Vol. No. 15

November / December 1998

Holiday Issue G

Seventh Circuit Federal Defenders


Several years ago I represented a client in Federal Court accused of two counts of perjury that allegedly were committed before the Grand Jury in Springfield. I noticed in reviewing the discovery material given to me, i.e., the Grand Jury testimony of my client, that the questions asked by the prosecutor before the Grand Jury were vague and full of precatory words. My client's answers were also vague and often times the client, in fact, speculated about events rather than giving definite answers. (In my own defense, I hasten to add that I wasn't retained at the time of the Grand Jury appearance.)

As I prepared and researched the law for trial, I came across the United States Supreme Court case of Samuel Bronston v. United States, 409 U.S. 352, 34 L.Ed. 568, 93 S.Ct. 595 (1973) which stands for the proposition that ... "the federal perjury statute does not permit prosecutions for perjury because of a witness' literally true but unresponsive answers to questions. Even where the witness intended the question to be misled by the answers and even where the answers, all by negative implication, were false. Prosecution for perjury is not the sole or even the primary safeguard against errant testimony. Any special problems arising from literally true but unresponsive answers are to be remedied through the questions acuity and not by the federal perjury prosecution." [Emphasis added]

At trial I called the prosecutor who had questioned my client at the Grand Jury as a defense witness. He admitted that his questioning was not clear and that it was not precise. In fact, when questioned about the acuity of his questions, his answer was, "I'm sure that is true" [that his questions weren't precise]. Later, when asked about some very material and poignant questions he posed to my client and the answers that were given, he admitted that they were not definite and conclusive answers. Voila!

Recently where one, almost on a nightly basis, hears the talking heads of TV speak about perjury, one muses about how they could benefit from a reading of the Bronston case.

In reading President Clinton's lawyers' preliminary memorandum concerning the referral to the United States Congress by the Office of the Independent Counsel, they cited Bronston by stating Bronston was [still] the leading case on the law of perjury. "The United States Supreme Court addressed whether a witness may be convicted of perjury for an answer under oath that is literally true but not responsive to the question asked and arguably misleading by negative implication. The Court directly answered the question (no). It made absolutely clear that a literally truthful answer cannot constitute perjury no matter how much the witness intended by the answer to mislead."

For you panel attorneys who may, at some time, be presented with a perjury case, I recommend that you read Bronston for guidance or at least to help you keep up with current events. It certainly is an interesting and timely issue.

Happy Holidays! n


Federal Public Defender

Central District of Illinois

Table Of Contents

Dictum Du Jour 2

Churchilliana 4

Presentence and Postconviction

Remedies 5

Reflections on the Nat'l Conf.

on Wrongful Convictions and the Death Penalty 8

Police Interrogations 12

New Appellate Rules 16

New Rules of Evidence and

Criminal Procedure 16

Bailey Update 17

CA-7 Case Digest 17

Reversible Error 28

A Sneak Peek 32


The United States Supreme Court has informed Central District of Illinois Federal Defender Richard Parsons and Deputy Chief Defender David Mote that their certiorari petition filed in O'Sullivan v. Boerckel, case number 97-2048, has been granted. The case is set to be argued on the March 1999 calendar.

Mr. Boerckel was represented by Mr. Parsons and Mr. Mote The case was an appeal from the Seventh Circuit ruling in Boerckel v. O'Sullivan, 135 F.3d 1194 (7th Cir. 1998) by the Attorney General's office.

Since the Seventh Circuit ruled in Boerckel's favor, the Supreme Court's granting certiorari may represent a bit of a setback. However, once Mr. Parsons and Mr. Mote recovered from the shock, both are working diligently towards persuading the Supreme Court to rule in Mr. Boerckel's favor. Mr. Parsons was quoted as saying that he had mixed emotions about the granting of certiorari, comparing his feelings to "seeing your mother-in-law drive your new Cadillac over a cliff."

In addition to affecting Mr. Boerckel personally, the resolution of this important issue will have serious implications for literally thousands of other defendants in this country, including defendants on death row.

For the record, this is the first appearance by both Mr. Parsons and Mr. Mote in the highest court in the land. The record should further note that this appointment occurs after only thirty-eight years of law practice for Mr. Parsons and after eight long years for Mr. Mote.




The Back Bencher is now available on the World Wide Web at



Dictum Du Jour

When a true genius appears in the world, you may know him by this sign, that the dunces are all in confederacy against him.

Jonathon Swift, Thought on Various Subjects (1706)


We recognize, or course, that Batson requires us to look to all the relevant facts and circumstances in assessing whether an inference of discrimination should arise. Yet by far the most important factor in this case, and one that the Illinois courts were too quick to overlook, is that all seven African-American members of the jury venire were excused by the State, meaning that not a single member of Mahaffey's own race was seated on the jury that decided his fate. [Footnote: There was of course an African-American alternate who sat through Mahaffey's trial, but she did not deliberate on the verdicts either at the conviction or penalty phase, and she was admitted on the jury only after the State had exhausted all its peremptory challenges.] This is therefore not a case in which only one or two members of a particular racial group were excused while other members of the same racial group remained; it is instead a case where the State exercised seven of thirteen total challenges to exclude every member of Mahaffey's own race. That is fairly compelling evidence of discrimination, at least at the prima facie case stage, where the State has not yet been required to articulate its race-neutral reasons for striking the African-American jurors.

Mahaffey v. Page, slip op. (7th Cir. 11/19/98)(citation omitted).


My colleagues turn aside defendant's constitutional challenge with the observation that the American criminal justice system is one of the best in the world. The sentiment has a pleasant and reassuring tone, but it overlooks an important fact. The supposedly "inferior" justice systems of other nations are abandoning capital punishment at an unprecedented rate. Hood, The Death Penalty: The USA in World Perspective, 6 J. Transnat'l L. & Pol'y 517, 519 (1997). With the exception of Japan, the United States is now the only well- established democracy that has not abolished the death penalty expressly or in practice. Wyman, Vengeance is Whose?: The Death Penalty and Cultural Relativism in International Law, 6 J. Transnat'l L. & Pol'y 543, 544 (1997). Western Europe is free of capital punishment (6 J. Transnat'l L. & Pol'y at 525), as are most countries in our hemisphere (6 J. Transnat'l L. & Pol'y at 570). Even in the United States, 12 states and the District of Columbia presently have no death penalty for any offense, no matter how severe. A. Phillips, Thou Shalt Not Kill Any Nice People: The Problem of Victim Impact Statements in Capital Sentencing, 35 Am.Crim. L.Rev. 93, 99 n. 54 (1997).

I do not know enough about international law to judge whether the nations who have abolished capital punishment are, in fact, less protective of individual human rights than the courts in the United States. I do know, however, that the abolitionist nations have at least insured that no one will pay the ultimate price for their fallibility. That is decidedly not the case in those United States jurisdictions retaining the death penalty, including Illinois.

Despite the courts' efforts to fashion a death penalty scheme that is just, fair, and reliable, the system is not working. Innocent people are being sentenced to death. Examples of innocent people who were arrested, tried and convicted of capital offenses are numerous and well documented. See Staff of House Subcomm. on Civil & Constitutional Rights, Committee on the Judiciary, 103d Cong., 2d Sess., Innocence and the Death Penalty: Assessing the Danger of Mistaken Executions (1994); H. Bedau & M. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 Stan. L.Rev. 21 (1987).

In Illinois, the best-known case of an individual wrongfully convicted of capital murder and sentenced to death is that of Rolando Cruz, who was actually convicted and given the death sentence twice before being found innocent in 1995. Cruz's codefendant, Alejandro Hernandez, had the charges against him dropped after being convicted of capital murder twice and having the death sentence imposed once. In 1996, Verneal Jimerson and Dennis Williams were exonerated after being convicted and sentenced to death for the 1978 murders of Larry Lionberg and Carol Schmal. The same year, Gary Gauger, who had been placed on Death Row for the murder of his parents, was set free after his conviction was reversed based on, inter alia, insufficient evidence. Also in 1996, Carl Lawson was acquitted on his second retrial after having been sentenced to death for the murder of an eight-year-old child. In 1994, Joseph Burrows was released after spending five years on Death Row for the murder of William Dulin, a crime he did not commit. Finally, in 1987, Perry Cobb and Darby Williams (Tillis) were eventually acquitted after having previously been convicted and sentenced to death for the 1977 double murder of Melvin Kanter and Charles Guccion.

Some would suggest that the freedom now enjoyed by these nine men demonstrates that our criminal justice system is working effectively with adequate safeguards. If there had been only one or two wrongful death penalty cases, I might be persuaded to accept that view. When there have been so many mistakes in such a short span of time, however, the only conclusion I can draw is that the system does not work as the Constitution requires it to.

If these men dodged the executioner, it was only because of luck and the dedication of the attorneys, reporters, family members and volunteers who labored to win their release. They survived despite the criminal justice system, not because of it. The truth is that left to the devices of the court system, they would probably have all ended up dead at the hands of the state for crimes they did not commit. One must wonder how many others have not been so fortunate.

The prognosis for wrongly accused defendants facing capital charges is not improving. To the contrary, legislatures and the courts appear to have abandoned any genuine concern with insuring the fairness and reliability of the system. Achieving "finality" in death cases, and doing so as expeditiously as possible, have become the dominant goals in death penalty jurisprudence.

Not so long ago, the federal courts provided meaningful oversight to the way in which state courts exercised their authority to put people to death. That oversight has all but disappeared. Callins v. Collins, 510 U.S. 1141, 1158-59, 114 S.Ct. 1127, 1138, 127 L.Ed.2d 435, 448-49 (1994) (Blackmun, J., dissenting). For all practical purposes, the states have been left to their own devices. Based on recent experience in Illinois, the consequences are apt to be grave.

The General Assembly has drastically shortened the period in which post- conviction relief can be sought, thereby reducing the time in which exonerating evidence may be discovered. See 725 ILCS 5/122-1 (West 1996). The number of death cases is rising, the pace of executions is quickening, and our court, which is responsible for reviewing all cases in which the death penalty is imposed, has demonstrated an unfortunate willingness to disregard the law in order to affirm a sentence of death. See People v. Kidd, 175 Ill.2d 1, 59- 60, 221 Ill.Dec. 486, 675 N.E.2d 910 (1996) (Harrison, J., dissenting). I note, moreover, that it apparently no longer feels constrained to follow its own rules of court, even when they are jurisdictional and mandatory (see In re Marriage of Skahan, 178 Ill.2d 577 (1998) (Harrison, J., dissenting)).

The result, inevitably, will be that innocent persons are going to be sentenced to death and be executed in Illinois. A sentencing scheme which permits such horrific and irrevocable results cannot meet the requirements of the eighth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VIII, XIV) or article I, section 2, of the Illinois Constitution (Ill. Const.1970, art. I, § 2).

It is no answer to say that we are doing the best we can. If this is the best our state can do, we have no business sending people to their deaths. As outraged as we may feel personally over the terrible acts committed by the defendant in this case, that is no justification for perpetuating a system that violates our most basic constitutional principles.

Before any of us gets too righteous about what a despicable character defendant is, we should also stop for a moment and reflect on how easy it was to condemn an individual such as Rolando Cruz, who was ultimately determined to be innocent. This is not to suggest that the defendant in this case was not actually guilty either. My point is simply that when a system is as prone to error as our is, we should not be making irrevocable decisions about any human life.

My colleagues are decent and good people. Just as the execution of an innocent person is inevitable, it is inevitable that one day the majority will no longer be able to deny that the Illinois death penalty scheme, as presently administered, is profoundly unjust. When that day comes, as it must, my colleagues will see what they have allowed to happen, and they will feel ashamed.

Donald Bull's conviction should be affirmed, but his sentence of death should be vacated, and the cause should be remanded to the circuit court for imposition of a sentence other than death.

