7th Circuit Criminal Law Alert

Plea Agreement Appeal and 2255 Waivers Do Not Affect Crack Redox Motions

United States v. Woods, 581 F.3d 531 (7th Cir. 09/09/2009)

This is a consolidated appeal of the denial of three defendants' motions to modify their sentences pursuant to 18 U.S.C. § 3582(c)(2). All three defendants were indicted, along with others, on multiple charges in a drug trafficking ring and entered into plea agreements that included appellate waivers.

The government maintains we should dismiss the appeals because the waiver bars our review. Because we conclude that § 3582(c)(2) motions do not fall within the waiver's scope, we hold that the waivers do not bar the defendants' appeals of the denials of their § 3582(c)(2) motions. However, because we conclude that the district court did not err in denying the motions, we affirm.

A. The Defendants Did Not Waive Their Right to Appeal the Denial of Their § 3582(c)(2) Motions.

Before potentially reaching the merits of the defendants' arguments that the court erred in denying their § 3582(c)(2) motions, we must determine whether to dismiss these appeals because each defendant entered into a plea agreement containing the following waiver:

I further expressly waive my right to appeal my sentence on any ground, including any appeal right conferred by Title 18, United States Code 3742. I also agree not to contest my sentence or the manner in which it was determined in any post-conviction proceeding, including, but not limited to a proceeding under Title 28, United States Code § 2255.

The defendants maintain that a § 3582(c)(2) motion is not an attack on the original sentence, but rather a request to modify an originally correct sentence based on amendments to the sentencing guidelines. Therefore, they maintain the plea did not bar their motion or this appeal. The government contends we must dismiss the appeal because the waiver bars any manner of appellate review.

We review the enforceability of a waiver agreement de novo. Jones v. United States, 167 F.3d 1142, 1144 (7th Cir. 1999). It is well-settled that appellate waivers in plea agreements are generally enforceable. United States v. Emerson, 349 F.3d 986, 988 (7th Cir. 2003).  "But [an appellate waiver] does not, in every instance, foreclose review." United States v. Mason, 343 F.3d 893, 894 (7th Cir. 2003). For the waiver to be enforceable, the disputed appeal must fall within its scope. See United States v. Vega, 241 F.3d 910, 912 (7th Cir. 2001) (per curiam). We will enforce an appellate waiver if its terms are "express and unambiguous," see United States v. Woolley, 123 F.3d 627, 632 (7th Cir. 1997), and the record shows that the defendant " 'knowingly and voluntarily' " entered into the agreement. United States v. Jemison, 237 F.3d 911, 917 (7th Cir. 2001).

A plea agreement is a type of contract subject to contract law principles, but limited by constitutional considerations. See United States v. Bownes, 405 F.3d 634, 636 (7th Cir. 2005). We interpret the terms of the agreement according to the parties' reasonable expectations and construe any ambiguities against the drafter-the government-and in favor of the defendant. See Vega, 241 F.3d at 912.

The waiver at issue does not include an express provision barring the filing of § 3582(c)(2) motions, as some plea agreements do. See, e.g., United States v. Gordon, 480 F.3d 1205, 1208 (10th Cir. 2007). Therefore, we must interpret the terms of the agreement to decide if this appeal falls within the scope of the waiver. See Vega, 241 F.3d at 912.

Two of our sister circuits have addressed appellate right waivers following the denial of a § 3582(c)(2) motion, and both have concluded that the waivers at issue did not bar the appeals.

We do not believe the waiver here bars the defendants' appeals. Neither the language of the waiver itself nor that of the colloquies demonstrate that the defendants contemplated waiving their right to appeal the denials of the sentence-reduction motions based on subsequent changes to the guidelines.

We do not believe that § 3582(c)(2) motions contest the initially imposed sentence as precluded by the second sentence of the waiver. Rather, § 3582(c)(2) motions bring to the court's attention changes in the guidelines that allow for a sentence reduction.

As the court said in Chavez-Salais, "[W]e do not believe that motions under 18 U.S.C. § 3582(c)(2) are clearly understood to fall within a prohibition on 'any collateral attack.' Defendant's motion under § 3582(c)(2) does not so much challenge the original sentence as it seeks a modification of that sentence based upon an amendment to the Guidelines." 337 F.3d 1170, 1173 (10th Cir. 2003). Indeed, the defendants could not contest the district court's original sentence of imprisonment through § 3582(c)(2) proceedings because § 3582(c)(2) provides no avenue through which to attack the original sentence. See United States v. Lloyd, 398 F.3d 978, 979-80 (7th Cir. 2005).

We also conclude that this appeal is not barred by the waiver's first sentence, which gives up each defendant's right to "appeal my sentence on any ground," including any right under 18 U.S.C. § 3742. The defendants have not appealed their originally imposed sentence, rather, they appeal the denials of their sentence-reduction motions because they believe the district court incorrectly concluded that they were ineligible for a reduction. See Leniear, 2009 WL 2216784, at *2

We also reject the government's contention that even if the text of the waiver is not clear, the judge in each plea colloquy sufficiently explained that the defendants could not appeal the rulings.

B.  The District Court Did Not Err in Finding the Defendants Ineligible for a Reduction

In the denials of Bennett's and McDonald's § 3582(c)(2) motions, the district court concluded that the amendments did not benefit either defendant because each was responsible for more than 4.5 kilograms of crack cocaine and the base offense level does not change when such large quantities are involved.

The district court was correct that if the defendants were responsible for more than 4.5 kilograms of crack cocaine, the amendments do not benefit them. See United States v. Forman, 553 F.3d 585, 590 (7th Cir. 2009) (Amendment 706 "affects only defendants who are responsible for distributing fewer than 4.5 kilograms of crack cocaine")

We AFFIRM the district court's denial of the defendants' § 3582(c)(2) motions.

For the full opinions visit the 7th Circuit Court of Appeals Web Site

For more about Chicago Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com.

 

USSG 2B1.1: Healthcare Fraud and the Right Way to Calculate the Number of Victims.

United States v. Sutton, No. 08-3370 (7th Cir. 09/28/2009)

 

A jury convicted Varnador Sutton of a single count of violating 18 U.S.C. § 1347 (prohibiting health care fraud) for his role in perpetrating a fraudulent scheme to collect money from Indiana Medicaid.

 

In May 2005, Sutton created a business called Regenerations, Inc., which purported to provide psychological counseling services reimbursable by Indiana Medicaid. Over the course of the next two years, Sutton billed Medicaid over $9 million for alleged psychological counseling that was never provided. Although many of the claims were denied, Medicaid did pay Sutton approximately $3.2 million for the alleged services provided by Regenerations.

 

At sentencing, the district court increased Sutton's base offense level of six, see U.S.S.G. § 2B1.1(a)(2), six levels based on its conclusion that there were more than 250 victims, see U.S.S.G. § 2B1.1(b)(2)(C). On this point the court accepted the government's argument that each individual whose Medicaid number had been fraudulently used by Sutton should be counted as a victim under the guidelines.

 

At sentencing, the government argued that Sutton's crime had over 250 victims. It reached this figure by treating all of the 2000-plus individuals whose Medicaid numbers had been used by Sutton as victims of his fraud. Sutton maintained, however, that the only victims were the two entities that sustained monetary loss-Indiana Medicaid and the Centers for Medicare and Medicaid Services.

 

As relevant here, the application note to § 2B1.1(b)(2)(C) defines a "victim" as "any person who sustained any part of the actual loss determined under subsection (b)(1)." U.S.S.G. § 2B1.1 cmt. n.1. Subsection (b)(1), in turn, refers exclusively to the monetary loss occasioned by the crime, and the relevant application notes explain that the actual loss must be "pecuniary harm . . . that is monetary or that otherwise is readily measurable in money." Id.at cmt. n.3(A)(i), (iii).

