NEWS The BACK BENCHER


LETTER
Vol. No. 14

September/October 1998

Seventh Circuit Federal Defenders

DEFENDER'S MESSAGE



"Rules of Thumb". They don't usually teach them in law school. However, we defense lawyers have several: never fail to make an opening statement; always strongly advise your client not to testify in a detention or preliminary hearing; don't allow your client, if he is a target or a potential target in a criminal investigation, to appear before a grand jury without some sort of immunity, to describe but a few. These are "rules of thumb". Recent, much publicized national events bear out the wisdom of the last mentioned "rule of thumb".

American history tells us that grand juries were meant to be a buffer between prosecutors and citizens accused of committing crimes. The intentions of the framers of the Constitution and Bill of Rights as to grand juries have, over the years, been perverted. Grand juries have become the "lap dogs" of prosecutors. Grand jurors would probably indict a hamburger, if asked to do so. Why would any lawyer permit his targeted client to appear before a predisposed, partisan group led by an over-zealous prosecutor? The answer is obvious. He or she shouldn't! Follow the "rule of thumb".

If no immunity is forthcoming, inform the prosecutor that your subpoenaed, targeted client will exercise his rights under the 5th Amendment. The prosecutor will usually then agree that your client need not appear. Obviously, while your client is not above the law he is, on the other hand, not beneath the law. He has constitutional rights under the 5th Amendment which guarantees that: ". . . [no person] shall be compelled in any criminal case to be a witness against himself."

There is nothing wrong with invoking this right. Some may say there is a stigma attached to this invocation. They should be ignored. The stigma of being indicted is much greater. The Constitution is the law of the land and there are obvious purposes for all its provisions (including the amendments). The naysayers shouldn't be allowed to dictate which provisions of the Constitution are "acceptable" and which provisions are not. Do everything in your power to dissuade your targeted client from relinquishing his Fifth Amendment right.

In the unlikely event that the prosecution challenges your client's decision to assert his 5th Amendment privilege, it is difficult, if not impossible, for the prosecution to attack the decision as unwarranted. Your client must only make a showing that the possibility of his prosecution is more than "fanciful". If your client can overcome this small hurdle, then he will have met his burden to demonstrate a sufficient basis for the assertion to meet constitutional standards. In re Folding Carton Antitrust Litigation, 609. F.2d 867 (7th Cir. 1979).

If your client has decided to assert his right under the 5th Amendment not to help incriminate himself, you should prepare him for his appearance. (Again - usually the prosecutor will not require his presence at the grand jury once you have informed them that your client will assert his privilege - but in dealing with prosecutors, it is a good practice to wear both a belt and suspenders.) The best way to prepare is to type the exact phraseology on an index card which your client can carry with him into the grand jury room. It is a recognized practice for him to answer all questions by reading from the card you have prepared. Meanwhile, you should be sitting directly outside the door to the grand jury room, where your client can easily find you if any question arises as to his assertion of his right under the 5th Amendment.

To many of you, this message will seem too basic. However, in view of a recent nationally covered media event concerning a target appearing before a grand jury without asserting his 5th Amendment right, I thought the air needed clearing - at least as to how we country lawyers should do it in the Central District of Illinois.

Yours very truly,





RICHARD H. PARSONS

Federal Public Defender

Central District of Illinois





Table Of Contents

Dictum Du Jour 2

Churchilliana 2

Home Sweet Home: Where's The

Warrant? 2

CA-7 Case Digest 4

Recent Sentencing Law 13


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Dictum Du Jour


Rule of Thumb



How did rough measurements come to be called "by rule of thumb"?



Because that's one way to make rough measurements. The first joint of the thumbe is approximately one inch long. A "foot" was once the length of a foot; a "hand," the width of a hand; an "ell," the length of the arms from elbow to elbow; and a "fathom," the length of the arms outstretched. We still use a "finger" to measure drinks.



Jordan Almond, History of Word Origins (Citadel Press).



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The phrase "rule of thumb" stems from the law that a man could beat his wife with a rod no bigger around than his thumb.





Dianne Post, Why Marriage Should Be Abolished, 18 Women's Rts. L. Rep. 283, 307 (1997).



* * * * * * * *



"[T]he power to tax is the power to destroy."



McCulloch v. Maryland, 4 Wheat. 316 (1819).



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When you break the big laws, you do not get liberty; you do not even get anarchy. You get the small laws.



G.K. Chesterton



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Extreme justice is extreme injustice.



Cicero



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Injustice anywhere is a threat to justice everywhere.



Martin Luther King



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And do as adversaries do in law, Strive mightily, but eat and drink as friends.



William Shakespeare, The Taming of the Shrew



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CHURCHILLIANA



"The Last Shall Be First"



Over the course of his lifetime, Churchill was awarded many honorary degrees. At the University of Miami in 1946, after being awarded his doctorate of laws, he made this comment:



"Perhaps no one has ever passed so few examinations and received so many degrees."




