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."

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.

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.

Scheduling of Oral Arguments

Our office recently received an order adjusting the briefing schedule in a pending appeal. The order contained the following language, which was captioned "Important Scheduling Notice!," "Criminal appeals are scheduled shortly after the filing of the main brief. . ." As is well known, once an oral argument is scheduled, it is difficult to obtain a different date. Counsel who foresee a scheduling problem will typically write the clerk and so advise; the Court has been accommodating to requests that oral argument not be assigned for particular dates. Generally, counsel would wait until all the briefs were submitted before making such a request. With this new practice, counsel should be looking at their calendars much earlier.

Escape as a Crime of Violence

United States v. Deondery Chambers, No. 06-2405 (January 9, 2007): Mr. Chambers was sentenced as an armed career criminal. One of his three crimes of violence was a state conviction for escape from a penal institution. His escape was not of the "Escape from Alcatraz" variety; instead, he merely failed to report on time to begin serving a sentence. Under 18 U.S.C. sec. 924(e), a felony is violent if it "involves conduct that presents a serious potential risk of physical injury to another." Under the law of the Circuit, escape always meets this definition. See United States v. Golden, 466 F.3d 612 (7th Cir. 2006).

For that reason, the Court affirmed the sentence. But the panel expressed serious misgivings about this position. "We shall adhere to the precedents for now. But it is an embarrassment to the law when judges base decisions of consequence on conjectures, in this case a conjecture as to the possible danger of physical injury posed by criminals who fail to show up to begin serving their sentences . . ." The Court suggested that Congress, the Sentencing Commission, or academics ought to gather information on the incidence of violence presented by escapes that involve no more than the failure to report as directed.

Special note: as of this posting, this opinion does not appear on the Court's website, although it is a published opinion available in a slipsheet format.

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.