NEWS The BACK BENCHER


LETTER
Vol. No. 12

May/June 1998

Seventh Circuit Federal Defenders

DEFENDER'S MESSAGE



We federal defense lawyers have an irritating stone in our collective shoe. The stone has a name. It's called appeal waivers in plea agreements. This month's message is about the stone and what we, as a group can do about getting rid of it.



First, the Federal Public and Community Defenders have registered our complaints about appeal waivers with the Committee on Rules of Practice and Procedure of the Judicial Conference of the U.S. Administrative Office of the U.S. Courts. We are endeavoring to influence the proposed Amendment to F.R.C.P. 11(e) concerning appeal rights. The Federal Defenders believe that appeal waivers are most often one-sided, are constitutionally suspect and counter to public policy.



United States v. Hicks is the controlling 7th Circuit law concerning appeal waivers. 129 F.3d 376 (7th Cir. 1997). The key word in Hicks is "knowing". Thus, I urge you to consider, for appellate purposes, whether any waiver can be knowing and intelligent when what is being waived is the right to appeal errors that have yet to occur. Please read United States v. Raynor, 989 F.Supp.43 (D.D.C. 1997). The language Judge Friedman uses in this case will give you a plethora of arguments as to why no appeal waiver (before the fact) can be knowing and intelligent.



There is also a body of thought that appeal waivers offend judicial integrity by foreclosing from review errors surrounding a defendant's sentence. See United States v. Szabo, 1998 WL 300427 (7th Cir. June 9, 1998). Call me if you have any questions. This was our case and it may have opened the door a bit.



It is also a grave concern that given the bargaining superiority of the government, agreements to waive sentencing appeals become suspect as adhesion contracts.



To add insult to injury, the "Keeney memo" from the Justice Department to all U.S. Attorneys dated October 4, 1998, suggests that a "Bar" to an appeal by the defendant does not require the government to waive its right to appeal. Keeney stated that in his view the government's retention of its right to appeal the sentence while requiring the defendant to waive his right to appeal does not violate any right of the defendant. In a pig's eye!(1) Who is he kidding? The obvious answer is us. This pompous, self-righteous theorizing is an insult to the defense bar and a denial of due process to defendants. It should be noted that after the Keeney memo, sentencing appeal waiver provisions in plea agreements proliferated.



Judge Friedman, God bless him, in the Raynor case concluded as follows:



"The condition sought to be imposed by the government is inherently unfair; it is a one-sided contract of adhesion; it will undermine the error correcting function of the courts of appeals in sentencing; it will create a sentencing regime where courts of appeals will never have the opportunity to review an illegal or unconstitutional sentence, or a sentence that has no basis in fact, unless those sentencing errors work to the disadvantage of the government. Such a result is inconsistent with what Congress intended when it created the Sentencing Commission and the Sentencing Guidelines. It is inconsistent with the express terms of 18 U.S.C. 3742, and it is inconsistent with the scheme of Rule 11 of the F.R.C.P. A defendant cannot knowingly, intelligently and voluntarily give up the right to appeal a sentence that has not yet been imposed and about which the defendant has no knowledge as to what will occur at the time of sentencing. This Court therefore will accept no plea

agreement containing waiver provisions of this kind."



United States v. Raynor, 989 F.Supp.43 (D.D.C. 1997)



One of our (CDI) District Judges has, like Judge Friedman, refused to accept plea agreements with appeal waivers - from the very beginning. It is our job to convince our other four District Judges, in a civil and legally persuasive manner, to do the same.



Meanwhile, our office will continue in our long practice of refusing to be a party to a plea agreement if it contains appeal waivers unless the government is willing to bi-laterally contract to give the defendant a meaningful consideration in return. Ethics and morals dictate that this is the only alternative we can cope with (i.e. blind pleas).(2)



We will continue to monitor this situation and keep you informed. Don't hesitate to call with your ideas and/or experiences with the "stone" known as appeal waivers.





Sincerely yours,





Richard H. Parsons

Federal Public Defender

Central District of Illinois












































Table Of Contents


Dictum Du Jour 2

Churchilliana 3

The Meaning of Frivolous 3

CA-7 Case Digest 4

Assistance From The Sentencing Guidelines Group 8

Recent Sentencing Law 11

Reversible Error 13






Dictum Du Jour



Man's capacity for justice makes democracy possible, but man's inclination to injustice makes democracy necessary.



Reinhold Niebuhr, foreword to The Children of Light and the Children of Darkness (1944).



* * * * * * *



The defendants represented themselves to Berna--falsely, indeed preposterously--as being international financiers to dwarf George Soros, as they were, among their other deals, closing "$6 trillion in Yen contracts." They had also financed, they said, General Motors, a stadium for the Milwaukee Brewers, and the 1994 Winter Olympics, as well as assisting the federal government to thwart the financial skullduggery of Saddam Hussein. They claimed to be a conduit for wealthy Saudi investors; and one of them claimed to be a former CIA agent. All their claims were false. Mary McCarthy's famous libel of Lillian Hellman--"Every word she writes is a lie, including 'and' and 'the'"--would come close to fitting our two con men.



United States v. Stafford, 136 F.3d 1109, 1111 (7th Cir. 1998).



* * * * * * *



[T]he nexus between fabric softener and drug trafficking is recognized to be of great probative value."



United States v. $129,727, 129 F.3d 486, 491 (9th Cir. 1997)(in fairness to the Ninth Circuit, the quoted language is more logical, though less entertaining, in context).



* * * * * * * * *





In England, Justice is open to all, like the Ritz hotel.



Lord Justice Sir James Mathew.



The truth is rarely pure, and never simple.



Oscar Wilde.




CHURCHILLIANA



While sitting on a platform waiting to speak, the seventy-eight-year-old Churchill was handed a note by an aide. Churchill glanced at the message, which advised, "Prime Minister - your fly is unbuttoned."



Churchill then scrawled on the bottom of the note and passed it back. It read, "Never fear. Dead birds do not drop out of nests."






The Meaning of Frivolous



By: David Mote

Deputy Chief Federal Defender



Appointed counsel in criminal cases face some challenges seldom encountered by retained counsel. For example, appointed counsel often hear clients conjecture that they would be offered a better deal or perhaps the charges would be dismissed if they could hire their own counsel. These kinds of comments and inquiries are often irksome, but they generally don't impact on counsel's exercise of professional judgment in handling the case. On the other hand, the fact that a defendant has appointed counsel frequently impacts on the question of whether an appeal is taken. Unfortunately, it has the greatest impact when there is the least reason to appeal.



A client with retained counsel will seldom pursue an appeal when the attorney advises there is very little chance for success. By contrast, appointed counsel who advise their clients that an appeal is pointless are frequently told -- "I want to appeal -- what do I have to lose?" I have had clients state in advance of the sentencing hearing that they wanted to appeal the sentence regardless of what sentence the court imposed; that they wanted to appeal because if the government was going to take years of their life, they wanted it to cost the government as much as possible; and that they wanted to appeal because it was always possible that lightning would strike.



Clients who wish to appeal because they have nothing to lose, rather than because there is a colorable argument to be made on appeal, create difficult decisions for their appointed counsel. Obviously, if there is no non-frivolous basis to appeal, counsel is obliged to file a motion to withdraw and a brief pursuant to Anders v. California, 386 U.S. 738 (1967). Unfortunately, "frivolous" is not a clear concept and counsel can usually find some issue that, while having little chance of success, is at least arguable under the caselaw. Nonetheless, the question of what "frivolous" means has to be faced when preparing a brief where none of the caselaw supports your position.