Home Sweet Home: Where's The Warrant?

By: David B. Mote

Deputy Chief Federal Defender

Central Distrct of Illinois



Home sweet home, what makes it special? Ask a normal person that question and they are likely to tell you about their spouse, their children, or the peacefulness or chaos of life at home. But as a recent case reminded me, another special aspect of home is its sanctified status in Fourth Amendment law. This article reviews the caselaw on when the police are legally "welcome" to enter the home to make a felony arrest and when, after the arrest, they have overstayed their legal "welcome."



"It is axiomatic that the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. And a principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment on agents of the government who seek to enter the home for purposes of search or arrest." Welsh v. Wisconsin, 466 U.S. 740, 748 (1984).



"[I]f probable cause exists, no warrant is required to apprehend a suspected felon in a public place." Steagald v. United States, 451 U.S. 204, 221 (1981). But even when there is probable cause, the Fourth Amendment "prohibits the police from making a warrantless and nonconsensual entry into a suspect's home to make a routine felony arrest." Payton v. New York, 445 U.S. 573, 576 (1980); United States v. Johnson, 457 U.S. 537, 538-39 (1982).



The Supreme Court has held that a "search or seizure carried out on a suspect's premises without a warrant is per se unreasonable, unless the police can show ... the presence of exigent circumstances. ... [T]he court decided in Payton v. New York that warrantless felony arrests in the home are prohibited by the Fourth Amendment, absent probable cause and exigent circumstances.... Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries." Welsh v. Wisconsin, 466 U.S. 740, 749, 750 (1984).



"Exigent circumstances exist when there is a compelling need for official action and no time to secure a warrant, ... such as when the police officers are in hot pursuit of the suspect." Mason v. Godinez, 47 F.3d, 852, 856 (7th Cir. 1995).



Assuming the police are lawfully within someone's home to make a felony arrest, they may be able to perform a protective sweep. "The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene." Maryland v. Buie, 494 U.S. 325, 337 (1990). It should be noted, however, that lack of information cannot be the sole basis for a protective sweep. See United States v. Akrawi, 920 F.2d 418 (6th Cir. 1990); United States v. Colbert, 76 F.3d 773 (6th Cir. 1996); Sharrar v. Felsing, 128 F.3d 810 (3rd Cir. 1997).



In addition to the fact that it would not comply with the "reasonable suspicion of danger" requirement of Buie, courts have expressed concern that allowing protective sweeps based on lack of information would provide an incentive for the police to "stay ignorant", and threaten to "swallow the general rule requiring that the police obtain a warrant." United States v. Colbert, 76 F.3d 773, 778 (6th Cir. 1996).



The Supreme Court has emphasized that "a protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises." Maryland v. Buie, 494 U.S. 324, 335-36 (1990).



Finally, it should be noted that "the government cannot rely on exigent circumstances to excuse a warrantless entry to conduct a protective sweep if the circumstances and thus the sweep were made necessary by the law enforcement officers' decision to abandon covert surveillance and confront the suspects without any justification whatsoever. That is a classic example of a police-manufactured exigency." United States v. Rico, 51 F.3d 495, 503 (5th Cir. 1995).





CA-7 Case Digest



Compiled by: George F. Taseff

Senior Litigator

Central District of Illinois





ASSISTANCE OF COUNSEL



Mahaffey v. Page, No. 97-4137 (8/6/98)



1. In habeas proceeding challenging petitioner's conviction for capital murder, defense counsel not ineffective for failing to procure witness/neighbor to testify in support of petitioner's contention that police physically coerced him into confessing both murders. Although witness would have testified as to hearing screaming at time of arrest, outcome would not have changed given testimony of two officers, two assistant state's attorneys, and picture showing no abuse of petitioner.



2. Defense counsel not ineffective for failing to challenge petitioner's competency to understand Miranda warnings prior to confessing to both murders. While school records indicated petitioner mildly retarded, no authority requires that counsel consult such records where petitioner provided detailed confession which he read and interrelation with counsel did not give indication of retardation.



3. Defense counsel not ineffective for failing to present evidence of petitioner's mental retardation in mitigation at sentencing hearing; counsel presented character evidence from his relatives. Evidence of petitioner's retardation came only from poor school record which, in absence of other evidence, insufficient to put counsel on notice of existence of said mitigation. Moreover, petitioner thwarted any effort to investigate by dening any history of mental problems.





CONFESSIONS



United States v. Dillon, No. 96-3433 (7/24/98)



District court did not err in denying defendant's motion to suppress confession as being involuntary because police promised to bring any cooperation to prosecutor's attention as inducement to make incriminating statement. Police tactic used here not inherently coercive and did not otherwise transform voluntary statement into involuntary one.