People v. Bull, slip op., 1998 WL 778135 (Ill. S.Ct. 11/10/98)(Harrison, J., concurring in part and dissenting in part).



One of the admirals who was violently opposed to Churchill's reforms of the Royal Navy before World War I was a windbag named Lord Charles Beresford.

Churchill reacted to one of his choleric outbursts by saying, "He can be described as one of those orators who, before he gets up, does not know what he is going to say; when he is speaking, does not know what he is saying; and when he has sat down, does not know what he has said."

g g g


Mr. Alan Ellis, a nationally recognized expert on sentencing issues, has graciously allowed us to reproduce articles he has written for his quarterly federal sentencing column for the ABA's Criminal Justice magazine.

This is the first in a series of articles dealing with Presentence and Postconviction Remedies.

We extend our sincere thanks and gratitude to Mr. Ellis for sharing his expertise with us.

* * * *

Baker's Dozen: Tips for the Experienced Advocate

By: Alan Ellis, Esq.

With 85% of all indicted federal criminal defendants being convicted, and 85% of these pleading guilty, according to statistics from the Administrative Office of the U.S. Courts, the most pressing questions your client will have are: "How much time and I going to do?" and, "Where am I going to do it?"

The following baker's dozen of sentencing tips suggest how to get your client the lowest possible sentence at the best possible place.

1. Remember the safety valve provisions of the Crime Bill. (18 U.S.C. §3553(f) and U.S.S.G. §5C1.2). Under appropriate circumstances, without the necessity of the government filing a §5K1.1 motion, a defendant may receive a sentence below the mandatory minimum. Also, if the defendant meets the criteria for the safety valve and his or her offense level is determined to be 26 or greater, it is decreased by two levels. (U.S.S.G. §2D1.1(b)(4)).

2. Accompany your client to his or her meetings with the probation officer during the preparation of the Presentence Investigation Report (PSI) stage. Probation officers are often overburdened, so obtain in advance the forms they need filled out and the documents they need produced and have your client complete and bring them with him or her to the initial interview. If you have any cases supporting your position regarding anticipated disputed issues in the guidelines, bring the cases with you and highlight the relevant sections. Remember, probation officers are not lawyers and often have a difficult time with memoranda of law. Highlighted cases are more helpful to them.

3. When you meet with the probation officer, find out what his or her "dictation date" is. This is the date by which he or she must dictate the first draft of the PSI. When possible, it is extremely helpful to have the probation officer and the assistant U.S. attorney (AUSA) buy into what you believe is your client's offense behavior, his or her role in the offense, and any grounds for downward departure before the dictation. Obviously, "buying in" does not mean paying anybody off. It simply means getting them to agree that your position is not unreasonable. Remember that probation officers often have a proprietary interest in their original draft PSI, and getting them to change it through making objections is often very difficult. Hence, you want the best draft PSI you can get so you don't have to file that many objections.

4. If your client is a cooperating witness, accompany him or her to any debriefings in case there's alter dispute as to what the client said. Also your presence will often facilitate the discussions, particularly if you've debriefed and prepped your client in advance.

5. Before doing any of this, hire a sentencing specialist if your client can afford it. These people are often social workers, former U.S. probation officers, and other criminologists. They are able to interview a criminal defendant and get information that lawyers are not necessarily trained to do. For example, a forensic social worker with a background in psychiatric social work is able to identify mental illness, which will give you grounds for a downward departure based on diminished capacity, and unique family circumstances, which give you grounds for departure based on "extraordinary family circumstances." If you need a referral to a sentencing specialist, contact the author at 34 Issaquah Dock, Waldo Point Harbor, Sausalito, California, 94965 (fax: 415/332-1416), or the National Association of Sentencing Advocates (202/628-2820), which has a listing of over 200 sentencing specialists throughout the country. Such a specialist is more important than ever in guideline sentencing now that there is less information devoted to a defendant's personal characteristics and no evaluation as to why he or she committed the offense. Judges always want to know why a defendant committed a particular offense. Giving him or her the answer to the "why" question through your sentencing specialist goes a long way towards getting the lowest possible sentence.

6. File a presentence memorandum five to seven days prior to sentencing. Statistics show that in 80% of the cases, judges come to the bench with their minds made up as to what sentence they will impose. This is called a "tentative sentence." Unless you can put on a tremendous dog-and-pony show at sentencing, it is likely that your client is going to receive that sentence. Consequently, if you can get a solid presentence memorandum with character letters to the judge before a decision has been made, your sentencing specialist's report (or your own cannibalized version) will go a long way in helping the judge determine a sentence before he or she has crystallized his or her thoughts on the case.

7. Many clients ask me whether they're entitled to credit for time served while on bail under conditions of home confinement. The answer is no. However, if the court orders your client officially detained and then simply recommends to the U.S. Marshal that he or she be kept under home confinement, this qualifies as official detention. The client will get credit for time served even though the place of confinement may be a home or even the Ritz.

8. While a single mitigating factor may not warrant a downward departure, a combination of these factors, taken together, may persuade the court otherwise. (United States v. Cook, 938 F.2d 149 (9th Cir. 1991); U.S.S.G. §5K2.0 Commentary). Even if you don't get a downward departure, these mitigating factors can often help in getting a sentence at the low end of the guideline range. This is particularly important when the offense level and/or the criminal history score render high guidelines.

9. Let's face it, when your client enters a guilty plea, absent a binding stipulation as to his or her guidelines, the client has no idea what the range will be and what sentence will be received within, below, or above it. Consequently, more and more sentencing authorities are recognizing the need for a pre-plea PSI and even a settlement conference before a magistrate unrelated to the case in order to get a third party's view as to the base offense level, and whether there'll be upward or downward adjustments or departures. It's also helpful, in some cases, to see what the magistrate would recommend if he or she were the sentencing judge. Currently, both the Southern District of Alabama in Mobile and the District of Arizona in Phoenix and Tucson are utilizing a variation of this procedure. For more information, contact the probation offices in those cities. In short, if you request and are granted a pre-plea PSI, your client will have a pretty good idea as to what he or she faces at sentencing and can then make a realistic, intelligent, and voluntary decision as to whether to enter a guilty plea.

10. Let judges be judges. Koon has altered the ground rules for downward departure giving defense lawyers and judges more latitude. Indeed, in a recent case by the Fifth Circuit upholding the downward departure, the court stated:

Our conclusion that the district court's sentence should not be disturbed is all the more buttressed by the recent Supreme Court case of Koon v. United States, which emphasized in the strongest terms that the appellate court rarely should review de novo a decision to depart from the Sentencing Guidelines, but instead should ask whether the sentencing court abused its discretion.

(U.S. v. Walters, 87 F.3d 663, 672 n.10. (5th Cir. 1996)).

Be creative. Don't pigeonhole yourself to downward departures identified in the guidelines themselves. Think of things that make your case unusual. Remember that not only must your offender have been an unusual offender, but if the offense behavior is unusual in and of itself - specifically, less serious than envisioned by the guidelines - this is a good ground for an "unusual" case as defined by Koon: one that is outside of the heartland of the guidelines justifying a downward departure.

Departures based on the fact that the guidelines overstate the seriousness of the offense have been recognized by three Second Circuit cases, U.S. v. Restrepo, 936 F.2d 661 (2d Cir. 1991); U.S. v. Alba, 933 F.3d 1117 (2d Cir. 1991); and U.S. v. Lara, 47 F.3d 60 (2d Cir. 1994), all of which support the position of awarding a defendant a departure below the four-level downward adjustment for a minimal role in the offense.

11. Many of us have been in situations where our client has cooperated and yet the government has refused either to file a §5K1.1 motion for downward departure based on substantial assistance or both a §5K1.1 and an 18 U.S.C. §3553(e) motion enabling the judge to depart below the mandatory minimum. Faced with his unpleasant situation, seek a downward departure based on "super/extraordinary acceptance of responsibility." If you spell out to the judge the cooperation the client has provided, even though it may not be all the government had hoped for, it might persuade the judge, many of whom are opposed to the government's unilateral power to control departures for cooperation, to depart downward as much as if the government had filed §5K1.1 and §3553(e) motions, particularly if the "safety valve" applies. Again, this makes your case unusual, thereby taking it out of the heartlands, and, under Koon, justifying a downward departure.

12. Seek a lateral departure that requires your client to serve the same amount of time as called for by the guidelines but addresses the conditions of confinement rather than seeking less time. For example, if the guidelines call for a 21-month sentence, ask the judge to depart downward to a sentence of seven months of incarceration, followed by supervised release with a special condition that the client serve seven months in the correctional component of a community corrections center (CCC), considered the most onerous unit in a halfway house, followed by seven months of supervised release with home confinement and an appropriate amount of community service. Not only does this add up to the same 21 months that the client would normally serve, but it actually requires him or her to serve more time since the client will not get any good conduct time on the seven months nor the community corrections center and home confinement portion of the sentence. Indeed, he or she will serve the entire 21 months as opposed to less than 18 months with good conduct time credit. It does reduce the amount of time to be served; it only alters the conditions of confinement. At a recent presentation to a workshop of the U.S. district and appellate judges of the First Circuit, this idea received favorable response from both the judges and representatives of the probation department.

Finally, in order to receive a report on the "onerous" conditions of confinement in the correctional component of a CCC, ask the Bureau of Prisons for Program Statement 7310.03 and provide it to the sentencing judge as an exhibit to your presentence memorandum well in advance of sentencing. Also, of course, run it by the federal probation officer to see if you can get him or her on your side in the hope that the probation officer will recommend it to the court.

13. Some judges don't like to recommend particular places of confinement at sentencing. Their reasons include, but are not limited to:

* the fact that they don't believe they are "correctional experts" who are able to determine where a client should serve his or her sentence, and;

* they often get letters from the Bureau of Prisons advising them that their recommendations cannot be honored in a particular case.

Generally, the reason behind the letters is that the judge has recommended a facility incompatible with the defendant's security level. As to their lack of knowledge of "correctional practices", however, a lawyer is only asking a judge to recommend a facility if the defendant qualifies based on his or her security level. In fact, Program Statement 5100.06 from the Bureau of Prisons indicates that the bureau welcomes a sentencing judge's recommendation and will do what it can to accommodate it. Indeed, bureau statistics show that in 85% of the cases in which the defendant qualifies for a particular recommended institution, the court's recommendation is honored.

Without a recommendation, your client may not wind up in the facility for which he or she qualifies (as close to his or her home as possible) due to prison overcrowding. Should there be only one slot open at a prison such as the Federal Prison Camp at Nellis Air Force Base in Las Vegas, for example, and there are two defendants who want that placement, the one with the judicial recommendation is more likely to get it. It may help to get a copy of the bureau's Program Statement 5100.06 and show the page that deals with judicial recommendations to the court.

[ [ [

Reflection on the National Conference on Wrongful Convictions and the Death Penalty

By: David B. Mote

Deputy Chief Federal Defender

Central District of Illinois

A historical event took place at Northwestern University School of Law in Chicago on November 13-15, 1998 as an estimated 1,200 people attended the National Conference on Wrongful Convictions and the Death Penalty. The conference featured more than one hundred speakers including attorneys, DNA scientists, professors, journalists, representatives of human rights organizations and exonerated victims of miscarriages of justice.

One aspect of the conference that made it newsworthy, in addition to its size, was its focus. The focus was not on the wisdom of the death penalty in theory, but on the problems with the death penalty in practice. Of the 75 persons released from death row since the Supreme Court allowed the reinstitution of the death penalty in 1976, 28 or 29 appeared on stage together at the conference. It was impossible to see the frequency with which the system has erroneously imposed the ultimate punishment, and the cost of those errors, and believe that the death penalty is worth maintaining.

