EDITOR'S COMMENT

After almost three years of publication, The Back Bencher, with this issue, is available circuit-wide. You will be reviewing this and future issues of our newsletter via the 7th Circuit Bulletin Board (BBS). Within the next several weeks, The Back Bencher will also be available to you by accessing the 7th Circuit's home page on the internet via the World Wide Web.

This is very exciting news for us and I am sure you share in my enthusiasm. Through the generosity of the 7th Circuit, our knowledge, information and experience will now be able to reach a much wider audience of criminal defense attorneys. I encourage you to access the 7th Circuit BBS for our newsletter and I welcome your comments on this new service. With this new means in which to access our newsletter, you will continue to receive valuable guidance and helpful information to assist you in your ever-important endeavor to defend the indigent accused in Federal Court.

The 7th Circuit Court of Appeals is sponsoring three seminars on Federal Criminal Appellate Practice this summer. The seminars will be held in Chicago on May 19, Milwaukee on June 2, and in Indiana on June 11. A copy of the brochure for the Chicago seminar is attached to this issue. We strongly urge our panel members to attend one of the seminars. Not only is it free of charge, but the faculty and course materials are superb. Don't miss this opportunity to hone your skills and at the same time take the so-called "mystery" out of appearing before the 7th Circuit Court of Appeals.

Also, please note that once again this year, the Administrative Office of the United States Courts is presenting its course entitled "Winning Strategies for Defending Federal Criminal Cases". The courses will be held in the following locations:

June 18-20 Dallas, TX

August 27-29 Portland, ME

October 15-17 San Francisco, CA

The seminars will cover all aspects of a federal criminal case. Most of the topics will be covered in breakout sessions and workshops. I have also attached a copy of the itinerary and the application form. This is a highly successful and informative program and if you have not had the opportunity to attend it in the past, I urge you to submit your application today. You won't be disappointed.

At this time I want to thank each and every one of you for your support of The Back Bencher. Its success is due in part to your participation and favorable comments. I hope you will find its availability on the 7th Circuit BBS and the internet convenient and useful. The number for the 7th Circuit BBS is 716/263-6210.

Once again, I welcome your comments on this new service. Until the next issue, I remain . . .

Yours very truly,

Richard H. Parsons

Federal Public Defender

Central District of Illinois

Dictum Du Jour 2

Tips on Insanity in the Seventh Circuit 3

CA-7 Case Digest 5

Assistance From The Sentencing Guidelines Group 16

Recent Sentencing Law 16

Reversible Error 18

"In the present case, Redmon, because of a local ordinance at the time, could not put his trash at curbside. He therefore had little choice except to keep the cans somewhere on his own property to be available when collection was scheduled. Redmon, in effect, chose the front of the joint garage on the shared driveway-sidewalk to be his curb for garbage pickup purposes."

"It takes little more than a look at the plat, government exhibit # 1, showing the Redmon location at the intersection of two city streets and the short common driveway-sidewalk arrangement with his neighbor to see how very publicly exposed and accessible Redmon left his garbage. Redmon, no doubt, did not intend to sacrifice the privacy of his garbage cans which would reveal illegal drug materials. Under the particular circumstances, however, his expectation was not reasonable, and not an expectation which we believe society is prepared to accept or should accept whether in downstate Illinois or elsewhere in this country."

United States v. Redmon, 1998 WL 99998 (7th Cir. 1998)(en banc).

"[W]hen the police see abandoned garbage which has been left unsecured in its usual place and at its usual time for collection, it is theirs for the taking."

Redmon, (Coffey, J., concurring)

"'Curtilage' is a dated term that relates better to a time when knights in shining armor rescued damsels in distress. It is not a particularly well- suited term for deciding suppression motions alleging violations of the Fourth Amendment in federal criminal cases. It is, nevertheless, the term we use ...."

Redmon, (Evans, J., concurring)

"[I]f some judges did not misunderstand privacy, erroneously equating it to secrecy, the shift in emphasis [from property rights to privacy rights] in applying and interpreting the Fourth Amendment] would not have been fatal to the claims of people whose garbage is searched. A garbage can is not a secure repository of secrets, though this is not because, as remarked in the majority opinion, raccoons can get at the garbage; raccoons are not interested in human beings' secrets. Garbage cans are insecure because once the garbage leaves your property you can't physically prevent anyone from going into it and piecing together the letters that you tore up and threw away and reconstructing your balance sheet from your discarded check stubs, and your diet and drinking habits from food refuse and empty bottles, and, if the snoop is a skilled archaeologist, perhaps obtaining over a period of months a detailed picture of your intimate and maybe disreputable private life."

"If I am right to draw the line at the boundaries of the curtilage, the critical question in this case is whether the place where the garbage cans were set out for collection, at the head of Redmon's driveway, was within his curtilage. *** My answer to the question (the majority opinion does not discuss the question) is 'yes.' The garage was attached to the house, and the garbage cans were right outside the garage, at the farthest point of the driveway from the street. If this spot was not within Redmon's curtilage--if it is to be classified as an 'open field'--then no place outside his house was within the curtilage, and, indeed, attached houses, row houses, and other cramped urban dwellings have no curtilage (beyond the house itself); curtilage is confined to farmers and to wealthy suburbanites and exurbanites."

"Of course it is simple realism that people who live in rural areas or have wealth will have more physical privacy than people who live in cities or working-class suburbs, and that therefore they will derive more protection from the Fourth Amendment. That does not trouble me; the wealthy have advantages in every department of life. What does bother me is the idea that the police have carte blanche to invade the property rights of people who by virtue of living on small lots place their garbage cans near their house."

Redmon, (Posner, C.J., dissenting)

"With respect, I submit that most urban dwellers would be shocked to learn that the portion of a driveway immediately adjacent to the garage door is considered by this court to be an 'open field,' rather than a part of the 'area around the home to which the activity of home life extends.' Neither the citizenry of this country nor the Supreme Court of the United States would, I believe, countenance such a conclusion."

Redmon, (Rovner, J., dissenting)(citation omitted).

"The [majority's] logic goes something like this: although 'not strictly a curbside collection,' this case is for all practical purposes like a curbside collection in that a local ordinance prohibited Redmon from placing his cans at curbside, where the police would be entitled to search them, and required that the cans instead be stored on the property itself; Redmon's 'curb,' then, 'was necessarily not at curbside, but on his joint walk-driveway.' *** This is puzzling logic at best. I suppose the majority must mean that because Redmon was unable to store his garbage at a place where the police could legally search it (i.e., the curb), the police were entitled to search the garbage at the place he actually stored it, despite the fact that the garbage was clearly within his property line and in fact directly next to his home. It is as if our garbage cans come equipped with an attached curb so that they will be considered "curbside" regardless of where a municipality may require that they be stored. The majority's reasoning makes sense, of course, only if we assume that the police are entitled to one free shot at a citizen's garbage before it reaches the hands of the collector. Clearly they are not.

"Despite their various disclaimers, it is clear that my colleagues' decision today will have broad-ranging implications. From this day forward, the subjective expectation of privacy we all have enjoyed in the yards and driveways surrounding our homes will no longer be considered objectively reasonable. Essentially, then, any privacy interest we had in those areas has been forever lost. That is the cost we must all bear today from the majority's insistence on sustaining a single drug conviction."

Redmon, (Rovner, J., dissenting).

"[F]amiliarity with the structure and basic content of the Guidelines has become a basic necessity for counsel who seek to give effective representation."

United States v. Soto, 132 F.3d 56, 59 (D.C. Cir. 1997).

"What is true is what I can't help believing."

Oliver Wendell Holmes, Jr. (1841-1935), quoted in The 2,548 Best Things Anybody Ever Said (Galahad Books 1996).

"Everything I did in my life that was worthwhile I caught hell for."

Earl Warren (1891-1974), quoted in The 2,548 Best Things Anybody Ever Said.

"Behind every great fortune there is a crime."

Honore de Balzac, quoted in The 2,548 Best Things Anybody Ever Said.

"A criminal is a person with predatory instincts without sufficient capital to form a corporation."

Howard Scott, quoted in The 2,548 Best Things Anybody Ever Said.

"Only two things are infinite, the universe and human stupidity, and I'm not sure about the former."

Albert Einstein (1879-1955), quoted in The 2,548 Best Things Anybody Ever Said.

"For what no one could question was his passionate determination to fight injustice; he was instinctively on the side of the underdog and unshakeable once his feelings were aroused."

"During the debate on the Obscene Publication Bill in 1964, he said that there was no greater source of brutality, sadism and murder than the Bible, and that he thought it better to leave alone the job of deciding which books were suitable for reading."

Obituary of Lord Paget of Northampton, The Daily Telegraph Book of Obituaries (MacMillan 1995).

"During his career he hanged more than 400 people -- his record was 17 in a day ('Was my arm stiff!')."

"'If death were a deterrent,' he wrote, 'I might be expected to know. It is I who have faced them at the last, young lads and girls, working men, grandmothers. I have been amazed to see the courage with which they take that walk into the unknown. It did not deter them then, and it had not deterred them when the committed what they were convicted for. All the men and women whom I have faced at that final moment convince me that in what I have done, I have not prevented a single murder.'"

Obituary of Albert Pierrepoint, The Daily Telegraph Book of Obituaries (MacMillan 1995).

"I believe that people would be alive today if there were a death penalty."

Nancy Reagan, quoted in The 2,548 Best Things Anybody Ever Said (Galahad Books 1996).

"There is never enough time, unless your serving it."

Malcolm Forbes, quoted in The 2,548 Best Things Anybody Ever Said (Galahad Books 1996).

"People performing mime in public should be subject to citizen's arrest on the theory that the normal First Amendment protection of free speech has in effect been waived by someone who has formally adopted a policy of not speaking."