United States v. Schwensow, No. 97-1168 (8/6/98)



District court did not err in dening defendant's motion to suppress statements defendant gave to police during 2nd session of interrogation after defendant indicated intention to remain silent during first session; second session came 36 hrs. after first. That fact that the subject of second interrogation was similar to that of the first is irrelevant since constitutionality of second interview depends not on subject matter but rather on whether police sought to undermine defendant's resolve to remain silent. Here, record shows defendant was lucid and voluntarily waived Miranda rights second time.





CONSPIRACY



U.S. v. Cueto, No. 97-3439 (7/31/98)



In prosecution for conspiracy to defraud federal government under 18 USC 371, that statute was not unconstitutionally vague as applied to defendant-attorney's litigation-related conduct in impairing govterment investigation of gambling activities by entities in which defendant had financial interest. While some of defendant filing of pleadings constituted "legal" conduct in preventing and exposing government. probe, record showed defendnat, through power of office as attorney, undertook actions in effort to protect unlawful gambling operation for his personal financial gain which was used to invest in addional business ventures.









EMBEZZLEMENT



U.S. v. Trost, No. 97-4204 (8/17/98)



Record contained sufficient evidence to support defendant's conviction under 18 USC 666 for embezzling over $5,000 from county clerk's office which had received more than $10,000 in federal funds even though defendant (who was county clerk) was not agent of county, but rather constitutional officer of state. While clerk's office and county were separate entities, money received by clerk's office was deposited in county treasury; defendant was agent of entity receiving federal money.





EVIDENCE



U.S. v. Cueto, No. 97-3439 (7/31/98)



District court did not err in preventing defendant from using prior testimony of federal agent in injunction proceeding in defendant's trial on charges of obstruction of justice in effort to show defendant had reasonable belief that federal agent was corrupt as defense in obstruction of justice proceeding. Defendant initiated injunction proceeding which was conducted in violation of agent's rights; thus defendant could not use testimony from same and profit from his wrongdoing.



U.S. v. Griffin, No. 96-3931 (7/30/98)



Record contained sufficient evidence to support defendant's conviction for possession of cocaine with intent to distribute under 21 USC 841(a)(1) even though record showed someone else placed drugs in defendant's vehicle. Record showed sufficient evidence of defendant's knowledge that cocaine in vehicle since: defendant gave key to individual who loaded cocaine in it and drove erratically back to defendant's place of business; defendant gave conflicting responses to police as to use of vehicle; defendant displayed extreme anxiety during initial stop by police.





U.S. v. Johnson, No. 97-2599 (7/31/98)



In trial on charges of possession of two unregistered firearms in violation of 26 USC 5861(d), district court did not err in granting goverment's motion to exclude testimony regarding defendant's subjective intent in manufacturing the firearm devices. Objective characteristics of devices containing pipe, firecracker powder and shrapnel indicated devices useful only as weapons.





U.S. v. Mattison, No. 98-1027 (8/10/98)



District court did not err in admitting defendant's statements uttered pursuant to proffer to cooperation agreement made by defendant with government. Although proffers generally inadmissible under Fed.R.Crim.P. 11(e)(6), agreement provided that defendant "fully cooperate" with government.; thus admission of proffer permissible where defendant violated terms of agreement by failing to follow through on agreement to purchase drugs in controlled drug buy or to contact govt. after unsuccessful purchase to make further attempts to buy.





U.S. v. Peters, No. 97-2634 (8/17/98)



In prosecution for making false statements on tax returns under 26 USC 7206(1), district court did not err in dening defendant-taxpayer's motion to suppress statements given to IRS agents during civil audit. Under U.S. v. Serlin, 707 F.2d 953, defendant must show IRS agent affirmatively misled defendant as to true nature of investigation and proceeded in civil audit beyond point of having "firm indications of fraud." Defendant failed here since: although IRS initially handled case by special agent in criminal division, agent transferred case to civil division without further involvement; civil division agents represented that audit routine consistent with IRS procedures; and although civil division had "initial" indication of fraud, "firm" indications of fraud standard not met prior to agent giving taxpayer opportunity to explain discrepancies.





U.S. v. Schwensow, No. 97-1168 (8/6/98)



District court did not err in admitting statements defendant made to two volunteers at Alcoholics Anonymous office. Statements not protected under Fed.R.Evid. 501 as psychotherapist-patient privilege since neither volunteer held self out as licensed individual possessing credentials to receive privileged information. Moreover, defendant went to office not with intention of engaging in confidential communications but with intent to use phone and to store duffel bag.





U.S. v. Thomas, No. 97-3456 (8/11/98)



In prosecution on charges of mailing threatening communications under 18 USC 876, district court erred in admitting results of Ill. Dept. of Corrections (IDOC) disciplinary hearing conducted to determine whether defendant responsible for one of letters at issue in charges since letters overly prejudicial. Jury unaware defendant not given procedural protections at hearing or that IDOC did not decide defendant's guilt beyond reasonable doubt. However, error harmless since other evidence showing defendant was responsible for sending series of letters to same victim overwhelming.