 

Although he used their Medicaid numbers to dupe Indiana Medicaid and the Centers for Medicare and Medicare Services into paying for services that were never rendered, none of the individuals actually paid for a service they did not receive. Instead, Sutton simply appropriated their Medicaid numbers in order to bill Indiana Medicaid for services that were never rendered.

 

Thus, so far as the government's evidence shows, the inchoate harm of having their benefits wrongfully depleted never materialized into an actual monetary loss such as having to pay for benefits that would otherwise have been covered. Given the government's failure to demonstrate that any of the individuals suffered pecuniary harm, we are hard-pressed to see why we should treat all of those individuals as victims under § 2B1.1.

 

Because the guidelines are clear that monetary loss (or the intent of such loss) is required, and no such loss was suffered by the 2000-plus individuals whose identities were used by Sutton to perpetuate his fraud, the district court erred by imposing the six-level adjustment. Because there were in fact only two victims-Indiana Medicaid and Centers for Medicare and Medicaid Services-no additional upward victim adjustment was warranted. See U.S.S.G. § 2B1.1(b)(2); United States v. Icaza, 492 F.3d 967, 969-70 (8th Cir. 2007) (district court erred by treating many individual Walgreens stores as victims when all pecuniary harm could be traced to single parent corporation).

 

For the foregoing reasons, we AFFIRM Sutton's conviction, but VACATE his sentence and REMAND for resentencing.

For the full opinions visit the 7th Circuit Court of Appeals Web Site

For more about Chicago Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com. 

922(g) and ACCA. State Restoration of Civil Rights Means Convictions Do Not Count In Federal Court.

Shane Buchmeier v. USA, 06-2958.

The opinion of the court was delivered by: Easterbrook, Chief Judge.

Shane Buchmeier was sentenced as an armed career criminal following four firearms convictions: two for possessing firearms despite a prior felony conviction, 18 U.S.C. §922(g)(1), and two for receiving stolen firearms, §922(j). His sentence of 188 months' imprisonment is within the 480-month maximum for these crimes.  But the armed career criminal enhancement set a floor of 180 months, §924(e), and without it Buchmeier might have received a sentence in the Guideline range of 121 to 151 months that would have applied, but for the enhancement.

We affirmed Buchmeier's conviction and sentence on direct appeal. 255 F.3d 415 (7th Cir. 2001)  He then filed a collateral attack under 28 U.S.C. §2255. 

The prosecutor defended the §924(e) enhancement on the merits.  Section 924(e) requires a lengthy sentence for anyone who violates §922(g) after three convictions for violent felonies or serious drug crimes. Section 924(e)(2)(B) lists the offenses that count as violent felonies.  Each must be "punishable by imprisonment for a term exceeding one year" and meet other conditions.

One qualifying offense is burglary, and Buchmeier has eight of these on his rap sheet. He now maintains that they do not count because of 18 U.S.C. §921(a)(20).

What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

The hanging paragraph's first sentence tells us that state law governs "[w]hat constitutes a conviction".  The first sentence also means that a pardon or automatic expungement under state law is effective for federal purposes.

The hanging paragraph's second sentence is a proviso to the first. It tells us that, no matter what state law provides, a person who has received a "pardon, expungement, or restoration of civil rights" is not treated as convicted for federal purposes "unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms."

Buchmeier relies on the hanging paragraph's second sentence. When his state terms expired, and he was released from all supervision, he received from the Illinois Department of Corrections a notice (applicable to all eight burglaries) reading:  We have been advised by the field services office of the Stateville Correctional Center that you have completed the maximum of your sentence as of 02/09/1994. On this date, your obligation to the department ceases.

Buchmeier contends that this notice is a "restoration of civil rights" and that, because it does not provide that he "may not ship, transport, possess, or receive firearms", none of the eight burglary convictions meets the definition of a "crime punishable by imprisonment for a term exceeding one year". With these eight convictions erased, Buchmeier no longer has three convictions for violent felonies and cannot properly be sentenced under §924(e) as an armed career criminal.

Section 921(a)(20) does not say which civil rights, if restored, cause a state conviction not to count. We concluded in United States v. Williams, 128 F.3d 1128, 1134 (7th Cir. 1997), that three civil rights matter: the rights to vote, to hold office, and to serve on juries. If these are restored, then a conviction does not carry federal fire-arms disabilities or support a §924(e) enhancement "unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms."

The document that Buchmeier received mentions only two of the three civil rights; it is silent about jury service. As this civil right has not been restored (at least, Buchmeier was not told about its restoration), the district court held that the eight burglary convictions still count for federal purposes. In reaching this conclusion, it relied entirely on United States v. Gillaum, 372 F.3d 848, 859--61 (7th Cir. 2004), which holds that, when a pardon, expungement, or other restoration of rights omits one of the "big three" civil rights, there is no need for a firearms reservation.

Logan v. United States, 128 S.Ct. 475 (2007), holds that, if a person never loses any of the "big three" civil rights, then they cannot be "restored" for the purpose of the hanging paragraph's second sentence. To restore means to give back. Thus a person who never lost civil rights cannot insist that he be treated the same as a person who lost them, had them restored, and did not receive an "express" warning that the right to possess firearms had not been restored.

But Buchmeier did lose civil rights; they could be, and were, "restored" to him; and the document announcing this restoration could have contained (but lacked) a warning that he must not possess firearms. Illinois law forbids felons to possess firearms, unless the Director of the State Police grants a dispensation. 720 ILCS 5/24-1.1(a). Buchmeier's convictions have not been set aside, so this rule applies, though it was not mentioned in the notice telling Buchmeier that his civil rights had been restored.

Questioning by the panel at oral argument implied to counsel that neither Logan nor Gillaum supports Buchmeier's §924(e) enhancement. And because, under this circuit's decisions, the "express" notice must be in the document informing the convict of the pardon, expungement, or restoration of civil rights, rather than in the state's statutes at large, the enhancement appeared to be infirm. See, e.g., United States v. Erwin, 902 F.2d 510 (7th Cir. 1990); United States v. Glaser, 14 F.3d 1213, 1218 (7th Cir. 1994); Dahler v. United States, 143 F.3d 1084, 1086--87 (7th Cir. 1998); United States v. Vitrano, 405 F.3d 506, 509--10 (7th Cir. 2005).

Four other circuits agree with Erwin, though a further four disagree and hold that an "express" firearms restriction anywhere in the state's statutes suffices for the hanging paragraph's second sentence. Compare United States v. Chenowith, 459 F.3d 635 (5th Cir. 2006); United States v. Gallaher, 275 F.3d 784 (9th Cir. 2001); United States v. Fowler, 198 F.3d 808 (11th Cir. 1999); and United States v. Bost, 87 F.3d 1333 (D.C. Cir. 1996) (all following Erwin), with United States v. McLean, 904 F.2d 216 (4th Cir. 1990); United States v. Cassidy, 899 F.2d 543 (6th Cir. 1990); United States v. Collins, 321 F.3d 691 (8th Cir. 2003); and United States v. Burns, 934 F.2d 1157 (10th Cir. 1991). See also Logan, 128 S.Ct. at 482--83 n.4 (noting the conflict's existence).

Overruling would not be consistent with a proper regard for the stability of our decisions. Erwin was issued 19 years ago and, though its discussion of §921(a)(20) can be characterized as dictum, its approach became a holding at the first opportunity (Glaser) and has been followed ever since. Precedents are not sacrosanct; we have overruled many. But when the issue is closely bal anced (the 5 to 4 division among the circuits reveals at least that much), there is less reason to think that a shift will undo rather than create an error. What is more, no circuit can resolve the question with finality. Only Congress or the Supreme Court can accomplish that.