Calvin Trillin, quoted in The 2,548 Best Things Anybody Ever Said (Galahad Books 1996).

"If you shoot at mimes, should you use a silencer?"

Steven Wright, quoted in The 2,548 Best Things Anybody Ever Said (Galahad Books 1996).

Tips On Insanity In The Seventh Circuit

by: David Mote

Chief Deputy Federal Defender

Central District of Illinois

Representing clients who suffer from mental problems of varying degrees is part and parcel of almost every criminal defense attorney's practice. This article is intended to provide some tips regarding issues in federal cases involving an insanity defense with some basic statutory and Seventh Circuit authority.

1. Notice. Under Fed. R. Crim. P. 12.2(a) the defense must give notice in writing to the government of its intent to present an insanity defense and file a copy of that notice with the clerk. The notice must be provided within the time provided for filing pre-trial motions or at such later time as the court directs. The court may allow late filing for good cause shown. Fed. R. Crim. P. 12.2(b) requires that the defendant also file a notice if he intends to present expert testimony on his mental condition bearing on the issue of guilt. The time limits on filing mirror those in 12.2(a).

2. Examination of the defendant. If notice of an insanity defense has been filed, the court will order that the defendant submit to an examination to determine his sanity at the time of the offense. 18 U.S.C. §4142(a). No statement made by the defendant in the course of the examination may be admitted without the consent of the defendant. Fed. R. Crim. P. 12.2(c). Failure to comply with the examination can result in the exclusion of any expert testimony offered by the defendant on the issue of defendant's guilt. Fed. R. Crim. P. 12.2(d). However, nothing in Rule 12.2(d) would support the exclusion of lay testimony regarding the defendant's mental state.

3. Withdrawn Notice Inadmissible. Evidence that defendant gave notice of an intent to rely on an insanity defense, which was later withdrawn, is inadmissible. Fed. R. Crim. P. 12.2(e).

4. Standard. To prove insanity, the defendant must prove that at the time of the alleged offense "the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense." 18 U.S.C. § 17(a).

5. Burden of Proof. "The defendant has the burden of proving the defense of insanity by clear and convincing evidence." 18 U.S.C. § 17(b).

6. Ex Parte Application for Expert. If you are counsel in an appointed case, you can move the court ex parte for authorization to retain an expert if the services of the expert are necessary. 18 U.S.C. § 3006A(e)(1). The maximum amount to be paid for such expert services is $1,000, unless the court certifies that a higher amount is necessary to provide fair compensation and the chief judge of the circuit approves the higher fee. 18 U.S.C. § 3006A(B)(3). (It is therefore wise to include the expert's hourly fees for in-court, out-of-court, and travel time in your request for authorization to retain the expert.) Counsel may obtain, subject to later review, necessary investigative, expert and other services up to $300 without prior approval. 18 U.S.C. § 3006A(e)(2).

7. May Be Entitled to Voir Dire on Insanity. A defendant may be entitled to have prospective jurors questioned on voir dire regarding prejudice against the insanity defense. See, United States v. Jackson, 542 F.2d 403, 413 (7th Cir. 1976)(finding judge's questions to potential jurors regarding the issue adequate).

8. Basis for Expert Testimony. Under F.R.E. 703, an expert may base his opinion on information "of a type reasonably relied upon by experts in the particular field in forming opinions." It does not matter if the facts or data on which the expert bases his opinion are otherwise inadmissible. See United States v. Smith, 869 F.2d 348 (7th Cir. 1989).

9. Questions on Whether Acts Consistent with Ability to Appreciate Wrongfulness of Acts. Counsel may ask the expert whether the defendant's behavior was consistent with an ability or inability to appreciate the wrongfulness of the defendant's acts. See United States v. Reno, 992 F.2d 739, 742-744 (7th Cir. 1993).

10. Lay Testimony on Sanity Admissible. Lay witnesses may testify regarding defendant's apparent mental state. See, e.g., Greider v. Duckworth, 701 F.2d 1228 (7th Cir. 1983) (lay witnesses testified about defendant's drug addiction and his sanity at the time of the offense; "jury could credit the testimony of lay witnesses over that of an expert witness").

11. Verdict Form. Where an insanity defense is raised, the verdict may be guilty, not guilty, or not guilty by reason of insanity. 18 U.S.C. § 4242(b).

12. Result of Not Guilty By Reason of Insanity. If a person is found not guilty by reason of insanity, they are not released! Rather, they are committed to a "suitable facility" until it is determined "that the person's release would not create a substantial risk of bodily injury to another person or serious damage of property of another due to a present mental disease or defect." 18 U.S.C. § 4242(a) and (e). Consequently, a person found not guilty by reason of insanity may be confined longer than a person who is found guilty.

13. Cannot Educate Jury on Consequence of Verdict. In Shannon v. United States, 512 U.S. 573, 587 (1994), the Court concluded that an instruction on the effect of a verdict of not guilty by reason of insanity was "not to be given as a matter of general practice." This conclusion was based on the idealistic notion that the jury will not concern itself with what the effect of its verdict will be, but simply determine whether the evidence has established the defense without any thought or preconceived notions of consequence of a "not guilty" verdict.

14. Prosecutor Can Open The Door To Consequences. Shannon recognizes, however, "that an instruction of some form may be necessary under certain limited circumstances. If, for example, a witness or prosecutor states in the presence of the jury that a particular defendant would 'go free' if found [not guilty by reason of insanity,] it may be necessary for the district court to intervene with an instruction to counter such a misstatement." Shannon, 512 U.S. at 587.

15. Unsuccessful Insanity Defense Does Not Prohibit Acceptance of Responsibility. Application Note 2 to U.S.S.G. § 3E1.1 states:

"This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. Conviction by trial, however, does not automatically preclude a defendant from consideration for such a reduction. In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitution right to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). In each such instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct."

In United States v. Reno, 992 F.2d 739, 745 (7th Cir. 1993), the Seventh Circuit found that a situation where the defendant acknowledged his criminal act but blamed it on a circumstance could be viewed two ways:

"The first interpretation is that when a defendant acknowledges the role of circumstance in his criminal activity, he is making the first step toward reform. The other interpretation is that the person blaming circumstance is trying to avoid responsibility. Because we find that there are two permissible views of the evidence, we cannot say that the district court's finding was clearly erroneous."

While Reno resulted in the affirmance of a decision to deny a defendant who went to trial on an insanity defense the reduction for acceptance of responsibility, it clearly leaves a district court the option of granting the reduction where it is appropriate. See also, United States v. Barris, 46 F.3d 33, 35 (8th Cir. 1995)(rejecting position that an insanity defense automatically precludes an acceptance of responsibility finding). This flexible approach makes sense. The district court should be able to deny a defendant whom it is convinced faked mental problems the reduction for acceptance of responsibility, while granting the reduction to a defendant who clearly has severe mental problems and never denies the criminal conduct even though the jury does not find by clear and convincing evidence that the defendant was insane at the time of the offense.

Compiled by: George F. Taseff

Senior Litigator

Arango-Alvarez v. U.S., No. 95-3380 (1/22/98). Appeal, N.D. Ill., E. Div. Aff'd. (Cite as: 134 F.3d 888)

Petitioner failed to show counsel ineffective during guilty plea hearing. Record showed counsel considered facts underlying guilty plea and communicated them to petitioner; mere allegation he would have insisted on going to trial but for counsel's advice insufficient to establish prejudice under Strickland, 466 U.S. 668.

Swofford v. Dobucki, No. 95-2446

(2/19/98), 1998 WL 67297 (7th Cir. IL)

Petitioner's counsel not ineffective in rape trial for failing to challenge rape shield law as confrontation clause violation where application of said law precluded petitioner from naming others as possible abusers. Admission into evidence that others might have abused victim would have only limited effect and would not have discredited other evidence showing petitioner to be perpetrator.

U.S. v. Simmons, No. 97-1763 (11/19/97). Appeal, N.D. Ill., E. Div. Aff'd. (Cite as: 130 F.3d 1223)

Dist. Ct. did not err in denying Defendant's motion to discharge counsel filed after entry of guilty plea and sentence hearing even though counsel indicated to ct. that Defendant wanted him to "step aside." Defendant never sought to withdraw guilty plea; record failed to show either conflict between Defendant and counsel or inadequacy of counsel's representation at sentencing hearing.

U.S. v. Williams, No. 97-2673 (2/20/98), 1998 WL 67568 (7th Cir. WI)

Fact Asst.U.S. Atty. became employed at defense counsel's law firm approximately one month after close of trial which she prosecuted insufficient to constitute conflict of interest; employment discussions began days after close of trial when no conflict existed

U.S. v. Liporace, No. 97-1243 (1/9/98). Appeal, N.D. Ill., E. Div. Aff'd. (Cite as: 133 F.3d 541)

In trial on charge of concealment of assets from Bankruptcy Ct. and making false statement in bankruptcy pet., Dist. Ct. did not err in prohibiting Defendant from cross-examining trustee about large amount of fees trustee made in comparison to small amount tendered to creditors. Defendant permitted to elicit testimony that trustee compensated for his services; issue of trustee's "greed," as evidence of poor character, not proper line of inquiry under Fed.R.Evid. 404 in criminal trial.

U.S. v. Berry, No. 97-1756 (1/14/98). Appeal, S.D. Ill. Aff'd. (Cite as: 133 F.3d 1020)

Defendant properly convicted of conspiracy to possess and distribute crack where govt. showed more than "buyer-seller" relationship when witness stated he purchased drugs from Defendant, "stood security," made runs and packaged crack on behalf of Defendant. Sale agreement cannot constitute conspiracy where sale itself is conspiracy's substantive crime.