Personally, there has been more than one occasion when my preparation for oral argument has consisted of reviewing my arguments on the merits and preparing an answer to the question "Why isn't this frivolous?" Good lawyering can, of course, go into preparing a brief on bad issues. I was rather proud of one brief I prepared in which I distinguished every prior published case in this circuit on the application of the reckless endangerment enhancement. This had to be done since the enhancement had been affirmed in every case. Yet, while I felt it was successful as a scholarly and creative effort, I knew, at least until I reached that necessary final delusional state of optimism to argue the appeal, that it was a loser.



More recently, I appealed a sentence on a revocation of supervised release where the client was sentenced to more than double the top of the suggested range of U.S.S.G. 7B1.4. Unfortunately, the Seventh Circuit has said that because 7B1.4 is only a policy statement, the district judge must consider the suggested range but is not bound by it. United States v. McClanahan, 136 F.3d 1146, 1152 (7th Cir. 1998). Worse yet, since there is no actual guideline, the review of the judge's choice of sentence is limited to determining whether it was "plainly unreasonable." United States v. Doss, 79 F.3d 76 (7th Cir. 1996). Understandably, my client could not see how I could suggest that it would be difficult to argue that a 24-month sentence on a violation with a suggested range of 4-10 months was "plainly unreasonable." As I prepared my brief, with every published case in the circuit addressing whether a sentence above the suggested range finding that the sentence was not "plainly unreasonable," I struggled with the question of whether the appeal was "frivolous," or merely a loser. I decided that, while it was a loser, it was not, in my opinion, "frivolous" and prepared my brief and my explanation, if called upon, of why the appeal was not "frivolous."



Having struggled with the issue myself, I was pleased to see the issue of what it means for an argument to be "frivolous" addressed in a recent Seventh Circuit case. In United States v. Howard, slip. op. (7th Cir., 4/9/1998), 1998 WL 164093, the court wrote "to address the novel issue of whether an Anders motion can ever be made and granted when there is a ground for appeal that is not barred by dispositive caselaw, clear statutory language, or any other clear legal bar to the ground, but instead involves the application of law to fact."



In Howard, the principal issue on appeal was the suggestiveness of a photo array. The defendant's expert had testified that while he was "'struck by how fair' the photo array was ... the defendant's picture looked more like a mug shot than the other pictures in the array." The Seventh Circuit concluded that "bearing in mind the deference that the Court of Appeals owes to the District Court in regard to so fact-intensive an issue ... we cannot imagine that a challenge to the array in this case would succeed on appeal, and no more is required to pronounce the appeal frivolous and thus allow the defendant's lawyer to withdraw."



By way of further explanation, the Court explained:



"Our point is not that the defendant's appeal on the basis of a challenge to the array is predictably a loser. It is, but that is not the criterion. Penson v. Ohio, 488 U.S. 75, 86 (1988). The point is that a responsible lawyer would not advise this defendant to base an appeal on a challenge to the array. *** Granted we are dealing with differences of degree rather than of kind in any case in which eyewitness identification is questioned; but at some point the ground on which to question the identification is so meager as fairly to be described as frivolous. A frivolous appeal is merely one that is groundless, United States v. Eggen, 984 F.2d 848, 850 (7th Cir. 1993)(per curiam)."



This opinion allows, I believe, the zealous advocate some breathing room when his best or only argument is "predictably a loser." At the same time, it grants counsel the option of moving to withdraw in a case where the only issue is the client's contention that it was clear error for the district judge not to find that all of the evidence against him was not credible.





CA-7 Case Digest

Compiled by: George F. Taseff

Senior Litigator

Central District of Illinois



May 1998



FOIA



Solar Sources, Inc. v. U.S., No. 97-2386 (4/28/98)



1. Dist. Ct. properly den'd Ps' FOIA request for certain records held by govt. regarding govt.'s criminal antitrust investigation against certain entities. While all criminal charge resolved against entities named in FOIA request, govt. could still use exemption under 5 USC 552(b)(7)(A) since ct.'s in camera inspection confirmed govt.'s claim that disclosure could compromise govt.'s continuing investigation against other entities.



2. Although ct. found 1% out of 3,000 pages of sample documents not privileged under FOIA request, ct. properly found nonprivileged documents "nonsegregable" under 5 USC 552(b) so as to require govt. to go through segregation process in order to comply with FOIA request. Govt. agencies need not organize records for purpose of FOIA compliance; estimated time of 8 work yrs. to perform segregation process in compliance with FOIA request too burdensome.



3. Govt. not required to provide "Vaughn" index as to 3,000 page sample documents prior to assertion of 7A exemption from disclosure under FOIA. Under Wright, 822 F.2d 642, Vaughn index not required in 7A exemption cases claiming interference with govt. enforcement proceedings; document specific index would disclose much of information exemption intended to protect.



HEARSAY



Collins v. Kibort, No. 97-2332 (5/1/98).



1. Dist. Ct. erred in admitting med. bills into record. While P's hospital maintained bills in course of its regularly conducted activity, no one from hospital testified with respect to business practice of hospital; P could not testify as to reliability of such records to qualify them as business records under Fed.R.Evid. 803(6).



2. Dist. Ct. erred in admitting under Fed. R.Evid. 803(5) P's diary of recorded observations of what happened in workplace. P did not testify he could not recall events recorded in diary; thus P could not establish foundation for its admission. Diary could not be received as exhibit unless offered by adverse party.



CRIMINAL CASES



ASSISTANCE OF COUNSEL



Pitsonbarger v. Gramley, No. 95-3912A (4/9/98)



In habeas pet. petitioner procedurally defaulted claim that trial counsel ineffective for failing to inform psychiatrist that petitioner on psychotropic drug at time of trial. Petitioner failed to raise claim on direct appeal in State Ct. system and failed to show under Sawyer, 505 U.S. 333, that timely disclosure would have resulted in finding petitioner unfit for trial.



U.S. v. Howard, No. 97-2328 (4/9/98)



Appellate Court ruled that defendant's appointed counsel could withdraw pursuant to Anders v. California, 386 U.S. 738, even though Anders brief contained discussion on issue (i.e., alleged suggestive photo array) which could not be barred on appeal as matter of law. Photo array issue frivolous under instant record where D's expert equivocal as to whether array suggestive; record overwhelmingly demonstrated witnesses had good opportunity to view Defendant.



U.S. v. Yack, No. 97-3491 (4/9/98)



D's trial counsel not ineffective for agreeing with prosecutor, in bank embezzlement trial, to exclude polygraph results showing deception on issues of theft from 2 of D's co-workers. Such results not helpful to D since 1 of co-workers proved to be relatively unimportant witness for govt., while testimony of other co-worker helpful to D's defense. If results admitted, jury might have learned D initially refused polygraph, thereby raising issues not helpful to defense.



White v. Godinez, No. 96-3187 (4/28/98)



Remand required for Dist. Ct. to reconsider habeas claim that trial counsel ineffective in spending only 20 mins. with petitioner prior to murder trial. Failure to consult issue in ineffective assistance of counsel claim required ct. to inquire into exactly what preparation trial counsel conducted and for how long prior to dism'g claim.



