The BACK BENCHER

Seventh Circuit Federal Defenders


Vol. No. 19

Fall Issue 1999

DEFENDER'S MESSAGE



Thanks to the participation of several learned speakers (Terry MacCarthy, Paul Ciolino, Norm London, Bill Marsh, and Henry Martin), as well as the attendance of many attorneys throughout the Midwest, our Fourth Annual Panel Attorneys Seminar and Golf Outing was a great success. I sincerely appreciate the time commitment that our busy speakers and attendees made in order to improve the already vigorous representation we provide to our clients. A special word of thanks to speakers Bill Marsh, Norm London, and Paul Ciolino, who graciously agreed to make presentations on only a few days notice after Hurricane Floyd prevented our speakers from the East Coast from attending. In the words of my good friend Hal Jennings, "It was the best I've ever seen."



A number of other continuing legal education programs are currently in the works. First, the NACDL is hosting its Fall Seminar in Chicago on November 3rd through the 6th. The program, entitled, "Lawyering on the Edge: Pushing the Limits of Aggressive Advocacy," looks to be the veritable treasure trove of information that NACDL seminars always are. Special rates for CJA lawyers are available, and you can obtain more information or an application from Mary Reising of my office. Second, the IACJ and Cook County Public Defenders are planning a seminar on Martin Luther King, Jr. day. It will be held in Chicago, and the subject is Racial Profiling. By having the seminar on a holiday, we are hoping to make it easier for you to attend. I hope to see you there and will give you more information in upcoming issues of The Back Bencher. Lastly, the Fifth Annual Panel Attorneys Seminar is already in the planning stages for the first week of October, 2000. The IACJ will co-host the event in Chicago along with the Community Defender, Terry MacCarthy, of the Northern District of Illinois. Carmen Hernandez, Dale Cobb, and A.J. Cramer, all speakers waylaid by Hurricane Floyd this year, have agreed to speak at the upcoming seminar (barring any new, unforseen natural disasters). I encourage all of you to attend and make these events as useful and enjoyable as the seminar in Bloomington.



Considering all the upcoming seminars and events, I am reminded of what Churchill said when someone asked him if he planned to drink an entire roomful of booze: "So much to do, so little time in which to do it." Thus, to temper these upcoming educational opportunities with some frivolity, the IACJ and Federal Defenders will again co-host the Second Annual Best Defender's Golf Scramble in July of next year. Let me know of any preferences concerning dates, cities, or courses. We are not necessarily wedded to the Den at Fox Creek where we played this year, although-if no other suggestions-it is a great course. In addition to the golf, we are planning an awards banquet where cocktails will be served and old-war-horse-lawyer stories will be shared. As attendees of this year's golf outing in Bloomington can attest, the outing is a chance to have some fun, catch-up with old colleagues, and meet some new ones-not to mention play golf at a world-class course. Details as to the location, course, and date will be forthcoming. Your input will be appreciated.



As with previous issues of The Back Bencher, this edition includes both Alex Bunin's Reversible Errors and our summaries of recent Seventh Circuit cases which may be helpful to you in defending your clients (now written by Jonathan Hawley of our office). Also included is part three of Alan Ellis' series on downward departures after Koon and an article by Andrew McGowan of our office about the diminished capacity defense. And, as always, another scintillating article by David Mote.



Thanks again to those who participated in the seminar, and, urging all of you to continue to truly be liberty's last Champions, I remain . . .

Yours very truly,



Richard H. Parsons

Federal Public Defender

Central District of Illinois


Table Of Contents


Dictum Du Jour 2

Churchilliana 2

NACDL & IACJ: The Benefits

of a Coordinated Defense Bar 3

The Diminished Capacity

Defense 4

Let Judges Be Judges! 6

Reversible Error 8

Guideline Case Resource 11

CA-7 Case Digest 12

Attachment 18


Dictum Du Jour



"Managing a bunch of lawyers is like herding cats."



Michael Fredrickson, A Cinderella Affidavit



* * * * * * * * * *

"Even if Clinton was completely passive [sexually], 'he cause[d] . . . contact with the genitalia . . . of any person with an intent to arouse or gratify the sexual desire of any person.'. The 'any person' was himself, and he caused Lewinsky to make contact with his genitalia, for purposes of arousal or gratification of his sexual desire, by inviting her to do so." Quod erat demonstrandum.



Richard A. Posner, An Affair of State: The Investigation, Impeachment and Trial of President Clinton



* * * * * * * * * *



"It is not a defense to perjury that the declarant assigns private meanings to words, provided he knows they're private."



Richard A. Posner, An Affair of State: The Investigation, Impeachment and Trial of President Clinton



* * * * * * * * * *





"Appellate lawyering is an over-verbalized activity. There is, as we have remarked before, little appreciation of the power of images even in cases, such as trademark cases, in which visual impressions have controlling legal significance. The appellate lawyer's adage might be, a word is worth a thousand pictures. 'Tain't so."



United States v. Barnes, slip op. (7th Cir. 8/23/99)(citation omitted).



* * * * * * * * * *



"It's a sign of maturity and mental health to be able to carry contradictory ideas in your mind without discomfort."



David Ignatius, The Sun King



[NOTE: We think that the above quote could be a compliment to a defense lawyer and an insult to a prosecutor.]



* * * * * * * * * *



"On December 2, 1983 at approximately 6:00 p.m., Clinton Bramlet, clad in olive-colored fatigues, a dark parka and a ski mask, entered Community Trust Bank in Irvington, Illinois. Armed with a machine gun and a radio to monitor police activities, he demanded and escaped with bank funds totaling $34,293.50. Roger Walker, an Illinois State trooper and the only peace officer in this sleepy little community, responded to an emergency call to his home only to discover that the rear tires of his squad car had been slashed." n1



[n1: As described by my law clerks -- members of the T.V. generation -- the situation is one reminiscent of some television programs involving one Deputy Fife. I am informed that such things happen to Deputy Fife with heart-sinking regularity and while he kicks at his useless tires one Aunt Bee looks on worriedly. (No Aunt Bee is cast in the present opus.)]



United States v. Bramlet, 820 F.2d 851, 852 (7th Cir. 1987).



* * * * * * * * * *



"You want to know what Kern County's like? Imagine Mayberry, except Andy Griffith's got a big ol' shotgun he likes to mow people down with, and Barney Fife likes to frame people, and Aunt Bee is a John Bircher, and old Floyd down at the barber shop, well, he got a bug up his ass one day and blew up the family planning clinic, which all the other good citizens of Mayberry thought was just swell. They'd just as soon pin a medal on him."



Edward Hume, Mean Justice: A Town's Terror, A Prosecutor's Power, A Betrayal of Innocence (Simon & Schuster).



* * * * * * * * * *



"Officer Cook's [decision to] pull his firearm in order to secure the compliance of the three suspects ... did not amount to a custodial stop. It was a brief restriction of their liberty. It was for a valid investigative purpose. The officer had reasonable suspicion to investigate, and he has testified that he did not place any of the defendants under arrest until after he had established that there was no firearm permit .... The conduct of Officer Cook was neither coercive nor intimidating under those circumstances."



District court order denying motion to suppress quoted in United States v. Mancilla, slip op. (7th Cir., July 7, 1999)(brackets and ellipses in 7th Cir. opinion).



* * * * * * * * * *



"It is only shallow people who do not judge by appearances. The mystery of the world is the visable, not the invisible."



Oscar Wilde



* * * * * * * * * *



"No matter where you go, there you are."



David Ignatius, The Sun King




CHURCHILLIANA



After his escape from capture in the Boer War, the twenty-six-year-old Churchill won a seat in Parliament. To make himself look older, he grew a mustache. A woman acquaintance who was not enthusiastic about his independent political views encountered him at a dinner party.





"Winston," she scolded, "I approve of neither your politics nor your mustache."



"Madam," replied Winston, "you are not likely to come in contact with either."




CONGRATULATIONS!


Jack Rimland, veteran defense lawyer and our long-time friend, has recently been elected President of the Illinois Attorneys for Criminal Justice, the State affiliate of the National Association of Criminal Defense Lawyers.



Among his many honors and awards, Jack is the former Chairman of the Illinois State Bar Association's Criminal Justice Section Council. Most recently, he was a member of the second place finishers in The Best Defenders Golf Scramble held at The Den at Fox Creek, where during the awards ceremony he gave one of his much-admired, albeit lengthy, inspirational speeches.