U.S. v. Wilson, Nos. 96-1989, 96-1990 & 96-2024, Cons. (1/20/98). Appeal, N.D. Ill., E. Div. Aff'd. (Cite as: 134 F.3d 855)

Dist. Ct. did not err in admitting evidence of drug conspiracy a to conduct occurring after Defendants gave confessions to conspiracy and led police to location of drugs. Defendants failed to demonstrate withdrawal from conspiracy at point where initial contact with police made. One Defendant's denial at trial that he confessed to police who arrested him and another Defendant's refusal to identify co-conspirator demonstrated desire by both Defendants to hide roles in conspiracy.

U.S. v. Gravens, No. 96-3704 (11/21/97). Appeal, N.D. Ind., Ft. Wayne Div. Aff'd. (Cite as: 129 F.3d 974)

In prosecution for possession of firearm by felon and transportation of firearm, Dist. Ct. properly determined inevitable discovery rule applied to permit introducing into record evidence of purchase of subject firearm even though govt. confirmed purchase through use of serial no. of firearm obtained in statement suppressed as violation of Miranda, 384 U.S. 436. Record showed govt. would have uncovered challenged evidence through lawful means since agent knew, through victim of crime, date and location where firearm purchased.

DOUBLE JEOPARDY

U.S. v. Catton, No. 96-3984 (12/9/97). Appeal, C.D. Ill. Aff'd. (Cite as: 130 F.3d 805)

Dist. Ct. properly den'd Defendant's motion to dism. criminal case on double jeopardy grounds after App. Ct. rem'd case for retrial due to prosecutorial errors; not all errors committed by prosecutors have double jeopardy consequences. Defendant here failed on remand to seek evidentiary hearing to determine prosecutor's motives for committing reversible error at original trial.

U.S. v. Story, No. 97-2012 (2/25/98), 1998 WL 75693 (7th Cir. IL)

Double jeopardy clause did not bar Defendant's convictions for both conducting continuing criminal enterprise and predicate offense of distribution of cocaine base. Under Rutledge, 116 S.Ct. 1241, double jeopardy applies only where both offenses concern "conspiracy-like" offenses directed at largely identical conduct.

U.S. v. Brown, Nos. 97-2351 & 97-2374 (2/25/98), 1998 WL 75690 (7th Cir. IL)

1. Dist. Ct. did not err in admitting audiotapes into evidence even though record lacked proof of chain of custody. Lack of proof did not render tapes inadmissible where eyewitnesses to transactions on tapes testified tapes accurately depicted transactions in question.

2. Ct. did not err in admitting summary exhibits containing comparisons of food stamps redeemed during period of conspiracy with claimed food sales even though Defendants claimed underlying tax returns supporting summaries inaccurate. Defendants tendered tax returns to Dept. of Revenue, and returns previously admitted into evidence. Thus, Defendants estopped from arguing inaccuracy of returns prevented summaries of same from being admitted into record.

U.S. v. Fawley, No. 96-3360 (2/17/98), 1998 WL 63013 (7th Cir. IL)

1. In perjury prosecution alleging Defendant-employee lied to grand jury about employer's harboring of illegal aliens, Dist. Ct. did not err in admitting evidence regarding living conditions of aliens in housing supplied by employer. Evidence relevant to show Defendant's knowledge of aliens' illegal status since it showed Defendant knew aliens, living in squalor, would not complain due to their illegal status.

2. Ct. committed, at most, harmless error under Fed.R.Evid. 609(a)(1) in permitting prosecutor to elaborate on underlying facts of witness' felony conviction. Initial question by Defendant to witness regarding felony conviction perfunctory and Ct. gave cautionary instruction. R.609(a)(1) affords prosecutor more latitude to seek out such facts with witness rather than with accused having prior conviction.

U.S. v. Evans, No. 96-4045 (12/1/97). Appeal, C.D. Ill. Aff'd. (Cite as: 131 F.3d 1192)

Defendant waived consideration on appeal of arguments that factual narration in support of search warrant was unsworn and informant unreliable since Defendant failed to make such arguments to Dist. Ct. in connection with motion to suppress evidence seized pursuant to issuance of search warrant. Fed.R. Crim.P. 12(b) requires "motion to suppress evidence" be made prior to trial; Defendant filed in Dist. Ct. only motion to "suppress arrest."

U.S. v. Keeter, Nos. 96-3284, 96-3932 & 97-1150, Cons. (11/24/97). Appeal, W.D. Wisc. Aff'd. (Cite as: 130 F.3d 297)

Dist. Ct. did not err in admitting as substantive evidence prior grand jury testimony and affidavit of witness who stated at trial he could not remember anything but his name. Fed.R.Evid. 801(d)(1)(C) permits substantive use of such evidence as long as witness available at trial for cross-examination; fact witness could no longer remember any facts contained in prior statements irrelevant.

U.S. v. Petty, Nos. 96-3845 & 96-3846, Cons. (12/18/97). Appeal, S.D. Ind., Indianapolis Div. Aff'd. (Cite as: 132 F.3d 373)

Dist. Ct. did not err in permitting under Fed.R.Evid. 611(a) FBI analyst testimony regarding charts summarizing phone records identifying Defendant as recipient of phone calls. Ct. given discretion to monitor mode and order of presenting evidence; phone records complex and unwieldy.

U.S. v. Smith, No. 97-1866 (12/15/97). Appeal, W.D. Wisc. Aff'd. (Cite as: 131 F.3d 685)

In prosecution on charge of bank robbery by intimidation, Dist. Ct. did not err in admitting under Fed.R.Evid. 609(a)(1) titles of 4 convictions for purposes of impeaching Defendant's testimony; prior convictions were within 10-yr. time limit. Defendant's testimony, which contradicted testimony of bank teller on issue of whether she was intimidated during robbery, was crucial part of case.

U.S. v. Williams, No. 97-2673 (2/20/98), 1998 WL 67568 (7th Cir. WI)

When seeking sequestration order under Fed.R.Evid. 615 to prevent witnesses from fashioning testimony to that which has already been given, attys. must specifically note rule and ask trial judge to formally invoke it. Fact counsel for both parties announced to Dist. Ct. that they agreed to sequestration insufficient, without formal request, to seek relief for alleged violation of sequestration under R. 615

U.S. v. Wilson, Nos. 96-1989, 96-1990 & 96-2024, Cons. (1/20/98). Appeal, N.D. Ill., E. Div. Aff'd. (Cite as: 134 F.3d 855)

Although Dist. Ct. erred under Fed.R. Evid. 611(a) in failing to permit Defendant to present relevant surrebuttal testimony to evidence presented by govt. for first time on rebuttal, error harmless where proposed surrebuttal evidence would not necessarily negate rebuttal evidence and other evidence conclusively established Defendant's guilt.

U.S. v. Petty, Nos. 96-3845 & 96-3846, Cons. (12/18/97). Appeal, S.D. Ind., Indianapolis Div. Aff'd. (Cite as: 132 F.3d 373)

Failure of Dist. Ct. to make specific finding regarding Defendant's financial condition prior to imposing $60,000 fine did not require new hearing. Specific finding as to each factor listed in USSG §5E1.2(d) not required; even though ct. deviated from presentence report, ct. articulated reason for deviation by noting source of income.

Arango-Alvarez v. U.S., No. 95-3380 (1/22/98). Appeal, N.D. Ill., E. Div. Aff'd. (Cite as: 134 F.3d 888)

Defendant-petitioner could not rely on Bailey, 116 S. Ct. 501, to invalidate in post-conviction pet. guilty plea on conviction of carrying firearm during commission of drug offense under 18 USC §924(c)(1); rule in Bailey applies only to convictions under "use" prong of §924(c)(1). 8 pp.

Howard v. U.S., No. 96-3712 (2/2/98) (Cite as: 135 F.3d 506)

In post-conviction petition under 28 USC §2255 challenging petitioner's guilty plea for unlawful use and carrying of firearm during commission of drug offenses under 18 USC §924(c), factual basis for plea developed both at guilty plea hearing and in presentence report sufficient under Bailey, 116 S. Ct. 501, to support plea. Record showed petitioner packaging cocaine in presence of guns and co-conspirators possessed gun in car with cocaine present

Woodruff v. U.S., No. 96-3692 (12/15/97). Appeal, E.D. Wisc. Aff'd. (Cite as: 131 F.3d 1238)

Although Defendant's entry of guilty plea did not preclude him from filing post-conviction pet. challenging under Bailey, 116 S.Ct. 501, firearms conviction under 18 USC §924(c), Dist. Ct. properly denied pet. since record of guilty plea hearing indicated co-conspirators "bartered" gun in exchange for drugs which qualified as "use" of firearms underBailey.

U.S. v. One Parcel of Real Estate located at 25 Sandra Ct., Sandwich, Ill., No. 97-2042 (1/30/98) (Cite as: 135 F.3d 462)

Fed. govt. not precluded from seeking civil forfeiture of Defendants' house, under 21 USC §881(a)(7), after Defendants pleaded guilty to state drug charges. Although fed. agent participated in state's investigation, Defendants failed to show fed. govt. "adopted" or bound itself to state plea agreement which did not include forfeiture of home.

U.S. v. Patel, No. 96-3331 (12/10/97). Appeal, N.D. Ill., E. Div. Aff'd in part, vac'd in part and rem'd. (Cite as: 131 F.3d 1195)

Record supported Dist. Ct.'s forfeiture of $102,505 as proceeds of drug conspiracy. While Defendant testified money was product of family business, ct. could conclude money was product of drug activities due to admissions made by Defendant in tape recording. Govt. need only establish right to forfeiture by preponderance of evidence rather than beyond reasonable doubt.