BRIBERY



U.S. v. Grossi, No. 97-2723 (5/4/98)



1. Record contained sufficient evidence to support D's bench trial conviction on charges that D received bribes from 3rd parties to process unpaid bills from general assistance funds even though such bills did not qualify for reimbursement. Although chief witnesses against D testified only on grant of immunity and were similarly guilty of cheating residents out of welfare benefits, Dist. Ct. could still believe their testimonies which were corroborated by other circumstances surrounding payments to D.



2. While D convicted under 18 USC 666(b) of seeking bribe in scheme to award general assistance funds under his jurisdiction to 3rd parties, fact source of funds came from local, as opposed to fed. monies, did not invalidate conviction since township in charge of funds itself received more than $10,000 statutory minimum under 666(b) in fed. funds for other programs. Record contained sufficient evidence to support.



CONSPIRACY



U.S. v. Granados, No. 97-1900 (4/24/98)



Record contained sufficient evidence to support jury's verdict convicting D of conspiracy and attempt to commit extortion under 18 USC 1951(a) where D and 3rd party told victim he would stop damaging newspaper articles in exchange for payment of money. While D may not have intended to create fear by initially publishing articles, govt. need not prove D created fear that was subsequently exploited by D.



EVIDENCE



U.S. v. Freland, No. 97-1710 (4/22/98)



Record contained sufficient evidence to support jury's guilty verdict on charges of attempt armed robbery and use of firearm by felon in attempted bank robbery even though bulk of evidence placing D at scene of crime came from testimony of convicted felons. Jury free to credit testimony of ex-felons, and other testimony linked D to crimes.



U.S. v. Minneman, Nos. 97-2614 & 97-2676, Cons. (4/17/98).

In prosecution charging D with conspiracy to impede IRS and filing false tax return, Dist. Ct. did not err in prohibiting D from introducing evidence of legitimate business deductions that D could have taken on tax return in absence of showing D's prior knowledge of deductions before filing of false tax return. Amount of taxes owed irrelevant to prosecution for tax fraud; D never proffered evidence of deductions.



EXPERT WITNESS



U.S. v. Silva, No. 97-3003 (4/9/98)



Authorized expert under Criminal Justice Act, 18 USC 3006A, may not seek payment directly in State Ct. from appointed atty. for services rendered on behalf of D unless authorized by Dist. Ct.; den'l of appointed counsel's pet. for rule to show cause against expert, however, proper since expert had not yet violated specific order of ct.



FIREARMS



U.S. v. Jester, No. 97-2597 (4/6/98)



Offense of possession of firearm by convicted felon, 18 USC 922(g)(1), does not violate either 8th Amendment by criminalizing D's status or 5th Amendment equal protection clause by exempting certain classes of felons; 922(g)(1) does not punish person solely for status as convicted felon since statute triggered only when felon does volitional act. Congress could rationally exempt prior nonviolent felony offenses from coverage under statute.



U.S. v. McKinney, No. 96-3699 (4/30/98)



Record contained sufficient evidence to support conviction for felon in possession of firearm under 18 USC 922(g) even though state did not prove D owned gun or in actual possession of gun at time of arrest. Record showed D in "constructive possession" of gun where: police heard gun fall to floor about 2 ft. from D; D made threat at time of arrest of shooting someone; and D admitted holding gun prior to police entry.



GUILTY PLEA



U.S. v. Gwiazdzinski, Nos. 97-1278 & 97-1290, Cons. (4/14/98).



D could not withdraw guilty plea on charges of money laundering where D alleged only that wife coerced him into pleading guilty through threat of withholding visitation of couple's child, and that plea product of drinking binge. Wife's threat not tantamount to overwhelming pressure and D's lawyers informed Dist. Ct. at Fed.R.Crim.P. 11 hearing that D had not been drinking.



U.S. v. Schilling, Nos. 96-4160 & 96-4161, Cons. (4/15/98).

Govt. did not breach terms of Ds' guilty plea to failing to report sale of 300,000 gal. of diesel fuel even though govt. introduced evidence at sentencing hearing as to D's scheme concerning failure to report 1,000,000 gal. of fuel which increased sentencing level. Terms of plea expressly gave govt. right to inform Dist. Ct. about actual number of unreported gal. of fuel; Ds admitted at Fed.R.Crim.P. 11 hearing accuracy of charge alleging their failure to report 1,000,000 gal. figure.



HABEAS CORPUS



Diaz v. Duckworth, No. 96-2630 (5/4/98)



Prisoner's appeal of den'l of habeas claim stemming from loss of good-time credit for prison offense rendered moot where prisoner deported during pendency of appeal.



White v. Godinez, No. 96-3187 (4/28/98)



Dist. Ct. erred in den'g habeas pet. based on failure of petitioner to raise certain issues in discretionary pet. for leave to appeal (PLA) to Ill. Sup. Ct.; under Boerckel, 135 F.3d 1194, failure to include claims in PLA does not constitute procedural default for raising claims in subsequent habeas petition.



HEARSAY



U.S. v. Linwood No. 97-1771, No. 97-1771 (4/20/98)



Dist. Ct. did not err in admitting hearsay statement of D's 12-yr.-old daughter who indicated D sold drugs and kept drug money in certain area of apartment. Subject statements admitted for nonhearsay purpose with limiting instructions to jury. D had opportunity to question daughter at trial, thereby eliminating any confrontation clause problem



JURY INSTRUCTION



Robertson v. Hanks, No. 96-1441 (3/30/98)



Dist. Ct. properly den'd petitioner's habeas pet. asserting Tr. Ct. erred in failing to instruct jury on lesser included offense of possession of cocaine. While ct. erred, such error did not require rev'l under Beck, 447 U.S. 625, since: petitioner's conviction noncapital offense; and error not prejudicial where petitioner failed to challenge sufficiency of "greater offense" of conviction for dealing cocaine.



U.S. v. Granados, No. 97-1900 (4/24/98)



Oral instruction by Dist. Ct. informing jury that D guilty of conspiracy to extort money regardless of whether each element of charge proven beyond reasonable doubt did not deprive D of fair trial. Neither party objected to oral instruction; jury received correct written instruction during deliberations; reference to error in transcript could have been nothing more than transcription error by ct. reporter.







U.S. v. Linwood, No. 97-1771 (4/20/98)



Dist. Ct. did not err in refusing D's proffered "mere presence" instruction on charge of possessing cocaine base with intent to distribute and employing minor to possess same with intent to distribute. Record showed D played active role in sale of drugs; jury already instructed in aiding and abetting count that mere association with others involved in criminal activity insufficient to establish guilt.



JURY SELECTION



Pitsonbarger v. Gramley, No. 95-3912A (4/9/98)



1. In habeas pet., Dist. Ct. properly den'd claim that Tr. Ct. improperly dism'd for cause three jurors in capital case who expressed only general aversion to imposing death penalty. Petitioner failed to overcome presumption of correction as to juror bias; juror in capital case may be excused for cause if death penalty views interfere with performance of juror duties.



2. Tr. Ct.'s refusal to remove 1 juror for cause who displayed predisposition in favor of death penalty did not deprive petitioner of fair trial since juror also indicated he would be impartial. Fact petitioner used peremptory challenge to remove juror irrelevant where petitioner failed to show selected jury not impartial.



