Vol. No. 17

March/April 1999

Seventh Circuit Federal Defenders


Save the date!

I am pleased to announce that our 4th Annual Panel Attorneys Seminar will be held on September 16, 1999 in Bloomington, Illinois. Terry MacCarthy, A.J. Kramer, Henry Martin, Bill Marsh, Norm London and Carmen Hernandez have committed to speaking at this all-star event. We will also co-host a golf outing with IACJ on September 17th at the Arnold Palmer-designed Den at Fox Creek Golf Club. More information will soon be coming on registration, place, time, etc. Panel attorneys and criminal defense lawyers from the entire 7th Circuit area will be invited.

Due to the dedication and tireless work by Andy McGowan and Jonathan Hawley, we will soon place the "Second Edition of Possible Issues for Review in Criminal Appeals" on the 7th Circuit website. We will also include a hard copy of the "Second Edition of Possible Issues for Review in Criminal Appeals" for all attendees at the Bloomington seminar. Additionally, the Second Edition will be part of my course materials at the Indiana Defense Lawyers and Panel Attorneys Seminar in Indianapolis on April 30th. Contact me if you have any questions concerning this valuable practice aid.

In closing, we are once again very pleased with this information-packed issue of The Back Bencher and hope it is of value to you in your continued fight on behalf of the citizen accused. Looking forward to seeing you in September, I remain...

Yours very truly,


Federal Public Defender

Central District of Illinois

Table Of Contents

$75 Hourly Rate for CJA Panel Attorneys 2

Dictum Du Jour 3

Churchilliana 4

Seminar Update 5

Let Judges Be Judges! 5

Yes, Virginia, There Is a Valkyrie Program 8

Guideline Case Resources 9

CA-7 Case Digest 10

Reversible Error 17


Defender congratulations to Judge Bauer on his receiving the 1999 University College Dublin President's Medal, presented on March 19, 1999 at the Four Seasons Hotel in Chicago.

The award was presented to Judge Bauer in recognition of his outstanding example of family values, public service, and legal scholarship. Prior to becoming a Judge of the United States Court of Appeals for the Seventh Circuit, Judge Bauer's public service positions as a lawyer included: Judge of the United States District Court for the Northern District of Illinois; United States Attorney for the Northern District of Illinois; Judge of the Circuit Court for the Eighteenth Judicial Circuit, DuPage County; and State's Attorney of DuPage County. Additionally, Judge Bauer has taught at Elmhurst College and DePaul University College of Law.

The University College Dublin Law School which presented the award to Judge Bauer was established in 1908 and is now the largest law school in Ireland. The University College Dublin and DePaul University Law

School have an exchange program allowing students from the two schools to attend each other's university for part of their law school education.

Once again, congratulations to Judge Bauer who, as noted at the award ceremony, "represents the finest in Irish American tradition."


We extend our sincere thanks and best wishes to John Panek who is retiring after serving 26 years as Chief Deputy Clerk for the Seventh Circuit. John has done an outstanding job in managing the Seventh Circuit's panel of volunteer attorneys.

John began his career in 1962 as a file clerk with the U.S. District Court in Chicago. "Working his way up through the ranks", John remained with the District Court until 1973 when he was offered the position as Chief Deputy Clerk with the U.S. Court of Appeals.

John's duties, as they relate to the appointment of attorneys and administration of the Court's Criminal Justice Act Plan, will be taken over by Donald Wall, Counsel to the Circuit Executive.

Don previously served as a law clerk from 1984 to 1986 and as the Court's Senior Staff Attorney from 1988 to 1997. He received a B.A. from Carleton College and his J.D. from Marquette University Law School. Don was Chair of the American Bar Association's Council of Appellate Staff Attorneys and served on its Executive Board for eight years. He currently serves on the Wisconsin State Bar's Communication Committee and has served on committees ranging from the Legal Education Commission, the Legal Education and Bar Admissions Committee and the Judicial Independence Committee. He helped author the State Bar's The Attorney's Guide to the Seventh Circuit Court of Appeals and the Seventh Circuit's Practitioner's Handbook.

We are extremely fortunate to have someone of Don's caliber in charge of CJA matters in the Seventh Circuit.

Best of luck in your new role, Don!


The Federal Judiciary has included in its FY2000 Defender Services appropriation request funding to implement a $75 hourly Criminal Justice Act (CJA) private "panel" attorney rate nationwide. If Congress approves the judiciary's request, the $75 maximum hourly rate for in-court and out-of-court work in non-capital cases would take effect on April 1, 2000.

The issue of the $75 rate was an important topic at the National Conference of Panel Attorney Representatives, held on March 6-7, 1999, in Arlington, Virginia. The panel attorney representative for the Central District of Illinois is Mark Wertz, 309/676-8986.

In his 1998 Year-End Report of the Federal Judiciary, Chief Justice William H. Rehnquist urged Congress to give "very serious consideration" to the judiciary's request for funding to implement the $75 rate in FY2000. Justice Rehnquist observed that inflation has eroded the currently authorized hourly rates and that "[i]nadequate compensation for panel attorneys is seriously hampering the ability of judges to recruit attorneys to provide effective representation."

In 1986, Congress enacted legislation which authorized the Judicial Conference to increase the hourly rates paid to panel attorneys from $60 in-court/$40 out-of-court to $75, and to make annual cost-of-living adjustments to the $75 rate beginning in 1990. Although the Judicial Conference has approved the $75 rate for in-court and out-of-court work in 93 of the 94 judicial districts, most districts have received only one $5 per hour increase to the $60/$40 rates set by statute in 1984, over 14 years ago. Congress has appropriated funds sufficient to pay higher rates up to $75 in only 16 districts, which were the first to apply for alternative CJA hourly rates. The $75 rate is substantially lower than the $104 per hour rate which would be authorized in 1999 if the annual federal pay increased, approved by the Judicial Conference for CJA rates, were applied.

There is widespread support in the federal criminal justice system for the $75 hourly rate, from judges, the Department of Justice, private bar associations, and federal defenders. The Federal Judges Association, in endorsing the rate, stated that the current hourly rates are "significantly compromising the ability of the court to recruit and retain attorneys under the Criminal Justice Act." The Federal magistrate Judges Association endorsed the rate as " assure that the courts can appoint qualified and experienced counsel." The Department of Justice also has indicated its support for the $75 rate.

At its August 1998 meeting, the ABA's House of Delegates unanimously approved a resolution (adopted by the ABA's Criminal Justice Section in March 1998) urging Congress to fund the CJA at a level sufficient to support implementation of the $75 rate and annual cost-of-living increases for CJA panel attorneys, and urging the Judicial Conference to make every effort to obtain this funding. The NACDL, National Legal Aid and Defender Association, and Association of Federal Defenders likewise have passed resolutions in support of the $75 rate and cost-of-living adjustments.

Dictum Du Jour

"Four things belong to a judge: to hear courteously, to answer wisely, to consider solemnly, and to decide impartially."

- Socrates

* * * * * * * * * *

The year before he died last June at age 87, former U.S. Supreme Court Chief Justice Warren Burger wrote out his last will and testament: a one-page document that left a third of his $1.8 million estate to this daughter and the rest to this son.

His handcrafted brevity, however, has sparked controversy because some estate planning experts consider the document flawed. Apparently, Burger neglected to grant the will's executors the power to sell his assets.

Not a big mistake, but one that probably will result in court intervention and unnecessary estate taxes.

If anything, the situation points out that estate planning can confound even the best of legal minds.

Wills are a fact of life -- and more importantly -- of death.

The Sacramento Bee D1, February 22, 1996, 1996 WL 328455

* * * * * * * * * *

I suppose I look on the law as a sort of disease, and I'm the doctor who tries to cure his patient of it as quickly as possible.

Fictional attorney, Horace Rumpole, Rumpole and the Angel of Death, by John Mortimer, Viking, p. 179.

* * * * * * * * * *

I am not an habitué of the Court of Appeal. It has none of the amenities I'm used to - such as witnesses to cross-examine and juries to persuade. One Judge is bad enough, but the Appeal Court comes equipped with three who bother you with unnecessary and impertinent questions which are not always easy to answer.

Fictional attorney, Horace Rumpole, Rumpole and the Angel of Death, by John Mortimer, Viking, p. 188.

* * * * * * * * * *

"The simple fact is that if you die without a will, the government decides what happens to your estate," said Brian V. Howe of St. Clair Shores, chairperson of the State Bar of Michigan's Probate and Estate Planning section. "We don't like to think about our own mortality, but we all know we will die someday. The only way to be sure your estate is distributed according to your wishes is to put those wishes into a legal document -- either a will or living trust."

Business Wire, December 21, 1998.

* * * * * * * * * *

I, George Smith, hereby make known my last will and ********. First off I should like to rear up and haunt all those who tried to screw me up while living. Special attention to be given to those f***pigs who have communicated with me by letter attempting thereby to get funds from my unrelenting clutches.