Boerckel v. O'Sullivan, No. 96-4068 (2/9/98), 1998 WL 48869 (7th Cir. IL)

Failure of petitioner to include in pet. for leave to appeal to Ill.Sup.Ct. issues contained in habeas pet. did not constitute procedural default of said issues. Because pet. for leave to appeal discretionary, exhaustion requirement of 28 USC §2254 does not require petitioner to include all claims in pet. for leave to appeal to exhaust his state remedies.

Burris v. Parke, No. 97-1218A (amended op. 12/1/97). Appeal, N.D. Ind., S. Bend Div. Motion to recall mandate. Den'd. (Cite as: 130 F.3d 782)

App. Ct. den'd Petitioner's motion to recall mandate of case aff'g Dist. Ct.'s order den'g Petitioner's request for habeas relief in capital case. Petitioner's motion merely urged reassessment of theories raised in original habeas pet. in light of new evidence; 28 USC §2244(b) requires dism'l of successive habeas pets. asserting claims made in original pet. without change of circumstances. (Dissent filed.)

Bush v. Pitzer, No. 97-3024 (12/31/97). Appeal, W.D. Wisc. Aff'd. (Cite as: 133 F.3d 455)

Dist. Ct. properly den'd prisoner's pet. for habeas relief under 28 USC §2241 asserting respondent wrongfully den'd him release after completion of substance abuse program under 18 USC §3621(e)(2)(B). Prisoner's conviction for conspiracy to distribute 400 guns to drug runners disqualified him from early release program; conduct created substantial risk of future violence.

Walker v. Roth, No. 97-9127 (12/24/97). Motion for leave to file successive habeas petition. Dism'd and rem'd. (Cite as: 133 F.3d 454)

Dist. Ct. improperly dism'd petitioner's second habeas pet. under 28 USC § 2244 which requires prior permission from App. Ct. before filing successive pet.; second pet. concerned sentence imposed after remand from first habeas petition. 28 USC §2244 inapplicable where second pet. attacked only constitutionality of newly imposed sentence.

Williams v. Parke, No. 97-1612 (1/20/98). Appeal, N.D. Ind., South Bend Division. Aff'd. (Cite as: 133 F.3d 971)

Dist. Ct. properly den'd habeas pet. even though govt. conceded Tr. Ct.'s instruction on voluntary manslaughter erroneous. Error harmless since record supported State App. Ct. holding that underlying murder committed by petitioner premeditated.

U.S. v. Jarrett, Nos. 96-2615, 96-2808, 96-2842, 96-2844, 96-2900, 96-2957, 96-2999, 96-3510, 96-3533 & 96-3534, Cons. (1/8/98). Appeal, N.D. Ill., E. Div. Aff'd. (Cite as: 133 F.3d 519)

Dist. Ct. did not err in admitting under Fed.R.Evid. 801(d)(2)(E) post-arrest, taped phone conversations from prison under co-conspirator exception to hearsay rule. Although conversations took place after Ds' arrests for conspiracy to possess and distribute drugs, topics concerned disposition of conspiracy's assets, thereby rendering conversations continuation of conspiracy.

U.S. v. Petty, Nos. 96-3845 & 96-3846, Cons. (12/18/97). Appeal, S.D. Ind., Indianapolis Div. Aff'd. (Cite as: 132 F.3d 373)

Dist. Ct. did not err in admitting hearsay statements from co-conspirators even though Defendant never charged with conspiracy. Although hearsay statements alone insufficient to establish conspiracy, record contained statements from nonconspirators which corroborated hearsay evidence and established existence of conspiracy.

U.S. v. Williams, No. 97-2576 (1/16/98). Appeal, E.D. Wisc. Rev'd. and rem'd. (Cite as: 133 F.3d 1048)

Dist. Ct. erred in permitting govt. agent to testify that unnamed confidential informant identified Defendant as bank robber. Evidence constituted inadmissible hearsay; govt. rationale for admission (i.e., giving context to police investigation) outweighed by prejudicial impact on Defendant. Rev'l required since record showed hearsay evidence affected outcome of trial where identification of Defendant weak at best.

U.S. v. Agostino, Nos. 97-2105 & 97-2340, Cons. (12/22/97). Appeal, N.D. Ind., S. Bend Div. Aff'd and rem'd. (Cite as: 132 F.3d 1183)

Indictment which tracked language of bribery statute gave Defendant sufficient statement of essential facts of crime so as to satisfy requirements of Fed.R.Crim.P. 7(c)(1). 18 USC §666 contains no quid pro quo element; govt. need not include in indictment details of how it intends to prove case.

U.S. v. Pardue, No. 97-1730 (1/26/98). Appeal, C.D. Ill. Aff'd. (Cite as: 134 F.3d 1316)

Although Defendant not indicted until nearly 10 yrs. after bank embezzlement occurred and after five witnesses died, Defendant failed in his burden to show how delay in indictment prejudiced defense of criminal charge. Record showed that at least two of five deceased witnesses would have been indicted with Defendant; Defendant failed to indicate how any of five deceased witnesses would have testified in Defendant's favor on his defense of good faith.

U.S. v. Alexander, No. 96-4188 (1/30/98) (Cite as: 135 F.3d 470)

Dist. Ct. did not err in permitting govt., under Fed.R.Crim.P. 8(a), to join 13 counts in single indictment alleging bankr. and mail frauds. Although 13 counts derived from three distinct criminal statutes, joinder still proper; charges of "same or similar character" insofar as each involved materially false representation made with intent to deceive specified victim. Same or similar character standard may be satisfied even if offenses not of identical statutory origin.

JURISDICTION

U.S. v. Bailey, No. 97-2878 (2/20/98), 1998 WL 67562 (7th Cir. IL)

Fact govt. failed to file timely certificate under 18 USC §3731 certifying appeal from order granting motion to suppress not taken for purpose for delay did not deprive App. Ct. of jurisdiction. Certification requirement not jurisdictional; record showed govt.'s decision to appeal, taken after announcement to Dist. Ct. that it would dismiss case if appeal not successful, product of conscientious pre-appeal analysis.

U.S. v. Brown, Nos. 97-2351 & 97-2374 (2/25/98), 1998 WL 75690 (7th Cir. IL)

In prosecution for food stamp fraud, Dist. Ct. did not err in failing to tender Defendant's proposed entrapment instruction even though record showed police undercover officer initially failed in attempt to exchange food stamps for cash. Mere showing of initial reluctance on part of Defendant to consummate exchange insufficient to support giving of proposed instruction. Mere offering Defendant opportunity to commit crime does not necessitate giving entrapment instruction.

U.S. v. Fawley, No. 96-3360 (2/17/98), 1998 WL 63013 (7th Cir. IL)

1. Dist. Ct. did not err in giving "ostrich" instruction in perjury case alleging Defendant-employee lied to grand jury regarding employer's harboring of illegal aliens. Record showed Defendant as "right-hand-man" of employer had knowledge of number of aliens using aliases and living in squalor in substandard housing supplied by employer. Instruction appropriate where Defendant pleads lack of knowledge to facts that are evident.

2. Dist. Ct. erred in failing to give Defendant's tendered "unanimity" instruction informing jury that unanimous verdict must be reached as to truth of each of Defendant's alleged false statements contained in indictment. Instruction used by Ct. misleading because it permitted jury to convict even if not all jurors in agreement as to falsehood of any particular statement.

U.S. v. Ladish Malting Co., No. 97-2417 (1/30/98) (Cite as: 135 F.3d 484)

1. Corp. found criminally liable for violating 29 USC §666(e) where employee fatally injured on unsafe fire escape entitled to new trial since ct. gave improper jury instruction permitting jury to find "willful" violation based only on constructive knowledge of unsafe condition.

2. Ct. properly refused Defendant-corp.'s tendered jury instruction which would have permitted jury to acquit on charge of OSHA violation based upon Defendant's overall "good faith" efforts at maintaining safe workplace. Good faith not defense for violation of OSHA; general compliance with OSHA regulations not defense for disobedience as to others.

U.S. v. Liporace, No. 97-1243 (1/9/98). Appeal, N.D. Ill., E. Div. Aff'd. (Cite as: 133 F.3d 541)

Dist. Ct. did not err in failing to give "testimony of perjurer" instruction to witness who previously gave false statement on police report; witness' lie to police not sufficiently similar to perjury to warrant instruction.

U.S. v. Smith, No. 97-1866 (12/15/97). Appeal, W.D. Wisc. Aff'd. (Cite as: 131 F.3d 685)

In prosecution on charges of bank robbery by intimidation, Dist. Ct. did not err in using 7th Cir. pattern instruction which defined intimidation as placing reasonable person in fear. While 8th Cir. instruction would require govt. to show reasonable person to be in fear of bodily harm, Ct.'s use of 7th Cir. instruction appropriate since it accurately stated law. Record showed Defendant's actions, in written threatening language on demand note given to teller, supported finding teller in fear of bodily harm.

U.S. v. Wilson, Nos. 96-1989, 96-1990 & 96-2024, Cons. (1/20/98). Appeal, N.D. Ill., E. Div. Aff'd. (Cite as: 134 F.3d 855)

1. Defendants' proposed jury instruction requiring acquittal if Govt. failed to prove exact conspiracy charged in indictment properly refused. Govt. may elect to proceed on subset of allegations proving smaller conspiracy; claim of variance succeeds only if evidence insufficient to support finding of single conspiracy and Defendant's prejudiced by variance.

2. Dist. Ct. did not err in giving "ostrich" instruction even though Defendant testified as to his actual knowledge of cocaine and his conscious participation in drug conspiracy. Govt. need not choose between presenting to jury "actual knowledge" versus "conscious avoidance" case; record supported giving of instruction since Defendant den'd knowledge that large quantity of bags contained cocaine even though Defendant aware bags belonged to known drug dealer.

