argued that the district court did not calculate and announce the advisory guideline range. The crux of Annoreno’s claim is that the district court adopted the presentence report without explaining its reasoning for doing so. The Seventh Circuit found that there was nothing impermissible about adopting the presentence report without extensive explanation:

The district court adopted the presentence report, the sentencing report the judge found the advisory guideline to be life imprisonment (statutorily capped at 50 years). The judge might have used more words in adopting the presentence report and its guideline calculation but no more was needed.

Annoreno presented evidence of his low IQ (71), his susceptibility to being led by others, Attention Deficit Hyperactive Disorder, Attention Deficit Disorder, depression, manic depression, and bi-polar disorder. He argued that these were mitigating factors and that the district court erred by considering them to be aggravating factors. Annoreno relied on United States v. Durham, 645 F.3d 883, 898 (7th Cir. 2011), which said that, “A finding of diminished capacity should never be treated as an aggravating factor for sentencing purposes.” The Seventh Circuit rejected Annoreno’s argument and explained that in Durham the Court noted that “the distinction between diminished capacity and personal characteristics that either increase or decrease the risk of recidivism (i.e., aggravating or mitigating factors) is an important one” and “a defendant must show why a particular personal characteristic, such as a low IQ, acts as a mitigating factor, as opposed to an aggravating one.” Id. The Seventh Circuit noted that because the sentencing court acknowledged both the aggravating and mitigating aspects of Annoreno’s mental characteristics, there was no abuse of discretion.

Annoreno also argued the district court improperly used his need for treatment as a factor favoring longer confinement. However, the Seventh Circuit found that Annoreno misinterpreted what the sentencing court did: the sentencing court didn’t say. Annoreno’s sentence must be 40 years because it will take that long to rehabilitate him. Rather, the sentencing court said that given the significant amount of information it had, Annoreno couldn’t be rehabilitated through treatment, so he should be incapacitated for a sufficiently long period of time until he reaches an age where it will be difficult for him to participate in child exploitation and then no longer represents a danger to the community.

Substantive Reasonableness
Annoreno argues that his sentence is substantively unreasonable because: (1) the district court had no evidentiary basis to decide how long he needed to be imprisoned before the public would be safe; statistics show that defendants like Annoreno are unlikely to recidivate; (3) Annoreno’s near blindness makes him unlikely to recidivate; and (4) conditions of supervision can adequately protect the public.

Because Annoreno received a below guideline sentence, the Court noted that his sentence is presumed reasonable. The Court quickly determined that Annoreno was unable to overcome this presumption. However, the Court did note that Annoreno’s near-blindness was potential a mitigating factor in this case. The Court stated:

Mr. Annoreno’s near-blindness is a powerful and grievous mitigating factor, but doesn’t make a sentence ten years below the advisory guideline sentence unreasonable. The blending and evaluation of mitigating factors are matters best suited for, and so generally left to, the sentencing judge’s discretion.

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Court Concludes that Inoperable Firearm Counts Under FIP statute

Posted on April 5, 2013 by Anthony Cotton

Steven Dotson was convicted of being a felon in possession of a firearm. A prison sentence of 188 months was imposed (he must have been an “armed career criminal”). The only question on appeal was whether his “pistol” was a “firearm;” defined as “any weapon which will or is designed to or may readily be converted to expel a projectile by the action of an explosive,” or the “frame or receiver of any such weapon.”

The “firearm” that Dotson was found to be in possession of was extremely corroded. An ATF expert testified that at the time the defendant possessed the gun it was inoperable because of “significant damage, missing/broken parts, and extensive corrosion.” The expert testified at trial that the gun was “damaged” and had “corroded, missing and broken components which make it inoperable.”

The Seventh Circuit rejected this appeal and affirmed the District Court’s guilty verdict by noting that the firearm was “designed” to expel a projective by means of explosive. The Court said that “a gun is still a gun – a weapon designed to expel a projectile by means of explosive action – even though it is in bad condition and can be restored to working condition only by a gunsmith.” Even though the “object” has been altered, the design has not. The court uses the example of an airplane – if there were a manufacture design such that the plane couldn’t fly, it was still “designed” as an airplane. One particular section of the opinion is particularly interesting:

“But what if the gun is so damaged that it can’t be restored? What if it’s just a heap of twisted metal barely even recognizable as having once been a gun?…[S]uch a piece of junk would not be a ‘weapon’ within the meaning of section 921, because, being incapable of repair, it could never again harm anyone, except maybe as a club. But almost any solid object can be used as a club, yet we don’t call all solid objects weapons.”

Because this gun was not redesigned to be something other than a gun (such as it having been converted to a cigarette lighter) and because it was not so badly damaged that it can no longer be regarded as a weapon designed to fire bullets, the Seventh Circuit affirmed the conviction in this decision.

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Alternate Juror Permitted in Deliberation Room. Plain Error, but no Reversal

Posted on April 5, 2013 by Anthony Cotton

Geoffrie Dill received a massive sentence (420 months) after being convicted of possession with intent to distribute five grams or more of methamphetamine, possession of a firearm during drug trafficking and possession of a firearm by a felon.

When the jury was instructed at the close of the case, the judge realized that he had not given any instructions relating to what the alternate juror should do. So, without objection from the parties, he suggested that the alternate juror be permitted to enter the deliberation room along with the other jurors. In open court, the judge instructed the alternate juror that he or she could not participate in the deliberations or render a vote unless he or she were to be called upon to replace a regular member of the panel.

It took the jury about an hour to convict the defendant. On appeal, the only issue raised was whether Fed. R. Crim. P. 24(c)(3) was violated and, if so, what the remedy should be. Rule 24(c) states that:

“the court may retain alternate jurors after the jury retires to deliberate. The court must ensure that a retained alternate does not discuss the case with anyone until that alternate replaces a juror or is discharged. If an alternate replaces a juror after deliberations have begun, the court must instruct the jury to begin its deliberations anew.”

In its decision, the Seventh Circuit had little trouble finding that the error was “plain.” But, the court found that the plain error did not “affect Dill’s substantial rights” because Dill offered no evidence that this juror 1) participated in deliberations, 2) rendered a vote, or 3) otherwise influenced the deliberating jurors. Dill appears to be without much hope as he serves his extraordinarily long prison sentence.

Practice tip – we always need to make as thorough a record as possible and the problem for Dill was that there truly was no evidence that this juror had involved him or herself in the discussions. Some things to do might be to send an investigator out to interview this juror to see what he or she recalls from the deliberations. Another thought would be to poll the alternate, even after the regular 12 jurors are polled concerning their vote in the case.

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U.S. Court of Appeals for the Seventh Circuit Updates

Summaries and analysis of criminal cases