FIREARMS



Buggs v. U.S., No. 97-3302 (8/17/98)



In habeas proceedings, district court properly rejected claim that petitioner entitled to new trial on charges of possession of firearms by felon, 18 USC 924(c), under Bailey v. U.S., 516 U.S. 137, based upon improper jury instruction interpreting "use" of firearm under statute. While instruction incorrect under Bailey, record showed petitioner's carrying of gun to couch where defendant packaged drugs sufficient to satisfy "use" of firearm standard under Bailey.





U.S. v. Dillon, No. 96-3433 (7/24/98)



Record contained sufficient evidence to support defendant's conviction on charges of making false statements on required forms to gun dealers in connection with purchase of firearms even though defendant testified he did not read forms and could barely read and write. Actual forms showed defendant's legible writing; store clerks testified they did not fill out forms; defendant's written statement showed he could effectively communicate in writing.



FIRST AMENDMENT



U.S. v. Wilson, Nos. 97-2904 & 97-2946 (8/6/98).



1. District court properly determined Freedom of Access to Clinic Entrances Act, 18 USC 248, did not violate defendant's First Amendment right to freedom of speech by deterring expression of defendant's anti-abortion point of view and their right of freedom of association. Under Soderna, 82 F.3d 1370, Act does not violation First Amendment since Act content neutral and pertained only to prohibition of use of force, threat of force and physical obstruction. Act not violative of right to freedom to associate since that right only permits persons to associate for lawful purposes.



2. Defendants' convictions for conspiracy to violate Act not violation of First Amendment to extent such convictions could cover mere expressive activity not prohibited by Act. Record showed defendants not engaged in mere expressive conduct in blocking entrance way to abortion clinic; convictions still required proof of intent to obstruct clinic.





FORFEITURE



U.S. v. Trost, No. 97-4204 (8/17/98)



District court did not err in ordering forfeiture of $57,412 stemming from defendant-county clerk's theft of county funds that he channeled into "special account" made to resemble official account of county. Record showed over $94,000 eventually channeled through special account. While unlawful funds forming only portion of account cannot provide basis for forfeiting entire account, record showed none of monies in account legitimate.





GUILTY PLEA



U.S. v. Cain, No. 97-2991 (8/12/98)



CA7 lacked jurisdiction to consider defendant's Fourth Amendment claim asserting police lacked probable cause to search his apartment, since he entered into unconditional guilty plea which failed to preserve any pretrial issue for appellate review. Unconditional guilty plea constitutes waiver of nonjurisdictional defects occurring prior to plea, including Fourth Amendment claims.





HABEAS CORPUS



Olaguez-Garcia v. INS, No. 98-8074 (8/5/98)



Habeas petition filed by alien subject to deportation order, stemming from his conviction for drug offense, required to be transferred to district court. While 28 USC 2241 permits individual circuit judge to entertain habeas petition, FRAP 22 precludes such consideration and requires petition to be transferred to district court.





Parsons v. Pitzer, No. 97-1945 (7/24/98)



In habeas proceeding, district court did not err in accepting Bureau of Prisons's classification of petitioner's conviction for being felon in possession of firearm under 18 USC 922(g) as "crime of violence" for purposes of denying petitioner's request for early release. BOP's decision entitled to deference; classification not unreasonable given inherent violent nature of firearms.





Shepeck v. U.S., No. 98-9079 (8/3/98)



Where petitioner filed sucessful initial habeas petition seeking relief under Castellanos, 26 F.3d 717, allowing direct appeal of original sentence due to abandonment of counsel, petitioner need not obtain leave to file successive collateral petition under 28 USC 2244(b)(3) as long as issues contained in successive petition not ripe at time of first collateral attack. Person generally entitled to only one collateral attack on judgment; relief awarded in prior habeas petition merely put petitioner in same position as person taking appeal from original judgment.









INDICTMENT



U.S. v. Mankarious, Nos. 97-3028 & 97-3029 (8/7/98)



District court did not err in permitting government. to amend indictment alleging wire fraud by deleting certain language of preamble and other language in body of indictment. While deletions may have altered substance of indictment by modifying govternment's theory of fraud, changes did not enlarge crime without support of evidence before grand jury. Government avoided prejudice by informing defense of change in approach by providing defense with government's trial memorandum.





JURY INSTRUCTION



Mahaffey v. Page, No. 97-4137 (8/6/98)



Petitioner not entitled to new trial due to trial court's failure to give instruction to jury to explain that only alternative to death sentence for double murder was natural life imprisonment. Although such instruction required under Simmons, 512 U.S. 154, petitioner's conviction final in 1990 before 1994 decision in Simmons which constituted "new rule" preventing retroactive application.