MAIL FRAUD



U.S. v. Carlino, No. 96-1382 (5/1/98)



Record contained sufficient evidence to support jury's verdict finding D-union business mgr. guilty of mail fraud arising out of D's misuse of union funds. Record showed D used union funds to pay for political functions intended to assist D in reelection. Fact 3rd party signed union checks insufficient to cast doubt on verdict where record showed 3rd party manipulated by Defendant.



PROCEDURE



U.S. v. Guy, No. 97-3645 (4/10/98)



Dist. Ct. erred in permitting D to file 2-day late notice of appeal based upon "excusable neglect" provisions of Fed.R. App.P. 4(b). D relied on Fed.R.Crim.P. 45(a) which allows exclusion of weekends and holidays, but R. 45(a) inapplicable since it governs only Dist. Ct. procedures. While Fed.R.App.P. 26(a) potentially permits late filing in App. Ct., it applies only where time for filing less than 7 days. Moreover, D's counsel failed to demonstrate "excusable neglect" since counsel experienced as fed. criminal app. litigator. 2 pp.



PROSECUTORIAL

MISCONDUCT



Pisciotti v. Washington, No. 96-4087 (4/28/98)



In habeas pet., Dist. Ct. properly found petitioner procedurally defaulted claim that prosecutor improperly predicted petitioner's future dangerousness during closing arguments of murder trial. Trial counsel failed to contemporaneously object to prosecutor's comments; petitioner failed to show "cause" for such procedural default since claim that trial counsel ineffective for failing to object to comments without merit given overwhelming nature of petitioner's guilt.



U.S. v. Granados, No. 97-1900 (4/24/98)



Prosecutor's comments inviting juror to use own feelings about defamatory articles in considering conspiracy to extort money charges stemming from threat to continue publishing said articles, though improper, did not deprive D of fair trial. D's counsel declined invitation by Dist. Ct. to respond to comments in own closing and weight of evidence supported D's conviction.



SEARCH AND SEIZURE



U.S. v. Hall, No. 97-1898 (4/23/98)



1. In motion to suppress evidence obtained through search of D's computer, initial search by technician during routine maintenance of computer constituted only "private search" not subject to 4th Amendment. Although technician eventually informed police of contents of computer, search already completed by time of notification; thus technician not "agent" of police for purposes of potential suppression.



2. Retention of D's computer for 1 day by technician in order for police to search its contents insufficient to invalidate search warrant for computer as unreasonable detention of D's property. Initial search made by technician who performed duties contracted by D who already permitted technician to hold computer for 4 days in ordinary course of business in order to make repairs.



3. Language of search warrant authorizing seizure of computer hardware and disks containing "child pornography and child erotica" sufficient to satisfy "particularity requirement" for warrants under 4th Amendment even though subject matter of warrant touched upon materials potentially protected under 1st Amendment. Use of term "child pornography" sufficiently clear to inform police of types of items subject to seizure.



U.S. v. McKinney, No. 96-3699 (4/30/98)



Dist. Ct. did not err in den'g motion to suppress search warrant even though informant did not testify and information initially provided by informant to police officer lacked details about claim of drug activities. While informant's information alone would not have established sufficient probable cause, police use of informant to obtain 3 controlled buys at D's premises added requisite facts to establish probable cause.



SENTENCING



Pitsonbarger v. Gramley, No. 95-3912A (4/9/98)



In habeas pet., fact prosecutor introduced emotional evidence at 1st phase of capital sentencing with respect to victims' ages, family and sexual assault did not deprive petitioner of fair hearing even though State Sup. Ct. found such evidence to be irrelevant. Evidence at first phase overwhelming that petitioner committed multiple murders qualifying him for death penalty.



U.S. v. Carbaugh, No. 97-2311 (4/14/98)



D's statement "I have a gun" without accompanying gesture sufficient to constitute "threat of death" for purposes of enhancing D's sentence under USSG section 2B3.1(b)(2)(F) when made in context of bank robbery. Record showed D's reference of gun to bank teller emphasized full and urgent import of words such that reasonable teller would view statement as threat of death.



U.S. v. Carlino, No. 96-1382 (5/1/98)



In sentencing for mail fraud, Dist. Ct. did not err in enhancing D's sentence due to obstruction of justice under USSG 3C1.1. Ct. not required to do more than cite 4 instances of false statements made by D during trial and make independent findings with respect to D's failure to tell truth.









U.S. v. Gwiazdzinski, Nos. 97-1278 & 97-1290, Cons. (4/14/98).

Dist. Ct. properly enhanced D's sentence under USSG 2S1.1(b)(2)(C) for laundering funds exceeding $200,000 even though D admitted to only laundering $150,000. Record showed D could have foreseen accomplice launder add'l $80,000 when D admitted in plea agreement that he and accomplice still working together when accomplice laundered subject funds and split fee with him.



U.S. v. Hall, No. 97-1898 (4/23/98)



Dist. Ct. properly enhanced D's sentence under USSG 2G2.4(b)(2) for possession of 10 or more "items" of child pornography even though all items stored on only 3 disks. Ct. could consider each of 403 separate files in computer containing child pornography images as separate "items" under USSG.



U.S. v. Hillsman, Nos. 96-1095, 96-2660 & 96-3344 (4/13/98)



1. Dist. Ct. did not err in using prior assault conviction in D's criminal history in sentencing D for possession of firearms by felon. While USSG 4A1.2(e) only permits consideration of prior conviction within 15 yrs. of serving sentence on prior offense, record showed D still serving sentence on prior offense within applicable time frame as evidenced by date of parole den'l for prior offense.



2. Ct. could properly consider as "relevant conduct" under USSG 1B1.3(a)(1)(A) testimony that D sold quantities of drugs other than amount charged or seized. Record showed possession of disputed drugs sufficiently similar in time and type as charged conduct to qualify as relevant conduct.



U.S. v. Minneman, Nos. 97-2614 & 97-2676 (4/17/98).



1. Dist. Ct. properly used 1991 USSG in force at time of offense of filing false tax return and conspiracy to impede IRS rather than 1996 USSG in force at time of trial. Although general rule requires use of USSG in force at time of sentencing, prior ones appropriate where new ones result in higher offense level. D could not take favorable portions of both prior and current USSG to apply to sentence.



2. Ct. did not err in enhancing Ds' sentence for use of special skills and use of sophisticated means in sentencing D-atty. for role in conspiracy to impede IRS investigation. Although use of D's law degree provided some factual overlap in use of both enhancements, independent factual basis existed for both enhancements since special skills enhancement focused on use of legal training while sophisticated means enhancement focused on D's use of multiple accounts and corp. names to hide assets.



SEVERANCE



U.S. v. Freland, No. 97-1710 (4/22/98)



Dist. Ct. did not err in den'g D's motion to sever counts based on 2 separate bank robbery offenses; policy under Fed.R. Crim.P. 8 is to consolidate similar offenses. Potential for any belief by jury that D had propensity to commit crimes resulting from inclusion of add'l bank robbery charge avoided since issue at trial not complex and record contained sufficient evidence to support convictions as to both robberies. D failed to show need to give important testimony as to one offense and strong need to refrain from testifying as to other offense.



TAX PROSECUTIONS



U.S. v. Minneman, Nos. 97-2614 & 97-2676 (4/17/98).



Record contained sufficient evidence for jury to convict Ds of conspiracy to impede IRS and filing false tax returns. Govt. showed D-atty., who was involved with D-client's business and made transfer of client's funds to hide funds from IRS, had requisite knowledge of client's unlawful scheme to support conspiracy conviction.