All my chattel possessions whatsoever remaining gripped in my lunch hooks at the time of stepping into darkness, which I do not care to have herein mentioned as the eternal shid, there having been a sufficiency of same throughout my casual meander through life, are to be held to public auction. The entire sum of money proceeding from such auction is then to be converted to bank notes of small denomination and placed in a steel receptacle six feet high and one foot in diameter and so placed and so constructed as to withstand the rigors of a hoard. The receptacle shall be positioned at a spot chosen to be the most public and central with comfort stations available. A day shall be announced, described as next Thursday, upon which day, all streets leading to the area will be cordoned off and cleared of any human or vehicular traffic. At twenty minutes to midnight the area is to be floodlit. Cameras will then be set up in several strategic positions and be protected to ensure their free and easy operation. At twelve midnight on this aforesaid Thursday, a sound of an adult human breaking wind shall be made which shall act as a signal which sound shall be so magnified on suitable sound equipment to sound like a volcano. Referees shall be appointed and take proper measures to prevent the carrying of any lethal weapon by the surging mob. However, persons availed of sports equipment, fishing rods and the like, are to be allowed. For this purpose, croquet mallets of regulation weight shall not be considered as lethal. But citizens appearing out of the blue in skin diving equipment are to be looked upon askance. Upon the signal aforementioned the camera operators shall proceed to record the scene as the various citizens approach the cash and continue to do so until the money can be reasonably thought to be gone. At the discretion of the trustees a director may be appointed to film any further incident thought interesting following upon the disappearance of the money from the said receptacle. The film will be duly edited in a sequence that shall be thought tastiest. Without background music. Closeups of the scene will take precedence over long shots except in such long shots catching the mood of the mob. The film will then be made available free of any charge save that of carriage, to any institution engaged in any recognized research program of any reasonable description and to all other charitable institutions, communities, clubs or organizations which can be thought of as reasonably being in the interests of any section of the community or the community as whole, these to include gatherings for good fellowship, singsongs, chats or birth control.

A corpse which shall well and truly have been determined to be me and such determination being absolutely beyond any shadow of doubt or mistake, such corpse shall be further untouched and placed immediately in a sycamore coffin, and such coffin put in a subdued manner and fashion in the tomb erected for this purpose for which adequate provisions have already been made. My name, George Smith, shall be carved deeply in the sycamore and followed by the inscription hereinafter set forth.

The innocent

Were cowering

As the guilty

Closed in on them


J.P. Donleavy, A Singular Man, pgs. 99-101.

* * * * * * * * * *

To punish me for my contempt for authority, Fate made me an authority myself.

Albert Einstein.

* * * * * * * * * *

A battle Royal. ... So that's what you're after. ... Then we'd better celebrate now, before it begins -- in case we're weeping when its over.

Fictional attorney Mordecai Ledbury's words upon accepting a case, Peter Rawlinson, The Caverel Claim, p. 57 (St. Martin's Press, 1998).

* * * * * * * * * *

Interpretation of an ambiguous statement by a judge does not present any question of constitutional law. The question is what the speaker sought to convey, not what a rule of law compels the state to do; it is a question of fact for the same reason that "the state of a man's mind is as much a fact as the state of his digestion."

Rivera v. Sheriff of Cook County, slip op. (7th Cir. 12/3/98)(citing Edgington v. Fitzmaurice, 29 Ch. Div. 459, 483 (1885).

* * * * * * * * * *

[A]n attorney has a duty to state an objection, and "even at the risk of incurring the displeasure of the trial court, to insist upon his objection."

* * * * * * * * * *

In answer to the trial judge's possible reprimand ..., the [attorney] need only have asked the trial court to grant leave to enter a "continuing objection" specific enough to reach the evidence in dispute for purposes of possible appeal. "A continuing objection serves ... to obviate repeated objections to evidence admitted within the scope of the court's specific evidentiary ruling."

Wilson v. Williams, slip op. (7th Cir. 12/5/97)(citations omitted, emphasis in original).

* * * * * * * * * *

"[I]t is true that an attempt at obstruction of justice that has no consequence (suppose that he had told the police he swallowed the money) is not a permissible basis for an obstruction of justice enhancement."

United States v. Wells, ___ F.3d ___, No. 98-1298 (7th Cir. 1998)(citing United States v. Barnett, 939 F.2d 405, 407 (7th Cir. 1991); United States v. Solano-Godines, 120 F.3d 957, 963-64 (9th Cir. 1997)).


Lord Londonderry, though a cousin of Churchill's, was a frequent political foe. A pacifist, Londonderry wrote articles and pamphlets to promote his views.

One day, armed with his new works, he encountered Churchill in the street.

"Winston, have you read my latest book?"

"No," replied Churchill. "I only read for pleasure or for profit."


Dates and locations have been established for "Winning Strategies For Defending Federal Criminal Cases", presented by the Administrative Office of the U.S. Courts, the Federal Public and Community Defenders, and the Federal Defender Training Group.

June 3 - 5, 1999 Savannah, GA

August 12-14, 1999 Portland, OR

A flyer explaining the seminars in greater detail and application form is attached to the back of this newsletter and is also available on the Seventh Circuit's website on the internet ( Tuition and program materials are free. Application has been made for CLE accreditation.

If you have any questions after reviewing the flyer, please contact the Federal Defender Training Group at 800/788-9908.

I believe this seminar will offer tremendous benefits to our panel members and I encourage you to submit your name for consideration of acceptance.


Downward Departures After Koon

By: Alan Ellis, Esq.

[Editor's Note: This is the first in a series about downward departures recognized by the court in light of the 1996 Supreme Court's decision in United States v. Koon.. This part will discuss Diminished Capacity. We will include additional articles in future volumes of "The Back Bencher".]

Part I: Diminished Capacity

Let judges be judges! This is the clear message delivered by the Supreme Court in Koon v. United States, ___ U.S. ___, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) - the landmark sentencing guideline case redefining the departure powers of federal district judges. Recognizing that even under the guidelines, the "district courts retain much of their traditional sentencing discretion," the Court noted "[t]he development of the guideline sentencing regime has not changed our view that except to the extent specifically directed by statute, it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence." Turning to a district court's decision to depart from the guidelines, the High Court gave substantial deference to a trial judge's day-to-day experience in criminal sentencing:

"The district courts have an institutional advantage over appellate courts in making these sorts of determinations, especially as they see so many more Guidelines cases than appellate courts do ... To ignore the district court's special competence - about the "ordinariness" or "unusualness" of a particular case - would risk depriving the Sentencing Commission of an important source of information, namely, the reactions of a trial judge to the fact-specific circumstances of the case ..."

Since Koon, nowhere have the appellate courts been more deferential to the experiential wisdom of sentencing judges than in the area of downward departures for diminished capacity. Diminished capacity is recognized by the Sentencing Commission as a ground for a downward departure "if the defendant committed a non-violent offense while suffering from significantly reduced mental capacity not resulting from voluntary use of drugs or other intoxicants." (U.S.S.G. §5K2.13) In such cases, the commission has determined that "a lower sentence may be warranted to reflect the extent to which reduced mental capacity [has] contributed to the commission of the offense, provided that the defendant's criminal history does not indicate a need for incarceration to protect the public." In the language of Koon, diminished capacity is an encouraged departure.

Prior to the impact of Koon, most courts of appeals focused their inquiry in diminished capacity cases on "an individual's inability to reason or to absorb information in the usual way" finding that an offender who is able to reason and to absorb information in the usual way was ineligible for a downward departure under §5K2.13. (See, e.g. United States v. Withers, 100 F.3d 1142, 1148 (4th Cir. 1996) (defendant ineligible for downward departure because she failed to show that her depression rendered her unable to process information or to reason; she was fully capable of following a complex set of instructions to transport heroin successfully into the United States), cert. denied, ___ U.S. ___, 117 S.Ct. 1282, 137 L.Ed.2d 358 (1997); United States v. Edwards, 98 F.3d 1364, 1367 (D.C. Cir. 1996) (rejecting defendant's argument that "mental capacity" has a meaning apartment from intellectual capacity, holding that psychological or behavioral disorders could not serve as a basis for departure based on reduced mental capacity absent "accompanying inability to reason"), cert. denied, 117 S.Ct. 1437 (1998); United States v. Barajas-Nunez, 91 F.3d 826, 831 (6th Cir. 1996) (diminished mental capacity is found where defendant's condition affects ability to process information or to reason); United States v. Johnson, 979 F.2d 396, 401 (6th Cir. 1992) (defendant who "displayed considerable mental agility in his professional and personal affairs" was able to process information and to reason; thus §5K2.13 downward departure held unavailable).)

The Third Circuit has led the way in identifying "atypical" and "out of the heartland" scenarios that justify a downward departure. Its most dramatic decision is U.S. v. McBroom, 124 F.3d 533 (3d Cir. 1996), which advances the notion that a diminished capacity departure is not limited to a defendant who is unable to absorb information in the usual way and to exercise the power of reason. Rather, the court of appeals took a broader view of the term "significantly reduced mental capacity." In McBroom, the district court ruled that the defendant, an attorney convicted of possession of child pornography, was ineligible for a §5K2.13 departure because he was able to absorb information in the usual way and to exercise the power of reason. The Third Circuit reversed, holding that §5K2.13 contains a volitional, as well as cognitive component - that is, it also applies to a defendant who is unable to control his conduct even though his cognitive functions are unimpaired. On remand, the district court was directed to consider the merits of McBroom's volitional claim:

"We believe that a defendant's ability to control his or her own conduct is a relevant consideration when determining the defendant's eligibility for a downward departure pursuant to §5K2.13.

