Wednesday, February 21, 2007

Gearing up for the Post-Rita/Claiborne World?

United States v. Nitch, No. 05-2603 (February 21, 2007): Mr. Nitch received a sentence of 168 months, which was apparently within his calculated guidelines range, although the opinion does not state what that range was. In imposing sentence, the district court stated:

Mr. Nitch, I sentenced you to 14 years. It was not the top of the guideline, not at the bottom. You messed up when you were out on bond and that affected you. The jury found you guilty beyond a reasonable doubt, and the jury believed, based upon the testimony, that you were involved in more than you believed you were involved in. And I know you got started at an early age, young age in this, and I know you tried to get out, but the law is the law. And you knew better.

On appeal, Mr. Nitch argued that the sentence was unreasonable because the district court did not explain why it chose that sentence.

The Court invoked its doctrine, e.g., United States v. Mykytiuk, 415 F.3d 606 (7th Cir. 2005), that a sentence within the guidelines is, on appeal, presumptively reasonable.

But the Court also recognized that the Supreme Court is currently considering the validity of such a presumption. It declared that it had also considered the sentence without employing a presumption. Without much explanation, it concluded that a sentence of 168 months was not unreasonable. Mr. Nitch’s use of drugs while on bond and the amount of the drugs involved in the conspiracy justified a "significant sentence."

Tuesday, February 13, 2007

Ineffective Assistance of Counsel

Christopher Raygoza v. Don Hulick, No. 05-2340 (January 25, 2007): Mr. Raygoza was convicted of murder. The Seventh Circuit granted habeas corpus relief based on ineffective assistance of counsel.

Counsel presented an alibi defense, but did very little to develop it. According to numerous potential witnesses, Raygoza at the time of the murder had been at a birthday party for his mother at her house, which was many miles from the scene of the crime. But counsel called only one witness, Raygoza’s girlfriend, whom he interviewed for the first time on the day he called her as a witness. Counsel knew that Raygoza's mother and siblings were also potential witnesses, but did not probe enough to know that the occasion for the family’s being at the house was the mother’s birthday party and did not know about other attendees at the party. He also knew that a family friend, a lawyer, had called the mother’s house during the crucial time period and had spoken with Raygoza, but counsel did not call this witness or obtain corroborating phone records, since he chose to concentrate on impeaching eye witness identifications of the state’s witnesses.

The Court held that it was deficient performance not to interview and call these additional witnesses. The attorney’s belief that alibi was generally a weak defense could not make his decision a strategic decision immune to review. With so many potential witnesses, the weakness of any one witness or even each of them was not a good reason to present only one of them. He had a duty to uncover all the potential witnesses.

After the conviction, but before the sentencing, Raygoza obtained new counsel and filed a motion for a new trial based on the attorney’s ineffectiveness. The trial judge, denying the motion, commented that even with these additional witnesses, he would have nonetheless convicted. (The trial was a bench trial.) The Court held that since effect on the outcome is an objective inquiry, the state judge missed the mark by focusing on what he would have done. It further noted that, in making his finding of guilt, the state judge had emphasized that Raygoza had called only one witness in support of the defense.

The opinion has two interesting facets. First, the Court once again signaled that it recognizes the inherent fallibility of eye witness identifications. Hence, the importance of properly developing the alibi defense. Second, in discussing the distance between the murder scene and the mother’s house, the Court referred to Mapquest. It is unclear whether the Mapquest calculation was part of the record or whether the Court, as it has in the past, searched the internet for additional information.

Finally, the opinion, in a continuing break from the tradition of allowing the attorneys to remain anonymous, clearly identified defense counsel by name.