U.S. v. McClinton, Nos. 96-3143, 96-3206 & 96-3229 (2/6/98), 1998 WL 45206 (7th Cir. WI)

Dist. Ct. did not err in den'g Defendant's motion for mistrial based upon two racist statements made by jurors during trial. Ct. conducted sufficiently thorough voir dire of all jurors on bias towards African-Americans and dism'd one juror based upon said responses. Mere exposure to another juror's racial bias not enough to warrant new trial.

Williams v. Parke, No. 97-1612 (1/20/98). Appeal, N.D. Ind., S. Bend Div. Aff'd. (Cite as: 133 F.3d 971)

Dist. Ct. properly den'd, in habeas pet., claim Tr. Ct. erred in

substitution of juror outside presence of petitioner's counsel. Counsel aware of possible substitution day before it occurred and did not object; petitioner present during voir dire of alternate juror who was present throughout trial.

U.S. v. Jarrett, Nos. 96-2615, 96-2808, 96-2842, 96-2844, 96-2900, 96-2957, 96-2999, 96-3510, 96-3533 & 96-3534, Cons. (1/8/98). Appeal, N.D. Ill., E. Div. Aff'd. (Cite as: 133 F.3d 519)

1. Dist. Ct. had jurisdiction to transfer juvenile to adult status pursuant to 18 USC §§5031-42 even though govt. failed to give Dist. Ct. entire Juv. Ct. records regarding certain prior arrests. Govt. tendered records of juvenile's single conviction; records of arrests not type of Juv. Ct. records contemplated under Act.

2. Juvenile lacks standing to challenge determination by atty. gen. that transfer of juvenile to adult prosecution constituted "substantial federal interest" warranting exercise of fed. jurisdiction; language of Act vests discretionary certification with atty. gen. which is unreviewable by Cts.

MAIL FRAUD

U.S. v. Alexander, No. 96-4188 (1/30/98), (Cite as: 135 F.3d 470)

Govt. adequately proved "use of mails" prong of mail fraud statute even though Defendant did not personally utilize mails to effectuate scheme to defraud insurance company. Record showed 3rd party had business practice of mailing police report requested by insurance company to process Defendant's claim; mailing of police report by 3rd party foreseeable to Defendant.

U.S. v. Ramunno, No. 97-2132 (1/7/98). Appeal, S.D. Ill. Aff'd. (Cite as: 133 F.3d 476)

Fact Govt. failed to object to probation officer recommendation that was consistent with terms of plea agreement did not preclude Govt. from notifying Dist. Ct. that it would take position that Defendant breached plea agreement even though Govt. knew of breach before filing of recommendation. Defendant's own request for add'l time to salvage plea agreement prevented Govt. from objecting to recommendation. Govt. free to object to recommendation if circumstances change between time of Govt. initial approval and sentencing hearing.

O'Connor v. U.S., No. 97-2278 (1/9/98). Appeal, E.D. Wisc. Vac'd

and rem'd. (Cite as: 133 F.3d 548)

Dist. Ct. improperly dism'd 28 USC §2255 pet. filed while petitioner's appeal from den'l of Fed.R.Crim.P. 33 motion pending. Where petitioner files both R.33 motion and §2255 petition, Ct. must give priority to §2255 petition; Ct. erred by not engaging in substantive review of §2255 petition prior to dism'l.

U.S. v. Brown, No. 96-4094 (1/12/98). Appeal, E.D. Wisc. Aff'd. (Cite as: 133 F.3d 993)

Dist. Ct. did not abuse discretion in granting Defendant one day extension under Fed.R.App.P. 4(b) for filing notice of appeal. Although atty. gave lack of experience in Fed.Ct. as reason for delay which could, under other circumstances, fall short of required "excusable neglect," one day delay did not prejudice Ct. or opposing party, and Defendant's atty. demonstrated good faith.

PROSECUTORIAL MISCONDUCT

Swofford v. Dobucki, No. 95-2446 (2/19/98), 1998 WL 67297 (7th Cir. IL)

Dist. Ct. properly den'd habeas pet. alleging closing arguments by prosecutor deprived petitioner accused of raping 3-yr.-old boy unfair. Although prosecutor improperly commented about victim's knowledge of sexual act where rape shield law prevented petitioner from pointing to others as possible abusers, error harmless since record contained sufficient evidence of guilt to support jury's verdict.

U.S. v. McClinton, Nos. 96-3143, 96-3206 & 96-3229 (2/6/98), 1998 WL 45206 (7th Cir. WI)

Although prosecutor improperly referred during closing argument to prior consistent statements of key witness that had been excluded at trial in attempt to bolster witness, such reference did not warrant new trial. Evidence overwhelming against Defendants and subject matter of statements included in other properly admitted evidence.

Oimen v. McCaughtry, No. 96-2452 (12/9/97). Appeal, E.D. Wisc. Aff'd. (Cite as: 130 F.3d 809)

Dist. Ct. properly den'd petitioner's request for habeas relief

based upon contention that petitioner den'd right to app. counsel. Although petitioner proceeded pro se on direct appeal, record showed petitioner requested that appointed app. counsel be substituted and App. Ct. warned petitioner that if he insisted that app. counsel withdraw, petitioner might not get second atty.

U.S. v. Evans, No. 96-4045 (12/1/97). Appeal, C.D. Ill. Aff'd. (Cite as: 131 F.3d 1192)

Failure to supply in appendix of app. brief any Dist. Ct. written orders pertaining to issue on appeal qualified atty. to receive $1,000 fine. Cir. R. 30(b)(1) requires appellant to include in appendix copies of all opinions or orders that address issues raised in appeal.

U.S. v. Bailey, No. 97-2878 (2/20/98), 1998 WL 67562 (7th Cir. IL)

Dist. Ct. erred in granting Defendant's motion to suppress based upon police failure to give notice of purpose prior to entry of Defendant's home. Reasonable suspicion evidence will be destroyed constitutes exception to "knock and announce" requirement under Richards, 117 S.Ct. 1416. Record showed police had reasonable suspicion of destruction of evidence given: 1) prior police knowledge occupants kept drugs in their mouths in order to swallow if approached by police; 2) evidence police heard occupants moving within home after police announced their presence.

U.S. v. Brown, No. 96-4094 (1/12/98). Appeal, E.D. Wisc. Aff'd. (Cite as: 133 F.3d 993)

Dist. Ct. did not err in den'g motion to suppress gun discovered in car pursuant to arrest for suspected prowling. At time of arrest, Defendant matched description of recent report of prowling in general neighborhood of report. After Defendant exited car, police had reasonable fear from "risk of Defendant's reentry" to support search of car once officer spotted chrome-like object protruding from bag in area accessible to Defendant.

U.S. v. Chan, No. 97-3073 (2/19/98), 1998 WL 67319 (7th Cir. WI)

Counterfeit travelers' checks seized pursuant to lawful traffic stop properly admitted into evidence even though arresting officer failed to expressly state Defendant free to go prior to obtaining consent to search car. Reasonable person would have felt free to go following conclusion of traffic stop; valid stop extended by time to obtain consent not involuntary.

U.S. v. McClinton, Nos. 96-3143, 96-3206 & 96-3229 (2/6/98), 1998 WL 45206 (7th Cir. WI)

Police had probable cause to make warrantless search of Defendant's car based upon tip from first-time informant. While not all information correct, tip detailed and corroborated prior to search by police surveillance set up by information contained in tip.

Kokoraleis v. Gilmore, No. 97-2605 (12/16/97). Appeal, N.D. Ill., E. Div. Aff'd. (Cite as: 131 F.3d 692)

1. Dist. Ct. properly den'd petitioner's collateral attack of death sentence stemming from murder conviction. Petitioner's failure to advance collateral estoppel argument to State Sup. Ct. with respect to jury's giving petitioner life sentence on one of series of murders attributed to petitioner precluded consideration of issues by Dist. Ct.

2. Notions of double jeopardy did not prevent state from seeking death sentence as to second murder conviction where different jury gave only life sentence on prior murder conviction. Each add'l crime creates fresh exposure to punishment which may be cumulative in nature; second jury entitled to impose harsher sentence if jury concludes prior acts showed offender more dangerous.

U.S. v. Agostino, Nos. 97-2105 & 97-2340, Cons. (12/22/97). Appeal, N.D. Ind., S. Bend Div. Aff'd and Rem'd. (Cite as: 132 F.3d 1183)

1. In sentencing on bribery conviction, Dist. Ct. did not err in failing to make upward departure under USSG §2C1.1(b)(2)(A) measured by amount of benefit of bribe accruing to third-party who was neither payer nor recipient of bribe. Govt. failed to show Defendant (who received no benefit from bribe) acted as agent of third party.

2. Dist. Ct. did not err in failing to enhance Defendant's sentence under USSG §3C1.1 for obstruction of justice. While Defendant's trial testimony conflicted with testimony of other witnesses, not every Defendant who testifies and is convicted is eligible for obstruction of justice enhancement. Defendant's testimony with respect to intent did not necessarily conflict with intent to influence found by jury.

3. When discrepancy exists between oral and written sentence, oral sentence controls pursuant to Fed.R.Crim.P. 43(a). However, remand for new sentence required since sentence of four months imprisonment given to Defendant on conviction for bribery was less than minimum eight months required under USSG §5C1.1(d)(2).

U.S. v. Bauer, No. 97-1779 (11/20/97). Appeal, C.D. Ill. Aff'd. (Cite as: 129 F.3d 962)

In imposing $175,000 fine, Dist. Ct. did not err in failing to make express findings on all seven factors mentioned in USSG §5E1.2(a)(1)-(7). Ct. satisfies duty if record shows that it considered factors contained in USSG and provides reasonable basis for decision to impose fine.

U.S. v Berry, No. 97-1756 (1/14/98). Appeal, S.D. Ill. Aff'd. (Cite as: 133 F.3d 1020)

When establishing "relevant" conduct for purposes of USSG, Dist. Ct. could properly consider unsworn statement by prisoner made to govt. agent as to extent of crack sales since Defendant could have required that prisoner testify at trial to test veracity of statement.