Amendments Promulgated by the Sentencing Commission

To Take Effect November 1, 1998



By: Thomas W. Hutchison



The Sentencing Commission has promulgated several amendments to the Sentencing Guidelines Manual. These amendments will take effect November 1, 1998, unless legislation to the contrary is enacted. Here is a synopsis of the more significant amendments.



I. Property-Offense Guidelines (Chapter 2, Parts B and F)



A. Sophisticated Concealment. The Commission promulgated a new enhancement to the fraud guideline (2F1.1). The new enhancement -- the greater of two levels or an offense level of 12 -- applies if (1) the defendant relocated or participated in relocating a fraudulent scheme to another jurisdiction to evade law enforcement or regulatory officials; (2) a substantial part of a fraudulent scheme was committed from outside the United States; or (3) the offense otherwise involved especially sophisticated concealment. The Commission has defined the term "sophisticated concealment" to mean "especially complex or intricate offense conduct in which deliberate steps are taken to make the offense, or its extent, difficult to detect."



B. Telemarketing fraud. The Commission promulgated a new enhancement to the fraud guideline (2F1.1) that adds two levels "if the offense was committed through mass-marketing." New commentary defines the term "mass-marketing" expansively. The term means "a plan, program, promotion, or campaign that is conducted through solicitation by telephone, mail, the Internet, or other means to induce a large number of persons to (A) purchase goods or services; (B) participate in a contest or sweepstakes; or (C) invest for financial profit."



C. National cemeteries. The Commission promulgated a new enhancement to the theft guideline (2B1.1), property destruction guideline (2B1.3), and arson and property destruction by use of explosives guideline (2K1.4). The enhancement adds two levels if the offense was directed against the property of a national cemetery.



D. Copyright and trademark infringement. Section 2(g) of the No Electronic Theft Act, Pub. L. No. 105-147, 111 Stat. 2680, directs the Commission to "ensure that the applicable guideline range" for a crime against intellectual property "is sufficiently stringent to deter such a crime" and reflects "the retail value and quantity of the items with respect to which the crime against intellectual property was committed." The Commission deferred acting on the proposal that had been published for this cycle and agreed to publish two new proposals.



The deferral of action may mean that there can be no amendment taking effect before November 1, 1999. Although the No Electronic Theft Act provides that the Commission can promulgate an amendment "under the authority of . . . section 21 of the Sentencing Act of 1987," section 21 -- which authorized the Commission to promulgate emergency amendments -- has expired.



II. Firearms-Offenses Guideline

(2K2.1)



Section 658 of the Treasury, Postal Service, and General Government Appropriations Act, 1997, Pub. L. No. 104-208, 111 Stat. 3009-371, amended 18 U.S.C. 922(d) to make it an offense to sell a gun to a person convicted of a misdemeanor crime of domestic violence. Section 658 also amended 18 U.S.C. 922(g) to make it an offense for a person convicted of a misdemeanor crime of domestic violence to transport or receive a gun in interstate commerce. The Commission, in response, revised the definition of "prohibited person" in the gun guideline (2K2.1) to include a person convicted of such a crime.



The Commission also amended subsection (a) of the guideline to increase the base offense level for a defendant who is convicted of selling a firearm to a prohibited person. The offense level for such a defendant is 20 if the firearm is a particularly dangerous firearm (one described in 26 U.S.C. 5845(a) or 18 U.S.C. 922(d)) and 14 otherwise. The factor that the defendant sold to a prohibited person is an offense-of-conviction factor, not a relevant-conduct factor. A defendant who sells to a prohibited person has an offense level of 12 unless the offense of conviction is 18 U.S.C. 922(d), in which case the defendant's offense level is 14 or 20.



III. Failure-to-Appear Guideline

(2J1.6)



The Commission amended 2J1.6 (failure to appear by defendant) to respond to the decision of the Fifth Circuit in United States v. Packer, 70 F.3d 357 (5th Cir.1995). Under 18 U.S.C. 3146(b), a sentence of imprisonment imposed for a failure to appear must run consecutively to the sentence imposed for any other offense. Section 3146(b) does not require a sentence of imprisonment, but does require that if a sentence of imprisonment is imposed, that sentence must run consecutively to any other sentence of imprisonment to which the defendant is subject.



The Commission treats a conviction for failing to appear (other than for service of sentence) as a willful obstruction of the underlying offense (the offense for which the defendant failed to appear). See U.S.S.G. 2J1.6, comment. (n.3), 3C1.1, comment. (n.6). If a defendant is convicted of both the underlying offense and the failure to appear (other than for service of sentence), the failure-to-appear count must be grouped under 3D1.2© with the underlying offense because the conduct in the failure-to-appear count is used to adjust the offense level for the underlying offense. Application note 3 to 2J1.6 indicates that in such a situation, the court must sentence within the applicable guideline range -- which encompasses both the failure-to-appear count and the underlying offense -- but that a portion of any term of imprisonment must be assigned to the failure-to-appear count and run consecutively to the remainder of the term of imprisonment.(3)



The Fifth Circuit, in effect, invalidated that methodology, holding that the methodology conflicts with 18 U.S.C. 3146(b).(4)

"The guideline treatment of 3146(b) would defeat the statutory intent that a failure to appear offense be considered separate and distinct from the underlying offenses, warranting a separate and distinct penalty."(5) What the Fifth Circuit seemed not to recognize was that the Commission had provided "a separate and distinct penalty" -- the two-level adjustment under 3C1.1 for willful obstruction of justice. The consequence of the Fifth Circuit's decision is that a defendant can be penalized twice for the same conduct, once when the willful-obstruction adjustment is added to the offense level for the underlying offense and once when the court imposes a separate sentence for the failure-to-appear count.(6)



The Commission revised the commentary to 2J1.6 to make clear that the methodology in that guideline complies with statutory requirements.



IV. Tax-Offense Guidelines

(Chapter 2, Part T)



Three tax guidelines (2T1.1, 2T1.4, and 2T3.1) currently have a two-level enhancement for using "sophisticated means" to impede discovery of the existence or extent of the offense. The term "sophisticated means" is defined to "include[] conduct that is more complex or demonstrates greater intricacy or planning than a routine tax-evasion case." The Commission has revised these enhancements to apply "if the offense involved sophisticated concealment . . . ." The Commission has defined the term "sophisticated concealment" to mean "especially complex or intricate offense conduct in which deliberate steps are taken to make the offense, or its extent, difficult to detect."



V. Adjustments

(Chapter 3)



A. Abuse of position of trust (3B1.3). Section 3B1.3 provides for a two-level increase in the offense level "if the defendant abused a position of public or private trust . . . ." The Commission amended the commentary to 3B1.3 to state that the abuse-of-trust adjustment applies to defendants "who provide sufficient indicia to the victim that they legitimately hold a position of public or private trust when, in fact, they do not."



B. Obstruction of justice (3C1.1). Section 3C1.1 provides for a two-level increase in the offense level "if the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense." The Commission amended 3C1.1 to address two matters, the scope of the term "instant offense" and a defendant's false denial of drug use while on pretrial release.



1. "Instant offense". The Commission amended that guideline to address "the circuit conflict regarding whether the term 'instant offense', as used in the obstruction of justice guideline, 3C1.1, includes obstructions that occur in cases closely related to the defendant's case or only those specifically related to the 'offense of conviction.'"