Erwin and its successors treat the second sentence of the hanging paragraph as an anti-mousetrapping provision. On this view the hanging paragraph's first sentence refers to state law for the basic definition of a "conviction," while the second sentence is a federal proviso: Even if a state deems a person "convicted" for purposes of its domestic law, if it sends a document that seems to restore all civil rights the conviction does not count for federal purposes unless the document warns the person about a lingering firearms disability. That is not the only possible reading.

Illinois sent Buchmeier a poorly written document. It neglected to inform him that, though the expiration of his sentence restored his rights to vote and hold "constitutional" offices such as Governor, other rights, including entitlement to possess firearms, were not restored. 

If someone asks Buchmeier "have you been convicted of a felony?" he must answer "yes"; restoration of civil rights differs from expungement as a matter of Illinois law. But because the state sent Buchmeier a document stating that his principal civil rights have been restored, while neglecting to mention the continuing firearms disability, the final sentence of §921(a)(20) means that his burglary convictions do not count for federal purposes. He is entitled to be resentenced.

VACATED AND REMANDED

For the full opinions visit the 7th Circuit Court of Appeals Web Site

For more about Chicago Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com.

 

Miranda Warnings Need Not Be Repeated as Result of Break in Interrogation

U.S. v. Anthony D. Edwards, 08-1124. 

 

The Opinion of the court was delivered by:  Posner, Circuit Judge

 

The defendant was convicted by a jury of distributing 5 grams or more of crack and was sentenced to 108 months in prison. His appeal raises several issues.

 

After being arrested and jailed, he was given the Miranda warnings, and after agreeing to waive his Miranda rights was questioned for a quarter of an hour or so and then returned to his cell. Thirty to forty minutes after the waiver-which is to say roughly fifteen to twenty-five minutes after the completion of the questioning he was returned to the interview room for further questioning by another agent.

 

Before beginning, the agent showed the defendant the waiver form he had signed before the first round of questioning and asked him whether he understood his rights, and he replied that he did. The form made clear that he could stop the questioning at any time. But he argues that the admissions he made during the second round of questioning should not have been placed in evidence at the trial because the Miranda warnings had not been recited to him before the second round began.

 

The defendant asks us to adopt a doctrine of "staleness" that would require readministering the Miranda warnings after any break in an interrogation even, as in this case, a very short one if there is any reason to think that the person questioned may have forgotten or misunderstood the warnings or thought they had lapsed or been unable to claim them because of new pressures brought to bear on him after the break, though if his statement was coerced this would be an independent ground for suppression-coerced confessions were inadmissible long before the Miranda case. The defendant points out that the second interrogation was conducted by different officers from the first one and that he made inculpatory statements only at the second one. And he argues that he was in a frightened, emotional state throughout the entire period of the interrogations.

 

The cases do not require that the warnings be repeated after an interruption in the questioning, e.g., United States ex rel. Patton v. Thieret, 791 F.2d 543, 547-48 (7th Cir. 1986); United States v. Ferrer-Montoya, 483 F.3d 565, 569 (8th Cir. 2007) (per curiam); United States v. Rodriguez-Preciado, 399 F.3d 1118, 1128-29(9th Cir. 2005); see also Wyrick v. Fields, 459 U.S. 42, 48-49 (1982) (per curiam), even if the interruption is much longer than it was in this case. See, e.g., United States v. Diaz, 814 F.2d 454, 460 and n. 6 (7th Cir. 1987) (several hours); United States ex rel. Henne v. Fike, 563 F.2d 809, 813-14 (7th Cir. 1977) (per curiam) (nine hours); People v. Dela Pena, 72 F.3d 767, 769-70 (9th Cir. 1995) (nearly fifteen hours); Stumes v. Solem, 752 F.2d 317, 320 (8th Cir. 1985) (nearly five hours); Jarrell v. Balkcom, 735 F.2d 1242, 1253-54 (11th Cir. 1984) (three hours).

 

In Thieret the suspect was placed in a holding cell between the warnings and the defendant's waiver of his Miranda rights. In Diaz the warnings were given at the hotel where the suspect was arrested and his inculpatory statements came during the subsequent booking. In Fike the warnings were given in the evening and the statements the following morning, and the warnings and the interrogation were by different officers, as they were in Jarrell and in the present case.

 

In United States v. Pruden, 398 F.3d 241, 247-48 (3d Cir. 2005), roughly 20 hours and a change of location intervened between warnings and statement and the defendant was merely reminded before he made the statement that he had received the warnings the previous afternoon. The defendant points to a pair of state court cases and one district court case as contradicting the decisions we have cited, but the intervals in those cases were much longer than in the present case. Commonwealth v. Wideman, 334 A.2d 594, 598-99 (Pa. 1975) (12 hours); Commonwealth v. Riggins, 304 A.2d 473, 477-78 (Pa. 1973) (17 hours); United States v. Jones, 147 F. Supp. 2d 752, 761-62 (E.D. Mich. 2001) (18 hours).

 

Vagueness is the bane of legal reasoning. This case presents several examples, beginning with "staleness," a word with no proper application to a statement. What is a "stale statement"?

 

Interrogators might try to negate the Miranda warnings; had the second interrogator in this case told the defendant that he must answer his questions because a Miranda waiver is forever the answers could not have been used in evidence. See Hart v. Attorney General, 323 F.3d 884, 894-95 (11th Cir. 2003); United States v. Beale, 921 F.2d 1412, 1435 (11th Cir. 1991); United States v. San Juan-Cruz, 314 F.3d 384, 387-89 (9th Cir. 2002).

 

And likewise if, as in Ex parte J.D.H., 797 So. 2d 1130 (Ala. 2001), so much time had elapsed between the rounds of questioning-16 days in that case-that the agent should have realized that the defendant might well have forgotten the warnings, and specifically the paragraph tucked into the Miranda form that entitles a suspect to interrupt the questioning at any time and summon a lawyer. Yet even in J.D.H. the court emphasized circumstances beyond the long delay between interrogations in deciding that the inculpatory statement should have been suppressed.

The practical question is not whether Miranda warnings given to a defendant became "stale," or, though the courts love the phrase, whether the "totality of the circumstances" indicates that the inculpatory statement was made knowingly. It is whether the defendant when he gave the statement didn't realize he had a right to remain silent.

 

The Miranda form told him he had that right, and the presumption should be that he would remember this even if some time had elapsed between his receiving the warnings and undergoing the questioning that elicited the inculpatory statement. The cases do not speak in terms of a presumption but that is the practical effect of their reluctance to attach dispositive weight to a break in questioning, even when the break is protracted and other circumstances might have made it less likely that the defendant would remember that he could stop the questioning at any time. The presumption can be rebutted but was not in this case.

 

CONVICTION AFFIRMED, SENTENCE VACATED IN PART, AND REMANDED.

 

For the full opinions visit the 7th Circuit Court of Appeals Web Site

For more about Chicago Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com.

Police Need Probable Cause to Execute an Arrest Warrant in Third Parties Home.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. ERIC JACKSON, DEFENDANT-APPELLANT.  No. 08-2295.

Eric Jackson was sentenced to a 96 month term of imprisonment for possession of a firearm by a previously-convicted felon.

I. BACKGROUND

Eric Jackson was arrested by the Winnebago County Sheriff's Department based on an outstanding warrant for aggravated battery. After unsuccessfully attempting to locate Jackson the police received an anonymous tip that Jackson had been staying at his father's girlfriend's apartment.