U.S. v. Fox, Nos. 97-2350 & 97-2683 (2/25/98), 1998 WL 75848 (7th Cir. WI)

USSG §2K1.3(a)(3) which enhances punishment for individuals selling stolen explosives while under influence of controlled substance not unconstitutional as cruel and unusual punishment. Defendant not prosecuted for status of being drug addict; USSG merely recognizes dangerous situation of person who sells stolen explosives while under influence of drugs.

U.S. v. Jarrett, Nos. 96-2615, 96-2808, 96-2842, 96-2844, 96-2900, 96-2957, 96-2999, 96-3510, 96-3533 & 96-3534, Cons. (1/8/98). Appeal, N.D. Ill., E. Div. Aff'd. (Cite as: 133 F.3d 519)

1. Dist. Ct. did not err under 21 USC §853 in estimating, over and above amount of drugs seized by Govt., quantity and quality of drugs involved in Defendant's convictions for conspiracy to possess and distribute drugs. Estimates accurately based upon information obtained by Govt. over 6-mo. period; evidence showed amount of drugs seized did not reflect large-scale nature of Defendants' activities.

2. Fact Defendant was minor at time of offense which precluded Govt. from charging Defendant with drug conspiracy, Dist. Ct. nevertheless could view Defendant as key member of conspiracy for purposes of attributing full amount of drugs to Defendant at sentencing. USSG §1B1.3(a)(1)(B) directs Ct. to look past actual charges and appraise full extent of criminal activity, including foreseeable acts of all co-conspirators.

U.S. v. Keeter, Nos. 96-3284, 96-3932 & 97-1150, Cons. (11/24/97). Appeal, W.D. Wisc. Aff'd. (Cite as: 130 F.3d 297)

Dist. Ct. not required to continue sentencing hearing when counsel for Defendant indicated he was not ready to proceed. Defendant's choice to proceed immediately with unprepared counsel not involuntary since Ct. permitted Defendant to discuss options with counsel. Defendant had right to proceed with unprepared counsel where Defendant had sufficient information to make decision.

U.S. v. Kraus, No. 96-2645 (2/9/98), 1998 WL 59212 (7th Cir.)

Defendant entitled to new guilty plea proceeding since Dist. Ct. violated Fed.R.Crim.P. 11(e)(1) in rejecting initial guilty plea agreement calling for 121-mo. sentence and accepting 151-mo. sentence pursuant to new plea agreement. During initial hearing, Ct. effectively engaged in plea negotiations by indicating views on hypothetical agreement; during subsequent negotiations Defendant learned Ct.'s room clerk endorsed proposed sentence term.

U.S. v. Marvin, No. 96-2721 (2/3/98), 1998 WL 40457 (7th Cir. WI)

1. Dist. Ct. in sentencing Defendant to two years for violation of eight conditions of supervised release, not required to give Defendant prior notice of intention to deviate upwards from 5 to 11 mo. range under USSG §7B1.4(a). Deviation from "policy statements" contained in USSG Ch. 7 not "departure" from USSG requiring such notice.

2. Where Defendant's counsel never objected during sentencing hearing to upward deviation on sentence for violation of conditions of supervised release, Defendant waived any consideration regarding reasonableness of his two-year sentence. Thus review confined to "plainly unreasonable" standard which entails deferential posture concerning issues of fact and exercise of discretion.

U.S. v. McClanahan, No. 97-2420 (2/18/98), 1998 WL 63839 (7th Cir. IL)

Dist. Ct. did not err in sentencing Defendant to 24 mos. imprisonment for violating terms of supervised release. Although revocation table suggested range of 4 to 10 mos., USSG Ch. 7 covering violations of supervised release merely advisory. Record indicating repeated violations of terms of supervisory release supported giving statutory maximum sentence for said violations.

U.S. v. McClinton, Nos. 96-3143, 96-3206 & 96-3229 (2/6/98), 1998 WL 45206 (7th Cir. WI)

1. Dist. Ct. did not err in refusing Defendant's request for reduction in sentence level under USSG §3B1.2 as "minor" participant in drug conspiracy. Fact Defendant mere drug courier does not automatically make him less culpable than other participants; record showed Defendant too intertwined with daily operation of conspiracy.

2. Ct. did not err in enhancing both Defendants' offense levels under USSG §3B1.1(a) as organizers of drug conspiracy. USSG did not preclude possibility of two "organizers" in one conspiracy; record showed both Ds more than mere "managers" since neither Defendant took orders from others.

U.S. v. Maxwell, No. 97-1557 (12/4/97). Appeal, N.D. Ill., E. Div. Vac'd and rem'd. (Cite as 131 F.3d 622)

Dist. Ct. improperly set loss attributed to Defendant's mail fraud conviction at $37,000 where govt., expert witness, and Defendant conceded loss to be $202,000. Sentence based on lower figure impermissible where premised on Court's personal penal philosophy rather than policy found within enhancement guidelines of USSG §2F1.1(b)(1)(I).

U.S. v. Patel, No. 96-3331 (12/10/97). Appeal, N.D. Ill., E. Div. Aff'd and vac'd in part and rem'd. (Cite as: 131 F.3d 1195)

In determining Defendant eligible for manager of drug operation enhancement under USSG §3B1.1(b), Dist. Ct. failed to make required findings that operation involved supervision of at least five participants or refer to presentence report to support such finding. Only Dist. Ct. as opposed to App. Ct. can make such finding even if record contains evidence supporting such finding. Dist. Ct. further failed to find evidence of uncharged drug activities sufficiently related to course of conduct to form part of "relevant conduct" finding under §1B1.3(a)(2).

U.S. v. Petty, Nos. 96-3845 & 96-3846, Cons. (12/18/97). Appeal, S.D. Ind., Indianapolis Div. Aff'd. (Cite as: 132 F.3d 373)

Dist. Ct. did not err in finding various activities of theft ring as relevant conduct under USSG §1B1.3. Fact activities not charged did not disqualify conduct from being considered as relevant since USSG contemplates consideration of full range of related conduct whether charged or not.

U.S. v. Ramunno, No. 97-2132 (1/7/98). Appeal, S.D. Ill. Aff'd. (Cite as: 133 F.3d 476)

1. Dist. Ct. erred in enhancing Defendant's sentence under USSG §3C1.1 by finding Defendant guilty of obstruction of justice based upon Defendant's false statements regarding uncharged conduct; such statements unrelated to investigation of charged conduct. Enhancement nevertheless proper since Defendant signed false statement with probation officer with respect to amount of assets.

2. Defendant could not take advantage of "safety valve" provisions of USSG §5C1.2 to reduce sentence below statutory minimum since Defendant's misrepresentation to Govt. about drug-related assets established that Defendant failed to make good faith attempt to cooperate with authorities.

U.S. v. Simmons, No. 97-1763 (11/19/97). Appeal, N.D. Ill., E. Div. Aff'd. (Cite as: 130 F.3d 1223)

Dist. Ct. may order, as condition of supervised release, Defendant's testing and treatment for substance abuse even though Defendant's conviction for non-drug offense. Record showed presence of drugs found in bag connected to Defendant's counterfeit money; USSG §5B1.4(23) permits drug testing and treatment as condition of supervised release where facts indicate Defendant user of unlawful drugs.

U.S. v. Story, No. 97-2012 (2/25/98), 1998 WL 75693 (7th Cir. IL)

Dist. Ct. did not err in sentencing Defendant under USSG §2D1.1 for distribution of cocaine base consisting of "crack cocaine," as opposed to other guidelines applying more lenient sentencing provisions for other forms of cocaine base. Although expert at trial admitted Govt. failed to perform quantitative analysis on cocaine base, record still showed govt. proved cocaine base was crack cocaine through testimonies of co-conspirators and expert who so indicated.

U.S. v. Taylor, No. 96-2745 (1/30/98). Appeal, N.D. Ill., E. Div. Aff'd. (Cite as: 135 F.3d 478)

1. Dist. Ct. did not err in enhancing under USSG §2B3.1(b)(3)(A) Defendant's sentence for armed robbery for infliction of "bodily injuries" on victim bank tellers. While Defendant did not personally use mace on tellers, Defendant accountable for such use by accomplice. Although Ct. heard only hearsay testimony about use of mace, such testimony permissible at sentencing hearing where declarant had first hand observation of effects of mace on tellers.

2. Ct. did not err in applying "otherwise use of dangerous weapon" enhancement under USSG §2B3.1(b)(2)(D) where Defendant merely poked pellet gun in back of teller. Verbal threat not required to establish this enhancement; conduct more serious than mere brandishing of firearm which would qualify for lower enhancement.

U.S. v. Wicks, No. 96-2465 (12/22/97). Appeal, S.D. Ill. Aff'd. (Cite as: 132 F.3d 383)

Dist. Ct. properly considered Defendant's prior two state convictions for robbery as predicate offenses in fed. "three strikes" statute (18 USC §3559(c)) in sentencing Defendant to life imprisonment. §3559(c) contemplated use of state robbery convictions involving either force or threat of force and is not unconstitutional under either equal protection, due process, or commerce clauses.

U.S. v. Wilson, Nos. 96-1989, 96-1990 & 96-2024, Cons. (1/20/98). Appeal, N.D. Ill., E. Div. Aff'd. (Cite as: 134 F.3d 855)

Dist. Ct. did not err in denying reduction in sentence level under USSG §3E1.1(b)(2) for "timely notification" of intention to plead guilty; reduction appropriate only where intention expressed at time sufficient to save govt. and ct. resources. Record showed no savings in govt.'s trial preparation; plea could have been entered earlier had Defendant desired to do so.