The list of the 75 victims of miscarriages of justice given below shows the years these people lost as a result of their wrongful convictions. Being deprived of years or even decades of their lives is just the most obvious aspect of what these people lost. Several of the exonerated defendants had come within 72 hours of execution. Many lost marriages and lost the chance to be a part of their children's childhoods. I felt particularly moved by the sorrow expressed by death-row survivors at the fact that one or both of their parents had died while they were on death row and would never know that they had been spared.

There is also the certainty that other innocent persons who were convicted were not spared. Professor Larry Marshall who organized the conference brought forward a number of the people on stage whose lives had been saved by DNA analysis that conclusively proved their innocence and observed that if the victims had merely been murdered, rather than raped and murdered, those men would not be free today. One of those men was Kirk Bloodsworth who was twice convicted and sentenced to death for the rape and murder of a nine-year-old girl. DNA later conclusively established his innocence. Mr. Bloodsworth stated:

We should give great pause before we hand out the ultimate sentence. If it could happen to me, it could happen to you.

Since the reimposition of the death penalty, almost 500 people have been executed in the United States and 75 have been released from death row. That's one person erroneously sentenced to death for every seven executions carried out.

Some things that emerged at the conference did not surprise me. As a defense attorney, I was not surprised that many wrongful convictions had resulted from the testimony of jailhouse informants who had struck deals with the government. That simply proves that the Tenth Circuit was correct in its quickly-vacated Singleton opinion -- purchased testimony is unreliable even when the government is the purchaser. Nor was I surprised that the failure of the prosecution and police to turn over evidence favorable to the defense turned up in many of the cases.

Other things did surprise me. I was surprised at the number of people wrongfully convicted and sentenced to death who had little or no prior record. And I was surprised at the fact that the jailhouse informants weren't the only ones who had no interest in the truth. Police perjury occurred in a substantial number of the cases. And blatant racism sometimes played a part as well. When Clarence Brandley was arrested for the rape and murder of a 16-year-old high school girl, the prosecution had concluded that it must have been one of the janitors. The four white janitors provided alibis for one another. When Mr. Brandley was arrested, one of the officers allegedly told him: "We need someone for this. Since you're the nigger you're elected." The defense later learned that caucasian hairs that did not match the victim were found on the victim's body. After an evidentiary hearing at which the judge determined that two of the white janitors had probably committed the crimes, Mr. Brandley's conviction was reversed and the prosecution dropped all charges against him.

These brave men and women who survived death-row continue to suffer today. In most cases, the prosecutors who argued that they had committed unspeakable crimes and deserved to die are unwilling to utter a simple apology, insisting they acted in good faith. When they apply for a job, they are likely to be asked about that years-long gap in their job history, and they must then explain how they were on death row, waiting to die. Rolando Cruz, after his release from death-row, went to get a copy of his birth certificate. The only proof of identity he could provide was his death warrant. Despite all they have lost, the death penalty survivors must endure death-penalty proponents who argue that their cases prove the system works. Understandably, experience has convinced the death-row survivors that all too frequently, the system doesn't work. And despite the fact that many death-row survivors have been exonerated beyond all doubt by DNA evidence, many death-penalty supporters insist, without looking into the actual cases, that the people who were released from death-row aren't necessarily innocent.

We are in a time when politicians seem to campaign on who is the bigger supporter of the death-penalty. Anyone against it is considered "soft on crime." The Anti-terrorism and Effective Death Penalty Act of 1996 has greatly curtailed federal review of both capital and non-capital convictions. Yet there were too many people being wrongfully convicted before these reforms. Two books, Victims of Justice (Avon) about the case of Rolando Cruz and Alejandro Hernandez and A Promise of Justice (Hyperion) about the Ford Heights Four case, illustrate just how fallible our justice system can be. Currently, there are more than 3,500 people on death-row in the United States. Most of their cases will not be reviewed as extensively as death penalty cases were before the "reforms" enacted in 1996. Listed below are 75 people who know first hand that our criminal justice system is fallible. And a fallible system should not be allowed to execute people.

* * * * *


Randall Dale Adams


Convicted 1977; Released 1989

Jerry Banks


Convicted 1975; Released 1980

Gary Beeman


Convicted 1976; Released 1979

Jerry Bigelow


Convicted 1981; Released 1989

Kirk Bloodsworth


Convicted 1984; Released 1993

Clarence Brandley


Convicted 1980; Released 1990

Anthony Silah Brown


Convicted 1983; Released 1986

Jesse Keith Brown

South Carolina

Convicted 1983; Released 1989

Joseph Green Brown


Convicted 1974; Released 1987

Willie Brown


Convicted 1983; Released 1988

Joseph Burrows


Convicted 1989; Released 1994

Sabrina Butler


Convicted 1990; Released 1995

Earl Patrick Charles


Convicted 1977; Released 1981

Perry Cobb


Convicted 1979; Released 1987

Robert Craig Cox


Convicted 1988; Released 1989

James Creamer


Convicted 1973; Released 1975

Patrick Croy


Convicted 1979; Released 1990

Robert Charles Cruz


Convicted 1981; Released 1995

Rolando Cruz


Convicted 1985; Released 1995

Muneer Deeb


Convicted 1985; Released 1993

Henry Drake


Convicted 1977; Released 1987

Neil Ferber


Convicted 1982; Released 1986

Gary Gauger


Convicted 1993; Released 1996

Charles Ray Giddens


Convicted 1978; Released 1981

Richard Gladish

New Mexico

Convicted 1974; Released 1976

Andrew Golden


Convicted 1989; Released 1993

Richard Greer

New Mexico

Convicted 1974; Released 1976

Ricardo Aldape Guerra


Convicted 1982; Released 1997

Benjamin Harris


Convicted 1985; Released 1997

Robert Hayes


Convicted 1991; Released 1997

Timothy Hennis

North Carolina

Convicted 1986; Released 1989

Alejandro Hernandez


Convicted 1985; Released 1998

Larry Hicks


Convicted 1978; Released 1980

Sonia Jacobs


Convicted 1976; Released 1992

Anibal Jarramillo


Convicted 1981; Released 1982

William Jent


Convicted 1980; Released 1988

Verneal Jimerson


Convicted 1979; Released 1996

Lawyer Johnson


Convicted 1971; Released 1982

Dale Johnston


Convicted 1982; Released 1990

Troy Lee Jones


Convicted 1982; Released 1996

David Keaton


Convicted 1971; Released 1973

Richard Keine

New Mexico

Convicted 1974; Released 1976

John Henry Knapp


Convicted 1976; Released 1990

Curtis Kyles


Convicted 1984; Released 1998

Carl Lawson


Convicted 1990; Released 1996

Wilbert Lee


Convicted 1963; Released 1975

Michael Linder

South Carolina

Convicted 1979; Released 1981

Frederico Macias


Convicted 1984; Released 1993

Vernon McManus


Convicted 1977; Released 1988

Walter (Johnny D.) McMillian


Convicted 1988; Released 1993

Earnest Miller


Convicted 1980; Released 1988

Robert Lee Miller, Jr.


Convicted 1988; Released 1998

Roberto Miranda


Convicted 1982; Released 1996

Adolph Munson


Convicted 1985; Released 1995

Gary Nelson


Convicted 1980; Released 1991

Randall Padgett


Convicted 1992; Released 1997

Anthony Ray Peek


Convicted 1978; Released 1987

Freddie Pitts


Convicted 1963; Released 1975

Samuel Poole

North Carolina

Convicted 1973; Released 1974

Juan Ramos


Convicted 1983; Released 1987

James Richardson


Convicted 1968; Released 1989

James Robison


Convicted 1977; Released 1993

Johnny Ross


Convicted 1975; Released 1981

Bradley P. Scott


Convicted 1988; Released 1991

John C. Skelton


Convicted 1982; Released 1990

Charles "Red" Smith


Convicted 1983; Released 1991

Clarence Smith

New Mexico

Convicted 1974; Released 1976

Jay C. Smith


Convicted 1986; Released 1992

Delbert Tibbs


Convicted 1987; Released 1992

Darby (Williams) Tillis


Convicted 1979; Released 1987

Jonathan Treadway


Convicted 1974; Released 1979

Larry Troy


Convicted 1983; Released 1988

Robert Wallace


Convicted 1980; Released 1987

Gregory R. Wilhoit


Convicted 1987; Released 1993

Dennis Williams


Convicted 1979; Released 1996

c c c

Police Interrogation of Persons With Mental Retardation and Other Developmental Disabilities

By: Robert Perske

When persons with retardation or other developmental disabilities get arrested, the outcomes are usually fair and just. Once in a while, however, they confess to crimes they did not commit.

I'm a worker and writer who tracks persons with retardation and other mental disabilities who confess to heinous crimes with little or no physical evidence to back up their admissions. I began this pursuit some 18 years ago because of a murder conviction in a town where I used to live.

On a warm spring night, just after supper, two detectives appeared at the home of Sammy Rafter, 20, a neighbor with mental disabilities. The detectives asked Sammy if he would help them solve a crime.

Sammy was thrilled. His folks were puzzled, but they let him go to the police station.

Sammy was taken to an interrogation room in an out-of-the-way place, far in the back of the station. He didn't come out until early the next morning--after he had signed a confession for the murder of 13 year-old Jonathan Brooks.

Later, he was convicted even though there was no physical evidence that tied him to the crime. I wrote briefly about the case in Unequal Justice? (1991) so I won't go into detail here. Even so, some things about this case will haunt me forever.

- I'm haunted by the first thing Sammy said to his dad after coming out of the interrogation room:

Dad, you'll be proud of me. I helped them solve the case.

- I'm haunted by a tape recording of the interrogation that kept going on and off. The detectives were vague about its malfunction. (I've become aware that numerous tape recorders have malfunctioned like this in interrogation rooms.)

- I'm haunted by Sammy's corrections of misspelled words in the confession that had been written out by a policeman. Certain words were crossed out and corrected and initialed by Sammy--even though he didn't read and write very well--let alone edit. (I've seen this happen with my guys over and over again, too.)

- I'm haunted by one thing a detective said when the tape recorder was working:

Sammy, come on. Tell us, Sammy. Sammy, can't you say it? Sammy, you're my hero. Tell us how it went.

- I'm mostly haunted by the swearing contest between the family and the interrogators during the trial. The family swore on the witness stand that Sammy was home with them when the crime was committed. The interrogators, on the other hand, testified that:

Mr. Rafter told us things that only the killer could know.

(I've heard that statement from detectives many times since then--especially when there was no complete record of what really went on in the interrogation room.)

Sammy was so unprotected. He in his erratic, trusting way seemed like a little kid facing a bunch of bright, serious-talking kick boxers. They were well trained in the art of getting confessions. They had a fabulous bag of tricks. They had total control in that setting. They were exceptionally slick in the way they deceived, threatened and cajoled. And all of it was aimed at getting a confession for murder out of Sammy.

Now if a cunning predator like Ted Bundy had been in that room, believe me, they would not have treated him like they did Sammy Rafter. But Sammy was trusting and believing and totally taken in by it all.

If he did the crime, the confession would come easily in that setting. If he didn't do it, a confession would still come easily.

Almost all of the guys I've ever worked with would have confessed to what the interrogators wanted to hear in this kind of atmosphere.

Why? Because Sammy possessed specific propensities that interrogators could use against him. From then on, I began to look for such propensities in hundreds of other cases. The following list of characteristics comes from journalistic observations of actual court cases.

1. Relying on Authority Figures for Solutions of Everyday Problems. For most people, zest comes from solving their own everyday problems. Some of us, however, may not be so good at figuring out what to say and do in certain situations. So we try to get close to authority figures who seem to have the answers. That's why many persons with retardation respect police officers and seek them out as friends. A man I'm working with now, when put under pressure by an investigator, finally said:

If the evidence shows that I was there, and that I killed her, then I killed her. But I don't remember being there.

