Newsletter - Trimline

The BACK BENCHER

Vol. No. 18

Summer 1999

DEFENDER'S MESSAGE

Borrowing from Forrest Gump, the practice of law is like a box of chocolates. "You never know what you're going to get." I guess that's why we call it "practice." We continue to learn about a subject that is constantly changing as much as it stays the same. Accordingly, on September 16 of this year, we, along with the IACJ, offer you not only the opportunity to learn more about your chosen field of expertise, but also the chance to socialize, trade war stories, and play golf with your brothers and sisters of the criminal defense bar.

As the attached flyer shows, the one-day program for the Fourth Annual Panel Attorney's Seminar is packed with presentations by some of the best criminal defense attorneys in the country. Terry MacCarthy, Dale Cobb, Carmen Hernandez, Henry Martin, A.J. Kramer, Bill Marsh, Norm London, and Jack Rimland will speak on topics ranging from cross-examination to downward departures. I am not exaggerating when I tell you that the line-up of speakers assembled for this seminar is the best I've ever seen. Don't miss this unique opportunity to attend a world-class program right here in central Illinois.

Recognizing that one cannot live on education alone, we have also arranged a golf outing for the day after the seminar, September 17. This day of golf will be a foursome scramble played at the Den at Fox Creek, an Arnold Palmer signature golf-course. Foursome scrambles give even the most inexperienced golfer a chance. You can arrange your own foursome, or we will do it for you -- your choice. Not only will you have the opportunity to

play golf at this challenging course, but, of course, we'll also have plenty of time to catch-up with old friends and make new ones. Remember, too, that one not only "practices" law, but likewise "practices" golf. Thus, no matter how much or how little "practiced" you are, I encourage you to attend the golf-outing as well as the seminar program.

Looking forward to being with you in September, I remain . . .

Yours very truly,

RICHARD H. PARSONS

Federal Public Defender

Central District of Illinois

Table Of Contents

Dictum Du Jour 2

Churchilliana 2

Seminar Update 2

CJA/IACJ Golf Outing 3

$75 Hourly Rate Still On Track 3

Let Judges Be Judges! 3

Come Again? Petitions for Rehearing 10

Guideline Case Resource 10

CA-7 Case Digest 11

CJA/IACJ Seminar Info/Registration Attachment

CHECK IT OUT!

The Back Bencher is now available on the World Wide Web at "www.ca7.uscourts.gov". Click on the "Federal Defenders" link ....

Check it out!

Dictum Du Jour

Don't try to teach a pig to sing. Wastes your time and annoys the pig.

Christopher Buckley, Little Green Men p. 132 (Random House, 1999).

* * * * * * * * * *

Nothing is more destructive of respect for the government and the law of the land than passing laws which cannot be enforced. It is an open secret that the dangerous increase in crime in this country is closely connected with this.

Albert Einstein (referring to prohibition).

* * * * * * * * * *

I don't drink, so it's all the same to me.

Id.

* * * * * * * * * *

This is a very close case, and that's a testimonial both to Judge Easterbrook's powerful dissent and the steady erosion of the Fourth Amendment occasioned by the government's war on drugs.

United States v. Juan Benet Johnson, 170 F. 3d 708, 721 (7th 1999)(Evans, J. concurring).

* * * * * * * * * *

Expedition is the byword in administering the new system of postconviction review created by the Antiterrorism and Effective Death Penalty Act of 1996 ....

Phillips v. Seiter, 173 F.3d 609, 611 (7th Cir. 1999).

* * * * * * * * * *

The defendant argues that the admitted statements were so prejudicial to him that in spite of the district court's best efforts with its curative instruction for the jury to disregard that evidence, as a practical matter it was impossible to "unring the bell."

In our judgment, viewed in the context of all the evidence, even if initially admitted in error, that particular evidence was not a very "loud bell." The defendant has presented no evidence to convince us that this evidence was overwhelmingly prejudicial. See United States v. Shukitis, 877 F.2d 1322, 1329 (7th Cir.1989); United States v. Catalano, 450 F.2d 985, 990 (7th Cir.1971). The district court's instruction was adequate to "unring" this bell. We have no reason to assume that the jury disregarded the court's instruction. See Shukitis, 877 F.2d at 1329. A curative jury instruction is a very practical and useful way, in many circumstances, for the trial court to have an immediate opportunity to correct its own perceived errors before it is too late.

"Unring the bell" is a good analogy which can save a lot of words in making the point. That phrase originated, as far as we can find, in Sandez v. United States, 239 F.2d 239, 248 (1956), and was elaborated on in Dunn v. United States, 307 F.2d 883, 886 (5^th Cir. 1962), which added other pertinent analogies. "After the thrust of the saber it is difficult to forget the wound," was another, and then the most colorful one of all, "If you throw a skunk into the jury box, you can't instruct the jury not to smell it." Dunn, 307 F.2d at 886.

United States v. Lowis, 174 F.3d 881, 885 (7^th Cir. 1999).

CHURCHILLIANA

During a long session in the House of Commons, one of Churchill's Socialist opponents was droning on in a tedious discourse. Churchilll reacted by slumping in his seat and closing his eyes. Noting the nap by Churchill, the speaker said, "Must the right honorable gentleman fall asleep when I am speaking?"

Churchill blithely replied, "No, it is purely voluntary."

SEMINAR UPDATE!

The final chance to attend this summer's seminar, "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:

August 12-14, 1999 Portland, OR

A flyer explaining the seminar 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 (http://www.ca7.uscourts.gov). 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.

Panel Attorney/IACJ

First Annual Golf Outing

at The Den at Fox Creek

By: Donald Espinoza

Investigator, FPD

As you know, the summer is speeding by. Vacations are being planned and court calendars are already booked into September. This brings me to two important dates in September that you don't want to miss: September 16 and September 17.

On Thursday, September 16, the Federal Public Defender's Office is conducting its CAJ/IACJ seminar in Bloomington, Illinois.

On Friday, September 17, there are a limited number of tee-times reserved for a four man scramble round of golf at The Den at Fox Creek in Bloomington, IL. The Den is an Arnold Palmer-designed course that is simply a pleasure to play. Our tee-times begin at 10:06 a.m. and run until 11:23 a.m. The price of only $50 includes green fees, cart, refreshments and prizes! Prizes will be awarded for:

(1) Longest Drive

(2) Closest to the Pin

(3) Longest Putt

(4) Others

Get your team together and plan on having a terrific day at The Den!

For more information or to get signed up, please contact Donald Espinoza, Investigator/Tournament Director, at the Federal Public Defender's Office in Peoria at 309/671-7891.

Hope to see you there!

$75 Hourly Rate

for CJA Panel Attorneys Still On Track

Heeding the cry of Chief Justice William H. Renquist, Janet Reno, the NACDL, and countless criminal justice groups and organizations, the Senate Appropriations Committee recommended an increase in panel attorney hourly rates of compensation of $75 per hour in-court and $55 per hour out-of-court for all judicial districts beginning on April 1, 2000. Unfortunately, the committee's recommendation underfunds the overall Defender Services request. Hopefully, with the continued broad-based support from the criminal justice community, not only will the underfunding be addressed, but the hourly increase will pass both the House and Senate.

We will keep you updated as the proposed increase makes its way through Congress.

LET JUDGES BE JUDGES!

Downward Departures After Koon

By: Alan Ellis, Esq.

[Editor's Note: This is the second in a series about downward departures recognized by the court in light of the 1996 Supreme Court's decision in United States v. Koon. Part One discussed Diminished Capacity. Part Three will feature aberranat behavior. We will include additional articles in future volumes of "The Back Bencher"]

Part II

Post-Offense Rehabilitation

Legislative history of the Sentencing Reform Act of 1984 reflects that it was not Congress' aim to straight jacket a sentencing court, compelling it to impose sentences like a robot inside a sentencing guidelines' glass bubble, and preventing it from exercising discretion, flexibility, or independent judgment. The sentencing judge has an obligation to consider all the relevant factors in a case and to impose a sentence outside the guidelines in an appropriate case. The purpose of the U.S. Sentencing Guidelines it to provide a structure for evaluating the fairness and appropriateness of the sentence for an individual offender, not to eliminate the thoughtful imposition of individualized sentences. (S. Rep. No. 225, 98^th Cong., 2d Sess. 52 (1985), reprinted at 1994 U.S.C.C.A.N. 3182, 3235.)