U.S. v. Wilson, No. 97-1626 (12/22/97). Appeal, C.D. Ill. Vac'd

and rem'd w/dir. (Cite as: 131 F.3d 1250)

After case rem'd for new sentencing hearing on convictions for mail fraud and money laundering, Dist. Ct. exceeded scope of remand in imposing new sentence premised on finding mail fraud actions qualified as "relevant conduct" under USSG §1B1.3(a)(2). Govt. waived argument at remand hearing that such actions qualified as relevant conduct since it failed to make similar argument at first sentencing hearing or file cross-appeal from Dist. Ct.'s original finding that such conduct did not qualify as relevant conduct.

U.S. v. Wilson, No. 97-1772 (11/19/97). Appeal, C.D. Ill. Rev'd

and rem'd. (Cite as: 129 F.3d 949)

Dist. Ct. erred in sentencing Defendant to only 30 mos. imprisonment for possession with intent to distribute 125 grams of crack cocaine. While Defendant originally intended to purchase only powder cocaine, Court may not equitably manipulate USSG downwards where record indicates Defendant knew he was purchasing crack cocaine.

U.S. v. Wing, No. 97-1731 (1/30/98) (Cite as: 135 F.3d 467)

1. Defendant could not challenge enhancement under USSG §3B1.1(b) for having supervisory role in gambling-related offenses where counsel conceded such role as outlined in presentence report. Fed.R.Crim.P. 32(b)(6)(D) permits Dist. Ct. to adopt facts in presentence report as findings of fact in sentencing hearing; facts in report sufficiently outlined Defendant's supervisory role in criminal enterprise.

2. Ct. properly considered conduct of co-conspirators as "relevant conduct" under USSG §1B1.3 in establishing sentence level in gambling-related convictions. Although Defendant den'd he had anything to do with co-conspirators' conduct which formed relevant conduct, Defendant's counsel admitted Defendant had knowledge of relevant conduct which formed part of charged conspiracy.

U.S. v. Agostino, Nos. 97-2105 & 97-2340, Cons. (12/22/97). Appeal, N.D. Ind., S. Bend Div. Aff'd and rem'd. (Cite as: 132 F.3d 1183)

Defendant, in bribery trial, failed to establish violation of due process by alleged Govt'l interference with key Govt. witness. Witness free to decide whether to speak with defense counsel; although witness refused to speak with defense counsel, Defendant failed to show Govt.'s reminder to witness of option not to speak to defense counsel was tantamount to instruction not to speak to counsel.

Assistance From

The Sentencing Guidelines Group

Over the past few months the Sentencing Guidelines Group has been evaluating how well it is meeting the needs of the Federal Defender community and CJA Panel attorneys. As a result, the Group will disseminate information about sentencing matters, capital litigation issues, and other relevant matters such as the status of crime legislation in Congress.

In this issue, the Group provides the following materials:

1. Letter to Congress from 27 Federal Judges. On September 16, 1997, twenty-seven federal judges, who formerly served as United States Attorneys, wrote a letter to the Senate and House Judiciary Committees recommending that Congress reduce the penalties for crack cocaine trafficking offenses. No formal action has been taken in the Congress in response to this letter. A copy of the letter is available by contacting CJA Panel Administrator Mary Kedzior at the Federal Defender's Office in Peoria at 309/671-7891.

2. District Courts. Some courts have continued sentencings in anticipating of changes to crack cocaine penalties. Please note that there is no date certain by which Congress is required to take any concrete action with respect to cocaine penalties. This distinguishes the present situation from that in 1995 when the Commission promulgated an amendment to lower the guidelines for crack cocaine. The amendment was to take effect on November 1, 1995, unless Congress acted by that date to disallow the amendment.

3. Bills in Congress. During the 105th Congress, members of Congress have introduced a number of bills which address the disparate penalties for the two forms of cocaine -- hydrochloride (powder) and base (crack). Only one of the bills proposes to equalize the penalties by lowering crack penalties to the level currently established for powder cocaine. The remainder of the bills would raise the penalties for powder either to the same level as crack or to a point that reflects a 20:1 ratio to crack. It is not clear whether any of the bills will be enacted into law.

4. Letter from Attorney General & Drug Czar to the President. On July 3, 1997, Attorney General Janet Reno and Director of the Office of Drug Control Policy Barry McCaffrey sent a letter to President Clinton recommending that the threshold quantity for the 5-year mandatory minimum statutory penalty be set at 25 grams for crack cocaine and 250 grams for powder. This would reflect a 10:1 ratio. Currently, 5 grams of crack and 500 grams of powder trigger the 5-year mandatory minimum penalties, a ration of 100:1.

5. Sentencing Commission Report. On April 29, 1997, the Commission published a 10-page report with an accompanying 5-page concurrence by Commissioner Michael S. Gelacak, Vice Chairman of the Commission. The report recommends to Congress that it amend the penalties in Title 21 by raising the quantity of cocaine base that triggers the 5-year mandatory minimum from the current 5 grams to a quantity between 25 and 75 grams. It also recommends to Congress that it lower the quantity of cocaine hydrochloride that triggers the 5-year mandatory from the current 500 grams to a quantity between 125 and 375 grams. The Commission has not promulgated an amendment that conforms to this recommendation. A copy of the report is available on the Group website or by contacting CJA Panel Administrator Mary Kedzior at the Federal Defender's Office in Peoria at 309/671-7891.

The Sentencing Guidelines Group maintains a toll-free number to answer sentencing questions. They receive calls primarily from CJA panel attorneys who range from experienced criminal law practitioners with limited federal practice, to first-timers. They are willing to answer any questions you may have regarding the sentencing guidelines. You may also reach a member of the Group at the following voice-mail extensions:

1-800/788-9908 Extension

Biderman, Paula 133

Hernandez, Carmen 134

Hutchison, Tom 129

Pratt, Fran 120

McGrew, Linda (Federal death 140

penalty & capital habeas)

Secretaries:

Harris, Karen Washington 136

Mingo, La Verne (Federal death 142

penalty & capital habeas)

The Group can also be contacted via the internet at the following website: "http://adams.patriot.net./~fedpubdf/

fpd/sentence/sentence.htm" This site is maintained primarily for the benefit of panel attorneys and contains, among other things, pending amendments, training materials that the Group uses, and other sentencing information.

If you would like to contact a member of the Group by e-mail, please address your message to one of the members of the Group or, if you have access to the internet, you may e-mail them at

Recent Developments In Sentencing Law

The following case synopsis are excerpts from The Guideline Grapevine which should be of interest to CJA attorneys in this District. This type of information will be sent to you on a regular basis. Your comments and/or suggestions would be appreciated.

LETTER TO GIRLFRIEND REHEARSING HER STATEMENTS WAS OBSTRUCTION. United States v. Ewing, No. 97-1933, 1997 WL 716032 (7th Cir. Nov.18, 1997) (the defendant pled guilty to possessing stolen credit cards; during pretrial detention, he attempted to pass a letter to his girlfriend coaching her on her potential testimony; he appealed the increase in his offense level for obstruction of justice; affirmed; the defendant attempted to suborn perjury; his statements in the letter were a thinly veiled means of rehearsing a cover story; the fact that there were no threats or bribes were a result of the relationship and did not preclude the increase).

DEFENDANT WAS NOT ENTRAPPED AND SHOULD HAVE BEEN SENTENCED FOR CRACK NOT POWDER COCAINE. United States v. Wilson (Marcus), No. 97-1772, 1997 WL 721582 (7th Cir. Nov. 19, 1997) (the defendant pled guilty to possessing more than 50 grams of crack cocaine; the district court sentenced him as if the crack were powder cocaine, finding that an individual assisting investigators had induced the defendant to deal in crack rather than powder cocaine; reversed; the record indicated the defendant asked to purchase powder cocaine, but when he was told only crack was available, he agreed to purchase crack; he was not entrapped or manipulated; he was offered a criminal opportunity and took it; United States v. Garcia, 79 F.3d 74 (7th Cir. 1996) holds that sentencing manipulation does not justify departure; the court also noted that the sentence was below the statutory minimum).

GUN POKED INTO TELLER'S BACK WAS "OTHERWISE USED." United States v. Taylor, 135 F.3d 478 (7th Cir. 1998) (the defendant was convicted of armed bank robbery; he argued that poking a pellet gun into the teller's back did not qualify as "otherwise using" a dangerous weapon under §2B3.1(b)(2)(D); the court of appeals rejected the argument finding nothing bribery violations; the defendant requires that use of a weapon under this section must be coupled with an explicit threat; poking a gun into someone's back is at least as serious as leveling a weapon at someone's head or pointing it at a specific person without any physical contact, behavior the court has found constitutes "otherwise using" a weapon).

REASONABLY FORESEEABLE THAT EXPLOSIVES WOULD BE USED FOR ILLEGAL PURPOSE; UNLAWFUL USER INCREASE UPHELD. United States v. Fox, No. 97-2350, 1998 WL 75848 (7th Cir. Feb. 25, 1998) (two defendants were convicted of selling stolen explosives; the district court increased the guideline range by 4 levels under §2K1.3(b)(3) finding they had sufficient knowledge and/or reason to believe the explosives would be used or possessed in connection with another felony offense; affirmed; one defendant had extensive discussions about how to hook up the explosives to a car, how the explosives could not be traced and had stated to the undercover agent that he didn't want to know how the explosives would be used; the other defendant had explained in detail how to hook the explosives to a car battery and offered to steal more explosives for the agent; these facts were sufficient to indicate to an ordinary person that the defendants had reason to believe the explosives would be used in connection with another felony offense; one defendant also argued the guidelines punished his status of being addicted to a controlled substance because he was determined to be a prohibited person under §2K1.3(a)(3); the court rejected the argument finding the guideline simply recognizes that a person who is involved with stolen explosives while using or under the influence of drugs potentially intensifies a potentially dangerous situation, warranting application of a greater offense level).