NACDL & IACJ:

The Benefits of A Coordinated Defense Bar

By: David Mote

Deputy Chief Federal Defender



I originally entitled this article "The Benefits of An Organized Defense Bar" but it occurred to me that such a title would be a bit self-contradictory. Defense lawyers, as a group, are strong individualists who share a certain spirit of anarchy. Consequently, they are not inclined to be organized. As Dick Parsons, Chief Federal Public Defender for the Central District of Illinois, puts it, "managing defense lawyers is a lot like herding cats." Nonetheless, there is clearly a benefit to defense lawyers in coordinating their efforts. One of the key benefits to belonging to an association of defense lawyers is the opportunity to attend seminars devoted to topics of interest to the criminal defense lawyer.



On November 3-6, 1999, the National Association of Criminal Defense Lawyers (NACDL), with the co-sponsorship of Illinois Attorneys for Criminal Justice (IACJ), is holding a major seminar in Chicago, Lawyering on the Edge: Pushing the Limits of Aggressive Advocacy. The topics to be covered include connecting with jurors, motions, dealing with problem judges, challenging accepted prosecution tactics, cross-examination, opening statements, closing arguments, arguing to conservative judges and jurors, obtaining Kyles/Brady material from recalcitrant prosecutors, defending health fraud cases, extra-judicial statements and ethics, arguing around instructions, gaining an edge at trial and sentencing. In other words, virtually every aspect of criminal trial practice is covered at this seminar. The presentations are being made by outstanding speakers from all over the country. I have only been able to attend one NACDL seminar before and it was outstanding. Rates differ for NACDL members, non-members, public defenders, new lawyers and professors, and law students. A special rate is available for those joining the NACDL and registering for the seminar. For further information, you can contact Danielle Famularo at NACDL: (202) 872-8600 ext. 236.



If the primary focus of your practice is criminal defense, you should consider the National Association of Criminal Defense Lawyers your primary national bar association. Membership includes a subscription to The Champion, an outstanding magazine devoted to criminal defense issues, access to a brief bank and the members-only section of their web-site (www.criminaljustice.org), and legal assistance if you are ever charged with contempt of court. In addition to providing these benefits to members, the NACDL lobbies for fairer criminal laws and adequate funding for criminal defense, files amicus briefs and is involved in litigation to improve the quality of criminal justice, such as the lawsuit that led to the release of the report on the investigation of the FBI laboratory.



The co-sponsor of this seminar, as indicated above, is Illinois Attorneys for Criminal Justice (IACJ), a state affiliate of the NACDL. The IACJ is sponsoring the welcoming reception on Wednesday, November 3, 1999. Thus, not only can you attend an excellent seminar on criminal law from November 3-6, 1999, you can meet representatives of both your state and national criminal defense organizations.



Last month, the IACJ co-sponsored a seminar with our office (the Federal Public Defender's Office for the Central District of Illinois) in Bloomington. Dick Parsons, our Chief Federal Public Defender, arranged for speakers from numerous states, made site arrangements and provided more than 1,000 pages of handouts per attendee. Illinois Attorneys for Criminal Justice provided publicity for the seminar and sponsored the social events. Despite a hurricane that forced three speakers to cancel on approximately 24 hours notice, the seminar went smoothly, as other speakers bravely stepped in or took on additional responsibilities to take up the slack.



Arrangements are now underway for the IACJ to co-sponsor a similar event next year with the Defender's Office for the Northern District of Illinois. In addition, the IACJ is planning to host a seminar on the controversial practice of racial profiling (with the Cook County Bar Association as co-sponsor) to be held on Martin Luther King Day.

In addition to hosting seminars, the IACJ produces a newsletter for its members and lobbies on behalf of the criminal defense community. Recently, several IACJ members have spoken to legislators on the proposed death penalty moratorium as well as ways to reduce injustice in the death penalty. (The invitation to speak on death penalty issues specified that the committees were only interested in hearing suggestions on how to improve the death penalty process; they did not want to hear arguments for the abolition of the death penalty.) Suggestions by IACJ representatives included the following:



1) Revising death penalty jury instructions to advise the jury to use caution in evaluating the testimony of jailhouse informants (as juries are currently advised regarding the testimony of accomplices) and to simplify the instruction on death-penalty qualification;



2) Making residual doubt a statutory mitigating factor;



3) Allowing the defense to take depositions in death penalty cases (the State already gets to take the testimony of witnesses under oath before trial via the grand jury process);



4) Requiring a proportionality review by the Illinois Supreme Court in every death penalty case (similar to the review called for by a Missouri statute);



5) Always allowing consideration of actual innocence in post-conviction proceedings;



6) Setting minimum qualifications for counsel in death penalty cases and setting an appropriate compensation rate to attract qualified counsel;



7) Lengthening the time limits on filing post-conviction claims beyond the current 45-day period after the filing of a defendant's brief with the Illinois Supreme Court;



8) Requiring the taping of all interrogations and confessions in death penalty cases;



9) Requiring signed oaths that witnesses have not been influenced or induced to testify improperly and that all exculpatory evidence has been turned over to the defense;



10) Enacting a Racial Justice Act similar to Kentucky Penal Code 532.300;



11) Requiring the State to plead in the charging instrument the statutory qualifying factors that they will rely on in the death-penalty eligibility phase;



12) Equalizing the resources afforded to the defense and the prosecution in capital cases.



Membership in the IACJ is $100 per year for regular members; $50 per year for public defenders and $25 per year for lawyers admitted to the bar for less than 3 years and law students. You can join by mailing a check in the appropriate amount to IACJ, P.O. Box 2864, Chicago, IL 60690-2864.



Take advantage of the opportunity to attend an outstanding seminar in Chicago from November 3-6, 1999 and consider joining the two fine organizations that are sponsoring it, the NACDL and IACJ.




The Diminished Capacity Defense

By: Andrew McGowan

Assistant Federal Defender



After the first meeting with a client, appointed counsel may have concerns about the client's ability to understand the crime charged or even the client's ability to understand defense counsel. In such cases, defense counsel's first thoughts are whether the defendant has the capacity to be tried and whether there may be an insanity defense. Under either scenario, the defendant will need to be evaluated by at least a government psychologist or psychiatrist, as well as a defense psychiatrist. 18 U.S.C. 4241 and 4242; See also 18 U.S.C. 3006A(e)(CJA section allowing for the payment of psychiatric and related services when necessary for an adequate defense).



In the likely event that the evaluating specialists find that the client is competent to stand trial and cannot use the insanity defense, defense counsel still may be able to use the diminished capacity defense. This defense may be employed in cases where the "defendant claims only that his mental condition is such that he or she cannot attain the culpable state of mind required by the definition of the crime." United States v. Fazzini, 871 F.2d 635, 641 (7th Cir. 1989). Because it negates intent, the diminished capacity defense may only be raised as a defense to specific intent crimes, such as scheme to defraud a bank. United States v. Ricketts, 146 F.3d 492, 497 (7th Cir. 1998); United States v. Nelson, 5 F.3d 254, 256-257 (7th Cir. 1993). It is used most commonly in cases where the defendant had been drinking alcohol before committing the alleged crime.



To be able to use expert testimony to present the diminished capacity defense, defense counsel must overcome significant pretrial hurdles. Defense counsel must notify the government of the intent to use expert testimony concerning the defendant's mental condition. Fed.R.Crim.P. 12.2; See also Fed.R.Crim.P. 16(b)(1)(B) and (C)(expert testimony generally). Furthermore, defense counsel must be able to demonstrate to the court the relevance of the proposed testimony (Fed.R.Evid. 401 and 403), as well as how the expert will assist the trier of fact to understand the evidence or to be able to determine a fact in issue. Fed.R.Evid. 702; See United States v. Schneider, 111 F.3d 197, 201 (1st Cir. 1997); Ricketts, 146 F.3d at 498 ("Diminished capacity, applying as it does only to specific intent crimes, is an extremely limited defense. Intent to commit a crime is almost always a question for the jury to decide based on the life experiences and common sense of its members. Most medical experts, including psychiatrists, are rarely able to make meaningful contributions that can properly guide jurors in this task."). In particular, the expert must have examined the client in relation to the time the offense occurred. Nelson, 5 F.3d at 256-257 (7th Cir. 1993)(Seventh Circuit affirmed the district court's refusal to allow an expert to testify about the defendant's mental condition on relevancy grounds where the expert examined the defendant for competency to stand trial in January and February 1992 and the offense occurred from 1988-1990).