The Commission seemed to have resolved any split last year when it promulgated amendment 546. That amendment added to the commentary to 1B1.1 a definition of the term "instant offense."



"The term "instant" is used in connection with "offense," "federal offense," or "offense of conviction," as the case my be, to distinguish the violation for which the defendant is being sentenced from a prior or subsequent offense, or from an offense before another court (e.g., an offense before a state court involving the same underlying conduct)."



Under that definition, 3C1.1 could only be applied on the basis of conduct occurring during the investigation, prosecution, or sentencing of the offense for which the federal court was imposing sentence.



The Commission changed its mind, however, and amended 3C1.1 to apply if "the obstructive conduct related to (I) the defendant's offense of conviction and any relevant conduct; or (ii) a closely-related offense."



2. Failure to admit drug use. The Commission addressed a circuit conflict over whether the adjustment for obstruction of justice applies if the defendant refuses to admit to using drugs while on pretrial release. The Commission amended the commentary to the obstruction guideline to state that the adjustment ordinarily is not warranted for lying to a probation or pretrial services officer about using drugs while on pretrial release. The Commission also added commentary stating that such conduct may "affect the determination of whether other guideline adjustments apply (e.g., 3E1.1 (Acceptance of Responsibility))."



VI. Departure

(Chapter 5)



A. Grounds for departure (5K2.0, p.s.). The Commission amended 5K2.0, p.s. to incorporate language from the Supreme Court's decision in Koon v. United States, 116 S.Ct. 2035 (1996). The language added emphasizes the district court's discretion to depart from the guidelines.



B. Diminished capacity (5K2.13, p.s.). Section 5K2.13, p.s. states that there is a basis for a downward departure "if the defendant committed a non-violent offense while suffering from significantly reduced mental capacity not resulting from voluntary use of drugs or other intoxicants . . . provided that the defendant's criminal history does not indicate a need for incarceration to protect the public." The circuits have been divided over what constitutes "a non-violent offense," a term not defined or used elsewhere in the guidelines.



The Commission expanded the applicability of this departure ground. Section 5K2.13 now will provide:



"A sentence below the applicable guideline range may be warranted if the defendant committed the offense while suffering from a significantly reduced mental capacity. However, the court may not depart below the applicable guideline range if: (1) the significantly reduced mental capacity was caused by the voluntary use of drugs or other intoxicants; (2) the facts and circumstances of the defendant's offense indicate a need to protect the public because the offense involved actual violence or a serious threat of violence; or (3) the defendant's criminal history indicates a need to incarcerate the defendant to protect the public. If a departure is warranted, the extent of the departure should reflect the extent to which the reduced mental capacity contributed to the commission of the offense."



The Commission amended the commentary to define the term "significantly reduced mental capacity" to mean that "the defendant, although convicted, has a significantly impaired ability to: (A) understand the wrongfulness of the behavior comprising the offense or to exercise the power of reason; or (B) control behavior that the defendant knows is wrongful."






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.



OFFENSES

Offenses Involving Property

(Bank Robbery)



"I HAVE A GUN" WAS A THREAT OF DEATH. United States v. Carbaugh, No. 97-2311, 1998 WL 171514 (7th Cir. Apr. 14, 1998) (when the defendant declared "This is a robbery", the bank teller asked "Are you for real" and the defendant responded "This is a robbery. Put the money in the bag. I have a gun" constituted a threat of death under 2B3.1(b)(2)(F); the district court concluded that the threat of death needed to include a statement of readiness or willingness to use the gun; the court of appeals disagreed and reversed; the proper focus is on the perspective of the reasonable teller; a reasonable teller would ordinarily experience a fear of being shot when the robber confronting her announces he has a gun; consequently the statement "I have a gun" can constitute a threat of death; here there were no circumstances that tended to strip the words of their ordinary and expected meaning; one judge dissented finding it was within the district court's discretion to conclude on the facts here that the statement did not amount to an express threat of death; contrary to the majority, the dissenting judge also found the amendment deleting the requirement that the threat be an "express" threat of death was a substantive, and not clarifying amendment).





ADJUSTMENTS



ROLE IN THE OFFENSE (3B)

Mitigating Role (3B1.2)



CAREER OFFENDER NOT ELIGIBLE FOR MITIGATING ROLE REDUCTION. See United States v. Ward, No. 97-1810, 1998 WL 234617 (7th Cir. May 12, 1998), CRIMINAL HISTORY, CAREER OFFENDER, infra.



OBSTRUCTION (3C1.1)

(Obstruction or Impeding)



DEFENDANT'S PRE-ARREST FLIGHT AND TTEMPT TO HIDE IDENTITY WAS OBSTRUCTION. United States v. Porter, No. 97-1751, 1998 WL 242437 (7th Cir. May 14, 1998) (the defendant was aware of the pre-indictment investigation of him and fled; the district court increased his offense level under 3C1.1; affirmed; although the defendant had not yet been arrested at the time of his flight, he had interviewed by a special agent and had admitted to using client funds without authorization; the defendant knew an indictment was imminent and that his attorney was engaged in preliminary discussions with the government about a possible plea and a voluntary surrender; with the help of a book, "How to Create a New Identity", the defendant changed his hair color, moved, created a fabricated driver's license, social security card and birth certificate).





CRIMINAL HISTORY

CAREER OFFENDER (4B1.1)



CAREER OFFENDER NOT ELIGIBLE FOR MITIGATING ROLE REDUCTION. United States v. Ward, No. 97-1810, 1998 WL 234617 (7th Cir. May 12, 1998) (the defendant argued the district court failed to rule on his request for a mitigating role reduction; there was no clear error; in fact, the career offender provision precludes such a reduction; in the absence of express authorization, Chapter 3 adjustments do not apply to the offense levels specified by 4B1.1 (noting that acceptance of responsibility reduction does apply)).



DEPARTURES

OFFENDER CHARACTERISTICS



DOWNWARD DEPARTURE BASED ON FAMILY CIRCUMSTANCES AFFIRMED. United States v. Owens, No. 97-3308, 1998 WL 265869 (7th Cir. May 26, 1998) (the government appealed a downward departure based on family circumstances which included three children and a brother with Downs Syndrome; affirmed; although family circumstances are not ordinarily a ground for departure, the district court has a better feel for what is or is not unusual or extraordinary; here the district court clearly stated its reasons for finding that the situation presented atypical and extraordinary circumstances).



DEPARTURES

OTHER



DISPARITY BETWEEN FEDERAL AND STATE SENTENCE WAS NOT GROUND FOR DEPARTURE.

United States v. Schulte, No. 97-4008, 1998 WL 270010 (7th Cir. May 28, 1998) (the defendant pled guilty to possession of child pornography; he appealed the district court's denial of his motion for downward departure based on the disparity of his federal sentence with that he would have received in state court; affirmed; under certain circumstances departure based on disparity of sentences may be appropriate in the case of co-defendants; disparity with state sentences cannot be a ground; departure on disparity can only be based on federal defendants, the only group of individuals similarly situated; departing on grounds of

disparity of state sentences would undermine the operation of the guidelines, resulting in widely disparate federal sentences; uniformity of federal sentences are a raison d'etre of the guidelines).