Prior to U..S. v. Koon, ___ U.S. ___, 135 L.Ed.2d 392, 116 S.Ct. 2035 (1995), many judges, mindful of Congress' goal of eliminating unwarranted disparity in the sentencing of similar offenders for similar offenses, misperceived that the resultant guidelines that had been promulgated to implement this policy had forced them into imposing mechanical sentences in virtually all cases. Unless a downward departure was specifically provided for in the guidelines, it was all too often thought that a sentencing judge had virtually no power to depart.

And then along came Koon. Koon reminded judges that they could still be judges and with it the straight jacket loosened.

For example, in the area of post-offense rehabilitation, the Fourth Circuit in U.S. v. Brock, 108 F.2d 31 (4^th Cir. 1997) reversed pre-Koon case law and held that post-offense rehabilitation was now a proper ground for a downward departure. Earlier Fourth Circuit precedent - U.S. v. Van Dyke, 895 F.2d 984, 986-86 (4^th Cir. 1990) - had held that post-offense rehabilitative methods could be considered for an acceptance of responsibility adjustment pursuant to U.S.S.G. §3E1.1, but could not be a mitigating circumstance providing further sentence mitigation through a downward departure.

Brock pleaded guilty to two counts of credit card fraud. The district court, despite expressing a desire to depart downward, refused the defendant's request for a downward departure based upon his post-offense rehabilitative efforts because it believed it lacked the authority to depart based on Van Dyke.

On appeal, the Brock court vacated the defendant's sentence holding that "extraordinary exceptional efforts of rehabilitation" could constitute a proper basis for consideration of a downward departure.

In reaching its decision, the Brock court relied on the Supreme Court's opinion in Koon, which it read as support for the conclusion that the factor of "post-offense rehabilitation" had not been forbidden by the U.S. Sentencing Commission as a basis for departure under the appropriate circumstances. Since post-offense rehabilitation is not a forbidden factor, the Brock court next sought to fit the factor into one of the other categories identified in Koon:

(1) Was the factor encouraged by the commission as a basis for departure and was it either: (a) taken into account in the applicable guideline itself, or (b) not taken into account in the guidelines;

(2) Was the factor discouraged by the commission as a basis for departure; or

(3) Was the factor unmentioned by the commission?

If the factor is one upon which the commission encourages departure and it is not taken into account by the applicable guidelines, a court may exercise its discretion and depart on that basis. If an encouraged factor is taken into account in the applicable guideline, or if the factor is a discouraged one, then departure is permissible only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present.

Similarly, if the factor is neither encouraged or discouraged - as in the case of post-offense rehabilitation - but listed by the commission as one appropriately considered in applying an adjustment to the guidelines, a court may depart only if the factor is present to such an exceptional or extraordinary degree that it removes the case from the heartland of decisions to which the guideline is fashioned to apply.

Finally, if a factor is one that is unmentioned by the guidelines, a court must take into consideration the structure and theory of both relevant individualized guidelines and the guidelines taken as a whole and then determine whether the circumstances presented are sufficient to remove the case from the heartland of applicable guidelines.

Adopting the reasoning of Van Dyke, the Brock court concluded that the guidelines had already taken into account the factor of post-offense rehabilitation because the commentary to the guidelines expressly instructed that such effort be considered in determining a defendant's eligibility for an acceptance of responsibility adjustment pursuant to U.S.S.G. §3E1.1, Application Note 1(g). Therefore, the court concluded a departure based on post-offense rehabilitation was warranted when it is "present to such an exceptional degree that the situation cannot be considered typical under the circumstances of which an acceptance of responsibility adjustment is granted." Thus, the appellate court remanded the case to the district court to set forth specific factual findings concerning what efforts on Brock's part it considered exceptional enough to make the case atypical of those situations in which the acceptance of responsibility adjustment is usually sufficient to reward post-offense rehabilitation.

In United States v. Sally, 116 F.3d 76 (3d Cir. 1997), in light of recent decisions in Koon and Brock, the Third Circuit vacated Sally's sentence and remanded the case to the district court to determine whether Sally was entitled to a downward departure based on his post-offense rehabilitative methods.

Sally was a bagger and lookout for a crack conspiracy when he was 17 years old. As a result of his participation in the conspiracy, Sally was indicted and convicted of drug charges as well as charges relating to the use of a gun in drug trafficking. He was sentenced in December 1991.

In 1996, Sally's conviction for use of a gun during drug trafficking was dismissed pursuant to a section 2255 motion. As a consequence, his sentence was vacated and a resentencing hearing held later that year. At the hearing, Sally's counsel requested that the district court consider a downward departure based on a combination of the two factors: (1) the fact that Sally was 17 years old during half the time he participated in the conspiracy, and (2) the fact that since he was first jailed, Sally had demonstrated increased maturity, earning a GED and an additional nine college credits. These factors, Sally's counsel argued, presented "sufficiently unusual circumstances" to permit the court to depart downward. After reviewing Koon and Brock, the Third Circuit held that post-offense rehabilitation efforts, including those that occur post-conviction, may constitute a significant factor warranting a downward departure provided that the efforts are so exceptional as to remove the particular case from the heartland in which the acceptance of responsibility adjustment was intended to apply. In setting a standard for post-offense rehabilitation, the Third Circuit indicated that, at a minimum, there must be evidence demonstrating that a defendant "had made concrete gains towards turning his life around" before a sentencing court could properly rely on extraordinary post-offense rehabilitation efforts as a basis for downward departure:

"Unlike the usual adjustment for acceptance of responsibility where defendants may all-too-often be tempted to feign remorse for their crimes and be rewarded for it, we view the opportunity for downward departure based on extraordinary or exception al post-conviction rehabilitation efforts as a chance for truly repentant defendants to earn reductions in their sentence based on the demonstrated commitment to repair and to rebuild their lives. As such we conclude that as a baseline, downward departures based on extraordinary or exceptional post-conviction rehabilitation efforts are proper provided that the sentencing court makes factual findings demonstrating that the defendant has achieved real gains in rehabilitating himself and changing his behavior."

Child cyberporn cases - the current "crime du jour" - seem to lend themselves to downward departures based on post-offense rehabilitative efforts. In United States v. Barton, 76 F.3d 499 (2d Cir. 1996), the defendant pleaded guilty to knowingly receiving interstate commerce material involving pictures of minors engaged in sexually explicit conduct in violation of 18 U.S.C. §2252(a)(2). At sentencing, over the government's objections, the court departed from the sentencing guideline range of 15-21 months' imprisonment in light of Barton's psychological condition, his limited involvement with child pornography, his nonpredatory nature, and his efforts towards rehabilitation. It sentenced him to a term of probation subject to electronically monitored home confinement, psychiatric and/or psychological counseling, and community service.

Although the Second Circuit agreed that an individual convicted of receiving child pronography may be entitled to a downward departure in light of his or her rehabilitative efforts, provided those efforts are truly extraordinary, the court noted that the evidence in Barton's case did not justify the sentencing judge's finding that the defendant had made extraordinary efforts at rehabilitation. The court of appeals stated that the mere fact that Barton had sought rehabilitation did not of itself justify a reduction in sentence because a tentative step towards rehabilitation was not usually enough to warrant a downward departure. Barton's psychotherapist had not cited any objective indications of his patient's progress towards overcoming his condition. Thus, the court of appeals vacated Barton's sentence and remanded for resentencing.