Even when the court allows the diminished capacity defense, Fed.R.Evid. 704(b), does not allow the expert to testify whether the defendant "did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone." Section 704(b)'s limitations affect both insanity defenses and diminished capacity defenses. "Under 704(b), 'expert testimony [is] limited to presenting and explaining their diagnoses, such as whether the defendant had a severe mental disease or defect and what the characteristics of such a disease or defect, if any, may have been.'" United States v. Dennison, 937 F.2d 559, 565 (10th Cir. 1991), quoting S. Rep. No. 225, 98th Cong., 2d Sess. 230 (report on Comprehensive Crime Control Act of 1984), reprinted in 1984 U.S. Code Cong. & Admin. News 3182, 3412. In an excellent article on the subject of the limits of expert testimony under 704, Barry Tarlow observes that a "majority of the federal courts hold that Rule 704(b) only excludes testimony as to the defendant's actual mental state during the charged offense or testimony which necessarily would imply that ultimate conclusion." Barry Tarlow, Creative Expert Testimony on Predicate Matters and Rule 704(b), XXI The Champion 41-42 (June 1997)("Creative Expert Testimony"), citing, among other cases, United States v. Brown, 32 F.3d 236, 238-240 (7th Cir. 1994)(insanity defense).



The Seventh Circuit has concluded that 704(b) allows "relevant expert testimony detailing the defendant's mental health history which might have a tendency to negate the prosecution's proof on the issue of intent." Haas v. Abrahamson, 910 F.2d 384, 397 (7th Cir. 1990). The Seventh Circuit has also explained that under the 704(b) restrictions "testimony may be adduced exploring the particular characteristics of the mental disease and whether those characteristics render one afflicted with the disease able to appreciate the wrongfulness or the nature and quality of his behavior." Brown, 32 F.3d at 239 (Affirming district court's allowing government to elicit testimony from government's expert that the defendant suffered from a major depressive disorder, dysthymia, and drug and alcohol abuse disorders; that a finding that a person suffers from unipolar major depression does not, in and of itself, indicate that a person is unable to understand the wrongfulness of his acts; and that a finding that a person suffers from a major depressive episode with psychotic features does not, in and of itself, indicate that that person is unable to understand the nature and quality of his acts). The Seventh Circuit also affirmed a case in which the district court allowed a government expert witness to testify "that the defendant suffered from chronic paranoid schizophrenia accompanied by delusions and that simply because someone is delusional does not mean that he cannot understand that his acts are wrong." United States v. Reno, 992 F.2d 739 (7th Cir. 1993)(insanity defense). To assist counsel who may want to employ the diminished capacity defense with the aide of expert testimony, we include a sample motion for your perusal. [See attachment]



There is also a potentially favorable sentencing aspect to the diminished capacity defense. If defense counsel uses the defense unsuccessfully, the defendant has not contested that he or she committed the acts that constituted the crime. Therefore, the defendant may still be eligible for the two level downward adjustment for acceptance of responsibility. See U.S.S.G. 3E1.1, comm. n. 2 ("Conviction by trial, however, does not automatically preclude a defendant from consideration for such a reduction."). While not common, the diminished capacity defense is a viable defense in the Seventh Circuit, and may be used to negate the element of intent when the client is charged with a specific intent crime.




LET JUDGES BE JUDGES!

Downward Departures After Koon



By: Alan Ellis, Esq.



[Editor's Note: This is the third of a five-part series of articles on downward departures recognized by the courts since 1996 in light of the Supreme Court's decision in United States v. Koon. Part One discussed "Diminished Capacity" and Part Two discussed "Post-Offense Rehabilitation". Part Four, which will be included in the next edition of "The Back Bencher", will feature "Civic, Charitable, or Public Service".]



Part III

Aberrant Behavior



The U.S. Sentencing Guidelines permit downward departures on the basis of aberrant behavior. In the Guidelines Manual, Ch. 1, Pt. A, Introduction P4(d), it states:



"The Commission, of course, has not dealt with the single acts of aberrant behavior that still may justify probation at higher offense levels through departures."



The guidelines refer to "single acts of aberrant behavior", but neither define that phrase nor provide any insight into what the commission might have meant when it used it. Indeed, there is disagreement among the circuits as to what type of conduct constitutes aberrant behavior. Two cases establish what have come to be recognized as the outer boundaries of the aberrant behavior spectrum. United States v. Carey, 895 F.2d 318 (7th Cir. 1990), stands at one end of the spectrum and United States v. Grandmaison, 77 F.3d 555 (1st Cir. 1996), at the other. In Grandmaison, the defendant served as a member on his town's board of aldermen. During a six-month period, Grandmaison lobbied three of his aldermanic colleagues to award a lucrative contract for the renovation of a local junior high school to a construction company that employed him. At the behest of the construction company, Grandmaison gave gratuities, gifts, and other things of value to his three colleagues before and after major contract selection votes. These lobbying efforts eventually bore fruit in that the board ultimately awarded the project to the construction company for whom Grandmaison worked. Grandmaison pled guilty to a one-count information charging him with utilizing the mail system to defraud his town's citizens of their right to the honest services of their public officials. At the sentencing hearing, Grandmaison requested a downward departure based on a combination of factors that included "aberrant behavior" within the meaning of Guidelines Manual, Ch. 1, Pt. A, Introduction P4(d). The district court declined to depart downward because it felt that a departure based on "aberrant behavior, though generally available under the guidelines" was not available to Grandmaison because it required a showing of not only first offender status and behavior inconsistent with otherwise good or exemplary character, but also spontaneity or thoughtlessness. The First Circuit reversed the District Court and held that determinations about whether an offense constitutes a single act of aberrant behavior should be made by reviewing the totality of the circumstances including, inter alia, factors such as pecuniary gain to the defendant, charitable activities, prior good deeds, and efforts to mitigate the effects of the crime. Although spontaneity and thoughtlessness may be among the factors considered, they are not prerequisites for departure:



"That aberrant behavior departures are available to first offenders whose course of criminal conduct involves more than one criminal act is implicit in our holding. See Takai, 941 F.2d at 743. We think the Commission intended the word 'single' to refer to the crime committed and not to the various acts involved. As a result, we read the Guidelines' reference to 'single acts of aberrant behavior' to include multiple acts leading up to the commission of a crime. See id. Any other reading would produce an absurd result. District courts would be reduced to counting the number of acts involved in the commission of a crime to determine whether departure is warranted. Moreover, the practical effect of such an interpretation would be to make aberrant behavior departures virtually unavailable to most defendants because every other crime involves a series of criminal acts."



Addressing the concern that this test ensures every first offender a downward departure, the First Circuit made it clear that aberrant behavior and first offense status are not synonymous, noting that without more, first offender status is not enough to warrant a downward departure.



On the other end of the spectrum is United States v. Carey, supra, which involved a premeditated criminal scheme carried out over a long period of time. There, Carey, a trucking company president, engaged in a check-kiting scheme over a 15-month period. Each work-day during this period Carey concealed his two overdrawn bank accounts by having his bookkeeper prepare checks to cover the fund shortage. He signed each check and frequently deposited them himself. The Seventh Circuit held that this behavior was not "aberrant", 895 F.2d at 324-325. The court held that:



"[a] single act of aberrant behavior . . . generally contemplates a spontaneous and seemingly thoughtless act rather than one which was the result of substantial planning because an act which occurs suddenly and is not the result of a continued reflective process is one for which the defendant may be arguably less accountable." 895 F.2d at 325.



The Third, Fourth, Fifth, Eighth (at least until 1996), Eleventh, and District of Columbia Circuits have embraced the narrow "unplanned, opportunistic crime" approach enunciated by the Seventh Circuit in Carey. For example, in United States v. Marcello, 13 F.3d 752 (3rd Cir. 1994), the Third Circuit explained that "there must be some element of abnormal or exceptional behavior" adopting the Seventh Circuit's spontaneity requirement and reversing the district court's decision to depart downward. Marcello was an attorney who on seven separate occasions structured bank deposits to avoid tax reporting requirements. He committed these offenses over the span of seven consecutive working days.



Cases involving extensive planning or repeating criminal acts have received similar treatment in the Fourth, Fifth, Eighth, Eleventh, and District of Columbia Circuits. In United States v. Glick, 946 F.2d 335, 338 (4th Cir. 1991), the Fourth Circuit reversed a downward departure decision after noting that the defendant transported a letter containing stolen trade secrets across state lines on several occasions. In United States v. Williams, 974 F.2d 25, 262 (5th Cir. 1992), the Fifth Circuit affirmed a district court's refusal to depart downward because the robbery executed by the defendant involved planning. Similarly, the Eighth Circuit found that a bank fraud scheme carried out over a one-year period lacked the level of spontaneity and thoughtlessness required by cases such as Carey. (See United States v. Garlich, 951 F.2d 161, 164 (8th Cir. 1991). See also United States v. Withrow, 85 F.3d 527, 530-31 (11th Cir. 1996), and United States v. Dyce, 320 U.S. App. D.C. 1, 91, F.3d 1462, 1470 (D.C. Cir. 1996).)