U.S. v. Thomas, No. 97-1738 (7/23/98)



Defendant entitled to new trial on charges of drug conspiracy since district court failed to give jury "buyer-seller" instruction even though record showed series of drug sales by defendant and alleged co-conspirators. Defendant entitled to instruction since nothing in record suggested he had any stake in drug sales of alleged co-conspirators; drug sales merely episodic; and all deals were in cash.





JURY SELECTION



Mahaffey v. Page, No. 97-4137 (8/6/98)



1. In habeas proceeding challenging petitioner's conviction for capital murder, trial court erred in analyzing Batson challenge to state's use of peremptory challenges in terms of petitioner's failure to establish prima facie case of racial discrimination after state articulated reasons for use of challenges as to seven black jurors. Once state gives reasons for use of challenges, issue of whether petitioner established prima facie case becomes moot.



2. Trial court did not err in finding petitioner failed to show state's use of seven out of 13 peremptory challenges to excuse black jurors pretext for race discrimination. Record showed reasons given by prosecutor applied equally to white jurors excused by state even though use of challenges left jury without any black jurors. Fact court couched finding in context of failure to make prima facie showing irrelevant since evidence insufficient to meet prima facie showing of discrimination also insufficient to establish pretext.





LIMITATIONS



U.S. v. Burdix-Dana, No. 97-3977 (7/27/98)



In action charging defendant with filing false claim upon U.S. Treasury, district court properly denied defendant's motion to dismiss indictment filed beyond five year statute of limitations. Government filed information within applicable limitations period; subsequent filing of indictment and dismissal of information after limitations period did not bar prosecution under 18 USC 3288.





MAIL FRAUD



U.S. v. Trost, No. 97-4204 (8/17/98)



In prosecution on charges of mail fraud stemming from theft of money by defendant-county clerk who deposited same in "special account" in defendant's name, government sufficiently showed use of mails as element of fraudulent scheme. Unlike Parr, 363 U.S. 370, where court found mails not element of scheme where mails only option for receipt of money by government officials, record showed that while defendant authorized to collect fees by mail, some citizens paid fees at issue in person for services rendered by clerk's office. Use of mails by defendant crucial element here where defendant channeled money around office through mails for deposit into special account.





MONEY LAUNDERING



U.S. v. Mankarious, Nos. 97-3028 & 97-3029 (8/7/98)



1. Record contained sufficient evidence to support defendant's convictions for money laundering based upon mail fraud even though district court dismissed mail fraud counts due to lack of evidence. Under Gabel, 85 F.3d 1217, government not required to link money laundering with specific criminal act; only required to show laundered funds constituted proceeds of predicate offense.



2. District court properly rejected defendant's claim that government lacked evidence of predicate mailing prior to date of each money laundering charge. Defendant's schemes of generating funds via mail produced proceeds that took place in transactions distinct from transactions constituting money laundering. Time when all acts constituting predicate offense took place irrelevant.





OBSTRUCTION OF JUSTICE



U.S. v. Cueto, No. 97-3439 (7/31/98)



1. In prosecution for obstruction of justice under 18 USC 1503, said statute not unconstitutionally vague as applied to defendant's litigation-related conduct in filing legal papers in court in attempt to thwart federal investigation of gambling activities by entities in which he had financial interests. While court should normally hesitate to impose criminal liability for traditional litigation-related conduct, defendant's status as attorney did not automatically provide protection from criminal liability for purposes of 1503.



2. Record contained sufficient evidence to support defendant's conviction for obstruction of justice. Defendant, in effort to shut down federal. probe of gambling activities, filed false pleadings in federal court seeking to enjoin federal agent in charge of probe from investigating gambling activities and caused federal government to expose investigation as to evidence already gathered. Defendant also unsuccessfully attempted to persuade local state's attorney to bring perjury charges against federal agent after defendant knew of existence of investigation.



PERJURY



U.S. v. Akram, No. 98-1205 (8/12/98)



1. In prosecution for perjury under 18 USC 1623(a) arising out of defendant's testimony given at prior trial on charges of sexual molestation of minor, record showed defendant's statement that he went to victim's room because, according to third party, victim had been crying constituted sufficient evidence of perjury. Statement shown to be false by testimony of third party; defendant's statement sufficiently "material" because testimony capable of influencing jury on issue before it. Fact jury ultimately failed to convict defendant on molestation charge at same trial on perjury charge after being informed of defendant's perjury irrelevant.



2. Fact that defendant made false statements during cross-examination in criminal trial does not automatically result in finding materiality element of perjury charge satisfied. Finder-of-fact still required to evaluate whether defendant's credibility itself issue capable of influencing jury. Defendant's credibility material here since false testimony at prior trial about past law enforcement positions played role in his threats to harm victim if she told anyone about sexual attacks.