The court contrasted the case with United States v. Maier, 975 F.2d 944, 948-49 (2d Cir. 1992), which approved a downward departure to probation in light of a heroin defendant's extraordinary efforts in overcoming her addiction, only after the district court had:

"Conscientiously examined all the pertinent circumstances, including the nature of the defendant's addiction, the characteristics of the program she had entered, the progress she had made, objective indications of her determination to rehabilitate herself, and her therapist's assessment of her progress towards rehabilitation and the hazards of interrupting that progress."

Significantly, however, the Barton court invited the district court, on remand, to allow the government and Barton full opportunity to offer any further relevant evidence substantiating Barton's rehabilitation. The opinion ended by stating that if the sentencing judge then found support in the record for a conclusion that Barton's rehabilitative efforts were extraordinary, reducing his sentence from a minimum of 15 months to probation would not be unreasonable. On remand, the sentencing judge did just that.

In another child pornography case, Judge Richard G. Kops of the District of Nebraska granted a defendant a downward departure on the grounds that he was unusually susceptible to abuse in prison and had engaged in extraordinary post-offense efforts at rehabilitation. (U.S. v. Shafky, 939 F.Supp. 695 (D.Neb. 1996).) Shafky, a Nebraska state trooper at the time of the commission of the offense, was a gay male of diminutive stature who was charged in a highly publicized case of receiving pornography involving minors.

Among the factors that the court considered in finding extraordinary post-offense rehabilitation was the fact that Shafky had entered a nationally recognized sex offender program at the University of Minnesota Medical School; the nature of the program; the progress he was making to rehabilitate himself; his therapist's assessment of his progress towards rehabilitation; the fact that his progress had been described by the program director as being "extraordinary"; the hazards of interrupting that progress; and finally, his excellent long-term prognosis and minimal risk of reoffending.

Rather than impose a sentence of 15-21 months' incarceration as called for by the guidelines, the judge placed Shafky on probation conditioned upon six months of home confinement, completion of the sex offender program, community service, and a fine.

Finally, in yet another child pornography case, the Eighth Circuit also recognized that exceptional post-offense rehabilitation may warrant a downward departure. In United States v. Kapitzke, 130 F.3d 820, No. 97-1540 (8^th Cir. 1997), the defendant had exposed himself in front of a 13-year-old girl. In his truck and at home, police found pictures and computer files of child pornography from the Internet. The district court departed downward based on the financial burden of defendant's imprisonment on his family, his susceptibility to abuse in prison, and his post-offense rehabilitation efforts.

After eight months of sex offender and chemical dependency treatment, the director of the sex offender treatment program was "extremely impressed" with Kapitzke's efforts and believed that he had a high probability of success. His chemical dependency counselor had never had a client work harder than Kapitzke and believed his prognosis was "very good". Finally, a doctor experienced in addiction medicine described the defendant's recovery up to that point as "truly outstanding."

The Eighth Circuit reversed, finding that the first two reasons did not justify a departure, but the third did. Because the appellate court did not know if the district court would have imposed the same sentence absent the invalid departure factors - probation conditioned upon nine months of community confinement with work release - it remanded for resentencing. On remand, the sentencing was identical to the prior sentence.

Downward departures for post-offense rehabilitation have also been recognized in the area of chemical dependency. In the leading pre-Koon case of U.S. v. Maier, supra, the evidence disclosed that Maier had been purchasing distributable quantities of heroin during a two-year period that ended with the arrest of her supplier. Maier pled guilty to distribution of heroin and possession of heroin with intent to distribute. At her request, sentencing was delayed three months to permit her to enter a residential drug treatment program. Subsequently, sentencing was further postponed for more than a year to allow her the opportunity to pursue additional rehabilitative programs. This included a methadone maintenance program at St. Luke's-Roosevelt Hospital in New York City, a three-week, in patient detoxification program in Newark, and treatment by a psychoanalyst specializing in addiction disorders. At sentencing, Judge Robert W. Sweet, of the Southern District of New York, initially determined that the applicable guideline range for Maier was 51-63 months. However, taking note of his departure authority as well as the statutory command that the sentencing judge "shall consider", among other things, "the history and characteristics of the defendant" and the need for the sentence imposed to provide the defendant with needed medical care in the most effective manner, 18 U.S.C. §3553(a)92)(D), the judge departed downward from the applicable guideline range and imposed a sentence of three years probation conditioned upon Maier participating in a community drug treatment program adding that revocation of probation would be mandatory for possession of a controlled substance.

On appeal, the Second Circuit discussed at length the extent to which a drug addict's efforts at rehabilitation could permit a downward departure from the applicable sentencing guideline range, noting that one of the arguments espoused by the government against awarding such a departure rested in large part on the view that "rehabilitation is no longer a direct goal of sentencing." The Maier court disagreed, noting only that the Sentencing Reform Act of 1984 stands for the significantly different proposition that rehabilitation is not an appropriate ground for imprisonment:

"[The] Sentencing Commission shall ensure that the guidelines reflect the inappropriateness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant or providing the defendant with needed educational or vocational training, medical care or other correctional treatment."

(21 U.S.C. §994(k)).

The Sentencing Reform Act rejects imprisonment as a means of promoting rehabilitation. Congress wanted to make sure that no defendant was locked up in order to put him in a place where it was hoped that rehabilitation would occur. Incarceration would have to be justified by some traditional penological purposes of incapacitation, general deterrence, specific deterrence, and retribution. But Congress expressed no hostility to rehabilitation as an objective of sentencing and required sentencing judges to consider, among other things, "providing the defendant with needed educational or vocational training, medical care or other correctional treatment in the most effective manner.":

"Since rehabilitation may not be a basis for incarceration but must be considered as a basis for a sentence, Congress must have anticipated that sentencing judges could use their authority, in appropriate cases, to place a defendant on probation in order to enable him to obtain "needed ... medical care or other correctional treatment in the most effective manner."

(18 U.S.C. §3553(a)(2)(D)).

In United States v. Workman, 80 F.3d 668 (2d Cir. 1995), defendant Jamison was granted a two-level downward departure that would take into account his rehabilitation. Upon finishing service of a 152-day sentence in Michigan for another offense in the fall of 1990, Jamison left a gang in which he was a member and joined the U.S. Army. He rehabilitated himself and completed his military service honorably. Moreover, the rehabilitation was not undertaken in the face of impending federal prosecution for the crimes at issue in the appeal. It was an independent and quite impressive effort. Although the government correctly argued that military service itself was not a ground for downward departure and the Second Circuit agreed, it nonetheless found that military service as a sign of rehabilitation would warrant a post-offense rehabilitation downward departure.

In United States v. Core, 125 F.3d 74 (2d Cir. 1997), the defendant was resentenced on an unchallenged drug conviction after he had successfully challenged a related firearms conviction. He sought a downward departure for post conviction rehabilitation during incarceration on the initial sentence. He proffered evidence of his rehabilitation in prison. The district court declined to depart, not because it found departure unwarranted on the facts but because it believed departure was forbidden under the circumstances. In reversing, the court of appeals found nothing in the pertinent statutes or the sentencing guidelines that prevented a sentencing judge from considering post-conviction rehabilitation in prison as a basis for departure if resentencing became necessary. Accordingly, it remanded for resentencing so that the district court could consider whether the facts of this case warranted a downward departure.

In Core, as in other cases, the government contended that in formulating the guidelines, the commission adequately considered a defendant's post-conviction rehabilitation. To demonstrate this "adequate consideration", the government relied principally on U.S.S.G. §3E1.1(a), which permits a two-level reduction "if the defendant clearly demonstrates acceptance of responsibility for his offense." In rejecting a similar argument in Maier, the Second Circuit noted that "to permit 3E1.1 to serve as the Commission's adequate consideration of all mitigating post-offense conduct . . . therefore precluding departures regardless of anything constructive that the defendant might do after his arrest, that benefits himself, his family or his community, undermines the statutory standard for departures, 18 U.S.C. §3553(b), as well as the statutory requirement to consider the 'characteristics of the defendant' 18 U.S.C. §3553(a)(1)." (Maier, 975 F.2dat 948).