In contrast, the First, Ninth, and Tenth Circuits have eschewed any focus on spontaneity and thoughtlessness, opting instead for a broader view of aberrant behavior. They require reviewing courts to employ the totality of the circumstances test in making aberrant behavior determinations.



Thus, in United States v. Takai, 941 F.2d 738 (9th Cir. 1991), the Ninth Circuit affirmed the district court's decision to depart downward after finding that the defendants who pled guilty to bribery of and conspiracy to bribe an Immigration and Naturalization Service official received no pecuniary gain, had no criminal record, and had to be influenced by a government agent.



In United States v. Pena, 930 F.2d 1486, 1494 (10th Cir. 1991), a drug case, the Tenth Circuit held that a downward departure was appropriate because the defendant's offense behavior was an aberration from her usual conduct, which was highlighted by long-term employment, no abuse or prior distribution of controlled substances, and economic support of her family.



Up to now, the Sixth Circuit has purposefully avoided joining either camp. In United States v. Duerson, 25 F.3d 376 (6th Cir. 1994), the court of appeals discussed the various interpretations of the phrase "single act of aberrant behavior" and decided that it need not define the term at that time stating that "[a]s to the 'single act' question, the issue is an open one in this circuit, and we are content to let it remain so for a while longer."



The Second Circuit, too, remains free from an allegiance to either camp. In United States v. Ritchey, 949 F.2d 61, 63 (2d Cir. 1991), the Second Circuit held that aberrant behavior is a permissible ground for departure, but did not discuss what type of conduct could constitute aberrant behavior. Since its holding in Ritchey, the Second Circuit has not had occasion to discuss aberrant behavior at all.



The Eighth Circuit is the only court to attempt to analyze "aberrant behavior" in light of the Supreme Court's decision in Koon v. United States, 518 U.S. 81, 135 L.Ed. 2d 392, 116 S.Ct. 2035 (1996). Koon reminded the lower courts that departures are potentially infinite in number; that a court may not categorically exclude the consideration of any one possible departure factor unless the Sentencing Commission has put off-limits that factor - for example, race, sex, national origin, creed, religion, socio-economic status, lack of guidance for youth, drug or alcohol dependency, and economic hardship. Anything else, including aberrant behavior, is fair game.



Since no pre-Koon case had ever held that "aberrant behavior" was not a ground for downward departure, it would appear that Koon should have no effect on the debate within the legal community as the interpretation of the "single act" of aberrant behavior question other than emboldening district courts to use their discretion in determining whether "the misconduct which occurred in the particular instance suffices to make the case atypical," keeping in mind the district court's "institutional advantage over appellate courts in making these sorts of determinations [because] . . . they see so many more Guidelines cases than appellate courts do." (Koon, 116 S.Ct. At 2047).



The Supreme Court recognized that the district court's decision "is apt to vary" from case to case because whether the misconduct makes the case atypical is a factual matter. Thus, given the district court's institutional advantage in the inherently factual nature of the inquiry, a district court's decision, held the Supreme Court, must be accorded substantial deference. (Id. At 2046).



Accordingly, in the future expect the courts to consider, in a totality of the circumstances test, the following factors or a combination thereof:



absence of pecuniary gain to the defendant;

prior charitable and good deeds;

efforts to mitigate the effects of the crime;

long-term employment coupled possibly with recent unemployment;

no prior criminal conduct;

no abuse of controlled substances;

economic support of one's family;

conduct of a government agent influencing the defendant to commit the crime;

mental disorders in violent crime cases precluding a diminished capacity departure under 5K2.13;

a marked departure from the past;

unlikelihood of recurrence;

defendant's motivation for committing the crime;

the singular nature of the criminal act;

the spontaneity and lack of planning of the criminal act;

extreme pressures under which the defendant was operating including the pressure of losing one's job;

psychological disorders the defendant was suffering from;

letters from friends and family expressing shock as to the defendant's behavior.



In summary, if the conduct at issue is both a short-lived departure from an otherwise law-abiding life and is unlikely to recur, a downward departure based on aberrant behavior may very well be in order. A defendant's brief meander into criminal activity standing in stark contrast to his posture as a responsible, hard-working, fully employed, contributing member of the community coupled with appropriate post offense conduct may very well lead to an aberrant behavior downward departure.





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.




Reversible Error



[Caveat: For those who have not previously seen this column, it is a collection of federal appellate decisions in which a defendant received relief. The summaries are no substitute for reading the opinions. They are merely to draw your attention to cases that may help your own research. At the end of the year, they will be compiled by category. This year's edition will cover the last five years worth of cases (1995-1999). Previously reported cases that have since been overruled will be removed.]



United States v. Blasini-Lluberas, 169 F.3d 57 (1st Cir. 1999) (There was no misapplication of bank funds on a debt not yet due).



United States v. Anglin, 169 F.3d 154 (2nd Cir. 1999) (Bank tellers were not physically restrained).



United States v. Leahy, 169 F.3d 433 (7th Cir. 1999) (Departure of 10 levels for analogous terrorism enhancement was unreasonable).



United States v. Aldrich, 169 F.3d 526 (8th Cir. 1999) (Vacating related gun count required entire new trial on others).



United States v. Calderon, 169 F.3d 718 (11th Cir. 1999) (Insufficient evidence of money laundering).



United States v. Andrades, 169 F.3d 131 (2nd Cir. 1999) (Court failed to determine whether defendant understood basis for plea, and failed to receive sufficient factual basis).



United States v. McCall, 174 F.3d 47 (2nd Cir. 1999) (Vulnerable victim enhancement is not a relative standard).



United States v. Kiyuyung, 171 F.3d 78 (2nd Cir. 1999) (Firearms found during warrantless search were not in plain view).



United States v. Francis, 170 F.3d 546 (6th Cir. 1999) (Cumulative acts of prosecutorial misconduct).



Schledwitz v. United States, 169 F.3d 1003 (6th Cir. 1999) (Defendant could expose bias of witness involved in investigation).





United States v. Navarro, 169 F.3d 228 (5th Cir. 1999) (Cannot have contested sentencing via video conference).



United States v. James, 169 F.3d 1210 (9th Cir. 1999) (Records of victim's violence were relevant to self-defense).



United States v. Guerrero, 169 F.3d 933 (1. Insufficient evidence of bodily injury; 2. Inconclusive identification did not support bank robbery conviction).



United States v. Holt, 170 F.3d 698 (7th Cir. 1999) (Part-time police officer did not justify abuse of trust enhancement).



United States v. Avilia-Ramirez, 170 F.3d 277 (2nd Cir. 1999) (Defendant's prior aggravated felony was not a listed offense at the time of his reentry).



United States v. Vaghela, 169 F.3d 729 (11th Cir. 1999) (Insufficient evidence of conspiracy to obstruct justice).



United States v. Johnson, 170 F.3d 708 (7th Cir. 1999) (Officers lacked reasonable suspicion to prevent occupant from leaving home).



United States v. Sacko, 178 F.3d 1 (1st Cir. 1999) (Court could not look at facts of prior conviction to determine whether it was a violent felony).



United States v. Cooper, 171 F.3d 582 (8th Cir. 1999) (Court could not order that defendant not leave city for more than 24 hours as condition of supervised release).



United States v. Blackwell, 172 F.3d 129 (2nd Cir. 1999) (Omissions during colloquy voided plea).



United States v. Johnson, 171 F.3d 601 (8th Cir. 1999) (No reasonable suspicion to intercept delivery of package).



United States v. Iron Cloud, 171 F.3d 587 (8th Cir. 1999) (Portable breath test results were inadmissible as evidence of intoxication).



United States v. Ticchiarelli, 171 F.3d 24 (1st Cir. 1999) (Sentence imposed, between original sentence and remand, could not be counted at resentencing).



United States v. Dueno, 171 F.3d 39 (1st Cir. 1999) (Burglary of non-dwelling was not crime of violence).



United States v. Davis, 170 F.3d 617 (6th Cir. 1999) (Number of victims did not support upward departure for extreme conduct).



United States v. Hayes, 171 F.3d 389 (6th Cir. 1999) (Reliance on undisclosed victim impact letters was plain error).



