Prior Convictions - - Questions of Fact and Questions of Law

United States v. Freddy Rosas, Case No. 04-2929 (03/24/2005): The defendant was sentenced as a career offender. In doing so, the district court relied on a prior Wisconsin conviction for fleeing a police officer. The Court held that fleeing was a "crime of violence," since it "otherwise involves conduct that presents a serious potential risk of physical injury to another." The defendant acknowledged the vitality of Almendarez-Torres, but argued that he had a right to a jury trial on the nature of the offense, even though he had a no jury trial right as to the existence of the conviction. The Court held that the issue is one of law, not fact; hence, no right to jury trial.

It is true that a prior decision by the Court has declared that any and all violations of the Wisconsin flight statute are crimes of violence, but this ruling is not easily squared with Shepard v. United States, 544 U.S. ___ (2005), which was decided after Rosas was argued, but is not discussed by the Rosas Court. One can violate the Wisconsin statute by engaging in extremely risky conduct, but one can also violate it with conduct that poses minimal risks to anyone. If the government in Shepard had to prove that the defendant was convicted of the sort of burglary that triggered enhanced penalties, the government in Rosas should have been required to prove that the defendant was convicted of the sort of flight that posed a serious risk. Moreover, the Court has seized on a false dichotomy. The nature of the offense is a mixed question of law and fact, which, under Booker, should call into play the right to jury trial.

The Court upheld the calculation of the guidelines, but it said nothing about how this case should be resolved now that the guidelines are merely advisory.

Theft from a City Receiving Federal Funds

United States v. Michael Spano, Sr. et al, Case No. 03-1110 (03/24/2005): The defendants were convicted of violating 18 U.S.C. §666, which prohibits theft from an organization receiving federal funds, as well as bribery of officials of organizations receiving federal funds. The defendants argued that there had to be some nexus between the stolen funds (or bribes) and the federal grants. In Sabri v. United States, 124 S. Ct. 1941 (2004), the Supreme Court had held the statute constitutional on its face, and the Seventh Circuit relied on Sabri to hold that there was no nexus requirement.

Hobbs Act and Depletion of Assets

United States v. Randall Re and Anthony Calabrese, Case No. 03-2089 (03/22/2005): One of the defendants, Re, owned a warehouse next door to a warehouse owned by Leach. Re thought he had a buyer for his warehouse, but the prospective buyer, Daughtry, decided to lease from Leach rather than buy from Re. A thug so intimidated Daughtry that he backed away from the lease. The Court upheld a jury verdict finding that Re was behind the intimidation. The next question was whether there was enough effect on interstate commerce to ground this prosecution under the Hobbs Act. The Court found that there was barely enough evidence on interstate commerce.

The prosecution relied on the depletion of assets theory. "Under this theory, commerce is affected when an enterprise which customarily purchases items in interstate commerce has its assets depleted through extortion, which in turn limits the victim-enterprise’s potential as a purchaser of goods." The government argued that Daughtry was dissuaded from the lease, which meant that Leach had less money to pay expenses associated with the warehouse. It was a further part of the government’s argument that the Leach used out-of-state paint, tools (most notably, a weed-eater), and gasoline for these tools as part of his efforts to maintain the warehouse. The Court stressed that any out-of-state purchases must be made by the victim enterprise and they must be made customarily. The Court noted that the government never presented any direct evidence that these items had ever traveled in interstate commerce. Nor did it establish that any of these goods were customarily purchased. (For example, the purchase of a weed-eater 20 years ago would not establish that it was a customary purchase.) Nor did the government establish that these purchases were made by the business, as opposed to the owner of the business. Nonetheless, the Court held that a jury could legitimately infer that all these items had been customarily purchased by the business from out-of-state sources.

