Monday, January 31, 2005

Hobbs Act : An Unanswered Question

National Organization for Women, Inc. v. Joseph M. Scheidler, Case No. 99-3076 (01/28/2005): This opinion is the latest installment in a long-running civil case involving the use of RICO against right-to-life protestors. Much of the discussion centers around whether the decision to send the case back to the district court for further proceedings is consistent with the mandate of the Supreme Court. The Seventh Circuit raises, but does not decide, an interesting question about the meaning of the Hobbs Act, which the plaintiffs invoked for predicate acts under RICO. "Whoever . . . affects commerce . . . by robbery or extortion . . . or commits or threatens physical violence . . . in furtherance of a plan or purpose to do anything in violation of this section . . . " shall be guilty of the offense. Is "physical violence," not connected to robbery or extortion, a violation of the Act? The Seventh Circuit reviews the competing arguments and precedents, but concludes that the district court should have the opportunity to address this issue.

Monday, January 24, 2005

Booker Remands

Today the Supreme Court issued numerous remands in light of Booker. Counsel should be aware of Seventh Circuit Local Rule 54, which reads as follows: "When the Supreme Court remands a case to this court for further proceedings, counsel for the parties shall, within 21 days after the issuance of a certified copy of the Supreme Court's judgment pursuant to its Rule 45.3, file statements of their positions as to the action which ought to be taken by this court on remand."

The obligation to file a position statement is triggered by the remand, not by a request or order from the Seventh Circuit. So counsel should not sit back and wait for an invitation to file a position paper. Also, this position paper should not take the form of a request for a briefing schedule. Rather, it is counsel's only chance to tell the Seventh Circuit why it should grant relief on remand.

Since there are so many of these cases, the Seventh Circuit might issue some guidance that modifies Rule 54 for Booker cases. But at this point Rule 54 should be consulted.

RICO Reversal

United States v. Brenda J. Cummings, Case No. 03-2660 (01/13/2005): Reves v. Ernst & Young, 507 U.S. 170 (1993) requires for a RICO violation that someone "conduct" or "participate in" the affairs of the RICO enterprise. One of the defendants, Morris, paid bribes to Cummings and other employees of the Illinois state governmental unit responsible for administering unemployment insurance. His object was to obtain information about individuals who owed debts to creditors for whom he was working as a "skip tracer." The Court reversed the RICO conspiracy convictions of the state employee and of the skip tracer. The core function of the Illinois agency was to pay benefits to unemployed workers and to collect insurance premiums from employers. Morris was not attempting to interfere with these core functions. The government's case was not aided by the theory that state employees like Cummings had a duty to keep personal information confidential. Although the payment of bribes can sometimes give the bribor control over an enterprise, the bribes in this case did not give control, since the bribes were not offered in an effort to interfere with the agency's core functions. The Court remarked that if the government had charged the skip tracer's business as the RICO enterprise, the Court might have come to a different result.

Friday, January 21, 2005

Sentence Reversed and Remanded

United States v. David H. Swanson, Case No. 03-1863 (01/07/2005): Just days before the Supreme Court decided Booker, the Seventh Circuit reversed a sentence that was based on an inapplicable version of the Guidelines. The Seventh Circuit also reversed and remanded an order of restitution and an order of forfeiture. The government did not present any reasoned basis for the amounts of restitution that the district court entered. "It is not our responsibility to root through the thousands of pages that make up the record in this case. . ." in order to calculate a proper amount of restitution; instead, the government has the obligation to identify specific restitution obligations and to provide a reasoned basis for a proposed restitution order. Nor did the PSR's repetition of the government's summary conclusions provide any support for the district court's order. The Seventh Circuit also fleshed out what it means for property to be forfeitable as a result of being "involved" in the offense. The defendant's company made substantial purchases, from which he siphoned off much lesser sums of money. The district court entered a forfeiture of the entire purchase price, even though his company received value from the transactions. Instead, the court should have forfeited no more than his gain from the siphoned funds.