United States v. Lombera-Camorlinga, 170 F.3d 1241 (9th Cir. 1999) (Foreign national had right to be told he could contact appropriate consulate upon arrest).



United States v. Mitchell, 172 F.3d 1104 (9th Cir. 1999) (Defendant's poverty was inadmissible to prove robbery motive).



United States v. Hendricks, 171 F.3d 1184 (8th Cir. 1999) (Only 3 to 5 years supervised release was available under safety valve).



United States v. Hoskins, 173 F.3d 351 (6th Cir. 1999) (Defendant not liable for drugs sold by 3rd person to informant).



United States v. Morales, 171 F.3d 978 (5th Cir. 1999) (No probable cause or consent to search warehouse).



United States v. Forbes, 172 F.3d 675 (9th Cir. 1999) (Mixed sentence of probation and imprisonment was impermissible).



United States v. Gatewood, 173 F.3d 983 (6th Cir. 1999) (Indictment that did not contain facially false statement was defective).



United States v. Amirault, 173 F.3d 28 (1st Cir. 1999) (Photograph of young naked female was not lascivious exhibition of genitals).



United States v. Randall, 171 F.3d 195 (4th Cir. 1999) (Variance between charged predicate act and act proven).



United States v. Banuelos-Rodriguez, 173 F.3d 741 (9th Cir. 1999) (Sentencing disparities created by plea bargaining practices can justify downward departure).



United States v. Cataldo, 171 F.3d 1316 (11th Cir. 1999) (Obstruction of justice enhancement was not warranted).



United States v. Whitehead, 176 F.3d 1030 (8th Cir. 1999) (Instructions failed to define the term insolvency).



United States v. Meksian, 170 F.3d 1260 (9th Cir. 1999) (Loss of worthless collateral did not justify restitution).



United States v. Corral, 172 F.3d 714 (9th Cir. 1999) (Court could not rely upon unreliable double hearsay).



United States v. Mastrangelo, 172 F.3d 288 (3rd Cir. 1999) (Prosecutor misstated stipulation).



United States v. Mancillas, 172 F.3d 341 (5th Cir. 1999) (Intended, but uncompleted, fraud did not justify restitution).



United States v. Watson, 171 F.3d 695 (D.C. Cir. 1999) (Prosecutor misstated evidence).



United States v. Galvez-Falconi, 174 F.3d 255 (2nd Cir. 1999) (Willingness to consent to deportation can be ground for departure).



United States v. Clayton, 172 F.3d 347 (5th Cir. 1999) (Conduct before investigation was not obstruction of justice).



United States v. Bensimon, 172 F.3d 1121 (9th Cir. 1999) (17-year-old mail fraud conviction was inadmissible).



United States v. Carey, 172 F.3d 1268 (10th Cir. 1999) (Seizure of computer files exceeded warrant and were not in plain view).



United States v. Espinosa, 172 F.3d 795 (11th Cir. 1999) (Court, not government, must decide defendant's truthfulness in applying safety valve).



United States v. Barron, 172 F.3d 1153 (9th Cir. 1999) (Vacation of sentence does not rescind plea agreement).



United States v. Gergen, 172 F.3d 719 (9th Cir. 1999) (Charge did not require that defendant knew shotgun was sawed-off).



United States v. Gibbs, 174 F.3d 762 (6th Cir. 1999) (Insufficient proof that defendants joined conspiracy).



United States v. Grimes, 173 F.3d 634 (7th Cir. 1999) (No restitution for unidentified victims).



United States v. Cabrera, 172 F.3d 1287 (11th Cir. 1999) (Loss from cellular identification numbers, not possessed by defendant, was not attributable to him).

United States v. Ensminger, 174 F.3d 1143 (10th Cir. 1999) (No loss calculable in scheme that could not have succeeded).



United States v. Paster, 173 F.3d 206 (3rd Cir. 1999) (Findings did not support length of departure for extreme conduct).



United States v. Barragan-Mendoza, 174 F.3d 1024 (9th Cir. 1999) (Court lost jurisdiction to hear government's motion to raise sentence).



United States v. Rosario-Peralta, 175 F.3d 48 (1st Cir. 1999) (Records supporting defense were wrongly excluded).



United States v. LeBlanc, 175 F.3d 511 (7th Cir. 1999) (Waiver of revocation hearing was involuntary).



United States v. Checora, 175 F.3d 782 (10th Cir. 1999) (Departure for extreme conduct was not supported).



United States v. Santana, 175 F.3d 57 (1st Cir. 1999) (Jury viewed extrinsic evidence during deliberations).



United States v. Kinlock, 174 F.3d 297 (5th Cir. 1999) (Restitution payments must be reasonable).



United States v. Marshall, 173 F.3d 1312 (11th Cir. 1999) (1. Previous arrest is not admissible to show intent; 2. Agent could not speculate on drug's source).



United States v. Green, 175 F.3d 822 (10th Cir. 1999) (For stautory enhancement, prior must be proven beyond reasonable doubt).



United States v. Phillips, 174 F.3d 584 (5th Cir. 1999) (Waiver of appeal regarding restitution was not voluntary).



United States v. Ramirez, 174 F.3d 584 (5th Cir. 1999) (Tape held by BOP was in government's possession).



United States v. Brooks, 174 F.3d 950 (8th Cir. 1999) (Alleged perjury did not support obstruction enhancement).



United States v. McMutuary, 176 F.3d 959 (7th Cir. 1999) (Sentencing disparity can be basis for departure).



United States v. Maragh, 174 F.3d 1202 (11th Cir. 1999) (Counsel's oral consent to voir dire by magistrate judge was insufficient).



United States v. Jimenez-Medina, 173 F.3d 752 (9th Cir. 1999) (Border agent lacked reasonable suspicion to stop truck).



United States v. Charley, 176 F.3d 1265 (10th Cir. 1999) (Fatal variance between date pleaded and proven).



United States v. Goynes, 175 F.3d 350 (5th Cir. 1999) (Defendant's letters did not prove intent to carry out threats).



United States v. Pruitt, 174 F.3d 1215 (11th Cir. 1999) (Continued detention after stop lacked justification).



United States v. Taylor, 176 F.3d 331 (6th Cir. 1999) (No active use of firearm in relation to crime of violence).



United States v. Stotts, 176 F.3d 880 (6th Cir. 1999) (Unassembled destructive device was not used in relation to drug offense).



United States v. Rutherford, 175 F.3d 899 (11th Cir. 1999) (Statutory enhancement must list priors).



United States v. Ramirez, 176 F.3d 1179 (9th Cir. 1999) (Insufficient evidence tying defendant to conspiracy).



United States v. Hernandez, 176 F.3d 719 (Instruction allowed jurors to convict on what they believed in their heart and spirit).



United States v. Burgess, 175 F.3d 1261 (11th Cir. 1999) (Denial of instruction on defendant's failure to testify).



United States v. Hopper, 177 F.3d 824 (9th Cir. 1999) (Interest and penalties are not included in calculating tax loss).



United States v. Davis, 177 F.3d 552 (? Cir. 1999) (All jurors should have been questioned about one juror's request to be excused).



United States v. Hendrick, 177 F.3d 547 (6th Cir. 1999) (Base level for aiding and abetting must be based on defendant's criminal record only).



United States v. Morrow, 177 F.3d 272 (5th Cir. 1999) (Defendants were not liable for loss outside their involvement).



United States v. Summers, 176 F.3d 1328 (11th Cir. 1999) (Amended enhancement violated ex post facto).



United States v. Dale, 178 F.3d 429 (6th Cir. 1999) (Maximum punishment for multiple drug conspiracy is limited to that for least serious substance).



United States v. Stevens, 177 F.3d 579 (6th Cir. 1999) (Refusal of government witness to testify did not justify mistrial).



United States v. Comito, 177 F.3d 1166 (9th Cir. 1999) (Hearsay was inadmissible at revocation hearing).



United States v. DiPina, 178 F.3d 68 (1st Cir. 1999) (Diversionary juvenile dispositions are not given points).



United States v. Lozada-Rivera, 177 F.3d 98 (1st Cir. 1999) (1. Police report was not prior consistent statement; 2. Uncounseled jailhouse statements to cooperating witness were inadmissible).



United States v. McGuire, 178 F.3d 203 (3rd Cir. 1999) (Insufficient evidence that car destroyed by bomb affected interstate commerce).



United States v. Lopez-Valdez, 178 F.3d 282 (5th Cir. 1999) (Warrantless car search lacked reasonable suspicion).