DISTRICT COURT IMPROPERLY INCREASED OFFENSE LEVEL AFTER REMAND. United States v. Wilson (Gregory), No. 97-1626, 1997 WL 781758 (7th Cir. Dec. 22, 1997) (the defendant was convicted for mail fraud and money laundering offenses; the court vacated the sentence and remand because the counts should have been grouped, United States v. Wilson, 98 F.3d 281 (7th Cir. 1996); after remand the district court decided that the mail fraud should be considered as relevant conduct to the money laundering and increased the offense level; the result was that the defendant was sentenced to 20 months longer than before the appeal; reversed; the district court exceeded the scope of the remand; at sentencing and in the first appeal, the government had not contended the mail fraud was relevant conduct to the money laundering; the district court accepted the PSR's recommendation that the mail fraud not be considered as relevant conduct; the relevant conduct issue had been finally determined by the time of the remand; the first appeal and the decision did not affect the fact that the relevant conduct argument could have been made from the beginning; because it was not, the district court erred in considering it on remand).

SENTENCING FACTOR MANIPULATION

DEFENDANT WAS NOT ENTRAPPED AND SHOULD HAVE BEEN SENTENCED FOR CRACK NOT POWDER COCAINE. See United States v. Wilson (Marcus), No. 97-1772, 1997 WL 721582 (7th Cir. Nov. 19, 1997), OFFENSES, §2D1.1, supra.

NOTICE NOT REQUIRED PRIOR TO "DEPARTURE" FROM REVOCATION POLICY STATEMENTS. United States v. Marvin, No. 96-2721, 1998 WL 40457 (7th Cir. Feb. 3, 1998), VIOLATIONS OF PROBATION AND SUPERVISED RELEASE, Supervised Release Revocation, infra.

NOTICE NOT REQUIRED PRIOR TO "DEPARTURE" FROM REVOCATION POLICY STATEMENTS. United States v. Marvin, No. 96-2721, 1998 WL 40457 (7th Cir. Feb. 3, 19998) (the district court imposed a 2-year term of imprisonment upon the defendant's violation of supervised release, a sentence that exceeded the range recommended under §7B1.4 of the guidelines (here, 5-11 months); the defendant argued that the district court erred by failing to give notice of the intended departure; affirmed; notice of a potential sentencing deviation from the ranges set forth in §7B1.4 need not be given because Chapter 7 is an advisory policy statement, as opposed to a binding guideline).

Reversible Errors

United States v. Cruz, 127 F.3d 791 (9th Cir. 1997) (A defendant could not join a conspiracy that was already completed).

United States v. Farrell, 126 F.3d 484 (3d Cir. 1997) (Urging a witness to "take the fifth" was not witness tampering).

United States v. Bowen, 127 F.3d 9 (1st Cir. 1997) (Amendment defining hashish oil was applied ex post facto).

United States v. Stein, 127 F.3d 777 (9th Cir. 1997) (Upward departure based on more than minimal planning and multiple victims was unwarranted).

United States v. Otis, 127 F.3d 829 (9th Cir. 1997) (1. Evidence did not support management of CCE; 2. Duress instruction was omitted).

United States v. Allen, 127 F.3d 260 (2d Cir. 1997) (Insufficient evidence of extortionate credit).

United States v. Corrigan, 128 F.3d 330 (6th Cir. 1997) (Neither, number of victims, number of schemes, nor amount of loss, supported upward departure).

United States v. Rogers, 126 F.3d 655 (5th Cir. 1997) (An attempted drug crime did not support career offender enhancement).

United States v. Emerson, 128 F.3d 557 (7th Cir. 1997) (Money laundering and mail fraud should have been grouped).

United States v. Cross, 128 F.3d 145 (3d Cir. 1997) (Fixing cases was not mail fraud just because court mailed disposition notices).

United States v. Graham, 128 F.3d 372 (6th Cir. 1997) (An eight-year delay between indictment and trial violated the sixth amendment).

United States v. Monus 128 F.3d 380 (6th Cir. 1997) (A court did not adequately explain loss findings).

United States v. Wolff, 127 F.3d 84 (D.C. Cir. 1997) (Government's failure to argue for acceptance of responsibility breached agreement and required entire sentence to be reconsidered).

United States v. Rounsavall, 128 F.3d 665 (8th Cir. 1997) (Defendant was entitled to an evidentiary hearing to determine if the government's failure to move for a reduced sentence was irrational, in bad faith, or unconstitutionally motivated).

United States v. Alvarez, 127 F.3d 372 (5th Cir. 1997) (A warrant affidavit contained a false statement made in reckless disregard for the truth).

United States v. Johnston, 127 F.3d 380 (5th Cir. 1997) (A prosecutor commented on the defendant's failure to testify and asked questions highlighting defendant's silence).

United States v. Foster, 128 F.3d 949 (6th Cir. 1997) (Exculpatory grand jury testimony should have been admitted at trial).

United States v. LaBarbara, 129 F.3d 81 (2d Cir. 1997) (Government failed to show use of mails in a fraud case).

United States v. Glass, 128 F.3d 1398 (10th Cir. 1997) (The introduction of a co-defendant's incriminating statement violated Bruton).

United States v. Schroeder, 129 F.3d 439 (8th Cir. 1997) (A warrant did not authorize a search of adjoining property).

United States v. Hudson, 129 F.3d 994 (8th Cir. 1997) (A firearm enhancement was not proven).

United States v. Senn, 129 F.3d 886 (7th Cir. 1997) (Lying about minor details to grand jury was not obstruction).

United States v. Clark, 128 F.3d 122 (2d Cir. 1997) (Downward departure for a lesser harm was available in a felon in possession case).

United States v. Soto-Silva, 129 F.3d 340 (5th Cir. 1997) (Deliberate ignorance instruction was not warranted for charge of maintaining premises for drug distribution).

United States v. Soliz, 129 F.3d 499 (9th Cir. 1997) (Questioning should have stopped when defendant invoked right to silence).

United States v. Cain, 128 F.3d 1249 (8th Cir. 1997) (Sales made before defendant was hired were not relevant conduct toward fraud).

United States v. Patterson, 128 F.3d 1259 (8th Cir. 1997) (Failure to provide allocution at supervised release revocation was plain error).

United States v. Hunt, 129 F.3d 739 (5th Cir. 1997) (There was insufficient evidence of an intent to distribute).

United States v. Castro, 129 F.3d 752 (5th Cir. 1997) (Inventory search could not be used as ruse to investigate).

United States v. Word, 129 F.3d 1209 (11th Cir. 1997) (1. Lay testimony of abuse to defendant was admissible; 2. Fraud, before defendant joined conspiracy, was not relevant conduct).

In Re Grand Jury Investigation, 130 F.3d 853 (9th Cir. 1997) ( Search warrant was over broad).

United States v. Iribe-Perez, 129 F.3d 1167 (10th Cir. 1997) (Jury was told that the defendant would plead guilty before start of trial).

United States v. Norman, 129 F.3d 1393 (10th Cir. 1997) (1. Felon whose civil rights had been restored was not illegally in possession of firearm; 2. Concealing drugs at scene of crime was not obstruction).

United States v. Mayer, 130 F.3d 338 (8th Cir. 1997) (Restitution should not have been higher than the loss stipulated in the plea agreement).

United States v. Christo, 129 F.3d 578 (11th Cir. 1997) (A check kiting scheme was not money laundering).

United States v. Gilchrist, 130 F.3d 1131 (3d Cir. 1997) (A plea agreement was breached by imposing a higher term of supervised release).

United States v. Kuku, 129 F.3d 1435 (11th Cir. 1997) (A defendant retains his privilege against self-incrimination, through sentencing).

United States v. Dearies, 129 F.3d 1293 (D.C. Cir. 1997) (The court should have given an advice of counsel instruction on an embezzlement count).

United States v. Doyle, 130 F.3d 523 (2d Cir. 1997) (Erroneous instructions stated that presumption of innocence and reasonable doubt were to protect only the innocent).

United States v. Turner, 130 F.3d 815 (8th Cir. 1997) (Prosecution of count, identical to one previously dismissed, was barred).

United States v. Perez, 129 F.3d 1340 (9th Cir. 1997) (1. A firearm found near defendant was not used or carried; 2. Jury should have been required to decide the type of firearm).

United States v. Barracked, 130 F.3d 1448 (11th Cir. 1997) (1. Abuse of trust did not apply to a false tax return charge; 2. Enhancement for sophisticated means could not be based on acquitted conduct).

United States v. Borne, 130 F.3d 1444 (11th Cir. 1997) (Applying both brandishing weapon and threat of death enhancements was double counting).

United States v. Carter, 130 F.3d 1432 (10th Cir. 1997) (A requested instruction on venue should have been given).

United States v. Johnson, 130 F.3d 1420 (10th Cir. 1997) (Gun possession convictions for the same firearm were multiplicious).

United States v. Davenport, 131 F.3d 604 (7th Cir. 1997) (A violation of a state civil provision was not covered by Assimilative Crimes Act).

Our thanks to Alexander Bunin

of the Federal Defenders Organization for the Southern District of Alabama who allows us to reproduce and distribute these cases in our newsletter.

Published by: The 7th Circuit

Federal Defenders

Editor: Richard H. Parsons,

Federal Public Defender

Central District of Illinois

Managing Editor: Mary Kedzior

CJA Panel Administrator

Federal Defender's Office

Central District of Illinois

Your comments and suggestions

are appreciated!

Federal Public Defender's Office

Central District of Illinois

401 Main Street, Suite 1500

Peoria, Illinois 61602

Phone: 309/671-7891

Fax: 309/671-7898