The police arrived at the apartment at approximately 8:30 in the morning, and were invited into the vestibule by the primary tenant.  Without entering the apartment, the officers  showed Jackson's picture to Tyneesha Barbary, who was sitting nearby.  When the officers asked Barbary if Jackson was in the apartment, she started to cry and nodded her head. The officers subsequently entered the apartment and followed Barbary to a back bedroom where Jackson was sleeping. After handcuffing Jackson, the officers searched the immediate area and found a pistol within grabbing distance under the blanket on which he had been sleeping.

II. DISCUSSION

A. Jackson's Arrest

As a threshold matter, we reject Jackson's argument that the police needed a search warrant as well as an arrest warrant in order to enter Joseph's apartment in order to arrest him. "[F]or Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." Payton v. New York, 445 U.S. 573, 602 (1980).

Nearly every court of appeals to consider this issue has held that law enforcement officers do not need a search warrant in addition to an arrest warrant to enter a third party's residence in order to effect an arrest. See United States v. Agnew, 407 F.3d 193, 197 (3d Cir. 2005); United States v. Kaylor, 877 F.2d 658, 663 (8th Cir. 1989); Underwood, 717 F.2d at 483-84 (9th Cir. 1983); United States v. Buckner, 717 F.2d 297, 299-300 (6th Cir. 1983).

Although officers do not need a search warrant to execute an arrest warrant in a third party's home, they do need some basis for believing that the suspect is actually present in the home. This court has not addressed what degree of suspicion officers need in order to enter a third party's home to execute an arrest warrant. In Payton, the Supreme Court held that an arrest warrant "carries with it the limited authority to enter a dwelling when there is reason to believe the suspect is within." 445 U.S. at 602 (emphasis added).

Our sister circuits disagree about what "reasonable belief" actually entails and whether its meaning is different from probable cause.

By our count, three circuits have explicitly concluded that reasonable belief requires a lesser degree of knowledge than probable cause. See United States v. Thomas, 429 F.3d 282, 286 (D.C. Cir. 2005); Valdez v. McPheters, 172 F.3d 1220, 1227 n.5 (10th Cir. 1999); United States v. Lauter, 57 F.3d 212, 215 (2d Cir. 1995).  The courts in these cases conclude that the Supreme Court "used a phrase other than 'probable cause' because it meant something other than 'probable cause.' " Thomas, 429 F.3d at 286.

Four other circuits have disagreed, holding that "reasonable belief" amounts to the same thing as "probable cause." See United States v. Hardin, 539 F.3d 404, 416 n.6 (6th Cir. 2008); United States v. Barrera, 464 F.3d 496, 501 (5th Cir. 2006); United States v. Gorman, 314 F.3d 1105, 1111 (9th Cir. 2002); United States v. Magluta, 44 F.3d 1530, 1535 (11th Cir. 1995).

Were we to reach the issue, we might be inclined to adopt the view of the narrow majority of our sister circuits that "reasonable belief" is synonymous with probable cause. However, we need not decide whether "reasonable belief" requires probable cause or something less than probable cause because in the present case the police had enough evidence to easily satisfy a probable cause standard. The police received a tip that Jackson was staying at Joseph's apartment and that he would be there the following morning. When the police arrived at the apartment, they asked Jackson's girlfriend if Jackson was inside and she nodded yes and started crying. This was more than enough to lead a prudent person to believe that Jackson was inside the apartment when he or she entered.

AFFIRMED

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about Chicago Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com.

Crimes of Violence and USSG Career Offender Re-defined Post Begay v. United States

United States v. Evans, No. 08-2424 (7th Cir. 08/13/2009).

(Editor's Note.  The 7th Circuit has recently remanded a number of cases similar to this one regarding whether specific crimes were crimes of violence for the purposes of the career offender enhancement.  The analysis in those cases is similar to the decision below.) 

The defendant was convicted of armed bank robbery and related crimes and sentenced to 382 months in prison. The sentence was within the guidelines range, but only because the district judge deemed the defendant's previous conviction of aggravated battery in violation of Illinois law a "crime of violence" within the meaning of section 4B1.2(a) of the federal sentencing guidelines. The appeal challenges that ruling.

Under Illinois law, "a person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual." 720 ILCS 5/12-3(a). He commits "aggravated battery" (so far as relates to this case) if in addition he "knows the individual harmed is pregnant." 720 ILCS 5/12-4(b)(11).

The defendant had been indicted for having "knowingly and without legal justification, made contact of an insulting or provoking nature with April Lauderdale, in that the defendant pushed April Lauderdale, knowing April Lauderdale to be pregnant."

He pleaded guilty, admitting the following facts: at 10 p.m. one night he entered the apartment of Lauderdale, four months pregnant by him, and accused her of sleeping with other men. He began carrying things out of the apartment, including a television set. She locked the door to keep him from returning and taking more stuff out but he kicked in the door, "grabbed Ms. Lauderdale by the face and pushed her down to the floor. He then yelled for the two girls [who had accompanied him on the visit to the apartment, but were outside] to come inside and, quote, kick this bitch's ass." Lauderdale grabbed a knife and stabbed the defendant, and he left, saying, "I pushed her down, and she stabbed me."

So was his conviction of "aggravated battery" a conviction of a "crime of violence"?

It was if the crime of which he was convicted has "as an element the use, attempted use, or threatened use of physical force against the person of another," U.S.S.G. § 4B1.2(a)(1), or is "burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." § 4B1.2(a)(2).

The crime of which the defendant had been convicted does not fit the first subsection quoted above. The use, etc., of "physical force" is not an element of that crime, since all that that crime requires is proof of making an "insulting or provoking" physical contact with a woman known to be pregnant.

The question is whether the defendant's crime fitted the second subsection ("conduct that presents a serious potential risk of physical injury to another").

The terms "insulting" and "provoking" are taken from the common law tort of battery, which requires only an offensive contact-the sort of thing that might provoke a breach of the peace, as it did here: the provoker was stabbed by his victim. Spitting on a person is the usual example given of a provoking act that amounts to battery. E.g., Alcorn v. Mitchell, 63 Ill. 553 (1872). And so if you deliberately spit on a pregnant woman you are guilty of the crime of aggravated battery in Illinois, People v. Dorn, 883 N.E.2d 584, 588-89 (Ill. App. 2008).

To fall under the second subsection of section 4B1.2(a) of the guidelines, the crime must be similar to the offenses listed in that subsection-similar, that is, to burglary of a dwelling, arson, extortion, any crime that involves the use of explosives, or any other crime that presents a serious risk of physical injury. Begay v. United States, 128 S.Ct. 1581, 1585 (2008).

Merely careless (even though criminal and dangerous) conduct will not suffice, how-ever.  Id. at 1586-88.  That is not a problem in this case; the Illinois statute requires that the defendant's "insulting or provoking" physical contact with the victim be intentional or, what amounts to the same thing, knowing. See, e.g., United States v. Holland, 831 F.2d 717, 722-23 (7th Cir. 1987). But an "insulting or provoking" physical contact, though intentional, could be no more violent than spitting, and a battery that consists merely of deliberately spitting on someone is not comparable to burglary, arson, extortion, or a crime involving the use of explosives. Nor could it be said to present a serious risk of physical injury, United States v. Jones, 235 F.3d 342, 346-48 (7th Cir. 2000).

Although the words "insulting or provoking" make it sound as if all that the Illinois legislature had in mind is the kind of light offensive touching familiar from civil battery cases, the Illinois courts have held that it embraces more forceful blows as well, the kind that as in this case can knock a person to the ground. Allstate Ins. Co. v. Kovar, 842 N.E.2d 1268, 1270-71 (Ill. App. 2006). Thus, the same statute, the same form of words, embraces two crimes: offensive battery, and forcible battery.