United States v. Sanchez, 176 F.3d 1214 (9th Cir. 1999) (Prosecutor engaged in misconduct during questioning and argument).



United States v. Ortiz, 177 F.3d 108 (1st Cir. 1999) (Officers reinitiated interrogation after defendant's request for counsel).

Our thanks to Alexander Bunin,

Federal Public Defender for the Districts of Northern New York and Vermont, who allows us to reproduce and distribute these cases in our newsletter.




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 http://www.fcj.gov.



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 http://www.jamespublishing.com 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 http://www.ussc.gov. 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'Connor@fd.org. Other attorneys on staff are Carmen Hernandez, Carmen.Hernandez@fd.org; Tom Hutchison, Tom.Hutchison@fd.org; Mary Kennedy, Mary.Kennedy@fd.org; and Fran Pratt, Fran.Pratt@fd.org. The Capital Litigation Training Coordinator is Linda McGrew, Linda.McGrew@fd.org.




CA-7 Case Digest


Compiled by: Jonathan Hawley

Assistant Federal Defender

Appeals



U.S. v. Jackson, No. 97-3919 (7th Cir. 7/30/99). After the defendant obtained a reversal of his sentence on his first direct appeal, he was re-sentenced and brought a second direct appeal. In this second appeal, he alleged that his trial counsel was ineffective during the guilt phase of his trial. The Court of Appeals held that when a defendant obtains a reversal of his sentence on direct appeal, his subsequent appeal from the re-sentencing may only raise issues arising from the re-sentencing, because any issues related to the guilt phase of the trial could have be raised in the original direct appeal. Accordingly, those claims are waived for purposes of the second appeal.



Appeal Waivers



U.S. v. Williams, No. 99-1125 (7th Cir. 7/13/99). In a case where the defendant entered into a plea agreement which contained an appeal waiver clause, the Court of Appeals dismissed the defendant's appeal. After holding that the defendant knowingly and voluntarily waived his right to appeal, the court also refused to invalidate the waiver provision based on the argument that the defendant did not receive a sufficient benefit in exchange for his promise not to appeal. Specifically, in return for the defendant's promise not to appeal his sentence, the government agreed to recommend the low end of the guideline range, a promise which the government fulfilled. The agreement, however, specifically stated that such a recommendation was not binding on the district court. Although the Second Circuit in United States v. Goodman, 165 F.3d 169 (2d Cir. 1999), refused to enforce an appeal waiver because the defendant did not receive a sufficient benefit in exchange for his waiver where the district court did not sentence the defendant as recommended by the parties, the Seventh Circuit declined to follow the Goodman case. Rather, the Seventh Circuit stated that its precedent holds that a plea agreement is a contractual arrangement between two parties and the court is not part of the contract. Thus, the court refused to invalidate an appeal waiver due to a variance between the sentence predicted by the parties and the one actually imposed.



Conflict of Interest



Cabello v. U.S., No. 98-1543 (7th Cir. 8/18/99). In prosecution for conspiracy to distribute cocaine, the defendant's co-defendant (the alleged ringleader and paramour of the defendant) was at large at the time of trial. Prior to trial, on the day that the defendant was to be appointed counsel, an attorney appeared who agreed to represent the defendant. Indeed, he represented the defendant at trial. Subsequent to her conviction, the defendant filed a 2255 petition alleging that this counsel was ineffective because, unknown to her at the time of trial, the attorney was hired by her co-defendant. Thus, according to the defendant, trial counsel had a conflict of interest. The Court of Appeals, however, rejected this challenge and held that the mere payment of the defendant's fees by her fugitive co-defendant was not enough to support a finding of an actual conflict. Moreover, the court noted that nothing in the record indicated that trial counsel performed deficiently or acted contrary to the interests of the defendant.









Cross-Examination



U.S. v. Mojica, No. 98-1911 (7th Cir. 7/20/99). In prosecution for conspiracy to possess cocaine with intent to distribute, the Court of Appeals affirmed the district court's refusal to allow the defense to cross-examine a government witness about his prior drug use. Before refusing the cross-examination, the district court conducted a voir dire outside the presence of the jury to determine whether the witness' prior drug use impaired his ability to recall and relate relevant events, and the court concluded that the witness' ability to recall past events was excellent. Noting that a district court may refuse cross-examination on the issue where memory or mental capacity is not legitimately at issue and the evidence is offered solely as a general character attack, the Court of Appeals affirmed the ruling and found that the district court "handled the issue appropriately."



Evidence



U.S. v. Joy, No. 98-4034 (7th Cir. 9/28/99). In prosecution for possession of a weapon by a felon, the Court of Appeals affirmed the admission of a 911 tape. The court held that the tape, which was a call from the defendant's brother to 911, was an exception to the hearsay rule as an excited utterance. Although the call took place over the course of several minutes, the court held that an excited utterance need not be contemporaneous with the startling event, but rather the utterance must be contemporaneous with the excitement engendered by the startling event. Moreover, although many of the statements on the tape were in response to questions by the 911 operator, the court held that there is no "absolute spontaneity" requirement for excited utterances, and it is possible for someone to be too excited to volunteer pertinent information but able to respond to inquiries.



U.S. v. Dexter Heath, No. 98-3484 (7th Cir. 8/29/99). In prosecution for distribution of a controlled substance, the Court of Appeals reversed the defendant's conviction due to the admission of improper 404(b) evidence. The government, over the defendant's objection, admitted evidence that the defendant had been arrested for possession of a handgun 7 months before the current offense conduct. Also admitted into evidence was the fact that the man the defendant was arrested with possessed 35.1 grams of crack. The Court of Appeals held that there was no evidence in the record that the defendant aided and abetted the man who possessed the crack cocaine. Rather, the defendant was merely present at the scene, and mere presence is insufficient to establish that the defendant joined in the other man's criminal activity. Moreover, this evidence was "extremely prejudicial" because the only other evidence before the jury was the fact that the defendant possessed 1.7 grams of cocaine powder and .76 grams of crack in small baggies.



U.S. v. Martin, No. 98-4000 (7th Cir. 8/27/99). In prosecution for bank robbery, the defendant testified at trial as to his financial resources (income, artwork, etc.), hoping to demonstrate that he had no motive to commit bank robbery. The prosecutor, however, cross-examined the defendant about his representations on his financial affidavit for the appointment of counsel where he indicated that he was unemployed and had no personal property. At the conclusion of the prosecutor's questions, the district judge, in the presence of the jury, also questioned the defendant at length about his financial affidavit. On appeal, the defendant argued that this questioning by the district judge amounted to judicial advocacy for the prosecution by suggesting that the judge believed the defendant was lying. The Court of Appeals, although noting that such a judicial inquiry should be conducted outside the presence of the jury, affirmed the conviction and held that a judge "is generally free to interrogate witnesses to ensure that issues are clearly presented to the jury" and that "the function of a federal trial judge is not that of an umpire or moderator at a town meeting." Moreover, even if the inquiry was error, it was harmless given the overwhelming nature of the other evidence in the case.



U.S. v. Reynolds, No. 97-2933 (7th Cir. 8/27/99). Affirming former Congressman Melvin Reynold's conviction for implementing a scheme to defraud four banks by obtaining loans under false pretenses, the Court of Appeals rejected the defendant's argument that in order for a statement to be "material", a bank must either rely on the statement in making a loan or be influenced by the statement. Rather, the court held that the issue of reliance is irrelevant in a false statement case and that "a statement is material if it would be capable of influencing the decision maker's decision," not whether it in fact influenced the decision maker.



Forfeiture



U.S. v. 47 West 644 Route 38, Maple Park, Illinois, No. 97-4145 (7th Cir. 8/19/99) In challenge to forfeiture of property, the defendant's filed a motion to dismiss the forfeiture action because they were denied "a meaningful opportunity to be heard" prior to the seizure as required by United States v. James Daniel Good Real Property, 540 U.S. 53 (1993). The Court of Appeals held, however, that illegal seizure does not, standing along, require that the property be immune from forfeiture. Instead, the government is responsible "for the profits of which the claimant was deprived during the period of illegal seizure." Accordingly, the Court of Appeals affirmed the district court's denial of the motion to dismiss the forfeiture action.