2. The Desire to Please Persons in Authority. This urge stems from both respect and fear. One needs to stay on the good side of those who help us survive in the community. In many confessions one can sense this desire in statements like, "If the detective said I did it, then I guess I did it-even though I can't remember doing it." Another example comes from an excerpt of the intermittent tape recording of Johnny Lee Wilson's interrogation:

Interrogator: I told you it's important that you be straight with me. You took the tape up there [referring to duct tape used on the murder victim].

Johnny: Huh?

Interrogator: You took the tape up there.

Johnny: I didn't have anything with me.


Johnny (sheepishly): I had it at home.

3. The Inability to Abstract from Concrete Thought. When someone reads certain persons their Miranda Rights, they may only grasp rights in concrete terms. They may think of things like "waving at the right." After all, nobody should wave at the wrong police station. They may think their right hands and consider raising them. They may be unable to grasp the abstract thought that Miranda Rights are based on a person's Constitutional rights as a citizen. When asked why he was being executed, Jerome Bowden gave a concrete answer:

Because I can't read and write.

4. Watching for Clues from the Interrogator. Some persons look closely at faces and listen for emphases placed on certain words-trying to sense what an officer wants to hear. The persons may even copy moods in order to come up with answers the officer wants. The following excerpt from a transcript gives an example of a suspect who tried to agree with the interrogator, regardless of whether his answers made sense:

Q: You did see John before he died, didn't you?

A: Yes.

Q: Your family said you were with them.

A: Yes.

Q: You couldn't have been with both of them. Which is it?

A: (silence)

Q: Were you with your family or were you with John?

A: With John.

Q: Let's run that one by again, were you with John or were you with your family?

A: Family.

5. The Longing for Friends. Some persons hunger for friends who won't shy away from them because of their disability. Many would love to have a police officer as a good friend.

6. Relating Best with Children or Older Persons. When people their own age don't take to them, they often work at befriending those who are younger or older.

7. The Plea Bargaining of Accomplices. Often this hunger for friends can get a person hooked up with the wrong friends. Then, when both get apprehended for a crime, the so-called suspect plea bargains for a lesser sentence by testifying against the person with the disability-who then gets the book thrown at him or her.

8. Bluffing Greater Competence Than One Possesses. Persons with disabilities sometimes do everything they can to appear more knowledgeable than they really are. An untrained officer can easily reinforce this "cloak of competence" and use it against them. John Paul Penry could put a "knowing look" on his face leading others to believe he was smart and street-wise. During Johnny Paul Penry's murder trial, interrogators testified that Mr. Penry seemed pretty smart to them. They said they didn't have an inkling he was retarded. However, when the defense attorney put Penry on the stand, the court learned:

- He couldn't read or write.

- He couldn't say how many nickels were in a dime.

- When asked who was president, he smiled knowingly and said "Nixon," even though it was the last year of Jimmy Carter's administration.

(Ellis & Rice, 1988).

9. An All-Too-Pleasant Facade. Smiling at people is a way of getting approval from others. An officer might see this overuse of grinning as a lack of remorse.

10. Abhorrence for the Term Mental Retardation. This term has wounded some persons so deeply, they'll do almost anything to disconnect themselves from it. If a prosecutor is trying to argue that a person is not retarded, that defendant might seal his own doom by agreeing with him. When Johnny Paul Penry was asked by the prosecutor if he was retarded, he said he wasn't. He said it even though a pile of records from Texas institutions that sat on the defense table said he was. And in the interrogation room and in the court, if he said he was retarded, it could have helped his case.

11. Real Memory Gaps. Some people with disabilities have real ones-not the "selective memories" crafty people exhibit on the witness stand. Some will hide these lapses of memory by claiming to remember what others told them about the crime.

12. A Quickness to Take Blame. Even if the tragedy is an "act of God" or an unforeseeable accident, some persons will feel that someone must be held responsible. After a Kansas hurricane ripped off the back buildings at Kansas Neurological Institute some years ago, some residents blamed power people for the disaster; others blamed themselves. They may even take the blame for a crime, thinking the officer will like them more if they do.

13. Impaired Judgment. Unlike a crafty criminal with anti-social tendencies, some persons will do and say things that will make it easy for officers to pin crimes on them. There is an inmate I care about who used to walk up to police officers in town and ask if they had solved a murder of one of his relatives. Then, since he liked talking to officers, he kept asking if he was a suspect. That behavior got him a trip to the interrogation room where they coerced a false confession out of him. Some of us are now going into our eighth year, trying to show he never could have even begun to do the crime.

14. An Inability to Understand Court Proceedings, to Assist in One's Own Defense and to Understand the Punishment. In spite of their cloak of competence, some may be completely unaware of what is going on around them.

15. Problems with Receptive and Expressive Language. Although they may not show it, some persons will not understand what the officer is asking them. If the officer pushes too hard, their response system may shut down. The officer may see this silence as sassy defiance.

16. Short Attention Span. Although myriad sights and sounds will strike and officer's sensing mechanisms, he will be able to concentrate on a few and tune out the rest. Some persons with disabilities may not be able to focus as well. They may be distracted by many more sights and sounds in the police station-even a noisy fan, or the sound of voices in another room.

17. Uncontrolled Impulses. The officer may feel many impulses, but he or she will act on a few healthy ones and keep the others in check. Persons with certain disabilities may not be able to control their impulses like that. They may be prey to many urges they are feeling. One might be the urge to confess to a crime in order to reduce the pressure of the situation.

18. An Unsteady Gait and Struggling Speech. Persons with cerebral palsy may be excellent receivers of sights and sounds and ideas. But when they try to respond, the impulses sent to their muscles will appear to have been dispatched by a madman. Arms may flail. Heads may bob and they will exert tremendous energy, trying to shape the words they want to voice.

19. Seeing Persons with Disabilities as Less Than Human. This view can lead to all kinds of prosecutorial mischief. After all, just suppose you as an officer were under pressure for a two-year-old crime and you had, say, two suspects-a local bank president and a person with mental disabilities. Which would be easiest to lean on? Seeing a person as "dumb" or as a "nobody" or as a "fringe person" or less than human can inspire a cruel advantage that has no place in an interrogation room or a court.

20. Exhaustion and the Surrender of All Defenses. If interrogating officers keep persons with certain disabilities under pressure for long periods of time, they can break them down and get them to say almost anything.

This article is printed with the permission of Mr. Robert Perske, 159 Hollow Tree Ridge Road, Darien, Connecticut 06820. Mr. Perske can be reached by phone at (203) 655-4135 or by fax at (203) 655-0635. The article is a combination of a talk presented by Mr. Perske at the National Conference on Wrongful Convictions and the Death Penalty and an abridgement from Perske, R. UNEQUAL JUSTICE: What Can Happen When Persons with Retardation or Other Development Disabilities Encounter the Criminal Justice System. Nashville: Abingdon Press, 1991.

Mr. Perske is also the author of Deadly Innocence (Abingdon, 1995) and Circles Of Friends (Abingdon, 1988).


New Appellate Rules

By: Andrew J. McGowan

Assistant Federal Defender

Central District of Illinois

Several major changes in the Federal Rules of Appellate Procedure took effect on December 1, 1998. Some of the most significant changes are the new rules governing the length and format of appellate briefs. The new rules are available on the internet at "". Highlights of the new appellate rules and the Seventh Circuit Rules include:

A. Withdrawal of Trial Counsel on Appeal - 7th Cir.R. 51.

1. Relief for trial counsel's motion to withdraw on appeal shall be freely granted.

B. Briefs - Fed.R.App.P. 28 and 32; 7th Cir.R. 28 and 32.

1. Quotations (more than two lines long), headings and footnotes can be single-spaced.

2. For principal briefs, length is limited to 30 pages OR 14,000 words (counting words on the parts of the brief that are on numbered pages, i.e., from statement of jurisdiction through conclusion) OR 1,300 lines, if using monospaced type; for reply briefs, ½ that amount. (NOTE: Most word processing programs have a word-count function. A full page of proportional text is about 250 words.)

3. Certificate of compliance with type style and, if the initial or answer brief is longer than 30 pages or the reply brief is longer than 15 pages, compliance with word-count or line-count limitations.

4. Proportional type must be 12 points or larger in the body of the brief, and 11 points or larger in the footnotes; monospaced type must contain not more than 10½ characters per inch.

5. 1" margins all around, but page numbers may be in the margins.

C. Motions - Fed.R.App.P. 27.

1. 10 days to respond; 7 days to reply.

2. 20 page limit for motion and response; 10 pages for reply.

3. Quotations (if more than two lines), headings and footnotes can be single-spaced.

4. 1" margins all around, but page numbers may be in the margins.

5. New rules for emergency motions.

D. Filings - Fed.R.App.P. 25 and 31.

1. Allows three (3) days for commercial carrier to deliver to clerk.

E. Mandamus/Prohibition - Fed.R.App.P. 21.

1. Modifies form of petitions for writ of mandamus and prohibition.

F. Habeas Corpus - Fed.R.App.P. 22; 7th Cir.R. 30.

1. Procedures for certificates of appealability in habeas corpus and §2255 appeals.

2. If appeal is a collateral attack on a criminal conviction, appendix must include all previous opinions, any appeals, and any earlier collateral attack in the case.

G. Rescinded Circuit Rules - 7th Cir.R. 22.1, 26.1, 27, 29, 35(b) and (c), all of 41 except 41(a).


New Rules of Evidence and Criminal Procedure

By: Andrew J. McGowan

Assistant Federal Defender

Central District of Illinois

Several significant changes in the Federal Rules of Criminal Procedure and Evidence also took effect on December 1, 1998. These changes include:

Fed.R.Crim.P. 5.1 - The Jencks Act, requiring production of witness statements for purposes of cross-examination has been extended to apply to preliminary examinations (probable cause hearings) before United States Magistrate Judges.

Fed.R.Crim.P. 33 - Motion for new trial based on newly discovered evidence must be filed three (3) years from the date of the verdict or finding of guilt.

Fed.R.Crim.P. 35(b) - In evaluating a post-sentence motion for reduction of sentence based on substantial assistance in the prosecution of another, the district court may consider the defendant's pre-sentencing assistance. "Overruling" such cases as U.S. v. Alvarez, 115 F.3d 839 (11th Cir. 1997), the new rule, as explained in the Committee Note, allows the court to "aggregate the defendant's pre-sentencing and post-sentencing assistance in determining whether the 'substantial assistance' requirement of Rule 35(b) has been met." However, if the earlier assistance was already credited at sentencing under U.S.S.G. 5K1.1, it should not be counted again in the Rule 35(b) motion.

Fed.R.Crim.P. 43(c) - A defendant's presence is no longer automatically required for a hearing on a sentence reduction motion under Rule 35(b) or 18 U.S.C. §3582(c).

Fed.R.Evid.P. 615 - An exception to the witness exclusion rule was added for persons "authorized by statute to be present."


Bailey Update

In light of Bailey v. United States, 516 U.S. 137 (1995) (Passive possession of a firearm was insufficient to prove "use" of a firearm during a drug trafficking crime), Congress has amended 18 U.S.C. §924(c). Possession of a firearm "in furtherance" of a crime of violence or drug trafficking crime is now prohibited.

Penalties have also increased. Possession nets a minimum consecutive 5 years. Brandishment gets at least a consecutive 7 years. Discharge is punished by a minimum consecutive 10 years. Possession of short-barreled rifles or shotguns, or semi-automatic assault rifles, gets a minimum consecutive 10 years. Second offenses are minimum consecutive 25-year sentences.

There is a minimum consecutive 30 years for possession of a machine gun, destructive device, or any firearm equipped with a silencer or muffler. A second offense is mandatory life.