OFFENSES



OFFENSES INVOLVING FRAUD OR DECEIT

(Fraud)

ACCRUED INTEREST OR APPRECIATION INVESTOR IS TOLD WAS EARNED COUNTS IN LOSS. United States v. Porter, No. 97-1751, 1998 WL 242437 (7th Cir. May 14, 1998) (the defendant was convicted of mail and wire fraud; the district court included in the loss calculation the amount the investor's property would have appreciated; affirmed; here, the evidence was sufficient to support a loss in suspension of drug distribution excess of the original investment; the defendant made a series of written representations indicating that the value of the account was growing; even if the defendant did not initially guarantee the investor any specified rate of return, he represented that the investor in fact had earned a fairly healthy return; thus this case concerned accrued interest or appreciation that the investor was told he had earned).



OFFENSES INVOLVING PUBLIC SAFETY

(Firearms)



COMMERCIAL BURGLARY WAS CRIME OF VIOLENCE HERE. United States v. Nelson, No. 3141, 1998 WL 220455 (7th Cir. May 6, 1998) (the defendant was convicted of gun offenses arising out of his burglary of a sporting goods store in which he stole over 60 firearms; the district court found one of the defendant's prior commercial burglary convictions was a crime of violence, justifying a base offense level of 20; affirmed; in determining whether the prior burglary presented a serious risk of physical injury to others, the district court correctly held that it may look to the conduct set forth in the indictment and/or information; the district court declined to adopt a per se rule that commercial burglaries are always crimes of violence, but properly held that the facts of this case warranted the conclusion that the prior burglary did create a substantial risk of physical confrontation and resultant physical injury, constituting a crime of violence under 4B1.2(1)(ii)).











SENTENCING OPTIONS

SAFETY VALVE

TRUTHFUL INFORMATION MUST BE PROVIDED BY THE TIME OF COMMENCEMENT OF SENTENCING HEARING. United States v. Marin, No. 97-2545, 1998 WL 258168 (7th Cir. May 22, 1998) (the defendant pled guilty to drug offenses and met with government agents in an attempt to provide information making him eligible for the safety valve; the government believed the defendant lied and presented evidence of such at the sentencing hearing; ultimately, after several hearings, the defendant provided more information and the district court granted the safety valve reduction; the government appealed and the court of appeals reversed; the district court erred as a matter of law when it interpreted 3553(f) to allow a defendant who provides the government with an untruthful version of the offense prior to sentencing to be given repeated opportunities to change his version of events and attempt to make a more complete disclosure until the version comports with the government's evidence; in order to satisfy the "not later than the time of sentencing hearing" requirement, the defendant must meet the safety valve's requirement of complete and truthful disclosure by the time of the commencement of the sentencing hearing).


Reversible Errors



United States v. Patel, 131 F.3d 1195 (7th Cir. 1997) (Evidence was insufficient that seized money could support cocaine quantities).

United States v. Knobloch, 131 F.3d 366 (3d Cir. 1997) (Court could not impose an increase for a firearm when there was a consecutive gun count).

United States v. Moore, 131 F.3d 595 (6th Cir. 1997) (A limited remand did not allow a new enhancement at resentencing).

United States v. Melton, 131 F.3d 1400 (10th Cir. 1997) (Unforeseeable acts of fraud could not be attributed to defendant).

United States v. Johnson, 130 F.3d 1420 (10th Cir. 1997) (Same conduct, charged in different counts, was multiplicious).

United States v. Boyd, 131 F.3d 951 (11th Cir. 1997) (Convictions for conspiracy and CCE could not both stand).

United States v. Ross, 131 F.3d 970 (11th Cir. 1997) (When a defendant is convicted of a conspiracy count with multiple objects, the court must find beyond a reasonable doubt that a particular object was proven before applying that guideline section).

United States v. Rapone, 131 F.3d 188 (D.C. Cir. 1997) (Evidence was insufficient to show retaliation).

United States v. Bauer, 132 F.3d 504 (9th Cir. 1997) (Questioning of defendant's bankruptcy attorney violated attorney-client privilege).

United States v. Wilson, 131 F.3d 1250 (7th Cir. 1997) (The government waived the issue of urging additional relevant conduct at resentencing).

United States v. Wilson, 133 F.3d 251 (4th Cir. 1997) (Jury instructions did not adequately impose burden of proving knowledge).

United States v. Pierce, 132 F.3d 1207 (8th Cir. 1997) (Probation revocation for a drug user does not require a prison sentence; treatment is an option).

United States v. Soto, 132 F.3d 56 (D.C. 1997) (Counsel was ineffective for failing to urge downward role adjustment).

United States v. Hinojosa-Gonzalez, 132 F.3d 1314 (9th Cir. 1997) (Defendant did not receive adequate notice of upward departure).

United States v. Foster, 133 F.3d 704 (9th Cir. 1998) (Firearm found in truck was not immediately available to defendant).

United States v. Johnson, 132 F.3d 628 (11th Cir. 1998) (1. Prosecutor violated plea agreement by urging higher drug quantity; 2. Full three levels for acceptance must be reduced unless acceptance was untimely).

United States v. Drinkwine, 133 F.3d 203 (2d Cir. 1998) (Insufficient evidence that defendant could pay a fine).

United States v. Covington, 133 F.3d 639 (8th Cir. 1998) (Evidence did not show imprisonment within last 15 years on predicate offense used for career offender enhancement).

United States v. Duran, 133 F.3d 1324 (10th Cir. 1998) (Entrapment instruction failed to place burden on government).

O'Connor v. United States, 133 F.3d 548 (7th Cir. 1998) (Petition under 2255 was properly filed during pendency of appeal on denial of new trial).

United states v. Glass, 133 F.3d 1356 (10th Cir. 1998) (Defendant's psychotherapist-patient privilege was violated).

Gambino v. Morris, 134 F.3d 156 (3d Cir. 1998) (There was no rational basis to deny parole).

United States v. Williams, 133 F.3d 1048 (7th Cir. 1998) (Statements by informant to agent were hearsay).

United States v. Russell, 134 F.3d 171 (3d Cir. 1998) (CCE instruction omitted unanimity requirement).

United States v. Kennedy, 133 F.3d 53 (D.C. 1998) (Court cannot refuse to group counts in order to give defendant a higher sentence).



United States v. Burt, 134 F.3d 997 (10th Cir. 1998) (Deputy sheriff's drug dealing did not merit abuse of trust or special skills enhancements).

United States v. Desantis, 134 F.3d 760 (6th Cir. 1998) (Neither defendant's business failure, nor state administrative findings, were relevant to fraud case).

United States v. Garrison, 133 F.3d 831 (11th Cir. 1998) (Owner of a health care provider did not occupy position of trust with Medicare).

United States v. Kaplan, 133 F.3d 826 (11th Cir. 1998) (Transfer of funds to U.S. to pay extortion did not establish effect on commerce).

United States v. Thomas, 134 F.3d 975 (9th Cir. 1998) (Defendant may present good prior conduct to support entrapment defense).

United States v. Cooper, 133 F.3d 1394 (11th Cir. 1998) (Defendant had reasonable expectation of privacy in rental car four days after contract expired).

United States v. Mihm, 134 F.3d 1353 (8th Cir. 1998) (Court failed to consider safety valve at resentencing).

United States v. Baird, 134 F.3d 1276 (6th Cir. 1998) (Instruction failed to charge jury that contractor was only liable for falsity of costs it claimed to have incurred).

United States v. Wilson, 135 F.3d 291 (4th Cir. 1998) (Prosecutor's argument that defendant was a murderer prejudiced drug case).