The government also argued that because of a 1992 amendment to the commentary to 3E1.1, Maier was no longer controlling. This commentary provides a non-exclusive list of "appropriate considerations" for the sentencing court to use in determining whether a defendant is entitled to a reduction for acceptance of responsibility. (U.S.S.G. §3E1.1, Application Note 1.) In an amendment effective November 1, 1992, and promulgated after Maier, the commission added to this list as a new consideration, post-offense rehabilitative efforts (e.g., counseling or drug treatment). (U.S.S.G. §3E1.1, Application Note 1(g).) The government contended that the inclusion of post-offense rehabilitation as a factor relevant to the deduction for acceptance of responsibility provided adequate consideration of such rehabilitation and precluded departure on that basis. Answering this argument, the Core court stated:

"We see no indication that the Commission intended its mention of post-offenses rehabilitation as one factor affecting acceptance of responsibility to preclude consideration of rehabilitation as a basis for departure. Acceptance of responsibility is easily achieved and is accordingly of relatively low value. Credit for acceptance of responsibility can be earned by any offender who admits the offense, pleads guilty and is found not to have persisted in criminal conduct. See U.S.S.G. §3E1.1, Application Note 3. Defendants who accomplish a successful rehabilitation go far beyond what is required to qualify for the deduction under 3E1.1.

The successful rehabilitation for a criminal on the other hand is a valuable achievement of the criminal process."

The imbalance between the importance of this successful rehabilitation for the criminal offender and the relatively small significance attached to acceptance of responsibility suggests that the commission did not intend its inclusion of rehabilitation as one factor bearing on acceptance of responsibility to bar departure based on successful rehabilitation. It also suggests that a highly successful rehabilitation is not taken into consideration appropriately ("in kind" and "degree") by the mention of rehabilitation as a factor affecting (U.S.S.G. §3E1.1).

In United States v. Williams, 65 F.3d 301 (1995), the Second Circuit took the highly unusual step of granting a downward departure not to reward a defendant's post-offense rehabilitation, but rather, in order to allow the defendant to enter a Bureau of Prisons drug treatment program to which he had been admitted. The Second Circuit approved the district court's use of its departure power to facilitate - as opposed to rewarding - rehabilitation for the following reasons:

The court noted that 18 U.S.C. §3553(a)92)(D) mandates a sentencing court to take account of the defendant's need for "medical care or treatment" in the most effective manner.

The court was mindful of the uncertain effect that prison life might have had on Williams's attitude and how it might thwart any post-prison opportunities for rehabilitation, should such opportunities still exist after a significant number of years, considering the vagaries of federal funding.

The Williams court recognized that the sentencing judge did not depart from the guideline sentencing range of 130-162 months simply because Williams had entered a drug treatment program. Rather, it departed because, under the facts of the case, there was effectively no other sentence that would accord with the requirements of 18 U.S.C.. §3553(a)(2)(D):

"The district court determined that Williams was an excellent candidate for rehabilitation given his prior history, demeanor, post-arrest resolve, and acceptance into a "special and selective" treatment program based on criteria apprised by experts in the field. However, the only program available to Williams would not take him unless he were within 18 to 36 months of release. To sentence him to even the minimum term of 130 months, the district court reasons, would require Williams to wait some six or seven years to begin treatment. If in the interim . . . the program was terminated for budgetary or other reasons or Williams' resolve weakened under the pressures of prison life, the chance of curing him of his addiction and perhaps his criminal ways would vanish."

The court of appeals concluded that the purpose of the sentencing guidelines was to provide a structure for evaluating the fairness and appropriateness of a sentence for individual defendants , not to eliminate the thoughtful imposition of individualized sentences.

Recognizing that the sentence reasonably accounted for Williams's rehabilitative needs as described by 18 U.S.C. §3553(a)(2)(D) and that if Williams was cured of his addiction, it might ultimately serve to protect the public from future criminal acts that he might otherwise commit, the court of appeals approved a lengthy supervised release term to allow the district court to sentence Williams to a prison term within his guideline range should he fail to meet the requirements of supervised release. The court of appeals, however, took the unprecedented step of then vacating the sentence and remanding for resentencing so the court could amend its sentence to ensure that, if Williams entered and then abandoned drug treatment, he would be returned to prison.

A downward departure for post-offense rehabilitation has not been limited to child pornography or drug cases. In United States v. Nieman, 929 F.Supp. 254 (S.D.N.Y. 1993), the court departed downward from a guideline range of 10-16 months to probation conditioned upon 10 months of home confinement in a case in which the defendant had been convicted of mail fraud and use of a false Social Security number.

Judge Vincent L. Broderick of the Southern District of New York was presented with the question of whether non-narcotic rehabilitation prospects may be a basis for a downward departure from the guidelines in an appropriate case where "chances of rehabilitation without imprisonment are good but with imprisonment are minimal or non-existent." Finding that Congress had directed that, in addition to deterrence and prevention of further crime, an objective of sentencing is to provide "the defendant with . . . correctional treatment in the most effective manner", 18 U.S.C. §3553(a)(2)(D), Judge Broderick held that:

"Where a regime combining effective punishment for purposes of deterrence and supervision for purposes of prevention can further be combined with rehabilitation efforts involving that supervision, the objective of the statute may be fulfilled; if incarceration would be ineffective for these purposes and counterproductive from the viewpoint of rehabilitation, a departure from the Guidelines is appropriate."

Judge Broderick also noted that nothing in the statutes or case law suggests a restriction of rehabilitation to any one type of regimen or that any single type of problem lends itself to rehabilitative measures:

"Members of the defense were his family, community and religious institutions and appropriately tailored community service help to guide a wrongdoer toward useful citizenship.

Home confinement may be rehabilitational as well as punitive if the person involved must modify a lifestyle and become aware of the consequences of committing illegal acts, while at the same time avoiding the sometimes negative atmosphere in places of imprisonment."

Judge Broderick concluded:

"The Guideline would, without departure, have called for imprisonment for ten to sixteen months, which would interfere with rather than enhance Nieman's prospect for rehabilitation. Moreover, the home detention with explicit family and community reinforcement will exert greater general deterrence than Nieman's isolation from the rest of society."

Akin to post-offense rehabilitation is the concept of a defendant's extreme remorse. Although the guidelines may discourage the consideration of a defendant's remorse as a basis for a downward departure in most cases, they do not contain an absolute ban on a district court's indulging in such a consideration. Hence, the United States Court of Appeals for the Seventh Circuit remanded a case for resentencing because the district court incorrectly believed that it could not base a downward departure on post-offense extraordinary remorse. (U.S. v. Jaroszensko, 92 F.3d 486 (7^th Cir. 1996)).

A final note on a thoughtful decision by Judge Jack B. Weinstein, senior district court judge of the Eastern District of New York. Judge Weinstein, a longtime pioneer in federal sentencing, recently held that in light of the new downward departure for post-offense rehabilitation, sentencing may be postponed in order to allow a defendant further sufficient time to demonstrate rehabilitation prior to the imposition of sentence. (U.S. v. Flowers, ___ F.Supp. ____, 1997 App. LEXIS 17029 (1997)). Analogizing delay in sentencing in order to give a defendant an opportunity to demonstrate post-offense rehabilitation to federal pretrial diversion, Judge Weinstein stated:

"With the advent of the Federal Sentencing Guidelines, it has been argued that rehabilitation has a subsidiary role compared to deterrence and just desserts punishment as rationales for sentencing.

This view is mistaken. Rehabilitation is still a fundamental consideration for federal sentencing.

Recent cases have underscored the importance of rehabilitation as a factor to be taken into account when rendering a sentence.

So essential is the issue of rehabilitation under our criminal justice system that presentence rehabilitation may be used as a ground for downward departure from the too-rigid Federal Sentencing Guidelines.

Downward departure for post-arrest rehabilitation complements the notion of just retribution, because the rehabilitated offender . . . has both an assorted responsibility for her acts and taken positive steps towards reintegration into productive society."