PROCEDURE



U.S. v. Andreas, No. 98-1441 (7/27/98)



District court, in partially granting intervenors'motion to secure public disclosure of documents previously filed under seal in criminal prosecution, directed parties, if they wished to file pleadings under seal in future, to simultaneously file either public document with accompanying sealed supplement or sealed document with accompanying public redacted version of document.



Intervenors waived argument on appeal, that confidential materials submitted to district court and relied on by court in making ruling creates presumption of public access to said materials, due to failure to raise argument in district court.





PROSECUTORIAL MISCONDUCT



Mahaffey v. Page, No. 97-4137 (8/6/98)



In habeas proceeding challenging petitioner's death sentence for committing double murder, prosecutor did not commit error in urging jury to give petitioner death sentence due to possibility that petitioner could be let go after committing double murder. Comments related to petitioner's prior attempt to escape while awaiting trial on murder charges and petitioner's ambiguous statement as to whether he would make another attempt to escape. Moreover, prosecutor never wrongfully stated petitioner would be eligible for either parole or release.





SEARCH AND SEIZURE



U.S. v. Griffin, No. 96-3931 (7/30/98)



District court did not err in denying defendant's motion to suppress cocaine seized after police made initial Terry stop. Record showed vehicle under surveillance by police who saw individual to whom defendant had given vehicle load it with large box and drive erratically back to defendant's place of business. Brief stop of defendant to have dog perform drug sniff test also reasonable given defendant's less than truthful answers and suggestion that someone else may have put drugs in vehicle.





U.S. v. Jones, No. 97-3689 (8/10/98)



Officials did not violate Fourth Amendment when they conducted warrantless search of defendant-parolee's residence while defendant in custody. Under Griffin, 483 U.S. 868, parolee presents "special needs" beyond requirements of normal law enforcement due to conditional liberty interests of parolees. Officials had "reasonable grounds" for search given fact defendant's parole officer knew defendant was suspected of selling drugs from car, threatened ex-girlfriend with gun, and arrested in which crack cocaine discovered.





U.S. v. Jones, No. 97-3766 (7/23/98)



District court did not err in denying defendant's motion to suppress cocaine seized on his person during execution of search warrant for home used as defendant's base of operations. Defendant seized in back yard as police broke in front door; any unlawful conduct in executing warrant by breaking into home not causally related to seizure in back yard.





U.S. v. Mattison, No. 98-1027 (8/10/98)



Affidavit in support of application for search warrant provided sufficient evidence of exigent circumstances to support warrant permitting police to enter without knocking and announcing presence. Affidavit showed defendant in possession of drugs and weapon and had threatened to kill anyone interfering with drug sales. Fact no-knock waiver not mentioned in text of search warrant irrelevant where local procedure did not provide for specific mention of waiver.



U.S. v. Schwensow, No. 97-1168 (8/6/98)



District court did not err in failing to suppress evidence seized in defendant's apartment without benefit of search warrant. While defendant initially refused consent, he eventually gave consent two days later during police interview. Fact that defendant's property found in different apartment did not negate consent where defendant failed to voice objection at time of search.





U.S. v. Trost, No. 97-4204 (8/17/98)



District court did not err in denying defendant's motion to suppress evidence based upon allegation that execution of search warrant violated Fed.R.Crim.P. 41 by failing to have federal official present at time of execution of warrant, and warrant returned 29 days after date of execution. Any such technical violations of R. 41 insufficient to exclude evidence obtained short of defect which also violates Fourth Amendment.





SENTENCING



Buggs v. U.S., No. 97-3302 (8/17/98)



In habeas proceeding, district court properly refused to remand case for resentencing on drug offenses based upon intervening change in USSG after direct appeal became final. Errors in implementation of USSG generally not cognizable in collateral attack; petitioner's argument that inclusion of negotiated amount of drugs in sentence calculation improper raised no constitutional issue.



U.S. v. Bacallao, No. 98-1443 (7/24/98)



District court erred in including as "relevant conduct," in sentencing on conviction of possession of 75 grams of cocaine with intent to distribute, two separate instances where defendant arranged for sale of one and two kilograms of cocaine. New sentencing hearing required since district court failed to provide specific information to show proposed relevant conduct related either in time or geographic proximity, or otherwise part of same course of conduct as charged offense.





U.S. v. Cain, No. 97-2991 (8/12/98)



District court did not err by enhancing defendant's sentence on drug conspiracy conviction due to defendant's possession of gun. Government need not demonstrate gun connected to conspiracy, but only that gun possessed during conspiracy. Here, burden satisfied where defendant admitted gun located in car used to transport drugs.









U.S. v. Cash, Nos. 97-3748 & 97-3749 (7/23/98).



District court did not err in sentencing defendants based on finding as "relevant conduct" fact that defendants sold "auto sears" used to enable semi-automatic weapons to be used as fully automatic weapons. While defendants argued government could not use sears transfers as relevant conduct since it failed to show sears manfactured after 1981, record showed defendants knew transfer of sears violated law in that purchase price and other testimony tended to show sears manufactured after 1994.