United States v. Beckner, 134 f.3d 714 (5th Cir. 1998) (Lawyer was not shown to have knowledge of client's fraud for aiding and abetting).

United States v. Saenz, 134 F.3d 697 (5th Cir. 1998) (Court's questioning of a witness gave appearance of partiality).

United States v. Sylve, 135 F.3d 680 (9th Cir. 1998) (Deferred prosecution was available for charge under Assimilative Crimes Act).

United States v. Tilghman, 134 F.3d 414 (D.C. 1998) (Court's questioning of defendant denied him a fair trial).

United States v. Hayes, 135 F.3d 435 (6th Cir. 1998) (Enhancements for reckless endangerment, and assault, during flight, were double counting).

United States v. Candelario-Cajero, 134 F.3d 1246 (5th Cir. 1998) (Absent an upward departure, grouped counts cannot receive consecutive sentences).

United States v. Terry, No. 95-6074 (11th Cir. 1998) (Unpublished) (Drug quantity findings were not supported by evidence) (Congratulations to CJA Panel Attorney Donald Partridge).

United States v. Marroquin, 136 F.3d 220 (1st Cir. 1998) (Creation of a lab report was not the type of trial preparation to deny extra point off for accepting responsibility).

United States v. Romero, 136 F.3d 1268 (10th Cir. 1998) ("Law of the case" required element named in jury instruction to be proven).

United States v. Lowery, 135 F.3d 957 (5th Cir. 1998) (Court erroneously excluded defendant's evidence that he encouraged witnesses to tell the truth).

United States v. Mitchell, 136 F.3d 1192 (8th Cir. 1998) (Failure to adhere to unconditional promise to move for downward departure violated plea agreement).

United States v. Adkinson, 135 F.3d 1363 (11th Cir. 1998) (Dismissal of underlying bank fraud undermined convictions for conspiracy, mail and wire fraud schemes, and money laundering).

United States v. Tucker, 137 F.3d 1016 (8th Cir. 1998) (Evidence of juror bias and misconduct required evidentiary hearing).

United States v. Ovalle, 136 F.3d 1092 (6th Cir. 1998) (Plan which resulted in removal of 1 in 5 African-Americans from panel, violated Jury Selection and Service Act).

United States v. Menza, 137 F.3d 533 (7th Cir. 1998) (Defendant did not have to pay restitution for amount greater than losses).

United States v. Nelson, 137 F.3d 1094 (9th Cir. 1998) (Evidence did not support aiding and abetting use and carrying of a firearm during crime of violence).

United States v. Moses, 137 F.3d 894 (6th Cir. 1998) (Allowing child-witness to testify by video violated right to confrontation).

United States v. Brito, 136 F.3d 397 (5th Cir. 1998) (Evidence that defendant was asked to find drivers did not prove constructive possession of hidden marijuana).

United States v. O'Bryant, 136 F.3d 980 (5th Cir. 1998) (Government has burden of proving more serious form of methamphetamine).

United States v. Rodriguez De Varon, 136 F.3d 740 (11th Cir. 1998) (Defendant could not be denied minor role because she was a courier nor on the amount of contraband imported).

United States v. Gonzales, 137 F.3d 1431 (10th Cir. 1998) ("Ends of justice" continuance could not be retroactive).

United States v. Del Toro-Aguilar, 138 F.3d 340 (8th Cir. 1998) (Occasionally fronting drugs to coconspirators did not justify upward role adjustment).

United States v. Farmer, 137 F.3d 1265 (10th Cir. 1998) (Answer to ambiguous question did not support conviction for false declaration).

United States v. Fisher, 137 F.3d 1158 (9th Cir. 1998) (1. Defendant did not fail to appear for trial that had been continued; 2. Despite not guilty plea, admission in open court could be acceptance).



United States v. Toothman, 137 F.3d 1393 (9th Cir. 1998) (Plea could be withdrawn based upon misinformation about guideline range).

United States v. Romano, 137 F.3d 677 (1st Cir. 1998) (Law prohibiting sale of illegally taken wildlife did not cover the act of securing guide services for hunting trip).

United States v. Coleman, 138 F.3d 616 (6th Cir. 1998) (Court could not categorically exclude crack/powder disparity as basis for downward departure).

United States v. Cihak, 137 F.3d 252 (5th Cir. 1998) (Fraud of coconspirators must be foreseeable to defendant to be relevant conduct).

United States v. Renteria, 138 F.3d 1328 (10th Cir. 1998) (Lying at suppression hearing invoked accessory after fact guideline not perjury).

United States v. Huskey, 137 F.3d 283 (5th Cir. 1998) (Prior convictions in same information were related cases for counting criminal history).

United States v. Fernandez, 136 F.3d 1434 (11th Cir. 1998) (Court must hold hearing when defendant makes showing of a Brady violation).

United States v. O'Hagan, 139 F.3d 641 (8th Cir. 1998) (A court could depart downward to credit time served on an expired state sentence for the same conduct).

United States v. Lombardi, 138 F.3d 559 (5th Cir. 1998) (Evidence did not support conviction for using juvenile to commit drug offense).

United States v. Leonard, 138 F.3d 906 (11th Cir. 1998) (Insufficient evidence that passenger of vehicle possessed drugs or gun hidden in car).

United States v. Mills, 138 F.3d 928 (11th Cir. 1998) (Defendant could not be made to share codefendant counsel's cross-examination of government witness).



United States v. Tatum, 138 F.3d 1344 (11th Cir. 1998) (Application note governing fraudulent contract procurement should have been applied rather than theft guideline).

United States v. Sanchez, 138 F.3d 1410 (11th Cir. 1998) (Court must hold a hearing if defendant challenges validity of a prior drug conviction used for statutory enhancement).

United States v. Campbell, 139 F.3d 820 (11th Cir. 1998) (Defendant's status as a drug courier was not basis to deny minor role).



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.




The Back Bencher


Published by: The 7th Circuit

Federal Defenders



Editor: Richard H. Parsons,

Federal Public Defender

Central District of Illinois



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Central District of Illinois



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1. Editorial comment

2. We still get acceptance of responsibility points for our clients - even without the "stone" agreement.

3. The example in application note 3 is of a defendant subject to a guideline range of 30-37 months. The court decides that 36 months is the appropriate sentence. "[A] sentence of thirty months for the underlying offense plus a consecutive six months sentence for the failure to appear count would satisfy" the requirements of the guidelines and 18 U.S.C. 3146(b). U.S.S.G. 2J1.6, comment. (n.3).

4. United States v. Packer, 70

(5th Cir. 1995).



5. Id. at 360.

6. The district court in Packer had grouped together seven fraud offenses and calculated an offense level of 16, which with the defendant's criminal history category yielded a guideline range of 21-27 months. (The Fifth Circuit's opinion does not indicate if the district court added the two-level adjustment for willful obstruction, but there would seem to be no basis for the district court to have declined to do so.) The district court sentenced the defendant to a prison term of 27 months on the fraud offenses. The district court determined the offense level for the failure-to-appear count separately from the offense level for the fraud counts. That offense level, 12, combined with the defendant's criminal history category yielded a guideline range of 10-16 months. The district court imposed a prison term of 16 months on the failure-to-appear count, to run consecutively to the prison term on the fraud counts. The aggregate prison term, therefore, was 43 months, 16 months above the top of the applicable guideline range that the Commission intended apply to all eight counts (the seven fraud counts and the failure-to-appear count).