Thus a defendant's reduced mental capacity prevents the individual from appreciating the wrongfulness of certain conduct, §5K2.13 then applies so long as the other requirements of that section are satisfied (assuming the defendant is not entitled to a complete affirmative insanity defense pursuant to 18 U.S.C. §17). Likewise, if an individual is capable of appreciating the nature, quality and wrongfulness of certain acts but is unable to control their conduct due to reduced mental capacity, §5K2.13 may also apply. Thus, §5K2.13 retains both a 'cognitive prong' and a 'volitional prong'.

We believe that the following test adequately addresses our concerns that a sentencing court consider both defendant's cognitive capacity and his or her volitional capacity when considering a downward departure pursuant to §5K2.13: a person may be suffering from a 'reduced mental capacity' for the purposes of §5K2.13 if either:

(1) the person is unable to absorb information in the usual way or to exercise the power of reason; or

(2) the person knows what he is doing and knows that it is wrong but cannot control his behavior or conform it to the law.

The first prong permits sentencing courts to consider defects of cognition. The second prong permits sentencing courts to consider defects of volition. Sentencing courts must consider both prongs before making a determination about a defendant's reduced mental capacity."

McBroom developed a compulsion with regard to viewing pornography. Although he understood the moral and legal implications of this activity, according to psychiatrists who evaluated him, he was unable to discontinue the practice. In this regard, he exhibited a number of obsessive and compulsive behaviors, including sexual compulsivity. One psychiatrist who examined him diagnosed him as having an "impulse control disorder." In a decision that has been hailed by numerous mental health professionals, the Third Circuit quoted liberally from the American Psychiatric Associations'sDiagnostic and Statistical Manual of Mental Disorders (DSM-IV) in finding that, if proven, this disorder would qualify McBroom for a diminished capacity departure if it was related to the commission of his offense.

Lianne C. Scherr, a nationally recognized psychiatric, forensic social worker, and sentencing mitigation specialist, has enthusiastically responded to McBroom saying: "It is a relief to again be able to argue that some criminal behavior is the result of mental illness. This decision may point us in the direction of rehabilitation, as well as punishment, once a major factor in sentencing outcomes."

The Third Circuit is not alone in recognizing this expansive view of diminished capacity. As early as 1993, the Ninth Circuit found that although in everyday language, "reduced mental capacity" refers to a lack of full intellectual functioning, §5K2.13 applies to emotional conditions as well. (United States v. Cantu, 12 F.3d 1506 (9th Cir. 1993).) Again, citing from the American Psychiatric Association's DSM-IV, the Ninth Circuit found that mental disorders as incorporated by the guidelines, not only include mental retardation, a condition ordinarily considered as affecting mental capacity, but also mood disorder conditions that the layperson would consider emotional illnesses.

The Court of Appeals went on to state that defendants may be eligible for a departure under §5K2.13 regardless of the severity of their underlying condition. The guideline provision requires only that the defendant suffer from a significantly reduced mental capacity. The test focuses on the effect of the impairment on the defendant, not the characteristics of the seriousness of the impairment itself.

Likewise, while denying a downward departure to a defendant who did not meet the "non-violent offense" requirement under U.S.S.G. §5K2.13, the Seventh Circuit, nonetheless, recognized that the term "mental capacity" under the guidelines refers to actions as well as to understanding. In United States v. Pullen, 88 F.3d 368, 370-71 (7th Cir. 1996) (Posner, J.), cert. denied, 117 S.Ct. 706, 136 L.Ed. 2d 627 (1997), the court of appeals found that individuals who know what they are doing and that it is wrong, but cannot control their actions, are deficient in mental capacity. The Seventh Circuit has thus recognized that the term "mental capacity" as used in §5K2.13 encompasses both a cognition prong and a volition prong. Moreover, in a decision distinguishing between "violent" and "non-violent" offenses, Judge Easterbrook has explained why it is appropriate to consider volitional impairment in making sentencing determinations:

"The criminal justice system long has meted out lower sentences to persons who, although not technically insane, are not in full command of their actions ... Persons who find it difficult to control their conduct do not - considerations of dangerousness to one side - deserve as much punishment as those who act maliciously or for gain."

(Cf. U.S. v. Poff, 926 F.2d 588, 595 (Easterbrook, J., dissenting).)

Similarly, the Ninth Circuit recognized in Cantu, supra at 1511, that "lenity is appropriate in determining diminished capacity because the purpose of §5K2.13 is to treat with some compassion those in whom a reduced mental capacity has contributed to the commission of a crime" holding:

"In everyday language, 'reduced mental capacity' refers to a lack of full intellectual functioning. It connotes an impairment of the intellect, it fails to be able to quickly or fully grasp ordinary concepts. We [however] have treated 5K2.13 as applying to emotional conditions as well.

Treating emotional illness in the same way that we do mental abnormalities furthers the purpose of 5K2.13. The role of the guideline is lenity toward defendants whose ability to make reasoned decisions is impaired. Emotional conditions, like mental impairments, may distort or suppress the formation of reasoned decisions."

Citing Cantu, Judge Easterbrook's dissent in Poff; U.S. v. Chatman, 986 F.2d 1446 (D.C. Cir. 1993); and U.S. v. Weddle, 30 F.3d 352 (4th Cir. 1994), McBroom reiterated that §5K2.13 is intended to create lenity for those whose significantly reduced mental capacity cause them to commit the offense of conviction. Reasoning that such lenity is appropriate because two of the primary rationales for punishing an individual by incarceration - desert and deterrence - lose some of their relevance when applied to those with reduced mental capacity. McBroom then went on to extend those courts' discussions of lenity to apply legal force to those who cannot comprehend right from wrong and to those who cannot control their behavior.

Noted commentator, Professor David Yellen, author of Federal Sentencing Law & Practice, which is one of the leading treatises on the federal guidelines, has commented:

"For years, many District Judges have complained that the sentencing guidelines frequently force them to impose harsh sentences. Koon puts this rhetoric to the test. If they are truly looking for the authority to more carefully individualize sentences, Koon gives it to them in spades. Although the evidence so far suggests that Koon's impact has been limited, my sense is that this is changing. As appellate courts show that they will tolerate departures that, pre-Koon, might have been overturned, District Judges are beginning to have more confidence that they actually have more power than they did previously."

In conclusion, even though a volitional test as well as a cognitive test for determining a §5K2.13 diminished capacity downward departure may have been appropriate before 1996, after Koon and, now, McBroom, district courts may depart on that basis. Let judges be judges!

Alan Ellis is a former

president of the NACDL and has offices in both San Francisco and Philadelphia. He is a nationally recognized expert on sentencing issues and specializes and consults with other lawyers throughout the United States in the area of federal sentencing. He has graciously allowed us to reproduce articles he has written for his quarterly federal sentencing column for the ABA's Criminal Justice magazine.

We extend our sincere thanks

and gratitude to Mr. Ellis for sharing his expertise with us.


By: David B. Mote

Deputy Chief Federal Defender

I first heard of "Operation Valkyrie" seven or eight years ago, as I set in the gallery of a United States District Court observing a suppression hearing. As I recall, a large quantity of cocaine had been discovered when a truck with two Hispanic occupants was stopped for some minor traffic offense, like going three miles over the speed limit on the interstate. Defense counsel suggested that the traffic stop was a pretextual traffic stop pursuant to "Operation Valkyrie." The State Police Officer on the stand, I believe he was a veteran officer -- perhaps a Master Sergeant, denied any knowledge of Operation Valkyrie.

Well, Virginia, it turns out that there is a Valkyrie program.

In June, 1998, I had a suppression hearing in United States v. Silva-Rocha, No. 98-30017 (C.D. Ill. 6/8/1998). Dale Schempp, an attorney on the court's CJA list, represented the co-defendant. Prior to the hearing, he had subpoenaed the arresting trooper's duty records for the day of the arrest. Lo and behold, the arresting trooper, ISP Trooper Rios, was on Valkyrie duty. Having heard that Valkyrie duty involved traffic stops based on drug profiles, I was curious to learn more about the Valkyrie program when I cross-examined Trooper Rios:

Q. Okay. What are -- what are your duties on the Valkyrie squad?

A. Drug interdiction.

Q. Okay. And how is that drug interdiction carried out?

A. As far as we're on--our assignments are I-55. We monitor traffic on I-55 in District 9.

Q. But you're monitoring traffic not as a regular trooper and make [sic] traffic stops, is that correct?

A. Yes, that's part of our duties. It's still regular traffic stops.

Q. Okay. Now, you said the questions you ask are the questions that every officer asks. So what I'm trying to get at is what do you do different as a Valkyrie -- as an officer -- as a trooper on Valkyrie duty?

A. What do I do different --

Q. Yes.

A. -- than any other officer?

Q. Yes.

A. I couldn't tell you. I make the same kind of traffic stops.

Q. Okay. And in the -- is there any training for the Valkyrie squad?

A. Not any hour class or anything like that, no.

Q. Is there a manual?

A. No.

Q. Any written instructions?

A. No.

Q. So as far as you know, this Valkyrie duty has no special duties?

A. Nothing in training as far as hours and anything in writing, a manual, no.

THE COURT: Mr. Mote, have we -- is the record clear whether the stop on March 16th of 1998, whether this was a, quote Valkyrie duty stop or a traffic stop? Is that clear yet?