Judge Weinstein concluded:

"Under the appropriate circumstances, adequate steps should be taken to allow a defendant facing sentencing an opportunity to rehabilitate herself and change her circumstances. Such steps may include in an appropriate circumstance and with adequate controls, granting a request for deferred sentencing, similar to the sort of adjournment granted under structured diversion programs, so that a defendant may restore herself, on her own, to her 'greatest potential'."

Koon made clear that a federal court's examination of whether a factor can ever be an appropriate basis for a departure is limited in determining whether the commission has proscribed, as a categorical matter, consideration of the factor. If the answer to the question is "no" - as it will be most of the time - the sentencing court must determine whether the factor, as occurring in the particular circumstances, takes the case outside the heartland of the guideline.

Race, sex, national origin, creed, religion, or socioeconomic status; lack of youthful guidance or similar circumstances indicating a disadvantaged upbringing; personal financial difficulties or economic pressure on a trade or business may never provide an appropriate basis for a departure. All other factors, however, may potentially provide a basis for departure under appropriate circumstances.

Let judges be judges. Creative lawyering will help.

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.

Come Again?

Petitions for Rehearing in the Seventh Circuit

By: David B. Mote

Deputy Chief Federal Defender

Hope springs eternal. Consequently, we are sometimes moved to ask for rehearing or rehearing en banc in the usually misguided hope that, with just a bit more explanation, the Court of Appeals will understand why we should have prevailed in our last appeal. While knowing some basic rules will not guarantee that you will be successful in obtaining rehearing, it can help you avoid unnecessary headaches.

The first thing you must know about petitions for rehearing is that they "must be physically filed with the clerk by the due date." Practitioner's Handbook for Appeals to the United States Court of Appeals for the Seventh Circuit (1999 ed.) XXVI. The due date for a petition for rehearing is 14 days from the entry of the judgment and the "mail box rule" does not apply. Id.

The next thing you should know is how the Seventh Circuit generally views petitions for rehearing. "Petitions for rehearing are filed in many cases, usually without good reason or much chance of success. Few are granted." Id. Personally, I see little point in seeking rehearing unless there is either a dissent or a conflict between the instant decision and a prior decision rendered by the Seventh Circuit.

You should also be aware that a petition for rehearing is not a pre-requisite to the filing of a petition for certiorari in the Supreme Court, although the timely filing of a petition for rehearing tolls the time for filing a petition for a writ of certiorari. Id.

Fifteen copies of a petition for rehearing must be filed; thirty copies are required when filing a petition for rehearing with suggestion for rehearing en banc. Id.; Cir. R. 40(b). The cover of the petition should be the same color as was the party's main brief. The page limit on a petition for rehearing is 15 pages. Fed. R. App. P. 40(b).

"A party who suggests that an appeal be reheard en banc must state in a concise sentence at the beginning of the petition why the appeal is of exceptional importance or with what decision of the United States Supreme Court, [the Seventh Circuit,] or another court of appeals the panel decision is claimed to be in conflict." Practitioner's Handbook for Appeals to the United States Court of Appeals for the Seventh Circuit (1999 ed.) XXVII. Failure to comply with this provision risks sanctions.

A petition for rehearing "must state with particularity each point of law or fact that the petitioner believes the court has overlooked or misapprehended and must argue in support of the petition." Fed R. App. P. 40(a)(2). The petition must include a table of contents with page references and a table of cases (arranged alphabetically), statutes and other authorities with references to the pages of the petition where they are cited. Cir. R. 40(a).

Finally, you should be aware that you can (and should) obtain a copy of the Practitioner's Handbook for Appeals to the United States Court of Appeals for the Seventh Circuit (1999 ed.) free of charge from the Clerk's Office for the U.S. Court of Appeals for the Seventh Circuit.

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: George F. Taseff

Senior Litigator

With Assistance From:

Andrew McGowan and Jonathan Hawley, Assistant Federal Defenders

Anders Briefs

United States v. Fernandez, No. 98-1146, slip op. (7^th Cir. 4/20/99). In a conspiracy to distribute marijuana case, defense counsel filed an Anders brief and motion to withdraw. Finding that the Anders brief was inadequate, the Seventh Circuit granted defense counsel's motion to withdraw but appointed new counsel upon appeal. At a bare minimum, the Anders brief should (1) identify, with record in references and case citations, any feature of the proceeding in the District Court that a court or another lawyer might conceivably think what citing to the appellate court as a possible ground of error; (2) sketch the argument for reversal that might be made with respect to each potential ground of error; and (3) explain why he nevertheless believes that none of these arguments is non-frivolous. In this case, counsel brief did not sketch the argument for reversal and was therefore inadequate.

Appeals

United States v. Torres, No. 98-1272 (7^th Cir. 3/16/99). In a complex, multi-defendant appeal, the Court of Appeals held that each defendant is not entitled to his own 14,000 word brief. The defendants were ordered to file a joint brief, with allowance for supplemental briefs for each defendant. Although a joint brief was filed, each defendant filed a supplemental brief on different issues, but issues that applied to all other defendants as well. Thus, because none of the defendants raised issues applicable to him alone, the supplemental briefs in fact constituted one large brief in excess of the court's word-count limitations. Accordingly, the court ordered the defendants to file a new joint brief, disallowing any individual briefs.

Attorney-Client Privilege

United States v. Frederick, No. 98-2644, 4/15/99. In an action to enforce a summons served on an attorney who prepared tax returns of clients who were under IRS investigation, the Seventh Circuit held that the desired information was not protected by the attorney-client privilege. Noting that there is no common law accountant's or tax preparer's privilege, the court held that a lawyer enjoys no privilege when he "is doing accountant's work." Second, regarding documents prepared by the attorney for purposes of both filing tax returns and representing the clients in the IRS investigation, such dual-purpose documents were not privileged because people in litigation would then be able to invoke an accountant's privilege of sorts where they used a lawyer to fill out their tax returns. Finally, work-product prepared in connection with an IRS audit is not privileged because "taxpayers in audit proceedings are represented by accountants, or not represented at all, rather than by lawyers; and so the principal effect of equating audits to litigation and thus throwing the cloak of privilege over the audit-related work of the taxpayer's representative would be to create an accountant's privilege useable only by lawyers."

In Re Subpoenaed Grand Jury Witness v. United States, No. 98-3545 (7^th Cir. 3/23/99). The Seventh Circuit quashed a grand jury subpoena requiring an attorney to disclose a third-party payer of fees for some of his clients. Although noting that as a general principle, information regarding a client's fees is not protected by the attorney-client privilege, where disclosure of such information would identify a client who is potentially involved in a targeted criminal activity which would lead to revealing that client's motive to pay legal bills for some of the attorney's other clients, such information is protected.

Brady v. Maryland

United States v. Bhutani, No. 98-1154 (4/28/99). In prosecution for manufacturing and distributing mislabeled and/or adulterated generic pharmaceutical products, the Court of Appeals reversed the District Court's grant of a new trial because of Brady violations and newly discovered evidence. The defendants were accused of "spiking" a drug with a chemical which would conceal the fact that the drug was too old for distribution. After the defendants were convicted, the FDA published new guidelines indicating that the old drugs would have been effective notwithstanding their age. Thus, the defendants argued that the new information undermined the government's theory that the defendants jeopardized the safety of the public for profit. The District Court agreed and granted a new trial. The Court of Appeals, however, held that the government committed no Brady violation because the information in question was not "in the possession of the prosecution" where the new FDA guidelines went into effect after the trial had ended. Secondly, a new trial was not warranted for newly discovered evidence because the question of whether the spiked drugs were ineffective at the time of the spiking was not an issue in the case. Rather, the issue was whether the defendants tried to conceal the age of the drugs, regardless of whether the drugs were effective or ineffective at that time.