The Court gave no explanation for this conclusion. Is the Court saying that all common items can always be inferred to have traveled in interstate commerce? Perhaps it is true that there is nothing in today’s world that is entirely intrastate in a factual sense. But then is the jurisdictional component of interstate commerce a meaningful limitation? One would be hard pressed to conjure up a case in which the Court will not find that the jury had enough, just barely enough, evidence to conclude that there had been a depletion of assets.

This case is also troublesome for what the Court did not say. In this case there was no robbery or extortion, a core requirement of the Hobbs Act. The opinion assumes that violence not amounting to robbery or extortion can be the basis of a Hobbs Act prosecution, a difficult legal proposition noted but not resolved earlier this year in the Court’s opinion in National Organization for Women, Inc. v. Joseph M. Scheidler, Case No. 99-3076 (01/28/2005). (The NOW case was the subject of an earlier posting.) It cannot be told from the Re opinion whether this issue was raised by the parties, and of course the Court cannot be faulted for failing to take on a difficult issue not raised by the parties.

Perhaps more questionable is the assumption that violence could be directed at Daughtry and the depletion of assets could be felt by Leach. The depletion of assets theory is very broad, especially as administered in this case, but it becomes inconsequential, if not a fiction, when the victim of the violence and the victim of the depletion are different parties.

Some Nuts and Bolts of Appellate Practice

United States v. Mario Howard Lloyd, Case No. 03-3334 (03/01/2005): The Court stated its strong disapproval of a litigation strategy that has become too common. Instead of filing its appellee brief, the government filed a motion to dismiss the appeal for lack of appellate jurisdiction.

If an appellee has genuine doubts as to appellate jurisdiction, it should, pursuant to Circuit Rule 3(c)(1), file a counter docketing statement within 14 days after the appellant files the initial docketing statement. In addition, the appellee’s responsive brief must, if warranted, challenge the appellant’s jurisdictional statement, and the appellee may file a motion to dismiss along with its responsive brief. But a motion to dismiss should not be used as a substitute for the responsive brief. When so used, it creates extra work for the Court and delays the briefing of the merits, which is especially troublesome if the jurisdictional objection is found not well taken.

As it turned out, the government’s jurisdictional argument was not well taken. Nonetheless, the Court viewed Lloyd’s filing in the district court as a transparent attempt to circumvent the requirement that he receive permission from the Court of Appeals before filing a second motion under 28 U.S.C. sec. 2255. The Seventh Circuit held that it had jurisdiction to hear the appeal, but the district court had no subject matter jurisdiction and should have dismissed the filing on that basis.

Defense counsel are rarely in the appellee position. But this case should be a good reminder to scrutinize the initial docketing statement and file a counter statement if necessary. Although the Court does not comment on the practice once a counter statement is filed, one can expect that filing a counter statement will elicit an order from the Court asking the appellant to clarify the jurisdictional issue.

Not All Cocaine Base Is Crack

United States v. Carl Edwards, Case No. 03-4234 (02/11/2005): "All crack is cocaine base but not all cocaine base is crack." In this case the Court adhered to its earlier decision in United States v. Booker, 70 F.3d 488 (7th Cir. 1995) (not to be confused with the more recent and more famous Booker case) and held that the mandatory minimum for crack will not apply if the evidence merely establishes that the substance in question is cocaine base. The Court acknowledged that its ruling maintained a split among the Circuits and called for intervention by either the Supreme Court or the Congress.

The problem arises from Congress’ apparent misunderstanding of chemistry. "Cocaine" and "cocaine base," the two statutory terms, have the same chemical formula. In Booker the Court looked to legislative history (who says legislative history is unimportant?) and concluded that Congress, when it put higher penalties on "cocaine base," was attempting to deal with "crack." Hence, the government must do more than establish that the substance is cocaine base; it must demonstrate that it is "crack." The Court remanded for resentencing, at which the statutory mandatory minimum would not apply.