MR. MOTE: The record is not clear on that, Your Honor.

THE COURT: Would you ask the question for my advocation?

Q. Was this a Valkyrie stop?

A. No.

Q. If there is no difference between Valkyrie stops and regular stops, how do you distinguish them?

MR. SANCHEZ: Objection, irrelevant. The trooper has testified that it isn't a Valkyrie stop and therefore, it now becomes irrelevant. What is Valkyrie or what is the difference between one and the other.

Transcript of Suppr. Hrg., pp. 62-63, United States v. Silva-Rocha, No. 98-30017 (C.D. Ill. 6/8/1998).

Despite my argument that Trooper Rios' testimony demonstrated he had no way of distinguishing whether or not this was a Valkyrie stop, the prosecutor's objection was sustained. We did learn from another witness, however, that Trooper Rios had made three enforcement stops that day and two of them involved vehicles with Arizona plates. Transcript at 150.

My legal research regarding operation Valkyrie turned up little. The earliest published case I found was People v. Flores, 231 Ill.App.3d 813, 596 N.E.2d 1204 (4th Dist. 1992). More interesting is a case that came out after the hearing in my case. Chavez v. Illinois State Police, 1998 WL 778341 (N.D. Ill. 11/5/1998) is a civil case alleging that African-American and Hispanic motorists are stopped, detained and searched on the basis of race. The testimony of one of the Illinois State Troopers given in Chavez has a familiar tone:

Q. Who were your Valkarie instructors at the training program?

A. The original training program?

Q. Yes.

Q. Mike Snyders, I believe Tom Alvaro.


Q. How about the race of the driver, is that an indicator?

A. You have to keep it in mind, yes.

Q. What do you keep in mind about the race of the driver?

A. Just use it as one of many indicators to -- you've got to keep it in mind when talking to the subject.

Q. So how would--give me a scenario where the race of the driver would factor into the equation.

A. I can't give anything like that. I don't know what you mean.

Q. How about a young black male in a very expensive BMW, new BMW, would that be a factor?

A. It depends if any--some of the other indicators ... It can be an indicator I suppose.


Q. What about the race of the driver, would that be a factor that you would consider?

A. Maybe ... I'm not saying you see one thing and decide to stop them. If there is a bunch of different things together--


Q. Well, would it--could it possibly make a difference if it was, let's say, a caucasian versus a black male?


A. I don't know. It would just be--it just depends on the situation what you do at the time.


Q. Have you been given any instructions by the Illinois State Police regarding how to decide which cars to stop and not to stop?

A. No ... It's all discretionary.

Chavez at *18.

This article, like the troopers quoted above, provides little useful information on the Valkyrie program. Nonetheless, the transcripts quoted above demonstrate a desire on the part of the authorities involved to keep the nature of these programs secret.

An excellent article recently appeared in the April 1999 edition of Esquire. The article, titled "DWB" (which stands for Driving While Black), written by Gary Webb, detailed the abuses that programs like Operation Valkyrie have invited. More telling, it revealed that most such state programs are the result of a DEA program called Operation Pipeline. Mr. Webb ended up inside Pipeline as an investigator for the California Legislature following stories from law-enforcement sources about California Highway Patrol units pulling over Latino motorists and randomly searching them for guns, drugs and cash. The article makes clear the operating principle that troopers involved in Operation Valkyrie and similar programs dance around; pretextual stops of drivers the troopers believe might be carrying drugs, often based on nothing more than race and/or the State on the license plate, are used as a basis to stop cars and conduct searches. In New Jersey, a superior court judge found that the state police Pipeline units had "at least a de facto policy ... of targeting blacks for investigation and arrest." A study revealed that although blacks constituted only 13 percent of the turnpike traffic, they accounted for nearly half of the stops by troopers searching for drugs. Records kept in Maryland as part of a settlement of a civil rights suit resulting from the pretextual stop of a Harvard Law School graduate returning from a funeral revealed that of 732 people detained and searched in 1995 and 1996, 75% were black and 5% were Hispanic. The lack of justification for these stops is illustrated by an example given in the Esquire article of an Ohio trooper who testified to having personally conducted 786 searches in a single year, "sometimes for no other reason than to keep in practice."

This is useful information, but hard to utilize. It must be remembered that the Supreme Court has essentially ruled that pretext is irrelevant as long as there is a legal basis for the stop, regardless of whether a "reasonable officer" would have stopped the vehicle for the traffic violation absent some other motivation. See Whren v. United States, 116 S.Ct. 1769 (1996). While the Supreme Court was certainly not intending to condone discriminatory enforcement of the traffic laws, the Whren decision certainly facilitates pretextual stops. The Esquire article stated:

"Since that ruling, known as the Whren decision, state and local police participation in Operation Pipeline has soared. Enrollments in DEA training schools are way up. 'After Whren,' one of my [California Highway Patrol] instructors told me, 'the game was over. We won.'"

Unfortunately, it's a zero sum game. Any gain by the police in their discretion to stop anyone they think might be carrying drugs is balanced by a corresponding loss of every citizen's right to be free from unreasonable police interference. The Esquire article noted that their were an estimated 27,000 Operation Pipeline grads cruising the highways and that 95% of Operation Pipeline searches have come up empty. The public has lost a great deal.

Guideline Case Resource

As you know, the last issue of the "Guideline Grapevine" was published in September 1998. For the past two years, only significant cases were being summarized in the Grapevine and those cases began to decline. In addition, there are other readily available sources of guideline caselaw summaries which are listed below. We recommend that you consider one or more of these sources of information. Also, if you are a CJA Panel Attorney, we urge you to take advantage of the resources of the Federal Defender Training Group in Washington, DC.

1. The Federal Judicial Center publishes the "Guideline Sentencing Update" and "Guideline Sentencing: An "Outline of Appellate Case Law on Selected Issues." The "Update" is published about five times a year in newsletter format. The "Outline" is a compilation of the "Update" issues and is published about twice yearly. Both of these publications are available free on the internet at

2. James Publishing Company in Santa Ana, California, publishes the "Federal Sentencing Guide", a complete digest service giving quick access to every federal sentencing guideline case published since the guidelines became effective. It includes three hard-bound volumes, a twice annual cumulative supplement and biweekly newsletters, indexed bimonthly, in a three-ring binder. You can order online at or by calling 800/440-4780. The yearly subscription price is about $269.00.

3. The United States Sentencing Commission can also be accessed on the internet at The Commission has a number of available publications.

4. If you are a CJA Panel Attorney, the Federal Defender Training Group in Washington, DC, is available to assist you with guideline questions, as well as general issues facing you as a panel attorney in Federal court. The FDTG can be reached at 800/788-9908, or by fax at 202/628-4094. The Director of the Group is Barbara O'Connor, e-mail address: Barbara.O' Other attorneys on staff are Carmen Hernandez,; Tom Hutchison,; Mary Kennedy,; and Fran Pratt, The Capital Litigation Training Coordinator is Linda McGrew,

CA-7 Case Digest

Compiled by: George F. Taseff

Senior Litigator


United States v. Given, 164 F.3d 389 (7th Cir. 1999).

In a mail fraud and a conspiracy to commit mail fraud case the trial court committed harmless error by allowing "invoice vouchers" from the Illinois House of Representatives to be introduced into evidence through an employee of the comptroller's office who had no knowledge of how or when the invoice vouchers were prepared. A witness qualified to introduce business records does not need to be the person who prepared the records or have personal knowledge of the information contained, but the witness must have knowledge of the procedure by which the records are created.

United States v. Hach, 162 F.3d 937 (7th Cir. 1998).

1. In prosecution for conspiracy to distribute cocaine, the District court did not err in sustaining prosecution's objection to the questions of what the defendant knowingly and intentionally became a member of a conspiracy and whether he had ever joined a conspiracy. These rulings did not infringe on the defendant's constitutional rights under the Fifth, Sixth and Fourteenth Amendments because the answers to these questions would have been legal conclusions and because the defendant was able to answer questions that, had the jury credited his statements as opposed to the government's witnesses' statements, would have refuted all of the elements of the charge.

2. In a conspiracy to distribute cocaine prosecution, the defendant was not deprived of a fair trial by the District Court's failure to obtain medical and psychiatric records of a witness for the prosecution to assist in preparing for cross-examination. The defendant sought to compel the witness and the government to turn this medical information over, but the witness refused and the government argued that it was powerless to force to the witness to acquiesce to this demand. The defendant's subpoena did not ask the government to produce the records, it asked the government to procure a waiver of confidentiality from the witness. Because the defendant could not show that the records were in the government's control, the government was required to do nothing.

United States v. Hall, 165 F.3d 1095 (7th Cir. 1999).

1. In prosecution for kidnaping and willfully transporting victim across state lines, the District Court did not err in denying defense counsel's motion to allow an expert to testify concerning the unreliability of eyewitness testimony under Daubert. The Court made proper use of the Daubert framework when it explicitly referenced the Daubert decision and addressed the two threshold inquiries regarding the reliability of expert testimony and whether such testimony would assist the trier of fact. Even though the government argued that the District Court had no discretion to admit the proffered expert's testimony, he showed that the District Court believed it had discretion to admit the expert's testimony.