Crivens v. Roth, No. 98-1722 (4/12/99). In a habeas case where, prior to the petitioner's state trial, the petitioner repeatedly requested information from the state related to the criminal history of its witnesses for purposes of impeachment, and the state did not disclose the criminal history of a vital prosecution witness, the Seventh Circuit found a Brady violation sufficient to overturn the petitioner's conviction. Although the state claimed that the criminal history data was difficult to obtain because the witness used an alias, the court found it "difficult to accept" that the state could not have discovered the witness had an alias. Second, the criminal history information was in possession of the prosecuting state, unlike other cases where witnesses' criminal history records were in the possession of a state other than the prosecuting state. Finally, the information was material in that the credibility of the witness whose criminal records were suppressed played a vital role in the defendant's conviction where the state's case rested primarily on that witness's eyewitness testimony.

Competency

United States v. Grimes, No. 98-1828, slip op. (7^th Cir. 4/19/99). After the defendant plead guilty but before he was sentenced to mail fraud, he moved to set aside his guilty plea and to have the court appoint a different lawyer to represent him. The new attorney moved that the judge order a psychiatric evaluation for the defendant. The District Court denied the motion for the psychiatric evaluation. Affirmed: the District Court did not err in denying the motion for psychiatric evaluation because the District Court had the opportunity during the change of plea colloquy to make at least a rough assessment of the defendant's capacity to participate in the remaining proceedings and the only other evidence that he may not have been competent was that he saw a psychiatrist, was depressed, was on medication, was suspicious of his lawyers, and had trouble concentrating.

Double Jeopardy

United States v. Seawood, No. 97-4127 (7^th Cir. 4/7/99). In prosecution under old version of carjacking statute (containing "possession of a firearm" as an element) and use or carry of a firearm during a crime of violence pursuant to 18 U.S.C. §924(c), the Court of Appeals rejected the defendant's claim that his conviction on both counts violated the Double Jeopardy Clause because his convictions amounted to multiple punishments for a single offense. The court reasoned that Congress can provide multiple punishments for the same act. Congress made plain its intention to "stack punishments" with §924(c) offenses.

Evidence

United States v. Holt, No. 97-2419 (7^th Cir. 3/11/99). In prosecution for conspiring to transfer an automatic weapon, the Seventh Circuit held that the District Court's admission of testimony regarding books and pamphlets sold at the defendant's gun shop was plain error. The government introduced evidence about the defendant's sale of books such as the Anarchist's Cookbook to attack the defendant's "law abidingness." The court, however, held that there was no evidence that the defendant read the books, and it was undisputed that the sale of the book was legal. Although the admission was error, however, the court held it to be harmless given the overwhelming weight of the other evidence.

Secondly, the court upheld the District Court's refusal to consider the defendant's claim that his cross-examination was improperly limited. The defendant failed to raise the issue on his motion for a new trial, and although he filed a later "supplemental motion," the Court of Appeals held that a defendant cannot amend a motion for a new trial to include an additional ground unless the District Court granted an extension of time within the original seven day filing time period.

Finally, the Court of Appeals vacated the defendant's sentence because the District Court improperly enhanced the defendant's sentence for "abuse of a position of trust." Although the defendant was a police officer and had run an unauthorized license plate check, neither of these facts "significantly facilitated" the defendant's scheme to transfer an automatic weapon as required for receipt of the enhancement.

United States v. Gibson, No. 98-1503 (7^th Cir. 3/4/99). In prosecution for distributing crack, the Seventh Circuit held that the District Court properly allowed the admission of evidence related to the defendant's attempt to illegally purchase guns. The District Court allowed into evidence portions of a taped conversation between the defendant and a government agent which contained not only conversations about the purchase of drugs, but also the purchase of guns. The Seventh Circuit held that the gun conversation was "intricately related" to the drug transactions because the discussion was contemporaneous with the drug transactions and the conversation was necessary to provide the jury with a complete story.

U.S. v. Eskridge, No. 98-1377 (7^th Cir. 12/30/98). In prosecution for armed robbery of a motor vehicle, admission of co-defendant's redacted confession was harmless error. Although the co-defendant's confession was redacted so that the defendant's name was not included, the redaction replaced the defendant's name with an obvious identification of deletion, thereby violating Gray v. Maryland, 118 S.Ct. 1151 (1998). The error was, however, harmless because other substantial evidence existed such as a positive identification of the defendant by the victim made on two separate occasions.

Evidence

Immunized Testimony

United States v. Condon, No. 97-3378 (7^th Cir. 3/9/99). The Seventh Circuit rejected the claim made in United States v. Singleton, 144 F.3d 1343 (10^th Cir. 1998), that 18 U.S.C.§ 201(c)(2) forbids receipt of testimony by witnesses who stand to gain via immunity or lower sentences. The court held that such testimony is not a "thing of value" as used in the statute. Noting that the permissibility of a such testimony is supported by a long history of statutory authorization of its use, the court held that it should not read ambiguous language to overturn an enduring system that has statutory support elsewhere. Rather, the ambiguity should be read to permit all of the statutes to function.

Guilty Plea

United States v. Underwood, No. 98-1559 (7^th Cir. 4/5/99). In prosecution for possession of a firearm by a felon and conspiracy to commit money laundering, the Seventh Circuit affirmed the District Court's denial of the defendant's motion to withdraw his guilty plea. The defendant negotiated a pre-indictment plea agreement wherein the government agreed to recommend a downward adjustment under U.S.S.G. §3E1.1 so long as the defendant continued to demonstrate acceptance of responsibility. The PSR, however, did not recommend the adjustment but did recommend an upward adjustment for obstruction of justice based on the defendant's post-agreement activities. The defendant then sought to withdraw his guilty plea. The Seventh Circuit refused to "undermine the plea negotiation process" by allowing the defendant to withdraw a guilty plea where he sought to "undercut" the government's investigation by executing a pre-indictment agreement. The defendant assumed the risk, and "a guilty plea entered by a defendant who does not see the prosecution's hand in advance will still be voluntary if, as was true in this case, the plea follows disclosure of an adequate factual basis."

Habeas Corpus

Allen v. United States, No. 97-3329 (4/27/99). In a collateral attack alleging ineffective assistance of counsel resulting in an adjusted offense level two points higher (0 - 42 months) than that which should have been imposed, the Court of Appeals held that such a claim was not cognizable in a collateral attack. Specifically, the court held that only sentencing errors of "constitutional proportions are considered on collateral review." Noting that the difference is significant from the defendant's perspective, the court nonetheless held that it failed to meet the constitutional standard of prejudice set forth in United States v. Durrive, 4 F.3d 548, 551 (7^th Cir. 1993) where two levels were at issue as well.

Gosier v. Welborn, No. 98-2806 (4/15/99).

(1) The Seventh Circuit held that a motion for appointment of counsel filed prior to the effective date of the AEDPA is not a "case" sufficient to allow the court to consider the petition under pre-AEDPA law where the actual habeas petition was filed after the AEDPA effective date.

(2) Where habeas petitioner failed to raise an allegation on direct appeal in the state courts that he was not competent to enter a guilty plea, but Illinois law at the time contained two contrary lines of authority as to whether such a claim must in fact be made on direct appeal, the Seventh Circuit held that the claim was not waived for federal habeas purposes because a defendant reading the state court opinions would not think it necessary to raise the issue on direct appeal.

(3) Seventh Circuit refused to consider in a habeas petition a defense argument that one juror in a state court capital sentencing hearing misunderstood that a lone dissenter could prevent the imposition of the death penalty. F.R.E. 606(b) excludes evidence concerning matters during the course of jury deliberations, and although the usual application of this rule is in federal trials, the rule applies to habeas challenges to state trials as well because every state has a rule which parallels the federal rule.

Fleenor v. Anderson, No. 98-1916 (7^th Cir. 3/24/99). In habeas petition challenging Indiana capital conviction, the Seventh Circuit affirmed the conviction. At the sentencing phase of the case, the prosecutor told the jury that the judge made the final decision on imposition of the death penalty, the Indiana Supreme Court automatically reviews the decision, and the jurors are only part of the process. The defendant argued that this comment violated the role set forth in Caldwell v. Mississippi, 472 U.S. 320 (1985), where the Supreme Court held that a similar statement was reversible error because the comment posed the danger that jurors would minimize the importance of its role. The Seventh Circuit, however, held that the comment in this case was not a similar error because, unlike Mississippi, in Indiana, the comment was in fact an accurate statement of the law. Specifically, the trial judge is free to accept or reject the jury's recommendation. Thus, the danger posed in Caldwell was not present here.

