Post-Argument Submissions

United States v. Dennis S. Goodwin, No. 05-1809 (May 24, 2006): Have you ever wanted to make a response to the appellee's oral argument, and you had no time left for rebuttal? Sometimes the Court will grant the appellant an extra minute or so, but often this does not happen. This case suggests that the Court may sometimes be receptive to a post-argument submission.

The opinion deals with a Terry stop. In the course of denying relief, the Court mentions that there was some question about the length of time between seizing a piece of luggage and submitting it to the nose of a drug-sniffing dog. The Court notes that the government attorney had estimated the time at 30 minutes, but it could find nothing in the record to support government counsel's assertion. It further notes that the estimate was not contradicted. Then, most significantly, the Court states that the defense attorney had no rebuttal time, "though he could have asked leave to file a supplemental brief or memo." As it turned out, the Court concluded that the exact time was not material.

By holding out this option for appellant's counsel, the Court did not introduce any new procedural device. Yet the remark is a good reminder that in some cases counsel may want to make use of this device. Note, however, the exact context in which the remark was made: the Court had asked a question about the record, and nothing in the briefs seemed to point to the answer. The Court was not inviting counsel as a matter of course to ask leave to file the rebuttal they wish they had made had they not run out of time. Of course, if there are new authorities that arise after oral argument, the Circuit Rule 28(j) letter is available.

Court Supervision as a Conviction

United States v. Christopher Jones, No. 05-4272 (May 23, 2006): Mr. Jones argued that he should have been eligible for safety-valve treatment, since his previous cases had resulted in court supervision. Having successfully completed the supervision, he was considered under Illinois law not to have a conviction. Reaffirming previous holdings, the Court held that his convictions were still convictions under federal law, despite their treatment under state law.

This case involved the effect of convictions on a mandatory minimum sentence. It would also seem to govern the calculation of criminal history points under the guidelines. Yet when counsel argues for a sentence below the guidelines (which was not an option for Mr. Jones' counsel), he or she can certainly suggest that the criminal history points overstate the criminal history, since the client has successfully completed the supervision.

Notice of Intent to Sentence above the Guidelines

United States v. Thomas Walker, No. 05-1812 (May 17, 2006): Mr. Walker was sentenced, upon a guillty plea, for stabbing four guards at a federal prison. His guidelines range was 168-210 months in prison. The court sentenced him to 240 months. He argued that under Rule 32(h) he should have received notice of the court's intent to sentence above the guidelines.

The Seventh Circuit held that Rule 32(h) applies only to departures, as defined pre-Booker. The 240-month sentence was not a departure, and so he had no right to notice. The holding is muddied somewhat by the fact that he made no objection below and the Seventh Circuit considered the case under the plain error standard.

The Court's holding is remarkable, since the government, after oral argument, filed a letter under Circuit Rule 28(j) and essentially confessed error on this point, although maintaining that the error was harmless. The Court was unwilling to accept the confession.

The decision may be somewhat short-lived, since an amendment to Rule 32, effective December, 2006, will require the district court to give the sort of notice that Walker says is unnecessary.

Paladino Remand Procedure

United States v. Michael Spano, Sr. et al., No. 03-1110 (May 9, 2006): The Court sent this case back on a Paladino remand. The district court adhered to the original sentence. The appellants complained that the district judge did not give sufficient attention to the factors found in 18 U.S.C. sec. 3553(a). The Seventh Circuit agreed that the district judge seemed to focus more on the original sentencing than on an analysis of the section 3553 factors. ". . . but this is entirely understandable given the paucity of the defendants' arguments below. . . . The need for a judge to explain in detail his consideration of the . . . factors when choosing to stick with the Guidelines sentence is proportional to the arguments made by the defendants. . . . When the judge is not presented with much, he need not explain much."

As for the reasonableness assessment by the Seventh Circuit, it found that the appellants had not done any better in bringing detailed reasons to the Court's attention on further review.

Immigration Fraud through Marriage

United States v. Anouar Darif, No. 05-3377 (May 3, 2006): Mr. Darif was convicted of marriage fraud in violation of 8 U.S.C. sec. 1325(c). He arranged for a propsective wife to come to Morocco and marry him. He paid her $3,000. When he later arrived in the United States, they lived together for several months. They filed joint tax returns and opened a joint bank account. After a while, he took a job as a long distance truck driver and did not live in the same house with her. She testified that the marriage was never consummated. There was also evidence of his having an extramarital affair.