In United States v. Woods, No. 07-3851 (involuntary manslaughter not a crime of violence - ed.), another panel of this court has held that when a statute fails to place the crime that is a crime of violence, and the crime that is not a crime of violence, in separate sections (or in a list of separate crimes in the same section), the defendant cannot be given the crime-of-violence enhancement.

There is an exception if the "generic" crime (that is, the crime of conviction, here an insulting and provoking physical contact with a pregnant woman) as generally committed is violent. See id. at *7. But the government doesn't argue that most insulting or provoking conduct with a pregnant woman is violent, as the conduct in the present case was, and so the sentence cannot be upheld on that basis.

Woods governs, and requires that the defendant be resentenced. His sentence is therefore VACATED.
 

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about Chicago Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com.

District Judge Must Recuse Self If a Reasonable Well-Informed Observer Could Question the Judge's Impartiality

In re United States, No. 09-2264 (7th Cir. 07/10/2009).

The United States ("the Government") has filed this petition for a writ of mandamus seeking the recusal of the respondent district judge currently presiding over a criminal action pending in the United States District Court for the Eastern District of Wisconsin. Because the Government has established that a reasonable, well-informed observer might question the impartiality of the district judge, we must grant the requested writ, disqualifying the judge from presiding over the proceeding and requiring that he vacate all orders entered since the filing of the recusal motion in the district court.

In January 2003, Rashid A. Salahuddin failed to return to a corrections facility while he was on work-release. Local authorities in Milwaukee, Wisconsin, obtained an escape warrant and searched for Mr. Salahuddin in the home of his estranged wife, where he may have been living at the time. During the course of the search, the officers discovered two guns in a bedroom closet, but they did not find Mr. Salahuddin. The next day, they returned, found Mr. Salahuddin and placed him under arrest. Before the officers were able to administer Miranda warnings, Mr. Salahuddin stated that there were two guns in the closet of the bedroom where the guns had been found the previous day.

More than two years later, in June 2005, a federal grand jury indicted Mr. Salahuddin on one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The case was assigned to Judge Clevert. The assistant United States attorney prosecuting the case suggested in a letter to Mr. Salahuddin's attorney that Mr. Salahuddin would not qualify as an armed career criminal and therefore would not be subject to the fifteen-year mandatory minimum sentence. See 18 U.S.C. § 924(e)(1).

Mr. Salahuddin elected to plead guilty. At the change of plea hearing, Mr. Salahuddin hesitated when the court explained that, by pleading guilty, he could no longer challenge the admissibility of the Government's evidence against him as the fruits of an unlawful search. Mr. Salahuddin decided at that time to plead not guilty. Judge Clevert set the matter for trial, but, only days later, Mr. Salahuddin again changed his mind and entered a guilty plea.

After the change of plea hearing, but shortly before the sentencing hearing, the Government altered its position and informed Mr. Salahuddin that it now believed he did qualify as an armed career criminal. Mr. Salahuddin then moved to withdraw his plea, which the Government opposed. Judge Clevert granted Mr. Salahuddin's motion to withdraw his plea and, in the same order, recused himself from further participation in the case.

The matter was reassigned to Chief Judge Randa. entertained. Chief Judge Randa sentenced him to 180 months' imprisonment; the sentence was the mandatory minimum for career criminals sentenced under 18 U.S.C. § 924(e) and also was below the advisory guidelines range.

Mr. Salahuddin appealed to this court. He argued that the district court should have entertained his motions to suppress. We agreed and held that it was "incongruous to permit a defendant to withdraw a guilty plea and go to trial while not permitting him to litigate the admissibility of significant evidence." United States v. Salahuddin, 509 F.3d 858, 862 (7th Cir. 2007).

On remand, Chief Judge Randa sua sponte recused himself under Circuit Rule 36.  The case was reassigned to the respondent district judge (hereinafter "the Judge").

The Judge reviewed the report and recommendation, and he called a meeting in chambers on October 9, 2008, with then United States Attorney Steven M. Biskupic and Federal Defender Daniel W. Stiller. Assistant United States Attorney Gordon P. Giampietro and Associate Federal Defender Nancy Joseph, who were the attorneys actually litigating the case, were not invited.

No court reporter was present, and no meeting minutes are reflected on the district court's docket.  The Judge recounted the procedural history of the case and reminded the office heads that, before the confusion surrounding application of the armed career criminal statute, both parties had preferred to resolve the case with a plea bargain.  The Judge recommended the case should be resolved without further litigation and that he recommended that the parties agree to a guilty plea to a false-statement count (which carries a ten-year statutory maximum, as opposed to the fifteen-year statutory minimum under § 924(e)). 

Finally, although the Judge recognized that he should not be involved in plea negotiations, he opined that this was an "extremely rare" case that needed to be addressed "at the top"; that he was disturbed that there were 100 docket entries in a one-count gun case.

Eleven days later, on October 20, 2008, the Government moved for the Judge's recusal pursuant to 28 U.S.C. § 455(a). He granted Mr. Salahuddin's motions to suppress statements, denied the motion to suppress the gun, ordered a new trial and denied the Government's motion for recusal. The portion of the order denying the recusal motion reads: On its face the motion represents nothing more than an ill-considered, poorly-disguised, preemptive collateral attack, albeit through the convenience of forum shopping, on the wisdom of the court's decision announced today. The motion is denied.

Two weeks later, the Government filed a motion for reconsideration; it contended that the October 9, 2008 meeting violated Federal Rule of Criminal Procedure 11 and that the Judge's comments, both during the meeting and in his order, called into question his impartiality.

The Judge denied the motion for reconsideration on April 10, 2009. He reasoned that he did not violate Federal Rule of Criminal Procedure 11 for three reasons: (1) Neither the Government nor Mr. Salahuddin proposed or reached a plea agreement; (2) The discussion was with the United States Attorney and Federal Defender, not the attorneys litigating the case (although the Judge acknowledged that otherwise it might be considered a "classic negotiation session,"r.117 at 6); and (3) The rule protects the defendant, not the Government, from judicial coercion. The Judge further held that recusal was not necessary because Mr. Salahuddin had waived recusal.

Trial was set for May 18, 2009. On May 12, the Government filed in the district court a motion to stay proceedings pending a petition for writ of mandamus in this court. The next day, the Government filed in this court a petition for a writ of mandamus and a motion to stay district court proceedings pending resolution of the petition. The Government requests a writ of mandamus directing the Judge to recuse himself from the case and vacate all orders entered after October 20, 2008, when the Government filed its motion for recusal.

In considering a petition for a writ of mandamus seeking the disqualification of a district judge, we review that judge's denial of a recusal motion de novo. Hook v. McDade, 89 F.3d 350, 353-54 (7th Cir. 1996).

A.

The All Writs Act, 28 U.S.C. § 1651, permits courts created by Act of Congress to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a). See generally United States v. Denedo, 120 S.Ct. 2213, 2220-22 (2009). Courts of appeals traditionally have employed the writ of mandamus to confine a district court to the "lawful exercise of its prescribed jurisdiction." See Cheney v. United States Dist. Court, 542 U.S. 367, 380 (2004).  We have held that a petition for writ of mandamus under the All Writs Act, 28 U.S.C. § 1651(a), is the proper-indeed the only- means of reviewing a district court's denial of a motion for recusal. The Government's petition is therefore the appropriate means of seeking review in this court of the district court's denial of the Government's motion for recusal.

Section 455(a) of the Judicial Code provides: "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). The Supreme Court has explained that " '[t]he goal of section 455(a) is to avoid even the appearance of partiality.' " Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847, 860 (1988).  Accordingly, we have required recusal "whenever there is 'a reasonable basis' for a finding of an 'appearance of partiality under the facts and circumstances' of the case." PepsiCo, Inc. v. McMillen, 764 F.2d 458, 460 (7th Cir. 1985).

