Motion to Strike a Brief

Custom Vehicles, Inc. v. Forest River, Inc, No. 06-2009 (September 25, 2006): This is a civil case, and it raises an issue that seldom arises for the criminal practitioner. Yet the in-chambers opinion of Judge Easterbrook contains some information of interest to all practitioners.

Claiming that various statements in the appellee’s brief were unsupported by the record, the appellant filed a motion to strike those portions of the appellee’s brief. Judge Easterbrook denied the motion. As background, the judge observed that in any given week one judge decides all the motions for that week. The judge’s involvement in the motion has no relationship to his or her being assigned to the case on the merits. As a consequence, any motion that calls for the motions judge to rule on what should or should not be in the brief can have the result of taking up the time of four, not three, judges, which is not an efficient use of judicial resources.

Judge Easterbrook noted that the rules have no provision for striking a brief or portions of a brief. If a party believes that an adversary has played fast and loose, the party should say so in its responsive brief. If there is no scheduled responsive brief, the aggrieved party can ask to file a supplemental brief to correct the error. But there is no place for a motion that essentially asks the Court to edit the opponent’s brief.

Judge Easterbrook did allow that motions to strike may sometimes have a place, giving the hypothetical example of a brief that discussed a trade secret that was under court seal. He also referred to the Court’s power to strike briefs that violate the Court’s order to avoid duplicative briefs by multiple parties.

Finally, he revealed that in the past, when denying such motions, he has also entered an order deducting from the word limit for the movant’s brief the number of words contained in the motion to strike. With this opinion, he gave notice that he will be deducting double the number of words from the responsive brief to be filed by the movant. This practice will apply not only to motions to strike, but also to "any other equivalently absurd, time-wasting motion."

Obviously, this opinion is not binding on any other member of the Court, but it provides some key insights into the process. Moreover, since it is unlikely that anyone will ever know what week is Judge Easterbrook's week to handle motions, it would be risky to file one of these motions.

A New Twist on Standard of Proof at Sentencing

United States v. Christopher K.P. Reuter, No. 05-4503 (September 19, 2006): Mr. Reuter’s guidelines range, without adjustments, initially topped out at 105 months. However, the district court found that he had committed a murder during the course of the conspiracy. With that finding (and several unspecified others), his range became 360 to 480 months, and he received a sentence of 360 months.

His attorney filed an Anders brief. The Seventh Circuit acknowledged the claim that the calculations should have been made under a clear and convincing standard, since the sentence after the enhancements was the proverbial tail wagging the dog. However, since Mr. Reuter had confessed to the murder and since his confession had been corroborated, the Court concluded that this higher standard would have made no difference.

In dictum, the Court observed that in the past it, like other courts, had allowed for the possibility that the clear and convincing standard might apply, but had never applied it. That debate, the Court continued, has now been rendered academic by Booker, but with this consequence.

After a judge calculates the guidelines and creates a tail powerful enough to wag the dog, Booker now allows the judge to make a downward variance. "A judge might reasonably conclude that a sentence based almost entirely on evidence that satisfied only the normal civil standard of proof would be unlikely to promote respect for the law or provide just punishment for the offense of conviction. That would be a judgment for the sentencing judge to make and we would uphold it so long as it was reasonable in the circumstances."

Plain Error in Calculating Guidelines

United States v. Andre D. Bennett, No. 05-3709 (August 29, 2006): Mr. Bennett received a four-level enhancement for his use of a firearm in connection with another felony offense. Aggravated battery under Illinois law was the designated other felony offense. Yet in Illinois aggravated battery is a misdemeanor. This point was not raised below or in the appellant’s opening brief. Without much discussion, the Court determined that the error concerning Illinois law was a "plain error," and remanded for resentencing.

Irrelevant Evidence Leads to Reversal

United States v. Herman Cunningham, No. 05-1515 (August 29, 2006): This is a rare reversal for the improper admission of evidence. The Government presented the results of a Title III wiretap. As part of its foundation, it introduced testimony about the review process involved in the Title III application. This evidence stressed the painstaking review by high-level DOJ officials. The defense objected on the ground that the government was introducing opinion testimony by government officials concerning their clients’ guilt. On appeal, the Court agreed that this evidence was entirely irrelevant and prejudicial.

Confrontation Clause and Blood Test Results

United States v. Brian K. Ellis, No. 05-3942 (August 22, 2006): Mr. Ellis was arrested on a DUI charge. He was taken to a hospital for blood and urine tests. At trial, the court admitted a hospital report that he tested positive for drugs. He argued that the admission of this report violated the Confrontation Clause, as interpreted in Crawford v. Washington, 541 U.S. 36 (2004).

The Court acknowledged that this report was factually different from most business records. The author knew that the entrees she was making would or could become part of a litigated case. Yet it found that the report was no different from traditional business records.

So what’s next? Reports of DEA chemists that the seized materials are controlled substances? Reports of handwriting examiners? Reports of fingerprint examiners?

Use of a Minor

United States v. Brazinskas, No. 05-4181 (August 15, 2006): The district court, relying on U.S.S.G. section 3B1.4, added two levels to Mr. Brazinskas’ sentence because he used a minor to commit the offense. The Seventh Circuit rejected the claim on appeal that the defendant must know that he is using a minor. It reasoned that the purpose of the enhancement is to protect minors, and this purpose would be frustrated if the government had to prove that the defendant knew that the person being used was a minor.

Review of Below-Guidelines Sentences

United States v. Darryl Wallace, No. 05-3675 (August 14, 2006): The Court reversed a below Guidelines sentence. It perceived that the district court had taken into account the actual loss, not the intended loss, the latter being considerably higher. Although it reversed and remanded, the Court emphasized several points of importance to the defense bar.

The government complained vigorously that the sentence imposed was a 100% reduction, which was a higher percentage than the reductions disapproved in several cases from the Eighth Circuit. To this, the Seventh Circuit replied, "We are reluctant to distill the reasonableness inquiry into a numbers game . . ."

The Court also addressed the distinction between reasons for a variance that cut across all cases and reasons that are more individualized. As an example of the former, the disparity for crack cases is not, by itself, a basis for a variance, since the disparity implicates all defendants charged in crack cases. By contrast, the district judge could take into account Mr. Wallace’s crime-free life before the offense of conviction, his various personal difficulties, his remorse, and his participation in Gamblers Anonymous. These were individualized factors.

Nor did the Court rule out the possibility that the district court could, on remand, impose the same sentence. It noted that the "government has vigorously defended similarly substantial upward deviations from the recommended range, and we are concerned to maintain evenhanded standards of reasonableness on both sides of the line."

Disclosure note: Mr. Wallace is represented by our office.

Transcripts in State Prisoner Habeas Cases

Dennis Thompson, Jr. v. Deirdre Battaglia, No. 04-3110 (August 14, 2006): In denying Mr. Thompson’s request for post-conviction relief under 28 U.S.C. sec. 2254, the Court commented on the procedure for bringing the transcripts of the state proceedings before the federal courts. Under the special rules that govern the processing of section 2254 cases, the respondent must attach relevant portions of the transcript. The district court may order the state to present additional portions. In this case, the state presented no transcripts at all. The Seventh Circuit found this approach "slipshod, at best," and recommended that in all cases the entire trial transcript should be made a part of the federal record. Nonetheless, the Court believed that it could decide the case on the record before it.