2. The Daubert case, decided in 1993, did not undermine the Seventh Circuit's prior analysis of the admissibility of expert testimony under Rule 702 because, in the earlier cases, the Seventh Circuit found expert testimony concerning the reliability of eyewitness testimony to be unhelpful to the jury.

3. In denying defendant's motion to have expert testimony concerning reliability of eyewitness testimony, the District Court did not err for three additional reasons: (1) the defendant had the opportunity to thoroughly cross examine all of the eyewitnesses; (2) the District Court gave the jury an instruction on the reliability of eyewitness identification; and (3) the defendant's confession, corroborating his guilt, undercut the need for an expert witness on eyewitness identification.

4. In a kidnaping prosecution, the District Court did not err in refusing to allow a particular hearsay statement as a matter of due process under Chambers v. Mississippi, 410 U.S. 284 (1973) and Green v. Georgia, 442 U.S. 95 (1979) that implicated other people in the kidnaping and murder of a young girl. The hearsay statements in this case, unlike those in Chambers and Green were not made under circumstances that provide considerable assurance of their reliability. There was insufficient evidence of corroboration and the statements were neither sworn nor used against either of the declarants in a criminal proceeding. Limiting Rivera v. Director, 915 F.2d 280 (7th Cir. 1990).

5. In a case charging kidnaping, the District Court did not err in allowing the government to rebut the defendant's expert psychiatric testimony that the defendant falsely confessed due to certain personality disorders that made him more susceptible to suggestion and more eager to please with the government's expert testimony that the same characteristics associated with the defendant's particular personality disorders are often found in sex offenders. Government's rebuttal evidence was proper means of refuting defendant's contention that his confession was false.

Habeas Corpus /

§2254 / §2255

Rivera v. Sheriff of Cook County, 162 F.3d 486 (7th Cir. 1998).

In habeas petition claiming that by granting new trial motion judge who presided over bench trial actually acquitted defendant thereby preventing his retrial on double jeopardy grounds, habeas petition dismissed. Federal district court judge erroneously based decision to grant requested relief on misconception that Illinois law only allows for denial of motion for new trial or acquittal when, in fact, retrial is a possibility.

Everett v. Barnett, 162 F.3d 498 (7th Cir. 1998).

In §2254 habeas proceeding, evidence was sufficient to sustain conviction for solicitation of murder even though there were four factual errors in Illinois Appellate Court affirmance of conviction. Because there was sufficient evidence to confirm the conviction, habeas relief requested denied.

Heidelberg v. Illinois Prisoner Review Board, 163 F.3d 1025 (7th Cir. 1998).

In §2254 habeas proceeding, denial of petitioner's parole by the Illinois Prisoner Review Board did not rise to the level of a denial of a constitutional right by denying petitioner due process. The statute governing parole release in Illinois states that an inmate shall not be released should anyone of three conditions exist; furthermore, the Illinois Supreme Court has held that the Prisoner Review Board's decision to grant or deny parole is completely discretionary when denial is not mandatory. Therefore, the parole statute does not create a liberty interest and a legitimate expectation of parole. Overruling Scott v. Illinois Parole & Pardon Bd., 669 F.2d 1185 (7th Cir. 1982).

Cole v. United States, 162 F.3d 957 (7th Cir. 1998).

Trial counsel is not ineffective per se because defense counsel had not been admitted to practice in the Federal District in which the defendant was tried. The key to adequate representation is not technical license to practice in the jurisdiction involved, but a credential from some forum demonstrating the specialized knowledge of a lawyer.

Ashford v. Gilmore, --- F.3d ---, 1999 WL 52151 (7th Cir. 1999).

In capital 2254 proceeding, petition was properly denied where the defendant failed to show that he was prejudiced by his counsel's failure to present mitigating evidence that the defendant was addicted to drugs at the time of the offense. The fact that the crime was premeditated, no evidence showed defendant was impaired by drugs at the time of the offense, and the murder of the four victims was in execution style showed that the defendant would have received the death sentence even if the mitigating evidence had been presented. Secondly, failure by the trial judge to share a letter with defense counsel which the judge received from a jail administrator outlining security concerns regarding the defendant was error, but harmless because the judge did not explicitly rely on the memo in sentencing the defendant to death, and a judge is presumed to ignore improper evidence.

In Re: Page, --- F.3d ---, 1999 WL 69622 (7th Cir. 1999).

District Court erred in granting a hearing on a second petition for habeas corpus. Defendant's first petition was denied by the District Court and affirmed on appeal. After the Circuit Court's affirmance, the Illinois State court denied the defendant's post-conviction petition which argued that he was entitled to a new trial because he was on psychotropic medication during his first trial. The State Court retroactively applied a change in Illinois law holding that a retrospective fitness hearing complied with state law. Defendant argued that he could not have raised his claim that this retroactive application violated his due process rights in his first petition in the federal court because the state had not ruled on this issue prior to the first petition. The Circuit Court, however, held that although the defendant had a reason for filing a second petition, it was nonetheless successive because it attacked the same judgment as the first petition, thereby requiring the Circuit Court's leave to file pursuant to 28 U.S.C. §2244(b)(2). Moreover, leave to file a successive petition was denied because the second petition was premised upon a claim based exclusively on state law.

Jones v. United States, --- F.3d ---, 1999 WL 52154 (7th Cir. 2/5/99).

Notwithstanding the defendant's waiver of a right to appeal and file a habeas petition in his negotiated plea agreement, defendant may still file a §2255 petition raising an ineffective assistance of counsel claim during the negotiation of the waiver or alleging that the waiver was involuntary. However, District Court's denial of §2255 petition was not error because the petition failed to adequately specify his claims.

Jury Instructions

United States v. McClellan, 165 F.3d 535 (7th Cir. 1999).

District Court did not err in giving an "ostrich instruction" in case where defendant had been arrested for possession of eight pounds of marijuana earlier, where four months later co-conspirator was found transporting ninety-five pounds of marijuana in a truck, where defendant drove co-defendant's truck for three days from Arizona to Indiana and the truck was later found to contain approximately two hundred pounds of marijuana, and where the defendant had been living in a trailer containing a number of items commonly used by individuals drying marijuana (i.e, four rolls of fabric softener, nine cans of disinfectant, twelve burlap bags, twelve rolls of plastic wrap, and four rolls of contact paper). Deliberate indifference, allowing the use of the ostrich instruction, need not be shown by overt or physical acts. Deliberate ignorance separates carelessness from avoidance but a legitimate inference of willfulness is sufficient to justify giving an ostrich instruction.

United States v. Roberts, 163 F.3d 998 (7th Cir. 1998).

In a possession with intent to distribute crack cocaine case in Gary, Indiana, the District Court did not commit clear error when it found the prosecutor struck two African Americans for race neutral reasons, even though the explanations - "juror five raised a family in Gary" and all "elementary school teachers are bleeding hearts who do not support criminal punishment" - were flimsy. The statement juror five raised a family in Gary could easily have been a euphemism for juror five is black and the prosecution did not strike a white elementary school teacher from the jury. Although the jury selection raised substantial questions about the conduct and candor of the prosecutor who selected this jury, the district judge's decision that the explanation was honest was affirmed.

United States v. Kelly, --- F.3d ---, 1999 WL 65006 (7th Cir. 1999).

In a prosecution for knowingly causing the transportation of hazardous waste to a facility lacking a permit to dispose of such waste, and knowingly causing disposal thereof without a permit, in violation of 42 U.S.C. §6928(d)(1)(d)(2), the District Court did not error in instructing the jury. Specifically, instruction stating that the defendant must knowingly transport "hazardous waste" was accurate, contrary to the defendant's argument that the jury should have been instructed that the defendant was required to know that the substance he was transporting was both "hazardous" and "waste." All that the law required was that the defendant know he was transporting "hazardous waste" as defined by statute. Secondly, an instruction stating that the jury need only find that the defendant knew the substance was not "innocuous" did not shift the burden of proof to the defendant because the jury was clearly instructed that the burden of proof remained on the government throughout the case.

United States v. Menting, 166 F.3d 923 (7th Cir. 1999).

In a drug conspiracy case where the defendant's theory was that he was not a member of the conspiracy, but instead had a buyer-seller relationship, the District Court properly gave the following instruction: "Existence of a mere buyer-seller relationship between a defendant and a conspirator, without more, is not sufficient to establish a defendant's guilt. The government must prove that a defendant knowingly and intentionally joined the charged conspiracy, knowing the conspiracy's aims and intending to achieve them."

Jury Selection

United States v. Raszkiewicz, ---F3d. ---, 1999 WL 74692 (7th Cir. 2/18/99).

In prosecution for bank robbery, defendant was not denied a jury selected from a fair cross section of the community where the jury selection procedure in the Eastern District of Wisconsin operated in such a way as to exclude from the jury pool all "reservation indians" when the prosecution occurred in a district division which did not select jurors from the counties containing the "reservation indians." Specifically, defendant failed to show that the excluded group was a distinctive part of the community where "reservation indians": (1) were not defined or limited by some common factor; (2) did not exhibit similarities of attitudes, ideas, or experiences distinguishing them from the general social milieu; and (3) a community of interests of the group could be adequately represented if they were excluded from the jury selection process.

United States v. Raszkiewicz, --- F.3d ---, 1999 WL 74692 (7th Cir. 1999).