Recusal is required when a "reasonable person perceives a significant risk that the judge will resolve the case on a basis other than the merits." In re Mason, 916 F.2d 384, 385 (7th Cir. 1990).

Of course, needless recusals exact a significant toll; judges therefore should exercise care in determining whether recusal is necessary, especially when proceedings already are underway. "[A] change of umpire mid-contest may require a great deal of work to be re-done... and facilitate judge-shopping." Nat'l Union Fire Ins. Co., 839 F.2d at 1229 (citation omitted).

B.
Mr. Salahuddin submits that the Government's petition is untimely. We cannot accept this submission.   It is well-established in this circuit that a motion for recusal under section 455(a) must be made before trial; after trial, the damage to the public perception of the judicial system already has been done, and the party may not then seek relief because the simple appearance of partiality is, at most, harmless error.

C.

We now turn to the merits of the Government's submission. At bottom, this matter requires that we decide one fundamental issue: whether a reasonable, well-informed observer could question the Judge's impartiality. See, e.g., Hatcher, 150 F.3d at 637.

In answering this question, we must examine carefully the nature of the Judge's meeting with the heads of the two governmental offices involved. The Judge called an off-the-record meeting with the United States Attorney and the Federal Defender. This manner of proceeding in a federal criminal matter is indeed unusual and necessarily raises substantial concerns in the mind of any well-informed observer. We must take special note of the fact that no record was taken of the meeting.

The substance of the discussion at the meeting convinces us that the Judge misapprehended the limits of his authority.

The parties agree that, at the October 9 meeting, the Judge suggested a specific plea bargain. This participation was clearly violative of the specific prohibition in the Federal Rules of Criminal Procedure that forbids the court from becoming involved in plea negotiations. See Fed. R. Crim. P. 11(c)(1). We have expressed the same view in United States v. Kraus, 137 F.3d 447, 452 (7th Cir. 1998), when we wrote that "[e]xcluding the judge from the plea discussions thus serves three purposes: it minimizes the risk that the defendant will be judicially coerced into pleading guilty, it preserves the impartiality of the court, and it avoids any appearance of impropriety." The judge who advocates a particular plea bargain may resent the government for disagreeing.

Here we must conclude that the Judge did more than simply participate in a plea bargain.  He questioned the Government's decision to prosecute the matter as a federal case in terms that a reasonable observer might well interpret as critical of the Government's position in the case.

In expressing these views and insisting that action be taken to conform the future course of litigation to those views, the Judge misapprehended the limits of his authority as the presiding judicial officer and undertook to participate in determinations that are in the proper domain of the Department of Justice.

The power of the Executive Branch to make these decisions is a safeguard of liberty. As this court has noted, entrusting these prerogatives to the Executive ensures that " 'no one can be convicted of a crime without the concurrence of all three branches.' " United States v. O'Neill, 437 F.3d 654, 660 (7th Cir. 2006).  Judges do not possess, and should not attempt to exercise, prosecutorial discretion.

A motion under section 455(a) is "directed against the appearance of partiality, whether or not the judge is actually biased." Balistrieri, 779 F.2d at 1204.  We must conclude that the Judge's actions, assessed in their totality, are such that a reasonable, well-informed observer would question his partiality. Hook, 89 F.3d 350 at 353-54.

The question before us is not whether the Judge is biased.  However, we must conclude that the Government is entitled to the issuance of the writ of mandamus for which it has petitioned because it has established that a reasonable well-informed observer could question the Judge's impartiality.

It is so ordered.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about Chicago Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com.

 

Drug Experts and Interpreting Words in Recorded Conversations: Boilerplate Rules and Analysis

United States v. York, No. 07-2032 (7th Cir. 07/15/2009)

As Darvell York spoke to Tracy Mitchell about selling him "nine probably hard," law enforcement was listening. Agents had set up a sting to buy nine ounces of crack cocaine from York, and Mitchell was their informant. At York's trial, the government played the recorded conversations for the jury. Though York and Mitchell seemed to speak in plain English, without any reference to drugs, the government argued that they were really conversing in the cryptic, coded language of the narcotics trade. The government called two law enforcement witnesses to interpret this drug jargon for the jury.

These interpretations made clear that York and Mitchell were negotiating a drug deal, despite their words being facially benign-e.g., "nine probably hard" meant nine ounces of crack cocaine. After reviewing the admissibility of each agent's testimony, we find that the district court was correct in admitting the vast majority of the agents' translations; only a small portion of one agent's testimony was erroneously admitted.

Consequently, the crux of this case is whether those few errors were harmless. We conclude that they were and therefore affirm.

York was indicted on one count of knowingly and intentionally distributing cocaine base (specifically crack) in violation of 21 U.S.C. § 841(a)(1). His first trial ended without a unanimous verdict, resulting in a mistrial. York was retried a few months later. The government's case was nearly identical at both trials-the same witnesses testified at each and their testimony was substantially the same. In neither trial did the informant Mitchell testify.

At the second trial, the jury heard from a number of witnesses, including a chemist, a fingerprint expert, and a set of law enforcement officers. Two of those officers are of concern in this case.

The first was FBI Agent Mike Brown, who was one of the primary agents handling the investigation of York and who helped execute the sting. Brown explained the sting operation to the jury, described what the jurors saw as they watched the video of York meeting with Mitchell, and identified the voices in the audio recordings as Mitchell's and York's. He also said that he heard the sound of money being counted while eavesdropping when York and Mitchell were in the van.

But the government did not use Brown solely as a fact witness. Brown had extensive experience in prior drug cases. So the government, without first formally offering Brown as an expert, asked Brown to give his opinion about the meaning of certain words and phrases that Mitchell and York used in their conversations.

Brown wasn't the only witness to interpret the drug lingo in the recorded conversations. The government called (and formally offered) Officer Robert Coleman as an expert witness. Coleman had extensive experience in narcotics investigations but he was not involved with York's investigation. He only reviewed the transcripts of the recorded conversations so he could give his opinion on their meaning. Most of Coleman's translations of the code words were identical to Brown's-the words referred to drugs and drug paraphernalia.

A. Agent Brown's Interpretation Testimony

Through various interrelated arguments, York contends that Brown's interpretation testimony was inadmissible under Federal Rules of Evidence 702 and 403, Federal Rule of Criminal Procedure 16(1)(g), and the Sixth Amendment's Confrontation Clause. The district court should have excluded Brown's interpretations of the words "six," "five dollar," and fifty-five." The rest of Brown's interpretations, however, was admissible.

To begin, we must determine whether Brown's interpretations were admissible only as expert opinion testimony under Fed. R. Evid. 702. The government concedes that they were, and we agree.

Opinions or inferences based on "scientific, technical, or other specialized knowledge within the scope of Rule 702" are not admissible as lay testimony under Fed. R. Evid. 701. Such opinions or inferences, drawn from facts outside the witness's first-hand knowledge of the case, are admissible only as expert testimony. United States v. Conn, 297 F.3d 548, 553-54 (7th Cir. 2002). Brown's interpretation testimony fit the "expert" mold. For the most part, Brown did not claim that he learned the meaning of these words during the course of his investigation of York. United States v. Rollins, 544 F.3d 820, 833 (7th Cir. 2008) (finding law enforcement witness's interpretations of code words as admissible lay testimony where witness based interpretation only on listening first-hand to numerous recorded telephone calls in that particular investigation).

Expert testimony has its benefits for the party who offers it, but it also has its burdens. Rule 702 requires that an expert be qualified "by knowledge, skill, experience, training, or education" to render his opinion, and that the opinion "assist the trier of fact to understand the evidence or to determine a fact in issue."

