The Appendix Is Not a Body Part

United States v. Robert White, No. 06-1769 (December 19, 2006): Defense counsel presented a seriously inadequate appendix to the opening brief and, worse, signed a certificate that the appendix was complete and in compliance with the rules. The Court re-emphasized that the appendix is not a mindless formality; it serves an important purpose. After affirming the conviction and sentence, the Court entered a rule to show cause why counsel should not be sanctioned in the amount of $1,000.00.

New Direction for Eyewitness Identification?

United States v. Shaun Brown, No. 05-4690 (December 19, 2006): Mr. Brown argued that the eyewitness identification of him by two police officers was tainted because, after they saw the alleged offender, a confederate gave them a name for the face, and they immediately consulted a mug shot of that person, confirming the information provided by the informer. Mr. Brown argued that this type of photo identification was impermissibly suggestive. In the end, the Court concluded that the officers were not like an ordinary citizen, who might be susceptible to the suggestive influence of a single photo. Instead, they were skeptical of what they had been told and consulted the photo to confirm or deny the information provided. Their interest was to verify the name given them for a face embedded in their memory. (The rationale given by the district judge was quite different: it was the typical pablum to the effect that the jury could evaluate the effect of the photo procedure.)

In working up to this conclusion, the Court presented some interesting comments on what procedure produces the most reliable results when an ordinary citizen is asked to make an eyewitness identification. Drawing heavily on social science literature (which reveals the typical pablum for the nonsense that it is), the Court lauded the "repeated sequential display." In this procedure, the witness is shown a series of photographs, one by one, and asked if the person in the photo is the offender. The witness must give an answer immediately after being shown each photo and is not allowed to make a judgment only after seeing all the photos. The witness is not told how many photographs will be shown. Ideally, the officer conducting the procedure does not know which photo contains the suspect, and in this way cannot give the witness even unintended hints. Moreover, this one-by-one display should then be repeated. Although the opinion dealt with photos, the same procedures would be equally applicable to in-person showups; that is, a series of persons, one by one, would be exhibited to the witness, who would be asked to say yes or no as to each person immediately after the presentation of that person. The opinion does not state that this type of procedure is mandated by the Constitution, although it does conclude that it better addresses the concerns raised in the Supreme Court’s decisions on eyewitness identification.

Amnesia and Fitness for Trial

United States v. Rodney Andrews, No. 06-1448 (December 7, 2006): Mr. Andrews was examined and found fit to stand trial, even though he was suffering from amnesia that covered the time of the charged bank robbery. The courts, both at trial and on review, seemed to take as a given that Mr. Andrews was truly suffering from amnesia and was not malingering. The Seventh Circuit held that there was no abuse of discretion in refusing a second competency exam. The basic holding was that even though a defendant suffers from amnesia, it is still possible to be fit for trial, so long as the defendant understands the nature of the proceedings and can co-operate with counsel. How can one co-operate if suffering from amnesia?

The Court set out several pertinent factors, most of which boil down to this: was the defendant able to present a defense, even though he could not remember anything about his activities at the time in question. A principal component of this inquiry is the strength of the government’s evidence. The Court thought the evidence in this case was so strong that the defendant’s amnesia was not a barrier to trial.

The facts in this case do not seem to be as strong as suggested by the opinion. No teller seems to have identified him. The evidence consisted of a surveillance video showing the robber smoking cigarettes outside the bank, cigarette butts obtained from outside the bank, and DNA test results that were positive as to Mr. Andrews on one of the butts. (We are not told what results came from the other butts.) As is often the case, the video does not seem to have presented a clear enough image of the robber’s face. Perhaps this evidence is strong enough to meet the forgiving test for Rule 29 motions, but it is an overstatement to say that this evidence is so overwhelming that it makes no difference that the defendant cannot remember where he was and what he was doing at the time of the robbery.

The Court observed that Mr. Andrews "could have asked his family members or friends where he had been or with whom during the time in question." There are a number of problems with this observation. For any given person, "family or friends" can cover a large number of persons. A defendant cannot know which ones to quiz if he does not know what he was doing at the crucial time. Moreover, one should not assume that a person is always in the company of family or friends. So resort to these people is meaningless if they were not present, and the defendant cannot hope to know what other avenues to pursue if family or friends is not an option.

Finally, the charge in this case, bank robbery, often calls for a straightforward defense: someone else is the robber. How does this test work when the acts are undisputed, but there are questions about intent or knowledge?

In staking out this position, the Court rejected a contrary approach taken by the Court of Appeals for the D.C. Circuit.

Implicit Waiver of Counsel at Trial

United States v. Glen Murphy, No. 06-1309 (December 8, 2006): This opinion suggests that a defendant can impliedly waive the right to be represented by counsel. Mr. Murphy was appointed counsel, but then successfully moved to discharge him. He interviewed several attorneys as potentially retained counsel, one of whom rejected the case since the retainer being offered was $20.00. Nine months after arraignment, the judge started the trial with Mr. Murphy representing himself. It does not appear from the opinion that the judge ever told Mr. Murphy that a firm trial date was being set and gave him advance warning that, if he had not secured counsel by that date, he would be representing himself.