The district court instructed on the elements of the offense as follows:

First, that the defendant knowingly entered into a marriage with Dianna Kirklin;
Second, that the defendant knowingly entered into a marriage for the purpose of evading any provision of the immigration laws;
Third, the defendant knew or had reason to know that his conduct was unlawful.

Mr. Darif requested the following additional instructions, all of which were refused:

1. [To be guilty of the offense] . . . at the time of the marriage, Anouar Darif did not have the intent to establish a life with Dianna Kirklin.
2. Marriage fraud may be committed by one party to the marriage, or a person who arranged the marriage, yet the other spouse may genuinely intend to marry. If one spouse intended the marriage to be fraudulent, when the ceremony took place, but the other spouse intended it to be genuine, then the one committed marriage fraud but not the other.
3. The marriage is legitimate so long as Anouar Darif intended to establish a life with his spouse at the time he married her, even if securing an immigration benefit was one of the factors that led him to marry her.
4. A marriage between a foreign person and a United States citizen is not required to be more conventional, or successful, than a marriage between U.S. citizens.

His basic position was that there was an actual marriage, despite his poor motive for entering the marriage. Although the government seemed to have some evidence that the marriage was a sham, he wanted to argue that his intent to marry was genuine.

The Seventh Circuit found requests 1 and 3 to be mistatements of the law, 2 to be covered by the district judge's instructions, and 4 "simply irrelevant."

Although the Court stated that 1 and 3 were mistatements under its precedents, it cited no Circuit case law in support of that proposition. Although it cited cases from the Eighth and Ninth Circuits, it did not acknowledge that they supported Mr. Darif's position, especially United States v. Tagalicud, 84 F.3d 1180, 1185 (9th Cir. 1996). As Tagalicud pointed out, referencing the Book of Genesis, a marriage is no less a marriage even though one or both the parties may have motives that are less than pure.

It is not stated that Mr. Darif made any challenge to the court's instructions. One wonders how an instruction that allows liability for what Mr. Darif "had reason to know" satisfies a criminal intent requirement.

Hearsay in Supervised Release Revocation

United States v. Lamond D. Kelley, No. 05-1884 (May 2, 2006): Mr. Kelley's supervised release was revoked. At the revocation hearing, a police officer testified that two complainants told him that Mr. Kelley had assaulted them with fists and had threatened them with a gun. The officer received Mr. Kelley's permission to search the trunk of his car, where he found a gun.

The Court rejected the argument that Crawford v. Washington, 541 U.S. 36 (2004) bars hearsay at a revocation hearing. Reasoning that such hearings are not criminal prosecutions for Sixth Amendment purposes, it refused to extend Crawford beyond the trial setting.

The Court acknowledged that under the due process clause of the Fifth Amendment there is a right to confront unless the judge specifically finds good cause for not allowing confrontation. In this case, the district judge apparently accepted the government's view that hearsay is always allowed at revocation hearings. In that regard, the district judge was found to have erred.

But the Court approved the admission of the hearsay. In the Seventh Circuit, good cause can be satisfied if the hearsay is found reliable. The testimony about the out-of-court statements by the complainants was deemed reliable, since the officer did find a gun, corroborating a big piece of their story. Finding this gun also made any error harmless.

Mr. Kelley also advanced the arguments that (1) Circuit law erroneously equates reliability with good cause and (2) when a court finds good cause, it should make findings on the record. The Court found that these arguments were insufficiently developed to merit consideration, although it did opine that "ideally" the district judge should have made such findings. (Of course, the district judge never made such findings, since he was seriously misinformed about the law.)

Review of Below Guidelines Sentence

United States v. John B. Baker, No. 05-2499 (April 28, 2006): Mr. Baker entered a plea of guilty to distribution of child pornography. His advisory guidelines range was 108 to 135 months. The district court rejected a defense plea for a sentence of 60 months and sentenced him to an 87-month term of imprisonment. The government appealed the sentence.

The government did not contend that the sentence was unreasonable. Instead, it argued that the district court did not adequately explain its below-guidelines sentence. The district judge's written explanation was brief. "There is no evidence in the record to indicate that the defendant has acted out against any child. The sentence of 87 months is sufficient, but not greater than necessary to comply with sentencing purpose [sic]."

The Seventh Circuit held that it could consider the oral explanation as well as the written explanation. It then found the explanation, written and oral portions taken together, sufficient to justify the sentence. The district court paid close attention to Mr. Baker's lack of criminal history, his age, his religious background, and his work history. The Seventh Circuit quoted at length the district court's recognition that Congress regards child pornography as a serious problem. The Court also stressed that the district judge imposed a life term of supervised release.