CA-7 Case Digest

Compiled by: George F. Taseff

Senior Litigator

Central District of Illinois


Gray-Bey v. U.S., No. 95-3589 (9/8/98).

1. District Court properly denied habeas petition alleging trial counsel labored under actual conflict of interest in petitioner's trial on drug conspiracy charges. Conflict of interest charges stemmed from allegations that trial counsel was law partner to petitioner's former counsel who represented witness at petitioner's trial who gave incriminating evidence against petitioner. No actual conflict of interest shown where trial counsel only shared office space with former counsel; petitioner failed to show how trial counsel's performance was deficient.

2. Trial counsel not ineffective for failing to object to quantity of cocaine attributable to petitioner in presentence report. While petitioner claimed he had personal contact with lesser amount of cocaine, court could attribute entire amount of cocaine from conspiracy to petitioner under Pinkerton, 328 U.S. 640, to determine petitioner's base offense where, as here, sale of drugs by co-conspirators reasonably foreseeable by petitioner.


U.S. v. Holland, No. 97-3148 (11/5/98).

Record supported defendant's conviction for bankruptcy fraud based upon: (1) transfer to defendant two days prior to filing bankruptcy proceedings recreational vehicle owned by bankrupt corporation controlled by defendant's husband; and (2) transfer of money belonging to corporation to third-party who, in turn, paid defendant's personal and business debts with proceeds of transfer. Both acts demonstrated intent to conceal assets from bankrupt's estate.


U.S. v. Krilich, Nos. 97-2721 and 97-2977 (10/27/98)

In prosecution for RICO violation based upon payment of bribe to local official to obtain environmental variance, fact that payment delivered to official without specific mention of bribe did not invalidate conviction; under record showing official had taken previously taken bribes from defendant, jury could view instant payment as expected compensation by official for performing requested act. Moreover, under Illinois law, payment of money before performance of requested act not element of bribery offense.


Splunge v. Parke, No. 96-2509 (11/4/98).

District court did not err in denying habeas petition which asserted that prosecutor, in response to defense counsel's statement that petitioner did not testify at trial, improperly stated during closing argument that murder victim, like petitioner, had right to remain silent; while prosecutor's allusion to victim's rights constituted inappropriate plea for sympathy, comment did not create risk that jury would infer petitioner's guilt through invocation of right not to testify at trial.


U.S. v. Sewell, No. 98-1028 (10/16/98)

Record contained sufficient evidence to support defendant's conviction by jury on charges of distributing cocaine under 21 USC §841(a)(1) on theory of aiding and abetting; while defendant did not participate in price negotiations, handle drugs or attempt to intimidate buyer, defendant's presence at drug sale to protect seller of drugs during drug transaction enough to support conviction.

U.S. v. Spencer, No. 98-2063 (11/13/98).

Defendant's conviction for possession of crack cocaine with intent to distribute, under 21 USC §941(a), not violative of 9th Amendment due to fact statute equates one gram of crack cocaine to 100 grams of powder cocaine; while Ill. Constitution contains provisions requiring punishment be proportionate, 9th Amendment does not invert supremacy clause to permit state constitution to override otherwise lawful federal statute.


U.S. v. Miller, Nos. 98-1550, 98-1599, and 98-1624 (11/12/98)

Record contained sufficient evidence to support defendant's conviction for conspiracy to commit theft of trailer containing several engines under 18 USC §371 and §659, even though defendant did not plan or participate in initial theft; defendant need not be aware of complete details of conspiracy to be held responsible for acts of conspiracy, and jury could infer defendant aware of plot to steal engines by helping to conceal engines and ultimately receiving one engine in payment for role in conspiracy.


Splunge v. Parke, No. 96-2509 (11/4/98).

In habeas proceeding, District court properly concluded that state court. did not commit constitutional error in cutting off defense counsel's questioning of government witness, who received maximum 60 year sentence for involvement in same offense as petitioner, as to any benefits promised to witness in exchange for favorable testimony; while state court wrong in belief that witness' sentence could not be reduced with approval by prosecutor, any error harmless since: (1) witness denied receiving any promises of benefits and testified that she did not believe prosecutor could help her to reduce sentence; and (2) witness' sentence had not been reduced after giving favorable testimony in two prior trials. Thus it was unlikely witness would have received reduction after instant trial.


U.S. v. Krilich, Nos. 97-2721 and 97-2977 (10/27/98)

Prosecutor could properly use at trial statements made by defendant in unsuccessful plea proffer since: (1) proffer contained conditional waiver permitting use where defendant "presented" position inconsistent with proffer; and (2) at trial, defendant elicited from government's witnesses during cross-examination statements inconsistent with proffer admitting fraudulent scheme; fact that defendant elicited statements via cross-examination irrelevant, and defendant's failure to understand that elicitation via cross-examination constituted "presentation" of inconsistent position did not render waiver involuntary.

U.S. v. Marzano, Nos. 97-3635 and 97-3732 (11/12/98)

District court erred in failing to permit defendant to explain on redirect circumstances surrounding 12 year old misdemeanor conviction for purchasing scalped baseball ticket since explanation would have disclosed minor nature of offense and enhanced defendant's credibility impeached during cross examination. Error harmless, though, since defendant's participation in charged offense of money laundering overwhelming, and impeachment testimony concerned defendant's use of money at issue in charged offense.

U.S. v. Miller, Nos. 98-1550, 98-1599 and 98-1624 (11/12/98)

District court did not err in denying defendant's request to call witness to impeach government witness on question of whether witness spoke to third-party; while proposed subject matter of impeachment bore on issue of credibility, said impeachment concerned only collateral matter prohibited by Fed. R.Evid. 608(b), where proposed evidence had no independent ground for admission.

U.S. v. Van Dreel, No. 97-2527 (9/15/98)

District court did not abuse discretion in admitting evidence at trial on drug charges that police seized 13 guns from Defendant's residence. Evidence not overly prejudicial because guns are tools of drug trade. Government agreed to not display guns to jury, but rather read stipulation regarding their seizure.


U.S. v. Shorty, No. 98-2343 (10/30/98)

District court's revocation of defendant's supervised release and resentence of defendant to combination of imprisonment and period of supervised release under 18 USC §3583(h) did not violate Ex Post Facto Clause even though 3583(h) not in effect at time defendant committed original offense, and prior statute covering revocation of supervised release (18 USC §3583(e)) would not permit court to impose instant combination of imprisonment and supervised release; amount of total restraint same under either §3583(h) or §3583(e), and potential for defendant to receive additional revocation sentences under §3583(h) too remote to rise to level of Ex Post Fact Clause violation.


U.S. v. Wilson, No. 98-1256 (10/16/98

1. Offense of possession of firearm by person subject to protective order, under 18 USC §922(g)(8), not unconstitutional as violation of either Commerce Clause (since statute contained jurisdictional element establishing link between possession and interstate commerce), 10th amendment (since statute enacted pursuant to enumerated power of Congress) or Due Process (since statute gave defendant sufficient notice of forbidden conduct).

2. Fact that defendant unaware of existence of 18 USC §922(g)(8) insufficient to invalidate conviction since "knowledge" element of statute requires proof only that defendant knew facts constituting offense rather than actual knowledge of existence of statute. Here, defendant failed to assert he was unaware either that he possessed firearm or that he was subject to order of protection.


U.S. v. Kirschenbaum, Nos. 98-1591 and 98-1592 (9/30/98)

1. In prosecution on money laundering charges, district court did not err in entering under 18 USC §982(a)(1) ex parte restraining order covering over $31 million government claimed subject to forfeiture resulting from money laundering activities; while language of 18 USC §982(b)(1) covering subject forfeiture appears to limit pre-trial seizures to drug offenses, §982(b)(1) usually applies to instant offense. Court declined to rule on question of whether due process required hearing before pretrial restraining order can be imposed.

2. District court erred in entering restraining order that enjoined defendant's wife from disposing of assets belonging to her that government claimed was subject to forfeiture due to defendant's activities; court lacked personal jurisdiction over wife, and record failed to show wife acting in concert with defendant.

U.S. v. Infelise, Nos. 96-3252 and 96-3769 (10/23/90)

1. Appellate court has jurisdiction to consider government's appeal of order denying government's request to have certain property forfeited under 18 USC §1963(m) after defendant convicted of racketeering offenses; forfeiture is part of sentence and is appealable by government under 18 USC §3742(b).

2. Anti-alienation clause of defendant's annuity, providing that benefits of which were "nonforfeitable", did not prevent government from seeking forfeiture of annuity under 18 USC §1963(m); anti-alienation clause governed by §408(b) of ERISA, 29 USC §408(b), which refers only to requirement that benefits be "vested" in annuity's owner. Nothing in §408(b) prevents the government from seizing proceeds in criminal proceeding.

3. District court properly forfeited 2 assets (investment account in name of defendant's wife and home in name of mother-in-law) under "substitute" assets provisions of 18 USC §1963(m); while defendant claimed both assets "tainted" in the sense that both purchased with proceeds from racketeering activities and thus not eligible for forfeiture under §1963(m), government need not prove that "substitute" assets "pure" for purposes of seeking forfeiture under §1963(m).


U.S. v. Krilich, Nos. 97-2721 and 97-2977 (10/27/98)

Defendant's conviction for making false statement to banking institution under 18 USC §1014 not invalid even though statement not made in reference to loan application, but rather to induce bank to disburse bond proceeds held in trust by bank; while Title of §1014 appears to limit coverage to loan applications, language in text of section broad enough to cover instant factual pattern.


U.S. v. Salgado-Campo, No. 98-1217 (11/2/98)

1. In appeal from district court order denying defendant's motion to withdraw guilty plea on charge of illegal alien being in possession of firearm under 18 USC §922(g)(5), defendant merely "waived" as opposed to "forfeited" issue on appeal where record showed defendant argued facts to support withdrawal at Rule 11 hearing, but not at subsequent hearing on Rule 32(a) motion to withdraw plea. However, because raising facts at only Rule 11 hearing does not permit district court ability to decide merits of withdrawal issue, plain error appropriate standard for appellate review.

2. District court did not err in denying defendant's motion to withdraw guilty plea where defendant raised justification defense on charge of illegally being in possession of firearm in circumstances where defendant obtained gun from neighbor after being warned that third-party intended to come to defendant's home to shoot him; defendant not under "imminent fear" of bodily harm at moment defendant asked neighbor for gun outside presence of third-party; and defendant able to leave home prior to arrival of third-party.


Holleman v. Duckworth, No. 95-3152 (9/15/92)

In habeas proceeding where petitioner alleged trial counsel ineffective due to conflict of interest arising from representative of co-defendant, district court erred in concluding that petitioner had "abused writ" by failing to address claim in prior habeas petition; remand required since record unclear petitioner aware of conflict of interest claim when first petition filed in 1981, and record failed to show petitioner-prisoner had any resources for investigation of claim in 1981.

Jenkins v. Nelson, No. 97-1890 (9/10/98)

Petitioner did not procedurally default jury instruction claim in habeas petition by failing to include claim in petition for leave to appeal (PLA) to Ill. Supreme Ct. following direct appeal; Ill. Sup. Ct. would not consider claim forfeited for failure to include it in PLA, and appellate court addressed claim on merits in direct appeal.


U.S. v. Thomas, Nos. 97-4181 and 98-1697 (10/23/98)

Record contained sufficient evidence that defendants violated Hobbs Act, 19 USC §1951, when they obstructed interstate commerce by robbing confidential informant of $675 in federal money targeted to purchase crack from one defendant; theft of "buy money" thwarted what would have been interstate sale of crack originating from South America. Fact that case concerned small amount of cocaine irrelevant to conviction.


U.S. v. Krilich, Nos. 97-2721 and 97-2977 (10/27/98)

In prosecution for RICO violation based upon payment of bribe to local official, fact that date of bribe alleged in indictment different from date proved at trial did not constitute fatal variance under 5th Amendment; variance did not affect nature of crime, and defendant failed to show difference between dates prejudiced his ability to defend himself.