In prosecution for bank robbery, district court properly enhanced defendant's sentence for "threat of death" under U.S.S.G. 2B3.1(b)(2)(F) where, without a threatening statement, the defendant's gestures with an unknown object in his pocket would put a reasonable victim in fear of death.

United States v. DeAngelo, --- F.3d ---, 1999 WL (7th Cir. 2/8/99).

In prosecution for mail fraud (18 U.S.C. §1341), District Court did not err in increasing the defendant's offense level for "more than minimal planning" pursuant to U.S.S.G. 2F1.1(b)(2)(A) where the defendant obtained partial disability payments for an alleged work related injury, but failed to inform an insurance agent of his former identity; gave false information concerning his birth date; used his son's social security number; and denied any prior injuries when in fact he had filed two prior workers' compensation claims. Moreover, after misinforming the insurance company, he advised the insurance company of changes in his address over the course of three years and sent letters to the insurance company complaining of harassment when they requested a medical examination.

United States v. DeAngelo, No. 98-2952, 2/8/99.

District Court did not err in departing upward because defendant's criminal history score did not adequately reflect the seriousness of his past criminal conduct where the PSR detailed defendant's prior history that did not factor into his criminal history score. Specifically, the following conduct was not included in his criminal history score: (1) the defendant made threatening phone calls to his family; (2) defendant had an unscored conviction for passing a bad check; (3) a criminal complaint was issued against him for violation of a protection order; and (4) three misdemeanor warrants had been issued against him for passing bad checks.

Notice of Appeal

United States v. Powers, --- F.3d --, 1999 WL 52158 (7th Cir. 2/5/99).

Where the District Court dismissed the indictments against the defendants but stayed their release pending the procurement of a superseding indictment or an appeal by the government and thereafter the government filed a motion to reconsider that order, the defendants' notice of appeal (filed between the dismissal of the indictment and the filing of the government's motion to reconsider) became effective pursuant to FRAP 4 on the date the District Court entered judgment on the motion to reconsider.

Plea Agreement

United States v. Lezine, No. 97-2571, 1/28/99.

District Court erred in holding that the government's decision not to move for downward departure was unreviewable by the Court, even though the government executed a plea agreement with the defendant promising to move for downward departure if the defendant provided "full and truthful cooperation" to investigators. Rather, because the agreement imposed a specific obligation on the government, the defendant's due process rights demanded that the court determine whether the defendant actually provided full and truthful cooperation.

Pretrial Motions

Wilson v. Williams, 161 F.3d 1078 (7th Cir. 1998).

In §1983 suit where inmate claimed he was assaulted by a corrections officer, plaintiff waived objection to introduction of evidence that he was a "cop killer" by not objecting at trial to its induction, even though plaintiff had filed two motions in limine before the trial objecting to this evidence. The Seventh Circuit holds the failure to object at trial to the introduction of evidence that was the subject matter of an unsuccessful motion in limine waives the objection. Resolving circuit conflict and overruling Favala v. Cumberland Eng'g Co., 17 F.3d 987 (7th Cir. 1994).

Prosecutorial Misconduct

United States v. McClellan, 165 F.3d 535 (7th Cir. 1999).

In a marijuana conspiracy case, prosecutor did not make inappropriate statements concerning the defendant's not testifying in violation of Griffin when, during rebuttal, prosecutor made extensive comments concerning defense counsel's failure to deny numerous facts in the case. The statements were not inappropriate because the prosecutor referred only to defense counsel's failure to deny certain facts and because defense counsel could have called the defendant's girlfriend at trial to rebut "every bit of evidence that the Government prosecutor claims [defendant's] attorney had failed to deny."

United States v. Hall, 165 F.3d 1095 (7th Cir. 1999).

In a kidnaping prosecution, the prosecution's commenting on a defendant's potential alibi witnesses in opening statements may be inappropriate. The Seventh Circuit, although expressing serious doubts as to the appropriateness of a prosecutor commenting on defendant's potential alibi witnesses, did not reach a conclusion as to whether the comments were improper because the remarks standing alone could not justify a new trial unless they undermine the fairness of the trial and contributed to a miscarriage of justice: in this case the prosecutor prefaced his statements with a disclaimer that he did not know "with precision" what evidence the defense would present and included a statement that the defense did not have to put on any evidence at all and stated that the prosecution has the burden to prove beyond a reasonable doubt that the defendant is guilty; furthermore, the District Court gave several sets of instructions that generally addressed opening and closing statements.


United States v. Given, 164 F.3d 389 (7th Cir. 1999).

In a mail fraud and a conspiracy to commit mail fraud case, prosecution's questioning of defendant concerning the defendant's campaign expenditures on a Porsche and several vacations was unfairly prejudicial under Rule 403 because the government, by asking these questions, wanted the jury to infer that the defendant played fast and loose with money that was his own; however, there is apparently nothing illegal about the expenditures. District court's abuse of discretion in allowing this cross-examination was harmless error: defendant's defense was that he acted in good faith when he set up sham leases and received payments in excess of leased equipment's value, so court's allowing tangentially prejudicial questions could not have altered the trial.

Right to Counsel

United States v. Muick, --- F.3d ---, 1999 WL (7th Cir. 2/8/99).

Defendant's right to counsel was not violated where, a year prior to indictment, the defendant's attorney informed investigators that they were not to speak to the defendant without counsel, but then, after indictment, investigators obtained the defendant's consent to speak with him without counsel. At the time of the attorney's request, authorities were not conducting interrogations and interrogation was not imminent. Moreover, only the accused could invoke his Miranda rights.

Search and Seizure

United States v. McClellan, 165 F.3d 535 (7th Cir. 1999).

In a conspiracy to commit money laundering case, fact that officers gained defendant's consent to search while the defendant was in custody and after the defendant invoked his right to counsel did not require a suppression of the evidence gained through the consent because an officer's request for consent to search is not interrogation within the meaning of Miranda and because the giving of such consent is not a self-incriminating statement.

United States v. Dexter, 165 F.3d 1120 (7th Cir. 1999)

Police officer had reasonable suspicion to make a traffic stop where police officer could not see temporary registration permit easily because tinted windows in van. Although temporary registration tag was conspicuously placed in accordance with the law, the tinted windows made it difficult to see thereby justifying the officer's reasonable suspicion that a traffic violation was occurring.

United States v. Jensen, --- F.3d ---, 1999 WL 93387 (7th Cir. 2/25/99).

Where the defendant denied the police permission to search his car, claiming that it belonged to his stepfather, and the police thereafter obtained permission to search the car from the stepfather, the District Court did not err in denying the motion to suppress because the defendant expressly indicated to police that his stepfather's privacy interest in the vehicle was superior to his own.

United States v. Wilson, --- F.3d ---, 1999 WL 74134 (7th Cir. 2/17/99)

Oath and Affirmation Clause of the Fourth Amendment was not violated where a search warrant was issued based on informant's testimony in the issuing court, but where that testimony was not reduced to a writing and verified. The Court's interview of the informant gave it sufficient opportunity to assess the reliability and credibility of the informant.


United States v. Robinson, 164 F.3d 1068 (7th Cir. 1999).

In a possession with an intent to distribute crack cocaine case, District Court erred in increasing the drug quantities upon which the defendant would be sentenced by 97% based entirely on a summary of an informant's statement in a pre-sentence report. These statements were untested by cross-examination and failed to provide sufficient "indicia of reliability" upon which a sentencing judge could comfortably rely.

United States v. Loos, 165 F.3d 504 (7th Cir. 12/16/98)

1. Defendants were convicted of attempting to manufacture methamphetamine and were sentenced under §2D1.10 (for endangerment of human life) based on defendant's admissions during the plea colloquy that fire caused by manufacture of methamphetamine in defendant's apartment endangered the defendant's lives and those of people living in three apartments in the building. In addition to the admissions, the facts also showed that the defendants were burned and two people were taken to the hospital after being evacuated from the building. Under §2D1.10, defendants were sentenced three offense levels higher than they would have been for ordinary meth. case (§2D1.1). Affm'd. Conditional plea under Rule 11(a)(2) is an "agreement", as that word is understood in §1B1.2(a). Under §1B1.2(a), "stipulation" means "any acknowledgment by the defendant [during the plea colloquy] that he committed the acts that justify the use of a more serious guideline." A defendant's protection against any undue severity of a more serious guideline lies in taking seriously the requirement that the basis of the more serious offense be required to be established "specifically".

2. Where defendants were convicted of attempting to manufacture methamphetamine but were sentenced under §2D1.10 (endangering human life), which refers specifically and solely to 21 U.S.C. § 858, a statute with a ten year maximum, the statutory maximum of thirty years for attempt to manufacture methamphetamine controls the maximum amount of time for which the defendants can be sentenced.

United States v. Berkey, 161 F.3d 1099 (7th Cir. 1998).

1. In a conspiracy to distribute marijuana and methamphetamine case, the District Court did not clearly err in applying the upward adjustment of possession of a firearm (§2D1.1(b)(1)) where the information in the PSI stated that a loaded .357 handgun was found in the defendant's residence at the time he was arrested and the defendant had been seen on numerous occasions with a firearm during the period of the conspiracy.