U.S. v. Cueto, No. 97-3439 (7/31/98)



District court did not err under USSG 3D1.2 in failing to group together conviction on three counts of obstruction of justice. Although record showed common course of conduct in defendant's efforts at filing false pleadings in attempt to thwart federal probe of gambling activities of entities partially owned by defendant, no grouping required where defendant's conduct affected three distinct "societal interests" including FBI, grand jury, and district court.





U.S. v. Gibson, No. 97-2313 (8/14/98)



1. District court did not err in enhancing defendant's sentence for bank robbery under USSG 2B3.1(b)(2)(F) based upon defendant's statement "I have a gun" during robbery. Subject statement constitutes threat of death in that reasonable bank teller would ordinarily experience fear of being shot when confronted by robber announcing possession of gun absent mitigating circumstances.



2. District court did not err in enhancing defendant's sentence under USSG 3C1.1 for obstruction of justice arising out of Defendant's lies to FBI agents on issue of whether she or third party had gun during robbery. 3C1.1 permits enhancement based on false statements to individuals investigating crime; defendant's statements caused government to dismiss case against third party when truth would have presented government with stronger case against him.





U.S. v. Griffin, No. 96-3931 (7/30/98)



1. District court properly enhanced defendant's sentence under USSG 2D1.1(b)(1) for possession of cocaine with intent to distribute where defendant possessed handgun found in briefcase in vehicle where cocaine also located.



Enhancement appropriate even where handgun constructively possessed; such possession established here where briefcase located within arm's reach of large amount of drugs.



2. District court properly calculated defendant's criminal history category under USSG 4A1.1(c) based upon prior state court conviction where defendant received one year probation. While defendant successfully satisfied probation and had conviction "set aside," USSG requires court to count said conviction as part of defendant's criminal history since conviction not "expunged" by state court.





U.S. v. Mankarious, Nos. 97-3028 & 97-3029 (8/7/98)



1. District court did not err in calculating entire amount of loss under USSG 2F1.1 attributed to various frauds committed by defendants on corporation even though defendants owned 59% of said corporation. Record showed third party in actual control of corporation which required defendants to comply with corporate formalities.



2. District court did not err in including in loss calculations $50,000 that one of defendants returned to victim of fraud at issue in convictions. Return of money does not reduce loss computation since defendants intended loss and returned money only because of emerging investigation.





U.S. v. Mattison, No. 98-1027 (8/10/98)



District court did not err in applying two-level enhancement under USSG 3C1.1 for obstruction of justice based upon finding that defendant perjured himself at both suppression hearing and trial. Fact jury acquitted defendant on one of four counts of drug charges irrelevant as to determination whether defendant committed perjury. Court was entitled to deference on finding of credibility; court identified relevant testimony that it found to be false.





U.S. v. McEntire, Nos. 96-3470 & 96-3973 (8/11/98)



1. District court. did not err under USSG 2D1.1 in calculating quantity of d-methamphetamine based upon testing of samples of varied strengths of drug. While record failed to contain evidence as to background of how drug produced, all samples tested positive for d-methamphetamine. Fact defendants paid large amounts for drug for purpose of later distribution over two year period ruled out other types of methamphetamine.



2. District court erred in setting quantity of d-methamphetamine based upon internally inconsistent testimony of informant as to quantity of drugs handled by defendant. Record showed informant past drug user and admitted liar on other occasions. While court. may generally choose between inconsistent versions of amounts of drug handled, court. must explain reasons for crediting one version where inconsistency arose from single witness.



U.S. v. Thomas, No. 97-3456 (8/11/98)



1. District court erred in enhancing defendant's sentence for mailing threatening communications under USSG 2A6.1(b)(1) where it considered defendant's prior criminal history as evidence of intent to carry out threat. Under Amend. 549 of USSG, court may consider only prior conduct that substantially and directly connects to offense. While defendant had extensive criminal history showing violence, nothing in his history related to victim of letters.



2. District court erred in failing to group defendant's conviction on two counts under USSG 3D1.2(b) prior to sentencing on mailing threatening communications. Both counts concerned same victim; under Amend. 549, multiple counts of making threatening communications to same victim required to be grouped together.





U.S. v. Wilson, Nos. 97-2904 & 97-2946 (8/6/98)



District court did not abuse discretion in requiring defendant to participate in mental health program as condition of supervised release as part of sentence on defendant's violation of 18 USC 248. Record showed valid concern by court as to defendant's prior refusal to undergo mental health treatment program rather than confusion by court as to any "rational" behavior on part of defendant to engage in anti-abortion tactics.