Paters v. U.S., No. 97-2655 (10/28/98).

In habeas action alleging petitioner's lawyer rendered ineffective assistance of counsel during plea negotiations with government, district court applied wrong standard under Durrive, 4 F.3d 548, when finding that difference between actual 121 to 151 month sentencing range following defendant's trial and proposed 60 month range at issue in government's plea offer not sufficiently significant to establish requisite prejudice, even though petitioner's lawyer advised petitioner that he had "nothing to lose" by taking case to trial. Remand required for court to consider case under correct standard found in Toro, 940 F.2d 1065, which directs petitioner to show through objective evidence reasonable probability he would have accepted proposed plea agreement absent counsel's advice.

U.S. v. Lindsay, No. 98-1193 (10/13/98).

Record failed to contain sufficient evidence to support claim that counsel ineffective in representing defendant on charges of conspiracy to commit arson under 18 USC §844(i); counsel's decision to not object to playing entire video of building destroyed by fire, to limit cross-examination of co-conspirator, and to not object to prosecutor's comments during closing argument failed to establish either performance or prejudice prong of Strickland, 464 US 668.


U.S. v. Marzano, Nos. 97-3635 and 97-3732 (11/12/98)

In single indictment charging one defendant with drug offenses and 2 defendants with laundering money in violation of 18 USC §1956(a)(1)(B)(i), district court did not err in denying motion by defendant charged with only money laundering to sever case from defendant charged with both money laundering and drug offenses; test for joinder under Fed.R.Crim.P. 8(b) satisfied where language of indictment alleges both defendants participated in same act or series of transaction, and record showed requisite linkage between drug offenses and laundering of money incident to drug conspiracy.


Jenkins v. Nelson, No. 97-1890 (9/10/98).

Jury Instruction for aggravated battery that included both possible types of battery did not constitute impermissible "constructive amendment" of indictment where indictment charged only one type of battery; variance between indictment and jury instruction did not expose petitioner to double jeopardy or mislead him in presentation of defense.

U.S. v. Miller, Nos. 98-1550, 98-1599 and 98-1624 (11/12/98)

District court did not commit plain error by failing to give Silvern, 484 F.2d 879 instructions to jury when jury reported to court that they "appeared to be deadlocked" after 3 hours of deliberation; Silvern instruction required only when court concludes jury deadlocked, and court within discretion to merely send jury back for further deliberations without instruction since Court could properly conclude that jury not actually deadlocked where initial jury note came after relatively brief deliberations in trial involving three defendants.

U.S. v. Wilson, No. 98-1256 (10/16/98)

In prosecution under 18 USC §922(g)(8) on charges of possession of handgun while subject to order of protection, district court properly denied defendant's tendered instruction to jury defining 2 elements of offense; both elements already part of charge instruction previously given to jury, and terms "hearing" and "opportunity to participate", which tendered instruction attempted to clarify, possessed common meanings not requiring clarification for jury.

U.S. v. Stockheimer, Nos. 97-1939, 97-2017, 97-2018 and 97-2019 (9/28/98)

In prosecution on charges of bank and mail fraud, district court did not err in denying defendants' tendered instruction informing jury that willfulness as contemplated under statutes precluded conviction where defendant had good faith belief that he was acting within law; defendant's belief in legality of conduct not defense to mail or bank fraud.

U.S. v. Nacotee, No. 98-2108 (10/30/98)

District court did not err in failing to tender to jury defendant's proposed voluntary intoxication instruction on charges of serious bodily assault under 18 USC §113(a)(6) and §1153; while defendant presented testimony from witness at scene of offense that defendant intoxicated and did not "know what she was doing", defendant's witness himself impaired at time of offense by drugs and alcohol, and overwhelming weight of evidence indicated defendant knew what she was doing based upon physical attack on victim.


U.S. v. Stockheimer, Nos. 97-1939, 97-2017, 97-2018 and 97-2019 (9/28/98)

In prosecution on mail fraud charges stemming from scheme to use worthless money orders in attempt to discharge debts, record contained sufficient evidence to support convictions; fact that scheme may have been so preposterous such that no reasonable person would have acted on it irrelevant since scheme that sophisticated person would recognize as incredible still within reach of mail fraud statute.


U.S. v. Arrington, No. 98-1910 (10/30/98)

Dist Ct. properly denied defendant's motion to quash arrest based upon month-long police surveillance leading up to arrest; while surveillance, initiated after prior reports linked presence of defendant's vehicle to prior robberies, may have revealed only normal day-to-day activities, arrest still proper where police "lost" defendant for 3 hour period when another bank robbery occurred. Thus, police had enough information to warrant Terry stop, and sufficient evidence to arrest defendant when defendant, carrying loaded guns, bolted at their presence.


U.S. v. Miller, Nos. 98-1550, 98-1599 and 98-1624 11/12/98)

District court did not err in granting motion by counsel for defendant to withdraw from criminal matter one month prior to trial where text of motion indicated that defendant requested withdrawal and had retained new counsel. Moreover, court within discretion to deny request for continuance by defendant's new counsel to familiarize himself with case since court continued matter on three prior occasions, and defendant aware that court set firm trial date when granting last continuance.


Coulter v. Gilmore, No. 96-4033 (9/17/98)

In habeas proceeding filed prior to enactment of 1996 amendments to AEDPA, 28 USC §2254, district court properly found state trial court erred in denying petitioner's challenge under Batson, 476 US 79, to government's use of 9 out of 10 peremptory challenges to strike black jurors where only 16 of 55 persons of total venire were black; trial court failed to consider totality of circumstances" regarding government's use of challenges and determine whether government's use was consistent with respect to consideration of white jurors.


U.S. v. Spears, No. 98-1125 (11/2/98)

Defendant, indicted 44 months after arrest on charges of felon being in possession of firearms under 18 USC §922(g)(1) and §924(e), failed to establish 5th Amendment due process claim for pre-indictment delay; while destruction of police "dispatch tapes" that recorded defendant's arrest occurred during delay and prevented defendant from potentially bolstering claim that police usually arrested third party on subject charges, destruction did not prejudice defendant's right to fair trial since tapes routinely destroyed after 6 months and defendant had other opportunities to show police arrested third party. Moreover, fact that defendant accrued more "criminal history" points by committing other offenses during delay irrelevant since defendant failed to show gov't delayed prosecution in order for defendant to commit more crimes.


U.S. v. Spears, No. 98-1125 (11/2/98)

District court did not err in denying defendant's motion to vacate his conviction for felon being in possession of firearm under 18 USC §922(g)(1) and §924(e) based upon statement by state prosecutor that she wanted to "get" defendant for said firearms charge after defendant had been acquitted on state murder charges; normally, defendant faces difficult burden of showing prosecution vindictiveness where two separate sovereigns involved, and defendant failed to show how federal prosecutor possessed genuine animosity against him based upon result of state prosecution.


U.S. v. Brock, No. 98-1858 (10/30/98)

District court, in appointing counsel on behalf of pro se defendant, did not abuse discretion in finding defendant "forfeited" 6th Amendment right to self-representation; record showed that prior to appointment defendant engaged in disruptive behavior by repeatedly (1) demanding Bill of Particulars after court denied initial request (2) challenging court's authority and (3) refusing to answer any questions about whether he wanted to be represented by counsel. Fact that conduct occurred during pre-trial proceedings as opposed to trial itself irrelevant where conduct indicated defendant would continue to be disruptive at trial.


Splunge v. Parke, No. 96-2509 (11/4/98)

In habeas proceeding, district court properly found no error arising from prosecutor's questions to witness recounting petitioner's initial invocation of right to remain silent prior to petitioner's subsequent statement to police; no Doyle, 462 US 404, violation since government may inform jury about entire sequence of questioning prior to petitioner making post-arrest statement.


U.S. v. Marshall, No. 96-3529 (9/8/98)

1. Record showed existence of both probable cause and exigent circumstances to support warrantless entry by police into defendant's home. Police kept surveillance which produced arrests of several people leaving defendant's home with drugs and had reason to believe defendant aware of surveillance and would get rid of drugs before obtaining search warrant.

2. Officers's warrantless search of defendant's home did not violate 4th Amendment where defendant signed consent to search form specifying area to be searched; 4th Amendment inapplicable where consent given. Evidence showed signed consent by defendant voluntary where defendant given choice between search of home at time of entry or at later time when search warrant would have been obtained.

U.S. v. Van Dreel, No. 97-2527 (9/15/98)

1. Police did not violate defendant's 4th Amendment rights by executing warrant seeking evidence of hunting violation with actual intent to search for drug crimes for which defendant eventually charged and convicted. Record showed probable cause existed for search for evidence of hunting violations. Officer's intent in conducting search irrelevant under Whren, 116 S. Ct. 1769, once probable cause existed for search for hunting violations.

2. Police did not exceed scope of warrant to search for evidence of deer poaching when officer looked under seat of abandoned truck to find distinctive plastic wrap as evidence of drug trafficking. Warrant permitted for ammunition which could have been located in area where wrap found; ammunition among items having incriminating nature for hunting violations.

U.S. v. Aghedo, No. 98-1333 (10/27/98)

1. Defendant's roommate could give consent for police to search defendant's bedroom where police found notebook containing incriminating evidence of credit card fraud under defendant's mattress; record showed that roommate had complete access to defendant's room since roommate performed cleaning services and stored clothing there. Moreover, defendant failed to object at time roommate gave consent to search room in his presence.

2. Fact that notebook eventually found under mattress did not violate scope of search since roommate gave general consent to search room. Moreover, search under mattress not improper where police investigation centered on search for drug paraphernalia and evidence of credit card fraud and notebook had potential of containing at least evidence of drug transactions.


U.S. v. Arrington, No. 98-1910 (10/30/98)

Defendant's 83 year sentence for 7 bank robberies and four convictions of unlawful use of firearms under 18 USC §924(c) did not violate 8th Amendment even though co-defendants received substantially lighter sentences under state law convictions; defendant's sentence constituted proper application of federal guidelines, and 8th Amendment has only limited proportionality review.

U.S. v. Holland, No. 97-3148 (11/5/98)

In sentencing defendant for bankruptcy fraud, district court did not err in attributing to defendant as "loss" under USSG 2F1.1(b)(1)(J) full $454,000 representing default judgments sought to be discharged by defendant's husband and bankrupt corporation when husband and corporation filed for bankruptcy; acts of bankruptcy fraud committed in effort to obtain discharge of $454,000 in said default judgments, and record showed defendant "intended" full $454,000 loss by failing to disclose assets of bankruptcy estate.

U.S. v. Krilich, Nos. 97-2721 and 97-2977 Cons. (10/27/98)

In sentencing defendant for RICO violation based upon bribery of local official, district court, in applying "loss-gain" provisions of USSG 2C1.1(b)(2)(A) improperly departed downward seven levels from initial increase of 14 levels; while record showed no loss to victim and potential of downward decrease, court should have added loss to victim and gain to defendant and divide by two to dollar figures rather than dividing offense level by two. Court also erred in considering relative sentences of co-defendants where lower sentences of co-defendants imposed due to convictions on other offenses.

U.S. v. Miller, Nos. 98-1550, 98-1599 and 98-1624 (11/12/98)

In sentencing defendant on conviction for conspiracy to commit theft of engines, district court did not err in giving three level reduction on sentence under USSG 3B1.2 rather than four level reduction sought by defendant; according to guidelines, four level reduction should be given only infrequently, and record showed defendant played integral role in helping co-conspirators conceal engines after theft. Fact that defendant played lesser role than other defendants did not automatically entitle defendant to reduction.