Rule 702 also requires that "(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." In addition, prior to trial, the government must disclose to the defendant a written summary of the expert's testimony, which "describe[s] the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications." Fed. R. Crim. P. 16(a)(1)(G).

1. Qualifying Agent Brown as an "Expert"

York argues that the government failed to fulfill a number of these burdens when it asked Brown to opine on the meaning of York's and Mitchell's conversations. First, York contends that Brown's interpretation testimony should have been excluded because the district court failed to formally "qualify" Brown as an expert and did not permit York to conduct a voir dire regarding Brown's qualifications. District courts have a "gatekeeping" duty to ensure that witnesses do not offer expert testimony before the court is satisfied that Rule 702's requirements are met. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999).

We are hard-pressed to say that York's general foundation objection preserved any challenge to Brown's qualifications, the lack of voir dire, or whether Brown's testimony was based on "sufficient facts or data" and "reliable principles and methods." See Fed. R. Evid. 103(a)(1) (requiring a "timely objection . . . stating the specific ground of objection, if the specific ground was not apparent from the context" (emphasis added)); Rollins, 544 F.3d at 834. We have routinely held that "narcotics code words are an appropriate subject for expert testimony." United States v. Farmer, 543 F.3d 363, 370 (7th Cir. 2008). A law enforcement officer's understanding of the drug trade, which comes from that officer's prior experience policing illicit narcotics transactions, is "specialized knowledge" within Rule 702. Notably, York does not challenge Brown's qualifications, his methods, or the accuracy of his testimony here on appeal.

Along these lines, we find that York suffered no prejudice by being unable to conduct a formal voir dire of Brown before he testified.

2. Expert Disclosure Requirements

Next, York hints that the government ignored the expert disclosure requirements of Fed. R. Crim. P. 16(a)(1)(G). Indeed, it appears the government did. Since the government planned to elicit expert opinion testimony from Brown, it should have provided a summary of Brown's testimony to York's counsel prior to trial. See Oriedo, 498 F.3d at 604. But York never raised this issue below, which limits our review to plain error. United States v. Navarro, 90 F.3d 1245, 1259 (7th Cir. 1996). On appeal, York does not identify any prejudice that he suffered as a result of this non-disclosure, which would justify outright exclusion of Brown's testimony (or any other sanction under Fed. R. Crim. P. 16(d)(2) for that matter). We don't see how there could be any. Brown's testimony at York's second trial mirrored his testimony from the first.

3. Helpfulness of Agent Brown's Testimony

York next argues that Brown interpreted some words and sounds that were not drug code and therefore needed no interpretation. Specifically, York challenges Brown's interpretation of the numbers "six," "nine," "five dollar," and "fifty-five," as well as Brown's comment that he heard the sound of money being counted over the audio transmitter.

First, York contends that, by interpreting words already within the jury's understanding, Brown's testimony did not meet Rule 702's requirement that expert testimony "assist" the jury. Second, because these words and sounds were not "code," in York's view, Brown's testimony was not based on sufficient facts and reliable methods as Rule 702 requires. Because York's trial objection arguably encompasses these claims, we review them for an abuse of discretion. Farmer, 543 F.3d at 370.

Turning to that first claim, we have discussed that the Rules of Evidence allow expert law enforcement witnesses to translate drug jargon and code words that might seem entirely innocuous to an untrained jury. United States v. Ceballos, 302 F.3d 679, 687-88 (7th Cir. 2002). "Interpretations" of unambiguous words or phrases that are plainly within the jury's understanding are unlikely to be admissible under Rule 702; they would not "assist the trier of fact to understand the evidence or to determine a fact in issue." See United States v. Rollins, 862 F.2d 1282, 1292 (7th Cir. 1988). Instead, they would merely put an expert gloss on a conclusion the jury should draw.

In Ceballos, 302 F.3d at 687-88, we upheld agents' interpretations of simple pronouns such as "it," "them," and "both" as referring to methamphetamine shipments, in part, because defendants used those pronouns ambiguously in their conversation. Given this ambiguity, we concluded that the agents' experience interpreting drug code language would be helpful to the jury. Id. at 688; see also Rollins, 862 F.2d at 1292 (upholding agent's interpretation of "t-shirts," "stuff," and "it" as code words referring to cocaine).

Here, the terms "six," "nine," "five dollar," and "fifty-five" were facially ambiguous. Given our decisions in Ceballos and Rollins, we have no qualms concluding that Brown's interpretation of these vague terms would assist the jury.

4. Foundation for Agent Brown's Interpretations

But that alone doesn't mean Brown's testimony was admissible. Rule 702 requires more than a qualified expert and helpful testimony. Brown must have had a reliable basis for opining that words like "six" and "fifty-five" are in fact drug lingo. Fed. R. Evid. 702; see also Conn, 297 F.3d at 555 ("The second prong of the test set forth in Rule 702 requires that the testimony be the product of reliable principles and methods.").

York argues that words like "six" and "fifty-five" do not have "fixed meanings" and therefore should not be treated as drug code that an expert can interpret. We find York's view too narrow. Experts need not establish that certain words have fixed meanings only in the narcotics world or in the particular conspiracy before they can interpret those words. Experts can deter-mine, based on their expertise, that certain words have drug-related meanings within the context of a single conversation.

Between his expertise and the context of the conversation, Brown could interpret "nine" as the agreed-upon quantity and "six," "five dollar," and "fifty-five" as efforts to negotiate the price.

5. Dual Testimony

York argues that Brown impermissibly testified as both an expert and a fact witness in the same trip to the witness stand.

Though such a practice is routinely upheld, particularly where experienced law enforcement officers were involved in the particular investigation at issue, e.g., United States v. Mansoori, 304 F.3d 635, 654 (7th Cir. 2002),there are some inherent dangers with this kind of dual testimony, see Upton, 512 F.3d at 401.  For example, the witness's dual role might confuse the jury. United States v. Goodwin, 496 F.3d 636, 641 (7th Cir. 2007); Fed. R. Evid. 403. Or, the jury might be smitten by an expert's "aura of special reliability" and therefore give his factual testimony undue weight. United States v. Brown, 7 F.3d 648, 655 (7th Cir. 1993). Or, "the jury may unduly credit the opinion testimony of an investigating officer based on a perception that the expert was privy to facts about the defendant not presented at trial." Upton, 512 F.3d at 401.

Given these dangers, district courts must take some precautions to ensure the jury understands its function in evaluating this evidence. Id.

The protective steps taken in this case were not the model of how to handle a witness who testifies in a dual capacity. We recognize that the government established an adequate foundation for Brown's testimony, as we have discussed, outlining his years of expertise with drug investigations. Counsel repeatedly questioned Brown's basis for his understanding of the words, highlighting the fact that neither Mitchell nor York ever specifically mentioned cocaine or crack in their conversations. These measures went part of the way toward minimizing the dangers of dual testimony.

But the court and the government were less vigilant in instructing the jury and structuring Brown's testimony. For instance, though the court did instruct the jury on how it should evaluate opinion testimony from witnesses with special knowledge or skill, this instruction came at the end of the trial. It would have been far more effective for the court to have explained Brown's dual role to the jury before Brown testified and then flag for the jury when Brown testified as a fact witness and when he testified as an expert. See Upton, 512 F.3d at 401.

What gives us the greatest cause for concern, though, is the structure of Brown's testimony. The government started off well. It appropriately signaled to the jury that Brown was relying on his expertise and not his knowledge of York's investigation when it asked Brown whether, during his involvement in over 200 investigations, he learned some terms of the drug trade.

But then things got murky. The government switched back to questioning Brown about the investigation, which of itself might not have been problematic, had the government not decided, several moments into Brown's factual testimony, to go back and question Brown about a few more code words-"six," "fifty-five," and "five dollar."