2. In a conspiracy to distribute marijuana and methamphetamine, the District Court did not commit plain error by increasing the defendant's criminal history score by one point for a marijuana conviction that occurred during the charged conspiracy. Although a defendant's criminal history can only be increased for conduct not part of the instant offense (§4A1.2) the conviction that occurred after the charged conspiracy did not include the same individuals as that of the federal conspiracy, the conviction was only for marijuana and not methamphetamine and marijuana, the prior offense occurred eight years before the defendant's conviction in federal case, and, even if the District Court did commit error, the error did not change the defendant's criminal history category.

United States v. Sapoznik, 161 F.3d 1117 (7th Cir. 1998).

1. In RICO prosecution, District Court erred by basing sentence on revenues of establishments that allowed illegal gambling ($6,000,000) that the defendant, a police chief, was protected from prosecution. The sentencing guidelines for RICO prosecutions base the severity of punishment on the "benefit received" in return for the bribe. (§2C1.1(b)(2)(A)). There was no evidence before the District Court concerning how the gross revenue of the protected establishments were reduced by expenses: "benefit received" is profit (net revenue) and not (gross) revenue. Remanded for resentencing.

United States v. Melgar-Galvez, 161 F.3d 1122 (7th Cir. 1998).

While sentencing an inmate for the offense of assaulting a federal officer, the District Court did not err in departing upward one offense level because the sentencing guidelines did not adequately take into account the defendant's criminal history or his likely recidivism. The defendant had 18 criminal history points and the record revealed that the defendant was an illegal alien, an admitted gang member, and that he admitted to various law enforcement agents that he supported himself by selling drugs and that he made his living in the United States robbing people and using a big gun.

United States v. Menting, slip op. No. 97-2661, 2/3/99.

A two point enhancement for obstruction of justice (U.S.S.G. §3C1.1) was proper where the defendant perjured himself. The Circuit Court, in affirming the enhancement, refused to apply the "two-witness" rule to an enhancement for perjury. Specifically, 18 U.S.C. §1621 (criminal perjury) requires that perjury be proved by two witnesses or one witness and sufficient corroborative evidence. However, such a rule is inapplicable at sentencing because the relaxed rules of evidence require only reliable evidence at sentencing.

United States v. Bradley, slip op. No. 98-2525, 1/28/99.

District Court's relevant conduct determination was reversed upon government cross appeal where the District Court found that one of six drug transactions did not involve cocaine base. Clear error occurred where a DEA agent and lab reports indicated that all of the drugs were cocaine base. Moreover, defendant offered no evidence contrary to the PSR's determination that all six transactions involved crack.

United States v. Brierton, No. 98-1177, 1/21/99.

In prosecution for falsifying federal credit institution entries, reports, and transactions (18 U.S.C. §1006), District Court properly determined the defendant's offense level under U.S.S.G. 1B1.3 by looking to all of the defendant's financial transactions evidencing a common "scheme or plan."

United States v. Brierton, No. 98-1177, 1/21/99.

In prosecution for falsifying federal credit institution entries, reports, and transactions (18 U.S.C. §1006), District Court properly increased defendant's base offense level for substantially jeopardizing the safety and soundness of a financial institution pursuant to U.S.S.G. 2F1.1(b)(6)(A) where the defendant engaged in improper transactions, risky loans, falsification of documents, and concealment of material information from the credit union board, even though the evidence did not show that the financial institution was insolvent.

United States v. Brierton, No. 98-1177, 1/21/99.

In prosecution for falsifying federal credit institution entries, reports, and transactions (18 U.S.C. §1006), District Court erred in awarding restitution based on financial loss of the financial institution where the evidence failed to show that the loss was the sole responsibility of the defendant's conduct. Rather, on remand, the District Court must calculate the restitution amount based solely on losses actually caused by the defendant's offense pursuant to 18 U.S.C. §3664(e).

United States v. Leahy, --- F.3d ---, 1999 WL 74141 (7th Cir. 2/17/99).

In prosecution for possession of a toxin for use as a weapon in violation of 18 U.S.C. §175(a), District Court did not err in using U.S.S.G. 2K2.l (unlawful receipt, possession, or transportation of firearms or ammunition) to determine the defendant's offense level because, where the guidelines had no provision governing 18 U.S.C. §175(a), U.S.S.G. 2K2.1 was the most analogous guideline. However, District Court's upward departure from the guideline was unreasonable where it looked to U.S.S.G. 3A1.4 (terrorism enhancement) which provides enhancement for offenses that are "calculated to influence or effect the conduct of government by intimidation or coercion, or to retaliate against government conduct." There was no evidence to suggest that the defendant's possession of a deadly toxin was meant to influence or affect the conduct of government.

United States v. Szarwark, --- F.3d ---, 1999 WL 74694 (7th Cir. 2/18/99).

In prosecution for mail fraud, District Court erred in reducing defendant's offense level for acceptance of responsibility where the defendant did not plead guilty and contested at trial that his use of the mail was in furtherance of his scheme to defraud.

United States v. Szarwark, --- F.3d ---, 1999 WL 74694 (7th Cir. 2/18/99).

District Court erred in holding that the Mandatory Victim Restitution Act (effective 4/24/96) violated the Ex Post Facto Clause because restitution does not constitute criminal punishment within the meaning of the Ex Post Facto Clause.

McGhee v. Clark, No. 98-2066, 1/28/99. When the District Court imposed a fine on the defendant for "immediate payment," and Bureau of Prison officials thereafter imposed an installment payment plan on the defendant, the Bureau of Prisons did not usurp the sentencing court's authority because the sentencing court's directive is interpreted to require not immediate payment in full, but payment to the extent that the defendant can make it in good faith. Thus, the Bureau of Prison's payment schedule did not conflict with the sentencing court's immediate payment order.

Statute of Limitations

United States v. Yashar, No. 98-2356, 1/26/99.

Where the offense charged is not "continuing" as defined in Toussie v. United States, 397 U.S. 112, 115 (1970), the offense is committed and the limitations period begins to run once all elements of the offense are established, regardless of whether the defendant continues to engage in criminal conduct.

Sufficiency of the Evidence

United States v. Menting, 166 F.3d 923 (7th Cir. 2/3/99).

Evidence was sufficient to convict in a drug conspiracy case where defendant purchased cocaine from the same supplier regularly for years, defendant and supplier repeatedly used an established procedure when conducting drug transactions, and supplier occasionally sold the defendant drugs on credit.

United States v. Bradley, slip op. No. 98-2525, 1/28/99.

Evidence was sufficient to show that drug transactions involved crack where testimony of a government agent, informant, defendant himself, and lab reports all indicated that crack was involved.

Reversible Errors

United States v. Meyer, 157 F.3d 1067 (7th Cir. 1999) (Court should have instructed that mere buyer/seller relationship did not establish conspiracy).

United States v. Gamache, 156 F.3d 1 (1st Cir. 1999) (Evidence raised an instruction on entrapment).

United States v. Thomas, 155 F.3d 833 (7th Cir. 1999) (Intent to carry out threat could not be proven by criminal history).

United States v. Sanchez-Lima, 161 F.3d 545 (9th Cir. 1999) (1. Exclusion of deposition denied right to put on defense; 2. Officer could not bolster other officer; 3. Self-defense instruction should have been given).

United States v. Kliti, 156 F.3d 629 (6th Cir. 1999) (Defense counsel who witnessed exculpatory statement had conflict).

United States v. Herndon, 156 F.3d 629 (6th Cir. 1999) (Denial of hearing on potentially biased juror).

United States v. Smith, 156 F.3d 1046 (10th Cir. 1999) (Insufficient evidence of actual or threatened force or violence; 2. No loss shown to support restitution).

United States v. Haywood, 155 F.3d 674 (3rd Cir. 1999) (Defendant allegedly restored to competency required second hearing).

United States v. Weaselhead, 156 F.3d 818 (8th Cir. 1999) (Conviction in federal court and conviction by tribe of which Indian was not a member, was double jeopardy).

United States v. Havier, 155 F.3d 1090 (9th Cir. 1999) (Revocation petition did not give adequate notice of violation).

United States v. Brown, 156 F.3d 813 (8th Cir. 1999) (Court should have only based sentence on drug quantity proven by government).

United States v. Martinez-Martinez, 156 F.3d 936 (9th Cir. 1999) (Reduction for non-drug conspiracy was mandated when object crime was not substantially complete).

United States v. Silkman, 156 F.3d 833 (8th Cir. 1999) (Administrative tax assessment is not conclusive proof of tax deficiency).

United States v. Kingdom, 157 F.3d 133 (2nd Cir. 1999) (Revocation sentence should have been based only on most serious violation).

United States v. Neils, 156 F.3d 382 (2nd Cir. 1999) (Defendant who merely steered buyers was minor participant).

United States v. Klat, 156 F.3d 1258 (D.C. Cir. 1999) (Counsel required at competency hearing).

United States v. Moore, 159 F.3d 1154 (9th Cir. 1999) (Irreconcilable conflict between defendant and lawyer).

United States v. Stockheimer, 157 F.3d 1082 (2nd Cir. 1999) (Refusing to consider downward departure based on economic reality of intended loss was plain error).

United States v. Allen, 159 F.3d 832 (4th Cir. 1999) (Inevitable discovery doctrine did not apply to cocaine found in duffle bag later detected by dog and warrant).