U.S. v. Raimondi, No. 97-3995 (11/4/98)

1. In sentencing defendant on drug conspiracy charges, district court did not err in determining defendant eligible for three level upward departure due to reckless use of weapon during drug transactions under USSG 2D1.1(b)(1); 2D1.1(b)(1) permits two level upward departure due to mere possession of weapon during drug transaction, and increase of 3 levels not inappropriate here since defendant's brandishing and threatening drug customers with gun during drug transactions while defendant using drugs removed case from "heartland" of cases contemplated under 2D1.1(b)(1).

2. District court gave adequate notice of potential of intent to depart upward after defendant's entry of guilty plea even though court referenced different sentencing guideline when making upward departure; record showed court gave adequate notice of upward departure on first day of sentencing hearing and adjourned hearing for day to permit defendant opportunity to reconsider plea, and further gave detailed explanation for upward departure prior to adjourning hearing second time to permit both government and defendant opportunity to respond to court's observations. Fact that court made reference to different sentencing guideline during explanation did not deprive defendant of fair hearing since reference made only as afterthought and not basis of holding.

U.S. v. Salgado-Campo, No. 98-1217 (11/2/98)

District court did not err in refusing to group defendant's convictions for unlawful entry by previously deported alien and unlawful alien being in possession of firearm for purposes of sentencing under USSG 3D1.2; instant crimes involved no "victim", and grouping inappropriate where, as here, convictions protected disparate societal interests.

U.S. v. Santoro, No. 97-4034 (10/30/98)

1. In sentence hearing on defendant's conviction for felon being in possession of firearms under 18 USC 922(g)(1), district court did not err by including as relevant conduct defendant's uncharged possession of assault rifle; record showed defendant possessed rifle within six to nine months of arrest for possession of weapons at issue in conviction so as to satisfy "contemporaneous possession" requirement under Powell, 50 F.3d 94, for inclusion in relevant conduct calculation.

2. District court properly enhanced defendant's sentence based upon finding defendant obstructed justice by lying during trial; although defendant admitted at trial to elements of charged offense, record showed defendant's false testimony, which concerned police entry into home, reasons for his possession of weapons and his association with co-defendants, constituted attempt to effect outcome of trial.

U.S. v. Sewell, No. 98-1028 (10/16/98)

District court properly concluded it was without authority to depart downward on drug distribution charges based upon defendant's youth, lack of criminal record, relatively lesser involvement in charged offense and efforts to improve himself prior to crime since under Koon, 518 US 81, defendant failed to show said factors "exceptional" in instant case. Moreover, while defendant's "minor participation" potentially viable as downward departure under USSG 3B1.2, defense counsel failed to rely on that section during sentencing hearing, and court not required to make adjustment sua sponte.

U.S. v. Spears, No. 98-1125 (11/2/98)

District court erred in considering three prior juvenile convictions when calculating criminal history points for defendant's sentence on conviction of felon being in possession of firearm; under USSG 4A1.2(d), juvenile offenses can only be considered in criminal history calculation where juvenile offenses resulted in adult convictions or committed within five years of subject offense, and neither circumstance applicable here.

U.S. v. Stockheimer, Nos. 97-1939, 97-2017, 97-2018 and 97-2019 (9/28/98)

1. District court did not err in calculating under USSG. 2F1.1 $80 million in loss resulting from bank and mail fraud scheme concerning use of worthless money orders; court's calculation supported by face value of worthless money orders presented to creditors for redemption; while record did not establish that scheme placed over $80 million "at risk", defendants conceded that $80 million loss not impossible. Extreme improbability of loss relevant only on issue of intent which was not challenged by defendants.

2. Remand required on district court's refusal to grant downward departure on basis of variance between intended loss and realistic possibility of loss; record showed court, in denying request, applied wrong legal standard for evaluating downward departures, and record failed to otherwise indicate intention by court to deny request.

U.S. v. Thomas, Nos. 97-4181 and 98-1697 (10/23/98)

Record failed to contain sufficient evidence to support defendant's sentence as "armed career criminal" based upon prior Illinois statutory rape conviction; not all statutory rape convictions violent felonies under 18 USC §924(e)(1), and instant charging document failed to set forth circumstances of statutory rape such as age differential between victim and defendant to support finding of violent felony.

U.S. v. Vahovick, No. 98-1381 (11/12/98)

1. In sentence on conviction for possession of weapon in prison by inmate under 18 USC §1791, district court did not err in determining offense as "crime of violence" under career offender provisions of USSG 4B1.2(a); in prison setting, possession by inmate of deadly weapon, i.e. five sharpened pencils bound together by tape, presented serious potential risk of physical injury and implied violent act.

2. District court erred in denying defendant's request for downward departure from sentencing guidelines under §5K2.10 of USSG based upon claim that victim (prison inmate) of attack had previously threatened defendant; record showed court categorically refused to consider defendant's request without making individualized assessment of facts in defendant's claim.

U.S. v. Wilke, No. 98-1488 (9/16/98)

District court improperly departed downward under USSG. 5K2.0 for defendant's sentence for transportation of child pornography based in part on nature of offense in evaluating defendant's vulnerability to abuse in prison. However, on remand court may consider defendant's homosexual orientation and demeanor if said factors provide nexus for reasons as to defendant's vulnerability to abuse in prison. Moreover, court may consider defendant's community contributions, but only if such community service did not provide means to further criminal intent.

U.S. v. Wilson, No. 98-1256 (10/16/98)

District court properly denied defendant's request for downward departure for acceptance of responsibility under USSG 3E1.1(a) on sentence for possession of handgun while subject to order of protection under 18 USC §922(g)(8); while reduction possible even when defendant insists on trial of charge, record showed defendant not remorseful where defendant told jury "I forgive you" after verdict read and told court "I know I have been railroaded" at sentencing hearing.


U.S. v. Arrington, No. 98-1910 (10/30/98)

In prosecution of joint trial on charges stemming from seven bank robberies, district court did not err in denying defendant's request to sever case into seven different trials; fact pattern of robberies indicated overwhelming similarities, and preference of defendant to sever case not dispositive. Moreover, severance would not have excluded evidence of remaining bank robberies since such evidence admissible to prove identity under Evid. Rule 404(b).

U.S. v. Stockheimer, Nos. 97-1939, 97-2017, 97-2018 and 97-2019 (9/28/98)

In prosecution of several defendants on bank and mail fraud charges stemming from scheme to use worthless money orders, district court did not err in denying motions by two defendants to sever trial from third defendant who did not testify but stated to another person that he was part of "inner circle" of five persons at time of scheme; subject statement not "fatally incriminating" as to defendants since incriminating nature evident only in conjunction with other evidence introduced at trial.

n n n

Reversible Errors

United States v. Hinojosa-Gonzales, 142 F.3d 1122 (9th Cir. 1998) (Defendant did not get adequate notice of upward departure).

United States v. Blotcher, 142 F.3d 728 (4th Cir. 1998) (Court improperly denied defendant's race neutral peremptory challenge).

United States v. Downer, 143 F.3d 819 (4th Cir. 1998) (Court's substitution of conviction for lesser offense, after reversal, violated Ex Post Facto Clause and Grand Jury Clause).

United States v. Gama-Bastidas, 142 F.3d 1233 (10th Cir. 1998) (Court failed to make findings regarding applicability of safety valve).

United States v. McKittrick, 142 F.3d 1170 (9th Cir. 1998) (Defendant who does not contest facts at trial may be eligible for acceptance).

United States v. Faulks, 143 F.3d 133 (3rd Cir. 1998) (Agreement not to contest forfeitures may be basis for downward departure).

United States v. Sligh, 142 F.3d 761 (4th Cir. 1998) (Court failed to give instruction on entrapment).

United States v. Whitecotton, 142 F.3d 1194 (9th Cir. 1998) (1. Later drug sales were not foreseeable to defendant; 2. Court could depart based on entrapment and diminished capacity).

United States v. D'Agostino, 145 F.3d 69 (2d Cir. 1998) (Diverted funds were not taxable income for purposes of tax evasion).

United States v. Martinez-Rios, 143 F.3d 662 (2d Cir. 1998) (Vague appeal waiver was void).

United States v. Graves, 143 F.3d 1185 (9th Cir. 1998) (Accessory to felon in possession had to know codefendant was a felon and possessed firearm).

United States v. Nicholson, 144 F.3d 632 (10th Cir. 1998) (1. Feeling through sides of bag was a search; 2. Abandonment of bag was involuntary).

United States v. Garibay, 143 F.3d 534 (9th Cir. 1998) (Defendant with limited English and low mental capacity did not voluntarily waive Miranda).

United States v. Tolen, 143 F.3d 1121 (8th Cir. 1998) (Putting hand in pocket and warning to cooperate or "no one will get hurt" was not express threat of death).

United States v. Burt, 143 F.3d 1215 (9th Cir. 1998) (Entrapment instruction failed to place proper burden on government).

United States v. Lominac, 144 F.3d 308 (4th Cir. 1998) (Additional supervised release was applied ex post facto).

United States v. Hotal, 143 F.3d 1223 (9th Cir. 1998) (Anticipatory search warrant failed to identify triggering event for execution).

United States v. G.L., 143 F.3d 1249 (9th Cir. 1998) (Lenient theft guidelines did not justify upward departure).

United States v. Dahler, 143 F.3d 1084 (7th Cir. 1998) (Defendant whose rights were restored was not armed career criminal).

United States v. Riley, 143 F.3d 1289 (9th Cir. 1998) (Defendant could not be ordered to pay restitution on loan unrelated to fraud).

United States v. Mitchell, 145 F.3d 572 (3rd 1998) (Anonymous note incriminating defendant was inadmissible hearsay).

United States v. Plath, 144 F.3d 146 (1st Cir. 1998) (Depositing counterfeit checks and withdrawing money did not require more than minimal planning).

United States v. Marsh, 144 F.3d 1229 (9th Cir. 1998) (Admission of complaints by defendant's customers denied confrontation).

United States v. Crouse, 145 F.3d 786 (6th Cir. 1998) (Civic involvement justified downward departure).

United States v. Polanco, 145 F.3d 536 (2d Cir. 1998) (Insufficient evidence that defendant murdered victim to maintain position in CCE).

United States v. Martinez-Salazar, 146 F.3d 653 (9th Cir. 1998) (Juror prejudiced toward government should have been stricken for cause).

United States v. Rapal, 146 F.3d 661 (9th Cir. 1998) (Higher resentence presumed vindictiveness).

United States v. Washington, 146 F.3d 219 (4th Cir. 1998) (Court should not have relied upon statements made pursuant to plea agreement).

United States v. Almaguer, 146 F.3d 474 (7th Cir. 1998) (Use of firearm was included in guideline and did not justify upward departure).

United States v. Bonanno, 146 F.3d 502 (7th Cir. 1998) (Court improperly delegated discretion over drug testing to probation officer).

United States v. Lopez-Sandoval, 146 F.3d 712 (9th Cir. 1998) (Defendant was not an organizer).

United States v. Biro, 143 F.3d 1421 (11th Cir. 1998) (Deportation could not be condition of supervised release).

United States v. Copeland, 143 F.3d 1439 (11th Cir. 1998) (Government contractor was not bribed under federal statute).

United States v. Cunningham, 145 F.3d 1385 (D.C. Cir. 1998) (Unredacted tapes violated confrontation).

United States v. Rhodes, 145 F.3d 1375 (D.C. 1998) (Post-conviction rehabilitation can justify downward departure).

United States v. To, 144 F.3d 737 (11th Cir. 1998) (Insufficient evidence of RICO and Hobbs Act violations).

United States v. Stewart, 145 F.3d 273 (5th Cir. 1998) (Insufficient evidence that passenger aided and abetted drug possession).

United States v. Guapi, 144 F.3d 1393 (11th Cir. 1998) (Bus passenger did not voluntarily consent to search).