The opinion focuses on a district judge’s right to make a determination of a defendant’s entitlement to appointed counsel. Although the district court had previously appointed counsel, it insisted that Mr. Murphy file a financial affidavit before it would appoint a replacement. Mr. Murphy never complied with this request. Why the district court was making this requirement is unclear. It had, after all, initially appointed counsel without the filing of the affidavit, and the appointed counsel was dismissed because attorney and client disagreed on how to defend the case. The departure of the appointed counsel had nothing to do with Mr. Murphy’s claim of indigence.

The real issue seems to be whether a defendant can delay trial by refusing to form an attorney-client relationship. The answer to that question should be obvious, and it does not rest on a theory of implied waiver. One hopes that the district judge did give Mr. Murphy the appropriate warning, even though that event is not reflected in the Seventh Circuit’s opinion.

Facts or Factoids?

United States v. Arturo Orozco-Vasquez, No. 05-3920 (December 5, 2006): Mr. Orozco-Vasquez received a sentence of 120 months, well above his calculated guidelines range of 63 to 73 months. Although the opinion is less than clear, it appears that the district court’s explanation for this substantial variance was Mr. Vasquez’ criminal record, his membership in a gang, and his involvement in uncharged drug crimes. Apparently, none of these factors affected the calculation of the guidelines.

As framed by the Court, the appeal centered around the lack of support for factual findings made by the district court. In approving this sentence, the Court has emphasized or created a distinction that could have validity in some instances, but can create much mischief if not properly employed. Here is the key passage:

. . . not every fact-based statement a judge makes at sentencing is a "factual finding." Much of what a judge says in imposing and explaining a sentence consists of observations and assessments that form the basis of the judge’s consideration of the § 3553(a) sentencing factors. Sentencing post-Booker requires the sentencing judge to properly calculate the advisory guidelines range in the same manner as before Booker and then to make a discretionary decision whether to sentence the defendant within the advisory range or outside it in light of the very broadly stated sentencing factors set forth in § 3553(a). . . . The second step is an evaluative process by which the judge considers the particular statutory factors that inform the sentence he has decided to impose. We have held that the "duty to consider the statutory factors is not a duty to make findings." . . . Judicial observations about such factors . . . are not "facts" requiring "findings,"as when the judge calculates the guidelines range. As we have noted, only where a particular fact is contested and "decisive to the choice of sentence" must there be explicit fact-finding to support the judge’s exercise of sentencing discretion.

It is undoubtedly true that, for example, a defendant’s potential to be rehabilitated is a question that is not entirely factual. But does this obvious truth mean that the judge can be irrational in making conclusions about subsidiary findings that are for the most part factual? Consider two of the "findings" that were the subject of this appeal.

The district judge made a finding that, based on language Mr. Orozco, had used in a wiretapped conversation, he was a repeat drug dealer. The government presented an affidavit from one of its "experts," who opined that "possibly" or "probably" drug code words appeared in the conversation. Whether this sort of affidavit satisfies even the low preponderance standard became irrelevant because, as declared by the Seventh Circuit, the judge’s finding that Mr. Orozco used drug code words was not a "factual finding." A hunch that someone is a bigger drug dealer than is revealed by the evidence is a basis for enhancing a sentence, even though there are not enough facts to jack up the defendant’s relevant conduct.

Likewise, the district judge found that Mr. Orozco was a gang member, relying, in part, on his being shot in the head. Mr. Orozco said he had been shot by a car thief. The district judge thought the shooting was the result of a gang dispute. Once again, the Seventh Circuit thought the district judge’s take on this incident "was not a factual finding." Since this conclusion was not a factual finding, there was no requirement that the judge base it on anything other than surmise, intuition, or worse.

Of course, this framework should also apply to cases in which the government appeals a downward variance.

Full Speed Ahead!

United States v. Jose Francisco Gama-Gonzalez, No. 06-1965 (December 5, 2006): Mr. Gama-Gonzalez received a sentence at the low end of his guidelines, and the Seventh Circuit affirmed. This very brief opinion is noteworthy for two reasons.

First, the Court saw no reason to hold off decision until the Supreme Court decides the two Booker cases on which it recently granted certiorari. The opinion could not conceive that the Supreme Court’s decision would lead to a different result. Regardless of whether this assessment is correct, counsel should be aware that sentencing appeals will move forward without much concern as to how the Supreme Court will resolve the difficult issues now pending before the Supreme Court.

Second, Mr. Gama-Gonzalez had presented an argument for a downward variance. Apparently, the district judge did not set forth any reasons for rejecting that position and the requested variance. In the Seventh Circuit’s view, the district judge "did not need to discuss the subject," since the argument was so insubstantial. Whether the argument was insubstantial or not, it is curious that a decision-maker should be able to make a decision without commenting at all on the merits of a contrary argument. If an argument is no more than a fleeting reference in a footnote, the Court’s approach is an application of well-established rules. But if an argument is fully developed, simple fairness would require the decision-maker to give some explanation.