Ineffective Assistance

of Counsel

United States v. Martinez, No. 98-1792 (7^th Cir. 3/1/99). In prosecution for a 924(c) gun charge, the Seventh Circuit rejected the defendant's ineffective assistance of counsel claim. The defendant entered a guilty plea after his attorney informed him that his maximum sentence would be five years which he might be able to serve in boot camp, when, in fact, such a sentence was for less than the proscribed minimum. Although the court noted that the defendant's attorney did not serve him well, the court found that the defendant failed to show that his plea of guilty would have been different if his attorney performed better. Specifically, the court noted that the District Court informed the defendant of his potential sentence and asked if he was informed or assured of anything by his lawyer. His responses to those questions failed to override the presumptive aspects of the Rule 11 questions between himself and the court.

Insanity

United States v. Jain, No. 98-2203, slip op. (7^th Cir. 4/20/99). In a case where the defendant was found not guilty by reason of insanity, the District Court did not err in releasing the defendant from custody with conditions including the conditions that the defendant reimburse the court for the cost of her appointed counsel, that the defendant obtain the court's permission before returning to her career in healthcare, that the defendant inform any potential employer of the acquittal of the alleged offenses by reason of insanity, that the defendant refrain from contacting a particular medical college, that she stay away from the University of California Medical School campus, and that the defendant seek employment under the guidance and with the permission of the probation officer. Although the District Court did not follow the statutory scheme under which the defendant acquitted of a crime by reason of insanity can be released into the community, the defendant did not object to that aspect of the proceedings. Concerning the conditions themselves, although the statute (18 U.S.C. §4243(f)) only permits conditions that are related to the treatment of the person's mental illness, the Seventh Circuit holds that in light of the overriding purpose of the statute, to protect the public from the danger posed by a person's mental illness, it would be inappropriate to adopt a crabbed reading of the content of the phrase "prescribed regimen of medical, psychiatric, or psychological care or treatment". However, the court's power to impose conditions under §4243(f) may not extend beyond the cautions related somehow to the mental illness in question.

Pretrial Motions

(Motion For New Trial)

United States v. Woods, No. 98-2332 (7^th Cir. 3/9/99). In prosecution for distribution of crack, the defendant filed a direct appeal, a §2255 petition, and finally a Rule 33 motion seeking a new trial based on "newly discovered evidence." The Seventh Circuit held that, although styled as a Rule 33 motion, the motion was in fact a successive §2255 petition because it raised issues identical to those raised in the defendant's direct appeal and original §2255 petition. Thus, the defendant needed circuit court permission to file the successive petition, permission which the court denied.

Pre-Sentence Report

United States v. Kahn, No. 98-1558, slip op. (7^th Cir. 4/22/99). In a case where the defendant pled guilty to drug charges, the District Court placed the pre-sentence report under seal at the sentencing hearing. The government used portions of the PSR in their appellate brief and the defendant moved to strike those portions of the appellant's brief based on the information from the PSR. Held: the government's failure to request permission for disclosure of excerpts of the PSR is harmless error because those same facts are detailed in the complaint for search warrant which was public record.

Restitution

United States v. Wells, No. 94-2695, slip op. (7^th Cir. 4/23/99).

(1) In arson prosecution, the District Court did not err in ordering restitution in the amount stipulated to in the plea agreement even under the Restitution Act as it existed in 1980 (18 U.S.C. §3651 "FPA") under which restitution can only be ordered while the defendant is on probation, even though the defendant was not sentenced to probation. Subparagraph 3 of the Victims and Witnesses Protection Act states in relevant part that "the court may also order restitution in any criminal case the extent agreed to by the parties in the plea agreement." This section was in effect when the defendant pleaded guilty in 1993 and entered into his plea agreement in 1993 and was sentenced in 1994 and provided a basis upon which the court could have ordered restitution in the amount to which the defendant stipulated in the plea agreement.

(2) District court did not err in ordering the defendant to pay $141,000 in restitution to the FDIC under the Victim's and Witnesses Protection Act. When reviewed in its entirety the record reveals that the District Court considered all of the available evidence regarding Wells' ability to pay including his health problems. However, the case is remanded because the District Court delegated the task of establishing payment schedule to the probation department, a delegation that the District Court may not make. The District Court and not the probation office must establish a specific payment schedule dealing with the order of restitution.

United States v. Grimes, No. 98-1828, slip op. (7^th Cir. 4/19/99). In a mail fraud case, the defendant was ordered to pay restitution of $500,000. At the time of sentencing, the government and probation offices had identified 102 victims who had lost $345,000 total. Reversed: the statute limits the order of restitution to the sum of losses to identifiable victims. The district judge should have deferred the entry of restitution allowed by statute for 90 days from the date of sentencing to allow the government and probation office to identify as many victims as possible and then limit the amount of restitution ordered to those amounts lost by the identifiable victims.

Sanctions

United States v. Cooper, No. 98-1144 (7^th Cir. 3/10/99). In prosecution for tax fraud, the defendant argued that only residents of Washington, D.C., and other federal enclaves are subject to the federal tax laws and that wages are not income. The Court of Appeals characterized these arguments as "frivolous squared" and held that Rule 38 sanctions were proper for filing such an appeal. Noting that Rule 38 is ordinarily used only in civil appeal contexts, the court found nothing in the language of the rule or police considerations to preclude Rule 38 sanctions in criminal appeals as well.

Search and Seizure

United States v. Johnson, No. 97-2021 (7^th Cir. 3/12/99). In prosecution for felon in possession of a firearm and possession with intent to distribute, the Seventh Circuit affirmed the District Court's suppression of evidence. Based on information from an apartment manager that drug dealings may have been occurring at a particular apartment, police went to the location and knocked on the door, hoping to either receive permission to enter or see something through the open door. Although the police neither received permission to enter or were able to see into the apartment, when the defendant exited the apartment, an officer immediately detained and frisked him, finding contraband via the search. The court held that the officers had no reasonable suspicion to believe the defendant was armed and dangerous. Noting that the Fourth Amendment does not permit the police to detain and frisk every innocent citizen they encounter, the court held that the police cannot detain a person merely because he walks out of an apartment which an unspecified person believes is a site of illegal activity.

Sentencing

United States v. Martenson, No. 98-1309 (4/30/99). Where the defendant claimed that the District Court imposed an illegal sentence under now repealed 18 U.S.C. §3651 because the court imposed a sentence containing a term of imprisonment greater than six months and a term of probation, the District Court agreed, and resentenced the defendant. However, in re-sentencing the defendant, the court "rebundled the sentence" so as to in effect impose the exact same sentence as previously imposed. The Appellate Court affirmed, holding that where a portion of a sentence is vacated, the entire sentence becomes "unbundled," and the sentencing court may impose a new sentence consistent with the original sentencing plan so long as the original illegality is no longer present.

United States v. Kamoga, No. 98-3346 (4/28/99). Court of Appeals rejected a defendant's claim that in order to receive an enhancement under U.S.S.G. §3B1.1(a) for being an organizer and leader of a scheme to defraud, the defendant must actually control at least four other participants. The court held that control can be both direct and indirect, and that the word control is used "in a broad sense to mean some kind of supervisory or organizational role with respect to those participants, including recruitment of other participants." Moreover, whether the other members "actually reported to the defendant is immaterial." Finally, the court also held that a defendant need not actuallyknow of at least four other participants. Rather, "[i]t is enough that the others be acting according to the organizer's design and in furtherance of his or her plan."