United States v. Toler, 144 F.3d 1423 (11th Cir. 1998) (Insufficient evidence that defendant participated in conspiracy).

United States v. Alred, 144 F.3d 1405 (11th Cir. 1998) (Defendant was not an organizer).

United States v. Schnitzer, 145 F.3d 721 (5th Cir. 1998) (Impermissible theory of fraud justified new trial).

United States v. Gigot, 147 F.3d 1193 (10th Cir. 1998) (Failure to admonish defendant of elements of offense and possible penalties rendered plea involuntary).

United States v. Paul, 142 F.3d 836 (5th Cir. 1998) (Insufficient evidence of conspiracy to import).

United States v. Mathurin, 148 F.3d 68 (2d Cir. 1998) (Court denied hearing on motion to suppress).

United States v. Nagra, 147 F.3d 875 (9th Cir. 1998) (Upward departure based upon factor considered by guidelines was double counting).

United States v. Keating, 147 F.3d 895 (9th Cir. 1998) (Reasonable probability of juror prejudice required new trial).

United States v. Byre, 146 F.3d 1207 (10th Cir. 1998) (Government's opposition to downward departure breached plea agreement).

United States v. Mulder, 147 F.3d 703 (8th Cir. 1998) (Bank's routine practice was irrelevant to fraud prosecution).

United States v. Kushmaul, 147 F.3d 498 (6th Cir. 1998) (Holding baseball bat was not"otherwise used").

United States v. Edwards, 154 F.3d 915 (9th Cir. 1998) (Defendant was denied confrontation when prosecutor became potential witness during trial).

Robles v. United States, 146 F.3d 1098 (9th Cir. 1998) (Parole Commission could not impose second special term of parole).

United States v. Benally, 146 F.3d 1232 (10th Cir. 1998) (Defendant was entitled to instructions on self-defense and lesser included offense).

United States v. Viramontes-Alvarado, 149 F.3d 912 (9th Cir. 1998) (Noncitizen's priors were not aggravated felonies).

United States v. Fultz, 146 F.3d 1102 (9th Cir. 1998) (Guest had expectation of privacy in boxes he stored at another's home).

United States v. Wyss, 147 F.3d 631 (7th Cir. 1998) (Drugs for personal use could not be counted toward distribution quantity).

United States v. Hellbusch, 147 F.3d 782 (8th Cir. 1998) (Guilty plea did not foreclose Bailey claim).

United States v. Anzalone, 148 F.3d 940 (Government failed to move for downward departure for reasons other than quality of substantial assistance).

United States v. Dunford, 148 F.3d 385 (4th Cir. 1998) (Convictions for 6 firearms and ammunition was multiplicious).

United States v. Ellis, 147 F.3d 1131 (9th Cir. 1998) (Testimony about destructive power of explosives was prejudicial).

United States v. Van Metre, 150 F.3d 339 (4th Cir. 1998) (Commentary Note on grouping did not provide basis for upward departure).

United States v. Shotts, 145 F.3d 1289 (11th Cir. 1998) (1. Evasive, but true, answer was not perjury; 2. Bail bond license was not property within meaning of mail fraud statute).

United States v. Rouse, 148 F.3d 1040 (8th Cir. 1998) (Search of bags lacked probable cause).

United States v. Miller, 146 F.3d 274 (5th Cir. 1998) (Leaving turn signal on violated no law and did not justify stop).

United States v. Pollani, 146 F.3d 269 (Pro se defendant's late request for counsel should have been honored).

United States v. Balogun, 146 F.3d 141 (2d Cir. 1998) (Court could not order supervised release tolled while defendant out of country).

United States v. Garrett, 149 F.3d 1018 (Denying newly retained counsel a one-month continuance was abuse of discretion).

United States v. Hernandez, 145 F.3d 1433 (11th Cir. 1998) (Arrest warrant did not determine nature of prior conviction).

United States v. Merino-Balderrama, 146 F.3d 758 (9th Cir. 1998) (Pornographic films should not have been displayed in light of defendant's offer to stipulate).

United States v. Hughey, 147 F.3d 423 (5th Cir. 1998) (Passing bad checks was not unauthorized use of an access device).

United States v. Perulina, 146 F.3d 1332 (11th Cir. 1998) (Defendant was not responsible for marijuana imported before he joined conspiracy).

United States v. Saavedra, 148 F.3d 1311 (11th Cir. 1998) (Defendant could not receive increase for selling drugs near school unless so charged).

United States v. Jones, 149 F.3d 364 (Agent lacked reasonable suspicion for investigatory immigration stop).

United States v. Male Juvenile, 148 F.3d 468 (5th Cir. 1998) (Certification for juvenile by AUSA was invalid).

United States v. Salzano, 149 F.3d 1238 (10th Cir. 1998) (Officer lacked reasonable suspicion for stop).

United States v. Ortega-Reyna, 148 F.3d 540 (5th Cir. 1998) (Insufficient evidence that drugs hidden in borrowed truck were defendant's).

United States v. Evans, 148 F.3d 477 (5th Cir. 1998) (No evidence that mailings advanced fraudulent scheme).

United States v. Bacallao, 149 F.3d 717 (7th Cir. 1998) (No showing prior cocaine transactions were relevant conduct).

United States v. Walker, 149 F.3d 238 (3rd Cir. 1998) (Prison worker was not a corrections officer).

United States v. Thomas, 150 F.3d 743 (7th Cir. 1998) (Defendant was entitled to instruction that buyer/seller relationship is not itself a conspiracy).

United States v. Gallardo-Mendez, 150 F.3d 1240 (10th Cir. 1998) (Prior guilty plea did not prevent defendant from contesting noncitizen status).

United States v. Quintanar, 150 F.3d 902 (8th Cir. 1998) (No evidence that defendant exercised control over contraband).

United States v. Spinner, 152 F.3d 950 (D.C. 1998) (1. Failure to show firearm was semiautomatic assault weapon; 2. Letter containing evidence of prior bad acts should not have been admitted).

United States v. Stoddard, 150 F.3d 1140 (9th Cir. 1998) (Restitution could not exceed actual loss).

United States v. Albreksten, 151 F.3d 951 (9th Cir. 1998) (Arrest warrant did not permit search of defendant's motel room).

United States v. Vavages, 151 F.3d 1185 (9th Cir. 1998) (Prosecutor coerced defense witness into refusing to testify).

United States v. Kaluna, 152 F.3d 1069 (9th Cir. 1998) (Portion of "Three Strikes" law, requiring defendant to prove dangerous weapon was not used, is unconstitutional).

United States v. Haas, 150 F.3d 433 (5th Cir. 1998) (Nonfinal state conviction could be basis for statutory enhancement of drug sentence).

United States v. Grimmett, 150 F.3d 958 (8th Cir. 1998) (Withdrawal from conspiracy, outside statute of limitations, bars prosecution).

United States v. Gamache, 156 F.3d 1 (1st Cir. 1998) (Jury should have been instructed on entrapment).

United States v. Meyers, 150 F.3d 459 (5th Cir. 1998) (Defendant denied right of allocution).

United States v. Hodge, 150 F.3d 1148 (9th Cir. 1998) (Insufficient evidence of false statements).

United States v. Mejia-Mesa, 153 F.3d 925 (9th Cir. 1998) (Brady claim required hearing).

United States v. Thorne, 153 F.3d 130 (4th Cir. 1998) (Court failed to advise defendant of the nature of supervised release).

United States v. Estrada-Fernandez, 150 F.3d 491 (5th Cir. 1998) (Simple assault is lesser included offense of assault with deadly weapon).

United States v. Reccko, 151 F.3d 29 (1st Cir. 1998) (Police switchboard operator did not occupy position of trust).

United States v. Wadena, 152 F.3d 831 (8th Cir. 1998) (Money laundering, unrelated to defendant's position, did not warrant abuse of trust).

United States v. Thomas, 155 F.3d 833 (7th Cir. 1998) (Court failed to group counts).

United States v. Shoff, 151 F.3d 889 (8th Cir. 1998) (Purchase with proceeds of fraud was not money laundering).

United States v. Rodriguez-Rivas, 151 F.3d 377 (5th Cir. 1998) (Vehicle stop lacked reasonable suspicion).

United States v. Whitaker, 152 F.3d 1238 (10th Cir. 1998) (Post-offense drug rehabilitation can justify downward departure).

United States v. Johnson, 152 F.3d 553 (6th Cir. 1998) (Arson was within heartland of cases and did not justify upward departure).

United States v. Mussari, 152 F.3d 1156 (9th Cir. 1998) (Ex post facto application of criminal penalties).

United States v. Huguenin, 154 F.3d 547 (6th Cir. 1998) (Checkpoint stop to merely look for drugs was unreasonable).

United States v. Giraldo-Prado, 150 F.3d 1328 (11th Cir. 1998) (Deportation cannot be condition of supervised release).

United States v. Schmalzried, 152 F.3d 354 (5th Cir. 1998) (Government failed to connect firearm to drug offense).

United States v. Gore, 154 F.3d 34 (2d Cir. 1998) (1. Buyer/seller relationship did not establish conspiracy; 2. Possession and distribution of the same drugs may only be punished once).

United States v. Truesdale, 152 F.3d 443 (5th Cir. 1998) (Insufficient evidence of illegal gambling).

United States v. Davenport, 151 F.3d 1325 (11th Cir. 1998) (Defendant did not waive right to review presentence report by absconding).

United States v. Garcia, 151 F.3d 1243 (9th Cir. 1998) (Gang relationship alone did not support conspiracy).

United States v. Madrid, 152 F.3d 134 (8th Cir. 1998) (Inevitable discovery doctrine did not save illegal search of house).

United States v. Odedo, 154 F.3d 937 (9th Cir. 1998) (Defendant not admonished about nature of charges).

United States v. Baker, 155 F.3d 392 (4th Cir. 1998) (Cannot put conditions of release on person acquitted by reason of insanity who is not a danger).

United States v. Washington, 151 F.3d 1354 (11th Cir. 1998) (Bus passenger was searched without voluntary consent).

United States v. Hickman, 151 F.3d 446 (5th Cir. 1998) (1. Two agents at prosecutor's table was abuse of discretion; 2. Pointing firearm was not restraint).

United States v. Kliti, 156 F.3d 150 (2d Cir. 1998) (Court should have held hearing on defense counsel's potential conflict).

United States v. Evans, 155 F.3d 245 (3rd Cir. 1998) (Cannot make reimbursement for court-appointed counsel a condition of supervised release).

United States v. Comstock, 154 F.3d 845 (8th Cir. 1998) (Using guideline effective after commission of offense violated ex post facto.

United States v. Siegel, 153 F.3d 1256 (11th Cir. 1998) (Court must consider defendant's ability to pay restitution).

United States v. Havier, 155 F.3d 521 (5th Cir. 1998) (Motion to revoke must specifically identify charges).

United States v. Suarez, 155 F.3d 521 (5th Cir. 1998) (Defendant was not admonished as to nature of charges).

United States v. Glinton, 154 F.3d 1245 (11th Cir. 1998) (No managerial role for defendant who did not supervise or control others).

United States v. Glover, 154 F.3d 1291 (11th Cir. 1998) (Time credited toward a sentence does not lengthen total sentence).

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 next issue of The Back Bencher will contain the annual collection of reversible errors, compiled by Alex Bunin. It will cover all cases from 1995 to date. Old cases will be Shepardized to confirm they are still precedent.

We remind you that the annotations are merely to draw your attention to cases that may assist your research. They are not a substitute for reading the cases.


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A very safe and happy holiday season!

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The Back Bencher

Published by: The 7th Circuit

Federal Defenders

Editor: Richard H. Parsons,

Federal Public Defender

Central District of Illinois

Managing Editor: Mary Kedzior

CJA Panel Administrator

Federal Defender's Office

Central District of Illinois

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