SPEEDY TRIAL



U.S. v. Schwensow, No. 97-1168 (8/6/98)



1. District court did not violate 18 USC 3161(c)(2) where it commenced trial three days after defendant granted leave to proceed pro se; 30 day period, required under 3161(c)(2) before commencement of trial, starts day defendant's prior counsel entered appearance, not day court granted request for pro se status. Here appearance made nine mos. prior to trial date.



2. District court did not err in failing to grant defendant's pro se motion to continue filed on day of trial. While defendant had only the days to prepare for pro se trial, he had almost 10 mos. to prepare with prior counsel during which court continued trial four times at defendant's request. Prior counsel agreed to act as stand-by counsel.





TAXATION



U.S. v Mankarious, Nos. 97-3028 & 97-3029 (8/7/98)



Record contained sufficient evidence to support defendant's conviction for tax fraud even though language of indictment required government to prove fraud caused underpayment of federal income taxes. Under Sansone, 380 U.S. 343, law does not require proof of exact amount of underpayment even if specific amount mentioned in indictment.





U.S. v. Peters, No. 97-2634 (8/17/98)



In prosecution for making false statements on tax returns under 26 USC 7206(1) based upon allegations that defendant used corp. funds for personal benefit, government need not present evidence concerning earnings and profit of corp. to support claim that corp. funds constituted "constructive dividend" to defendant. Government need only show taxpayer filed false returns; government satisfied burden here due to defendant's consistent pattern of diverting corp. funds into defendant's personal accounts. No evidence of defendant's intent to treat distributions as return of capital.


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.







ADJUSTMENTS



Multiple Counts



SEPARATE COUNTS FOR SENDING THREATENING LETTERS SHOULD HAVE BEEN GROUPED. See United States v. Thomas, No. 97-3456, 1998 WL 462780 (7th Cir. Aug. 11, 1998), OFFENSES, 2A6.1, infra.



Acceptance of Responsibility



DEFENDANT WHO DID NOT RETURN PROCEEDS OF ROBBERY DID NOT ACCEPT RESPONSIBILITY. United States v. Wells, No. 98-1928, 1998 WL 541387 (7th Cir. Aug. 26, 1998) (the defendant pled guilty to armed robbery and appealed the denial of a decrease in his offense level for acceptance of responsibility; affirmed; the record indicated that defendant netted almost $700,000 and spent about $30,000 with the remainder unaccounted for; the inference was irresistible, and not refuted, that he had squirreled the rest away. The remorseful or repentant defendant would do everything possible to rectify the harmful consequences of his crime, so would return the proceeds if he still had it; without the return or an explanation of where the money went, the district court properly denied the decrease).







OFFENSES



Offenses Against the Person

(Threatening Communications)





DISTRICT COURT IMPROPERLY SUBSTITUTED PROPENSITY FOR VIOLENCE FOR INTENT TO CARRY OUT THREAT. United States v. Thomas, No. 97-3456, 1998 WL 462780 (7th Cir. Aug. 11, 1998) (the defendant was convicted of sending threatening letters to an Assistant United States Attorney; he appealed an increase in his offense level for conduct indicating an intent to carry out the threat and also argued convictions for separate letters should have been grouped; reversed; the record showed the district court added the increase based on the defendant's past violent conduct which indicated the propensity for violence and a likelihood that the threats would be carried out; that is not the proper inquiry; the focus is on conduct that indicates an intent to carry out the particular threat; the district court should consider on remand whether the increase is appropriate on that bases; the court also found that the district court improperly refused to group the separate counts; they involved the same victim and two or more acts of a common objective or plan).



Offenses Involving Property

(Bank Robbery)



"I HAVE A GUN" CAN CONSTITUTE A THREAT OF DEATH. United States v. Carbaugh, 141 F.3d 791 (7th Cir. 1998) (the defendant pled guilty to bank robbery; the district court declined to increase his offense level under 2B3.1(b)(2)(F) finding that his statement to the teller "I have a gun" was not a threatening statement; the government appealed and the court of appeals reversed; the court of appeals noted the guidelines have now been amended, omitting the word "express" and by adding commentary that the defendant does not have to state expressly his intent to kill in order for the enhancement to apply; regardless of whether the amendment applied, the court found that the defendant's statement justified the enhancement; there was no doubt that the statement would cause a reasonable teller to fear death).



Offenses Involving Drugs

(Drugs)



REMAND REQUIRED BECAUSE NEITHER PSR NOR COURT EXPLAINED HOW OTHER AMOUNTS WERE RELEVANT CONDUCT. United States v. Bacallao, No. 98-1443, 1998 WL 416879 (7th Cir. July 24, 1998) (the defendant pled guilty to possession of cocaine with intent to distribute; at sentencing the district court found the relevant offense conduct involved 3.3 kilos of cocaine and imposed a sentence of 168 months; reversed and remanded; there were insufficient factual findings in the presentence report and made by the district court to support the finding of that quantity; the district court relied entirely on the presentence report which failed to establlish the necessary relationship between the offense of conviction and the other drug transactions.)




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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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