Guilty Plea



U.S. v. Gomez-Orozco, No. 98-4272 (7th Cir. 8/5/99). In prosecution for illegal re-entry, the Court of Appeals reversed the district court's refusal to allow the defendant to withdraw his guilty plea. After pleading guilty, defense counsel discovered that the defendant may have in fact been the illegitimate son of an American father. Thus, he moved to allow the defendant to withdraw his guilty plea. Eventually, at the hearing on the motion to withdraw, the defendant also presented evidence that the defendant's mother and father were actually married under Texas common law. The district court, however, finding the evidence of common law marriage "slim" coupled with the motion to withdraw the guilty plea coming six months after entering it, denied the motion and sentenced the defendant to 79 months imprisonment. The Court of Appeals, in reversing, held that "being legally innocent of a crime is a fair and just reason to withdraw a guilty plea." Thus, given that the defendant presented substantial evidence that his parents were married under Texas common law, and that if he were born in wedlock to an American father then he would be a U.S. citizen, the district court erred in refusing to allow him to withdraw his guilty plea. Moreover, the court noted that notwithstanding the delay in making the motion, defense counsel acted as soon as the evidence came to his attention.







Habeas Corpus



Taliani v. Chrans, No. 98-4028 (7th Cir. 8/31/99). On appeal from the denial of the defendant's habeas corpus petition from his state court conviction, the Court of Appeals held that the one-year filing deadline contained in 18 U.S.C. 2244(d)(1) is subject to equitable tolling. Specifically, the court held that the one-year deadline was not jurisdictional and thus the judge-made doctrine of equitable tolling is available where the plaintiff could not, despite the exercise of reasonable diligence, have discovered all the information he needed in order to be able to file his claim on time. Moreover, subsection (D) of section 2244(d)(1) already contains an equitable tolling provision, a subsection which postpones the running of the one-year limitation for filing a petition for habeas corpus to "the [earliest] date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." Notwithstanding this holding, the court still denied the petition for a certificate of appealability because the petitioner's explanation for why he missed the filing deadline by one month was that his attorney miscalculated the filing period. The court stated that a lawyer's mistake is not normally a valid basis for equitable tolling.



Howard v. O'Sullivan, 98-2589 (7th Cir. 7/15/99). In a habeas corpus petition where the petitioner claimed his trial counsel was ineffective, the Court of Appeals held that the petitioner procedurally defaulted the claim. Although the petitioner properly raised his ineffective assistance of trial counsel claim in his direct appeal to the Illinois Appellate and Supreme Courts, he did not raise this claim in his state post-conviction petitions to the trial, appellate, and supreme courts. Rather, in the state post-conviction petition, the petitioner raised only a claim of the ineffectiveness of his appellate counsel on direct appeal. Thus, relying on the Supreme Court's recent decision in O'Sullivan v. Boerckel, 119 S.Ct. 1728 (1999), the Court of Appeals held that the petitioner did not fairly present to the state courts the issue of trial counsel's ineffectiveness by invoking one complete round of the state's established appellate review process.



Jury Instructions



U.S. v. Jones, No. 98-2229 (7th Cir. 8/11/99). In prosecution for carjacking, the defendants argued that the trial court erred by instructing the jury that the "intent to cause death or serious bodily harm" portion of the offense could be satisfied if the jury found evidence "that the defendant intended to cause death or serious bodily harm if the victim resisted the defendant's efforts to obtain the victim's motor vehicle." Specifically, the defendant's claimed that this type of "conditional intent" renders the intent requirement virtually indistinguishable from the "by force and violence or by intimidation" element of the offense. Thus, according to the defendants, the court should have instructed the jury that they could be convicted only if they had an unconditional intent to kill or injure their victims from the start. The Court of Appeals, in rejecting this argument, recognized that the Ninth Circuit in United States v. Randolph, 93 F.3d 656 (9th Cir. 1996) agreed with the defendant's position. However, the court noted not only that the Ninth Circuit was contrary to all other circuits' precedent, but also that the Supreme Court in Holloway v. United States, 119 S.Ct. 966 (1999) held that a conditional intent instruction was permissible. Thus, the court affirmed the use of the instruction.

Miscellaneous



U.S. v. Lloyd, No. 99-1140 (7th Cir. 7/19/99). In prosecution for felon in possession of a weapon, the Court of Appeals affirmed a conviction where the defendant was sentenced for the underlying state felony conviction to a term of conditional discharge under Illinois law. Although at the time of the federal indictment, the defendant had successfully completed his term of conditional discharge and therefore had the state case against him discharged and dismissed, because the defendant was alleged in the federal indictment to have possessed a weapon during the period of conditional discharge, he was deemed convicted of the state offense during that period for purposes of 922(g). Thus, where a federal incitement alleges that a defendant possessed a weapon during the period of conditional discharge, the defendant is deemed convicted of the underlying felony for 922(g) purposes even if he later successfully completes his period of conditional discharge and has his full civil rights restored.



Prosecutorial Misconduct



U.S. v. Lorefice, No. 98-3207 (7th Cir. 9/19/99). In prosecution for mail and wire fraud, the government elicited a statement from an FBI agent that he believed the defendant had committed fraud. Additionally, the prosecutor, in closing argument, stated that the defendant's own lawyer's testimony indicated that he believed the defendant had committed fraud. Although the Court of Appeals found both statements were improper as the equivalent of prosecutorial statements constituting a representation of personal belief as to the defendant's guilt, the court held that the comments were not sufficiently prejudicial to deprive the defendant of fair trial. Specifically, the court found that the two comments were isolated in a trial replete with evidence of the defendant's guilt.



Restitution



U.S. v. Pandiello, No. 98-2427 (7th Cir. 7/15/99). Where the district court ordered a defendant to pay restitution in equal monthly installments during the period of his incarceration through the Inmate Financial Responsibility Program ("IFRP"), but failed to specify the amount those payments should be, the Court of Appeals reversed the restitution order and held that delegating the authority to determine the amount to be paid to the IFRP constituted plain error. Specifically, like previous circuit precedent prohibiting the delegation of setting the amount or timing or restitution to a probation officer, delegating this authority to the IFRP likewise implicates the same improper shifting of a judge's Article III responsibilities to another entity. Thus, the court vacated the restitution order holding that the delegation deprived the defendant of a substantial right and constituted a serious structural defect affecting the integrity of the judicial proceedings.



Sentencing



U.S. v. Lorifice, No. 98-3207 (7th Cir. 9/16/99). In prosecution for mail and wire fraud, the district court calculated the defendant's base offense level by looking to the amount of intended loss. Specifically, although the defendant only obtained $600,000 through his insurance fraud scheme, he intended to defraud the insurance companies out of $4,200,000. The Court of Appeals affirmed the district court's calculation, noting that the Application Note to section 2F1.1 allows a district court in calculating the base offense level to use either the amount of actual loss or intended loss, whichever is greater. Secondly, the Court of Appeals held that the defendant was not entitled to a three-level reduction in his offense level because his scheme was only "partially completed" as contemplated by 2X1.1. The court reasoned that although the defendant did not actually receive the full amount of money he intended via his scheme, the actual offense for which he was charged, mail and wire fraud, was complete. Accordingly, where the substantive offense is complete, the downward adjustment in 2X1.1 should not be applied.



U.S. v. Snyder, No. 98-2574 (7th Cir. 9/2/99). In prosecution for child pornography related offenses, the Court of Appeals affirmed the district court's obstruction of justice enhancement pursuant to U.S.S.G. 3C1.1. The defendant, after molesting and photographing a minor, threatened to kill the minor if he revealed the abuse. However, at the time of the threat, the defendant was not under any investigation, and, thus, he argued that the threat did not constitute obstruction of justice. The Court of Appeals, however, held that the adjustment was proper because, although the threat occurred prior to investigation, the threat continued to deter the minor's cooperation after the investigation began. Indeed, because the defendant did not withdraw his threat after investigation began, the threat obstructed justice during the course of the investigation.

U.S. v. Garrett, No. 97-2070 (7th Cir. 9/1/99). In an appeal from the defendant's conviction for distribution of cocaine base, the Court of Appeals remanded the case for re-sentencing, finding that inadequate proof was presented to establish that the cocaine base the defendant distributed was in fact crack. Although the defendant, prior to sentencing, signed a stipulation that he "distributed cocaine base (commonly referred to as 'crack')," the court noted that, at the time the stipulation was made, the Court of Appeals had not clarified that cocaine base and crack were not synonymous terms. Additionally, the record showed that all parties used the two terms interchangeably. Accordingly, the record did not establish that the defendant's admission was knowing. Thus, the court remanded the case for re-sentencing, giving the government a second chance to meet their burden because, although such a second chance is not ordinarily afforded to the government, the parties did not have the benefit of the courts opinion in United States v. Adams, 125 F.3d 586 (7th Cir. 1997), where the court clarified the cocaine base/crack distinction.