Monday, February 12, 2007

Fraud Guidelines and the Risk of Death or Bodily Injury

United States v. Adam Babul, No. 05-4538 (february 9, 2007): Mr. Babul aided applicants for truck driving licenses. In order to take advantage of the easier licensing procedures in Wisconsin, he helped his applicants create false claims of residency in Wisconsin. In doing so, he submitted false statements to banks in Wisconsin. The banks lost no money, but the district court turned to the provision in the fraud guideline that sets the offense level at a minimum of 14 if the offense involved "the conscious or reckless risk of death or serious bodily injury."

In upholding this application of the guidelines, the Court ignored the most basic question: should there be some proximate cause type of limitation? One might be able to trace a chain of factual causation between telling a lie to a bank, which results in evidence of Wisconsin residency, which results in obtaining a driver’s license that could not be otherwise obtained, which results in a driver’s being on the road, which results in the driver’s being in a collision, and which injures someone. But can anyone seriously believe that the drafters of the guidelines had this sort of Rube Goldberg scenario in mind? Moreover, if the guideline is meant to cover this type of situation, it also covers all sorts of other situations, so numerous that the greatest collection of experts could envision only a tiny fraction of them. Why would all these freakish events call for a level of at least 14, and how is one to gauge when to go higher?

After ignoring these considerations, the Court asked a legitimate question (legitimate only if one believes that this game is worth the candle). Does being unlicensed really create any greater risk to the public? It chided both sides for not marshaling data that would bear on this issue. But, never mind. "Judges are entitled to approach many empirical issues with a set of prior beliefs based on experience, and when the record is silent they may make decisions based on those priors [sic]."

Sex Offender Treatment for a Liar

United States v. Kenneth Ross, No. 06-1821 (January 29, 2007): Mr. Ross was sentenced for making false statements to the FBI. His false statement consisted of telling the FBI that he knew the location of a disappeared child victim. In reality, he had no such knowledge. The court sentenced him to prison and added as a condition of his supervised release that he participate in a program of sex offender mental health assessment and treatment.

Mr. Ross had never been charged with or convicted of a sex offense. When he had been in prison on an earlier offense, he had received a violation report for allegedly engaging in sexual activities with other prisoners. A psychological consultation opined that he was unlikely to act out in a sexually violent manner.

Since Mr. Ross’ attorney did not object to this special condition of supervised release, the Court considered the claimed error under the plain error standard. Acknowledging a split of authority in other Circuits, the Court approved this condition on the theory that it did not believe that it represented a miscarriage of justice. The Court pointed to Mr. Ross' fantasies concerning children as a basis for concluding that sex offender treatment was permissible, absent an objection by counsel.

Drug Treatment as a Condition of Supervised Release

United States v. Jose A. Tejeda, No. 06-1492 (February 7, 2007): The judge required as a condition of supervised release that Mr. Tejeda participate in a drug program at the direction of the probation officer. This sentence was illegal, since it gave too much discretion to the probation officer, but counsel did not object.

The Court made clear that improper delegation to the probation officer would not always constitute plain error, although it suggested that it was not backing away from other cases in which it has ruled that improper delegation as to restitution is always plain error. It found no plain error in the drug treatment condition. In part it relied on a defendant’s ability to seek modification of the terms of supervised release if the need were to arise. This need could arise only after Mr. Tejeda had completed a lenghty prison sentence.

Acquitted Conduct in Sentencing

United States v. Dewan Anthony Horne, No. 05-4049 (February 5, 2007): Mr. Horne’s sentence was increased because of his use of a gun, a charge on which he had been acquitted. The Court restated the conventional doctrine that acquitted conduct may be considered, but it did suggest that it might have a different view if the defendant is convicted of a "very minor crime," but sentenced on the basis of serious acquitted crimes. Thankfully, there was no reference to the shopworn language about tails and dogs.

Tracking Devices on Automobiles

United States v. Garcia, No. 06-2741 (February 2, 2007): The police attached a tracking device to Mr. Garcia’s truck and learned valuable information about the location of his drug lab. The Court found no Fourth Amendment violation. Since the police could have legitimately followed him by tailing him in a police car, they could equally make use of modern technology.