United States v. Waters, 158 F.3d 933 (6th 1999) (Defendant has right to allocution at revocation hearing).

United States v. Benboe, 157 F.3d 1181 (9th Cir. 1999) (Firearm conviction not supported by evidence).

United States v. Sanders, 157 F.3d 302 (5th Cir. 1999) (Insufficient evidence that defendant carried firearm).

United States v. Moreno-Chaparro, 157 F.3d 298 (5th Cir. 1999) (No reasonable suspicion to believe defendant's car had crossed international border).

United States v. Rivas, 157 F.3d 364 (5th Cir. 1999) (1. Drilling into trailer was not routine border search; 2. No evidence that drug dog's reaction was an alert).

United States v. McRae, 156 F.3d 708 (6th Cir. 1999) (Insufficient findings of obstruction of justice).

United States v. Acosta-Colon, 157 F.3d 9 (1st Cir. 1999) (Defendant's 30 minute handcuffed detention, preventing him from boarding flight, was not lawful stop).

United States v. Quintero, 157 F.3d 1038 (6th Cir. 1999) (Federal sentence could not be imposed consecutively to not yet imposed state sentence).

United States v. Maddox, 156 F.3d 1280 (D.C. Cir. 1999) (Prosecutor's argument referred to matters not in evidence).

United States v. Morillo, 158 F.3d 18 (1st Cir. 1999) (Insufficient evidence of drug conspiracy).

United States v. Idowu, 157 F.3d 265 (3rd Cir. 1999) (Insufficient evidence that defendant knew purpose of drug conspiracy).

United States v. Salvano, 158 F.3d 1107 (10th Cir. 1999) (Neither, cross country trip, nervousness, nor scent of evergreen, justified warrantless detention).

United States v. McElyea, 158 F.3d 1016 (9th Cir. 1999) (Crimes of a single transaction may not be counted separately under Armed Career Criminal Act).

United States v. Casey, 158 F.3d 993 (8th Cir. 1999) (Court must use guideline of charged offense).

United States v. Thomas, 159 F.3d 296 (7th Cir. 1999) (Statutory rape without violence was not predicate crime under Armed Career Criminal Act).

United States v. Garcia-Guizar, 160 F.3d 511 (9th Cir. 1999) (1. Insufficient evidence of aiding and abetting; 2. Insufficient evidence of obstruction).

United States v. Adkinson, 158 F.3d 1147 (11th Cir. 1999) (Insufficient evidence of fraud).

United States v. Barnes, 159 F.3d 4 (1st Cir. 1999) (Open-ended continuance violated speedy trial).

United States v. Richardson, 161 F.3d 728 (D.C. Cir. 1999) (1. Improper remarks by prosecutor; 2. Burglary not shown to be crime of violence).

United States v. Rodrigues, 159 F.3d 607 (D.C. Cir. 1999) (1. Improper closing by prosecutor; 2. Insufficient evidence of fraud and theft).

United States v. Lampkin, 159 F.3d 607 (D.C. Cir. 1999) (1. Jury improperly instructed that government could not prosecute juvenile witnesses; 2. Jury allowed to consider tapes not in evidence).

United States v. Juvenile LWO, 160 F.3d 1179 (8th Cir. 1999) (Judge may not consider unadjudicated incidents at juvenile transfer hearing in assessing nature of charges or prior record).

United States v. Jones, 159 F.3d 969 (6th Cir. 1999) (Irrelevant false testimony did not support obstruction of justice).

United States v. Koeberlein, 161 F.3d 946 (6th Cir. 1999) (Failure to appear on unrelated offense was not obstruction).

United States v. Garrett, 161 F.3d 1131 (8th Cir. 1999) (Insufficient evidence of drug quantity).

United States v. Marrero-Ortiz, 160 F.3d 768 (1st Cir. 1999) (Insufficient evidence of drug quantity).

United States v. Partlow, 159 F.3d 1218 (9th Cir. 1999) (Specific offense characteristics must be applied in the order listed).

United States v. Lawrence, 161 F.3d 250 (4th Cir. 1999) (Must specify findings to depart up for under-representation of criminal history).

United States v. Walker, 160 F.3d 1078 (6th Cir. 1999) (Insufficient evidence of organizer role).

United States v. Wilson, 160 F.3d 732 (D.C. Cir. 1999) (Insufficient evidence of aiding and abetting murder or retaliation).

United States v. Beard, 161 F.3d 1190 (9th Cir. 1999) (It was error to substitute alternates for jurors after deliberations began).

United States v. Levario-Quiroz, 161 F.3d 903 (5th Cir. 1999) (Offenses outside United States were not relevant conduct).

United States v. Hanson, 161 F.3d 896 (5th Cir. 1999) (Factual questions about bank fraud should have been decided by jury).

United States v. Mount, 161 F.3d 675 (11th Cir. 1999) (Weapon found in stairwell was not carried).

United States v. Mortimer, 161 F.3d 240 (3rd Cir. 1999) (Trial judge was absent during defense closing).

Jones v. United States, 161 F.3d 397 (6th Cir. 1999) (Control of drugs did not justify managerial role).

United States v. Sapoznik, 161 F.3d 1117 (7th Cir. 1999) (Calculation of benefits from bribes did not support findings).

United States v. Weaver, 161 F.3d 528 (8th Cir. 1999) (Typo on PSR recommending wrong base level was plain error).

United States v. Castaneda, 162 F.3d 832 (5th Cir. 1999) (Failed to prove defendant violated transactional immunity agreement).

United States v. Polasek, 162 F.3d 878 (5th Cir. 1999) (Convictions of defendant's associates should not have been admitted).

United States v. Montez-Gavira, 163 F.3d 697 (2nd Cir. 1999) (Deportation did not moot appeal).

United States v. Tyler, 164 F.3d 150 (3rd Cir. 1999) (Police did not honor defendant's invocation of silence).

United States v. Whiteskunk, 162 F.3d 1244 (10th Cir. 1999) (Upward departure must include some method of analogy, extrapolation, or reference to the guidelines).

United States v. Valadez-Gallegos, 162 F.3d 1256 (10th Cir. 1999) (Passenger was not linked to contraband in vehicle).

United States v. Ponec, 163 F.3d 486 (8th Cir. 1999) (No showing that money withdrawn from defendant's account came from employer).

United States v. Graham, 162 F.3d 1180 (D.C. Cir. 1999) (Conclusionary statement that defendant was lieutenant did not justify role adjustment).

United States v. Strager, 162 F.3d 921 (6th Cir. 1999) (Disrespectful call to probation officer did not justify revocation).

United States v. Flowal, 162 F.3d 956 (6th Cir. 1999) (Drug quantity was arbitrarily chosen).

United States v. Fagan, 162 F.3d 1280 (10th Cir. 1999) (Court can depart downward for exceptional remorse).

United States v. McFerron, 163 F.3d 952 (6th Cir. 1999) (Defendant did not have burden of persuasion on neutral explanation for peremptory strike).

United States v. Spence, 163 F.3d 1280 (11th Cir. 1999) (Juror dismissed during deliberations without just cause).

United States v. McClellan, 164 F.3d 308 (6th Cir. 1999) (Court must explain why it is departing above revocation guidelines).

United States v. Allard, 164 F.3d 1146 (8th Cir. 1999) (Offense characteristic for one offense could not be used for another).

United States v. Dunigan, 163 F.3d 979 (6th Cir. 1999) (Court did not adequately consider defendant's ability to pay restitution).

United States v. Robinson, 164 F.3d 1068 (7th Cir. 1999) (Hearsay statements used at sentencing were unreliable).

United States v. Gomez, 164 F.3d 1354 (11th Cir. 1999) (Unrelated drug sales were not relevant conduct to conspiracy).

United States v. Sanders, 162 F.3d 396 (6th Cir. 1999) (Possibility that defendant could have been charged with state burglary did not mean firearm was used in connection with another offense).

United States v. Alvarez-Tautimez, 160 F.3d 573 (9th Cir. 1999) (Counsel ineffective for failing to withdraw plea after co-defendant's suppression motion granted).

United States v. Jones, 160 F.3d 473 (8th Cir. 1999) (Government actions prejudicing defendant can justify downward departure).

United States v. Avilez-Reyes, 160 F.3d 258 (5th Cir. 1999) (Judge should have recused himself in case where attorney testified against judge in disciplinary hearing).

United States v. Chamberlain, 163 F.3d 499 (8th Cir. 1999) (Inmate under investigation was entitled to Miranda warnings).

United States v. Ivy, 165 F.3d 397 (6th Cir. 1999) (Consent to enter home was not shown to be voluntary).

United States v. Serino, 163 F.3d 91 (1st Cir. 1999) (Defendant gave valid neutral reason for striking juror).

United States v. Dekle, 165 F.3d 826 (11th Cir. 1999) (Insufficient evidence that doctor conspired to illegally distribute drugs).

United States v. Rettelle, 165 F.3d 489 (6th Cir. 1999) (Mandatory minimum controlled by drugs associated with conviction only).

Our thanks to Alexander Bunin

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

The Back Bencher

Published by: The 7th Circuit

Federal Defenders

Editor: Richard H. Parsons,

Federal Public Defender

Central District of Illinois

Managing Editor: Mary Kedzior

CJA Panel Administrator

Federal Defender's Office

Central District of Illinois

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