U.S. v. Turchen, No. 98-2718 (7th Cir. 8/11/99). In prosecution for transportation of child pornography in interstate commerce, while the direct appeal was pending, the district court granted the government's Rule 35(b) motion for a reduction in the defendant's sentence. The Court of Appeals, however, vacated the district court's grant of the Rule 35(b) motion, holding that the district court was without jurisdiction to alter the defendant's sentence once an appeal of the original sentence had been taken. Specifically, the Court held that the filing of a notice of appeal is an event of jurisdictional significance and it confers jurisdiction on the court of appeals and divests the district court of its control of those aspects of the case involved in the appeal. Thus, the district court's grant of the Rule 35(b) motion impermissibly altered the very judgment the Court of Appeals was reviewing on appeal.



U.S. v. Tyler, No. 98-2032 (7th Cir. 8/6/99). In prosecution for conspiracy to distribute crack, the Court of Appeals reversed the district court's refusal to apply the "safety valve" set forth in 18 U.S.C. 3553(f). At sentencing, the district court denied the safety valve because the defendant's safety valve statement was not "the outpouring of information and evidence that . . . is required." The Court of Appeals, however, noted that prior to sentencing, the Government had rebuffed the defendant's invitation to interview him. Thus, finding that the defendant should not be penalized for the government's unwillingness to meet with him, the court found that the defendant's statement at sentencing along with the invitation to interview him satisfied the safety valve disclosure requirement.



U.S. v. Johnson, No. 98-2517 (7th Cir. 07/16/99). In prosecution for conspiracy to transport U.S. currency with the intent to promote the distribution of cocaine, the Court of Appeals reversed the district court's finding that the defendant was responsible for transporting in excess of $3.5 million. At the sentencing hearing, evidence was presented that showed the defendant transported $1.2 million, $800,000, and $1 million on three separate trips. However, no evidence was presented as to the amount transported by the defendant on a fourth trip. Thus, the district court calculated the amount for the fourth trip by simply adding up the known three amounts, dividing the sum by three, and to be conservative, cut that amount in half. Using this method, the district court concluded that the fourth trip must have involved at least $500,000 thereby giving a grand total for all four trips of $3.5 million. Given this total amount, the district court then increased the defendant's offense level by 7 levels as required by U.S.S.G. 2S1.1(b)(2)(H) when the offense involves $3.5 million or more. The Court of Appeals, although noting that district judges are entitled to make reasonable estimates of quantities, held that such findings must nonetheless be supported by reliable evidence in the record. Thus, in the present case, the court found that the small number of trips and the government's failure to explain why it did not elicit testimony regarding the amount involved in the fourth trip could not support an estimate as to the amount involved in the fourth shipment. Moreover, nothing in the record supported the assumption that any money was involved in the fourth trip because some evidence was presented that cocaine, not money, was to be involved in that shipment.



Statute of Limitations



U.S. v. Anderson, No. 98-4146 (7th Cir. 8/19/99). In prosecution for bank fraud, the Court of Appeals reversed the defendant's conviction because the statute of limitations had run prior to indictment. The indictment alleged that more than 10 years before the date of indictment, the defendant obtained a sum of money through bank fraud. However, the government argued that the defendant's later transfer of the funds from one account to another within the 10-year statute of limitations period brought the entire case within the limitations period. The district court agreed, and the defendant was convicted. The Court of Appeals held, however, that when the defendant received the funds, the fraud was complete. Indeed, the transfer of funds did not place the bank at any separate, distinguishable risk of financial loss. Thus, because the defendant did not take part in any additional conduct that would have placed the bank at a separate, distinguishable risk, the statute of limitations continued to run.



Sufficiency of Evidence



U.S. v. Hill, No. 98-4125 (7th Cir. 8/7/99). In prosecution for bank robbery, the defendant argued that the evidence at trial was insufficient to prove that he robbed the bank by "intimidation." The evidence at trial showed that the defendant did not possess a gun during the robbery and did not explicitly threaten the teller, although he did make a movement toward his jacket which implied he had a gun. The Court of Appeals held that a defendant's action can rise to the level of intimidation if he confronted a bank employee during the commission of the crime, even if the defendant was unarmed or did not explicitly threaten a bank employee. Moreover, although the defendant claimed that the victim-teller testified that she was not afraid of him, the court held that, because the intimidation element has an objective test of whether an ordinary person would reasonably feel threatened, the teller's subjective feelings were irrelevant.



Venue



U.S. v. Herrera-Ordones, No. 98-3261 (7th Cir. 8/19/99). In prosecution for illegal re-entry, the defendant challenged the Southern District of Indiana's venue, claiming that he was "found" in the Northern District of Indiana. The defendant was arrested by State authorities on an unrelated charge in the Northern District. At that time, the INS began an investigation of the defendant, but because the defendant gave the INS an alias, the INS was unable to determine whether the defendant had previously been deported. Thereafter, the Indiana Department of Corrections transferred the defendant to a facility located in the Souther District. Later, the INS confirmed the defendant's identity and his illegal status. In an issue of first impression, the Court of Appeals held that under 8 U.S.C. 1329, a person is "found" when the INS discovers the physical presence of the deported alien, and it ascertains the alien's identity and status. Thus, because the discovery of the alien's status and identity did not occur until he was located in the Southern District, venue was proper.





The Back Bencher


Published by: The 7th Circuit

Federal Defenders



Editor: Richard H. Parsons,

Federal Public Defender

Central District of Illinois



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Central District of Illinois



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ATTACHMENT






DEFENDANT'S MOTION IN LIMINE AND SUPPORTING MEMORANDUM

TO ALLOW TESTIMONY BY EXPERT OF DEFENDANT'S

DIMINISHED CAPACITY



Now comes the Defendant, __________________, by his counsel, and respectfully requests that the Court allow the defendant to introduce evidence through an expert witness of the Defendant's diminished capacity. In support of this motion, ________________ states as follows:

1. The Defendant is charged with ______________, in violation of __ U.S.C. ______.

2. That the Defendant has filed a notice of Expert Testimony of Defendant's Mental Condition, pursuant to the requirements of Fed.R.Crim.P. Rule 12.2.

3. That the Defendant intends to raise as a defense to the mens rea requirement in this case that the Defendant's diminished capacity prevented the Defendant from having the intent required to be guilty of the offense charged.

4. That the expert will testify that he has examined the Defendant and reviewed his medical history and that based on the expert's evaluation of the Defendant, the Defendant's medical history, and the facts of this case, the Defendant suffers from the following mental problems ____, ________, and ______ all of which impeded his ability to form the specific intent that the government is required to prove in this case.

ARGUMENTS AND AUTHORITIES

Under-well established law in this Circuit, a defendant is entitled to have the jury consider any theory of defense that is supported by law and that has some foundation in the evidence, however tenuous. United States v. Wiman, 77 F.3d 981, 985 (7th Cir. 1996); United States v. Robinson, 96 F.3d 246, 251 (7th Cir. 1996). "A defendant has the right to present evidence which is relevant to any viable defense, assuming that there are no other evidentiary barriers to admission." United States v. Fazzini, 871 F.2d 635, 640 (7th Cir. 1989). In this case, the Defendant intends to rely on the diminished capacity defense. See, United States v. Ricketts, 146 F.3d 492, 497 (7th Cir. 1998). The Defendant's diminished capacity prevented him from being able to form the requisite intent to be found guilty of the crimes for which he is charged. See Fazzini, 871 F.2d at 641.

Expert testimony concerning the defendant's mental conditions is relevant to the Defendant's defense and will otherwise assist the jury to understand the evidence or to determine a fact in issue concerning the Defendant's defense. See Fed.R.Evid. 401 and 702. Federal Rule of Evidence 704(b) allows that "testimony may be adduced exploring the particular characteristics of the mental disease and whether those characteristics render one afflicted with the disease able to appreciate the wrongfulness or the nature and quality of his behavior." United States v. Brown, 32 F.3d 236, 239 (7th Cir. 1994). The Defendant in this case suffers from ________, _______, and ________. These various mental problems affected his ability to form the requisite intent to be guilty of the offenses with which he is charged for the following reasons: _______________________. The Defendant's proposed expert, Dr. ______, will assist the jury in its understanding of the Defendant's mental diseases which will assist the jury in evaluating whether the Defendant was able at the time of the offense to form the requisite intent to have committed the offense.

WHEREFORE, the Defendant respectfully requests that the Court grant the Defendant's motion in limine to allow the Defendant to present expert testimony to support the defendant's diminished capacity defense.



Respectfully submitted,