Booker and Plain Error

United States v. Robert D. Palladino, et al., Case No. 03-2296 (02/25/2005), and United States v. Marcus Lee, Case No. 03-4239 (02/25/2005): Both opinions deal with the context of the defendant’s not raising a Booker objection in the district court. Palladino (which is a consolidated opinion for several cases) is the lengthier opinion and sets out the Seventh Circuit’s approach to Booker plain errors. Lee, heard before a panel with a somewhat different composition, merely applies the Palladino analysis. Both opinions were circulated to the full Court and are the functional equivalents of en banc opinions. Judges Ripple and Kanne, neither of whom was a member of either panel, dissented from denial of rehearing en banc.

Palladino observed that the problem is that the reviewing court will seldom know what the district court would have done had the objection been brought to its attention at the proper time. It identified some situations in which the reviewing court would know. For example, the district court could have said that it would have given the same sentence if the guidelines were advisory. Second, the district court could have departed downward to give the defendant the statutory minimum, which was the case with one of Palladino’s co-defendants. (Lee contains a suggestion that any downward departure is a statement that the district court would not have gone any lower.) Third, the district court could have given the statutory maximum and said that it regretted that it could not go higher, which was the case in Lee. Apparently, in all these cases, the Court will treat any claim of error as forfeited.

Strangely enough, the Court said nothing about the case in which the district court gave a sentence within the Guidelines and expressed the view that it would have given a lower sentence if it had been allowed to do so. Perhaps the Court felt that the consequence is so obvious: a reversal and remand for resentencing.

When a case does not fit into one of the three categories identified in Palladino, the Court will order a limited remand, with the Court retaining jurisdiction. If the district court says on this limited remand that it would give a different sentence under advisory guidelines, then the Seventh Circuit will give a full remand for resentencing. If the district court says the sentence would be the same, then the court "will affirm the original sentence against a plain-error challenge provided the sentence is reasonable."

On the limited remand, the district court shall obtain the views of counsel, in writing and perhaps orally as well. The defendant need not be present for these proceedings on the limited remand. The district judge must then put on the record its determination as to whether to resentence and must give "an appropriate explanation" for its decision. It is unclear whether the district court is supposed to express an opinion as to what it would have done at the time of the initial sentencing or what it would now like to do. The dissents charged that the limited remand would call for the district court to make a statement as to what it would have done and that this procedure was unfair because the district court did not have a full record at that time, since everyone at that time was proceeding on the assumption that the guidelines were mandatory. The dissenters' reading of the majority opinion is a plausible, but not the only, reading of Palladino. Unfortunately, the debate was not sharpened, since the majority made no response to this claim. One wonders if the dissenters correctly appraised the majority opinion. Why would the majority want written submissions to the district court and the district’s court’s explanation if the district court is limited to what it knew or thought at the time of the original sentencing?

Palladino does not explain what should happen if the district court expresses a view on the limited remand that it would like to sentence higher. Presumably, the defendant would have the option to withdraw the appeal or that portion of the appeal dealing with sentence. (Or the defendant could allow the case to be remanded for resentencing and then appeal the new, higher sentence on whatever grounds would be available.)

A puzzling part of Palladino is the statement that if the district court sticks by its original sentence, then the sentence will be reviewed for reasonableness. If the district court says the sentence would be the same, that would seem to rule out a finding that the error was plain error. With a statement that the sentence would be the same, the defendant cannot make the case for the proposition that the error could have made a difference. Yet the Seventh Circuit says the sentence will be reviewed for reasonableness.

But on what basis can the Seventh Circuit determine that the sentence was reasonable when the attorneys have not made a full presentation under section 3553(a)? If, as suggested in United States v. Crosby, the Second Circuit decision on which Palladino relied, a major component of reasonableness review is whether the district court followed the proper analytical framework, can a decision that ignored section 3553(a) ever be reasonable? It remains to be seen how the Seventh Circuit will give content to the reasonableness standard. (In dictum, the Court stated that a sentence for one of the defendants, derived from a downward departure, was reasonable, but it gave no explanation for its dictum, other than to note that the defendant was a 34 year old man who had received a 15-year sentence.)