United States v. Hoover, No. 98-2992 (4/28/99). In a tax fraud case, the District Court erred in ordering the defendant to surrender savings bonds as restitution for his tax liability. The VWPA does not authorize restitution for Title 26 tax offenses. The Court of Appeals, however, upheld the remaining portions of the District Court's restitution order which ordered the defendant to pay restitution to Purdue University for losses incurred via the defendant's criminal misrepresentation on a college financial aid application as well as an order requiring the defendant to reimburse the costs of his court appointed attorney.

United States v. Kahn, No. 98-1558, slip op. (7^th Cir. 4/22/99). In a drug prosecution, the defendant plead guilty to five counts and was sentenced to 151 months of imprisonment and 15 years of supervised release. One count included a charge that the defendant distributed marijuana to a person under 21 years of age based on a July 1, 1997, incident where the defendant gave a 15 year old girl alcohol and marijuana. The District Court also enhanced the defendant's sentence by one offense level as an upward departure for conduct occurring on a 6/26/97 when a 14 year old female with 9 of her friends ranging in ages from 14 - 17 visited the defendant's party where both liquor and marijuana were made available to them, even though this conduct was not an element of any of the crimes of which the defendant was convicted. The District Court also enhanced the defendant's sentence under the vulnerable victim enhancement. Affirmed: there was no abuse of discretion when the District Court found that the defendant's targeting a separate group of minors on a separate occasion was an exceptional factor and was a sufficiently aggravating factor to allow for a downward departure.

United States v. Ekeland, No. 98-3588, slip op. (7^th Cir. 4/21/99). In a mail fraud prosecution, the District Court did not err in its refusal to grant a downward departure under §5K2.16 (voluntary disclosure to authority) and in ruling that §5K2.16 did not apply to the facts of the defendant's case. Before law enforcement was aware of the defendant's fraud, the defendant and his wife disclosed the fraudulent behavior to his old employer, Kraft Foods, the victim of the fraud. In a related civil case, the defendants agreed to pay Kraft Foods $1,700,000. The Seventh Circuit found that it had jurisdiction to review the District Court's refusal to grant the motion for downward departure because the District Court's decision was made upon a legal interpretation of §5K2.16. The Seventh Circuit found as a matter of law that the term "authorities" as that word is used in §5K2.16 refers to legal authorities, that is, persons having the legal power to make and enforce the law. In this case the defendant and his wife disclosed their offense to the victims before the authorities discovered it. However, §5K2.16 explicitly requires that the defendant disclose his offense to authorities. Because the defendant only disclosed the offense to the victim, the District Court did not error as a matter of law including that §5K2.16 does not apply to the facts of Ekeland.

United States v. Grimes, No. 98-1828, slip op. (7^th Cir. 4/19/99). The defendant was convicted of mail fraud and false information concerned with mail fraud and the District Court enhanced his sentence because the victims were particularly vulnerable (§3A1.1(b)(2)). Affirmed: The defendant placed advertisements in newspapers of general circulation offering unsecured loans of up to $50,000 stating that "bad credit and bankruptcy okay" and "no collateral, no co-signers" and charging a fee of $198 to apply for this loan. Defrauders who direct their activities against people who, because of mental or educational deficiencies or finance desperation are suckers for offers of easy money, are regarded as unusually vulnerable. Even though the defendant used newspapers of general circulation the ads were directed at vulnerable victims.

United States v. Guy, No. 98-3645 (7^th Cir. 4/5/99). In prosecution for bank fraud, the Seventh Circuit rejected the defendant's challenge to the District Court's imposition of drug testing while she was on supervised release. Although the defendant had no history of narcotics use, a District Court has "broad discretion" under 18 U.S.C. §3563(a)(5) in imposing special conditions and does not require suspension of any drug testing conditions for low risk defendants. Moreover, requiring her to submit to up to 104 random drug tests, although possibly excessive, did not constitute plain error.

United States v. Larkin, No. 98-3670, slip op. (7^th Cir. 3/25/99). In a prosecution for possession of a prohibited object (marijuana) in a federal correctional facility, the District Court did not err when it refused to grant the defendant a two level adjustment for acceptance of responsibility based on the defendant's refusal to disclose the source of the marijuana to the probation office or to the District Court. Relying on U.S. v. Hammock, 36 F.3d 594 (7^th Cir. 1994), the Seventh Circuit found that it is clearly permissible for the District Court to condition the reduction for acceptance of responsibility on the defendant's willingness to provide a complete account of his offense, including the source of the marijuana.

United States v. Dahler, No. 98-3502 (7^th Cir. 3/16/99). In prosecution for unlawful firearms possession, the court affirmed the defendant's sentence as an armed career criminal. The defendant argued that a prior 1977 state court conviction should not have been considered as a prior crime of violence because he was denied his right to counsel. The Seventh Circuit noted, however, that the defendant was given the opportunity to have counsel, but insisted that he be allowed to represent himself. Moreover, when claiming a prior conviction should not be counted, only two issues need be considered: (1) was counsel available; and (2) was defendant allowed an unfettered choice. Thus, defendant's claim that he was given inadequate information by the trial judge concerning the dangers of self-representation was not a question the court could consider when deciding whether the prior conviction should be counted toward the sentencing enhancement.

United States v. Ruiz, No. 98-4007 (7^th Cir. 3/9/99). In prosecution for transportation of illegal aliens, the Seventh Circuit affirmed the District Court's denial of a three point sentence reduction based on the offense being "committed other than for profit." Although the defendant was paid only the expenses incurred on the trip transporting the aliens, such payment constituted in-kind payment in that the defendant avoided the cost he would have incurred to pay for the trip himself. Thus, when the in-kind service is desired by the recipient, it constitutes "profit."

Statute of Limitations

United States v. Bauch, No. 98-3403 (4/16/99). In mail fraud prosecution for operation of a Ponzi scheme, (1) a $934 check constituting alleged investment return and (2) a financial investment report sent to another victim were in furtherance of the scheme to defraud sufficient to bring the action within the applicable 5-year statute of limitations. The court held that the "scheme" was to obtain and retain the victims' payments, and the mailings in question were designed to make the victims believe that the defendant was legitimate, thereby preventing the victims from taking legal action, and thus allowing the defendant to "retain" the victims' initial $25,000 investment.

Supervised Release

United States v. LeBlanc, No. 97-3994, slip op. (7^th Cir. 4/21/99). To a petition to revoke supervised release the defendant agreed to stipulate to a Grade B violation of his probation conditions namely committing the offense of felon in possession of a firearm in violation of state law. The government advised the court that it could not establish a Grade A violation because he could not prove that the firearm had traveled in interstate commerce. Defense counsel concurred with the government's statement and explained the parties had reached the agreement only moments before entering court. The court allowed the government to provide a factual basis for this violation and then asked the defendant if he agreed to with the factual basis provided by the government. The defendant had many concerns about the factual statement provided by the government most of which concerned whether he possessed the firearm or not. The District Court sentenced the defendant to 24 months even though the guideline line range for a Grade B violation in this case was 12 - 18 months. Although 24 months was the statutory maximum that the court could impose, the court advised the defendant and his attorney that the stipulation to the Grade B violation saved the defendant a further period of sentencing. Reversed and remanded: the defendant's stipulation was not knowing and voluntary, a requirement under Fed.R.Crim.P. 32.1 (joining the Second and Ninth Circuits.) Although the revocation hearing need not contain all the procedural protections of Fed.R.Crim.P. 11, to determine whether a Rule 32.1 waiver is knowing and voluntary, the District Court should consider the totality of the circumstances in which the waiver occurred. The court may consider, among other things, whether the defendant understands the charge against him and the possible sentence, as well as whether the defendant understands the procedures he foregoes when he relinquishes his right to a 32.1 hearing. In this case, the defendant equivocated nearly every time he addressed the court. First admitting facts and then retracting his statements and asking for clarification. Many of his statements are inconsistent with both actual and constructive possession. Furthermore, it appears as though he did not understand what the phrase "constructive possession" meant. Finally, the defendant did not understand the possible penalty phase by stipulating to a violation of condition of his probation.

The Back Bencher

Published by: The 7th Circuit

Federal Defenders

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