Seamlessly switching back-and-forth between expert and fact testimony does little to stem the risks associated with dual-role witnesses. Even more problematic was the way in which the government prefaced these questions: "Based on your experience of [sic] crack cocaine investigations and this investigation in particular . . . ." (emphasis added). This phrasing explicitly mixed Brown's dual bases of knowledge, leaving the jury to wonder who was testifying, Brown-the-expert or Brown the-case-agent.

Given this heightened possibility for juror confusion, coupled with the lack of a timely cautionary instruction and the fact that we cannot discern whether Brown's interpretations were actually based on his expertise or a conversation with Mitchell, we conclude that the court erred in admitting Brown's responses to the government's questions about "six," "fifty-five," and "five dollar."

To review where we are at this point, we think that the district court should have excluded Brown's interpretations of "six," "fifty-five," and "five dollar" as improper dual testimony. But that doesn't mean we must reverse. Under either a plain error standard or an abuse-of-discretion standard. We are convinced that failing to exclude these three interpretations was harmless; the evidence against York was overwhelming.

AFFIRMED

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about Chicago Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com.

Consent to Search Home: Boilerplate Rules to Determine Voluntariness

United States v. McGraw, No. 08-2705 (7th Cir. 07/02/2009).

While executing a search warrant for drugs inside a Fort Wayne, Indiana apartment building, police officers noticed that the building had several housing-code violations. Police called a neighborhood code-enforcement officer, who arrived and determined that the apartment building must be condemned. 

When Frank McGraw, the second- floor tenant, arrived on the scene, officers instructed him to secure his dog and collect the belongings he would need for a few days. McGraw consented to the search three times before leaving the apartment building with his dog. During that search, police observed narcotics in plain view, and McGraw was charged with possession of crack cocaine.

McGraw moved to suppress the evidence, claiming that any consent he gave was not voluntary but instead constituted acquiescence to the officers' display of authority. The district court denied the motion, finding that McGraw's consent was voluntary.

We affirm. The district court did not clearly err in finding that McGraw voluntarily consented to the officers' search. The court analyzed the totality of the circumstances and determined that despite the way in which some of the officers phrased their request to search McGraw's unit, McGraw voluntarily consented to their search. The court properly denied McGraw's motion to suppress.

The Fourth and Fourteenth Amendments safeguard the "right of the people to be secure in their... houses... against unreasonable searches and seizures." A warrantless search of a suspect's house without exigent circumstances is presumptively unreasonable, Payton v. New York, 445 U.S. 573 (1980), and the exclusionary rule generally requires suppression of the evidence obtained from such searches. However, this general rule is subject to well-recognized exceptions, including the suspect's voluntary consent to the search. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218 (1973).

Consent-search cases distinguish between voluntary consent and consent resulting from duress, coercion, or acquiescence to authority. This is a "question of fact to be determined from the totality of all the circumstances," id. at 227, and the government bears the burden of proving voluntary consent by a preponderance of the evidence, United States v. Basinski, 226 F.3d 829, 833 (7th Cir. 2000).

Factors bearing on this inquiry include:

(1) the person's age, intelligence, and education,

(2) whether he was advised of his constitutional rights,

(3) how long he was detained before he gave his consent,

(4) whether his consent was immediate, or was prompted by repeated requests by the authorities,

(5) whether any physical coercion was used, and

(6) whether the individual was in police custody when he gave his consent.
United States v. Raibley, 243 F.3d 1069, 1075-76 (7th Cir. 2001)

In this case the district court concluded that the government satisfied its burden of proving voluntary consent.

The parties agree that we review that determination for clear error. See Raibley, 243 F.3d at 1076.  "A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. Rice, 995 F.2d 719, 722 (7th Cir. 1993). "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574 (1985). Stated differently, " '[i]f the district court's account of the facts is plausible in light of the record viewed in its entirety, we may not reverse that decision even if we may have decided the case differently.' " Raibley, 243 F.3d at 1076.

We agree with the district court that this is a close case. On the one hand, considerable evidence suggested that McGraw voluntarily consented to the officers' search. On the other hand, there is also some evidence that weighs against a finding of voluntariness. Most importantly, in their encounter with McGraw, both Squadrito and Salomon arguably implied that they had a right to search McGraw's apartment without his permission.

Faced with competing evidence, the district court looked to the "totality of the circumstances" in determining whether McGraw's consent was voluntarily given. The court treated Salomon's and Squadrito's suspect language as a "factor [that] weighs against a finding of voluntary consent," and suggested that even in the presence of such language, the proper inquiry is "whether such claims [of authority] outweigh the other factors suggesting consent was voluntary."

We are not left with "the definite and firm conviction that a mistake has been committed." United States v. Rice, 995 F.2d 719, 722 (7th Cir. 1993). Keeping in mind the deference due the district judge, who is in a superior position to observe the witnesses and determine exactly what happened and how it happened, we conclude that the court did not clearly err.

AFFIRMED.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about Chicago Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com.

 

Rule 11(c)(1)(C) Plea Agreements. Be Careful That The Agreed Sentence Is Binding On District Court.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
PARRISH D. COLE, DEFENDANT-APPELLANT.  No. 06-2547.

Parrish Cole entered into a written plea agreement with the government in which he acknowledged distributing less than 400 grams of heroin and less than a kilogram of marijuana. The district court accepted the plea agreement but found, based on information in the presentence report, that Cole should be held responsible for a greater quantity of drugs than the amounts he had admitted in the agreement.

The court increased Cole's guidelines range accordingly and sentenced Cole to 97 months in prison, which was nearly double the sentence Cole expected if the court had followed the recommendations in the plea agreement. 
 
Cole challenges his sentence; although in his plea agreement he waived his right to appeal, he argues that the appeal waiver is unenforceable because the district court's independent calculation of the drug quantities effectively nullified the agreement.

We disagree. The enforceability of Cole's appeal waiver hinges on whether the drug quantities in Cole's plea agreement were binding on the district court for sentencing purposes.

Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure provides that if the district court accepts a plea containing an agreement between the government and the defendant about a specific sentence, sentencing range, or the applicability of a specific guide-lines provision, policy statement, or sentencing factor, the court is bound by the parties' agreement for purposes of sentencing.

Cole's drug-quantity admissions in the plea agreement do not fall into any of these categories but are instead factual stipulations that fall outside Rule 11(c)(1)(C)'s scope and thus do not bind the district court.

Parrish Cole pleaded guilty to one count of distributing heroin in violation of 21 U.S.C. § 841(a)(1). As part of his written plea agreement with the government, Cole agreed that he had distributed between 100 and 400 grams of heroin and between 250 and 1,000 grams of marijuana. Cole also agreed to forfeit (among other things) $84,150 in cash, which he acknowledged he earned through his drug trade.

I. Background

The district judge waited until after he had received and reviewed the presentence report before accepting the plea agreement's recommendations. That report recommended converting the cash Cole agreed to forfeit into a drug quantity for sentencing purposes, see United States v. Rivera, 6 F.3d 431, 446-47 (7th Cir. 1993), something that neither the government nor Cole had considered during plea negotiations.

At sentencing the government asked the district court to adhere to the drug quantities Cole had admitted in his plea agreement in determining Cole's sentence, but the district court declined to do so; the judge concluded that U.S.S.G. § 6B1.4(d) permitted him to reject factual stipulations in the plea agreement. Adopting the information in the presentence report, the court treated the cash as the equivalent of 832 grams of heroin, which raised Cole's offense level by six levels and nearly doubled his applicable guidelines range.

II. Discussion

The government asks us to dismiss this appeal because Cole waived his right to appeal his sentence in his plea agreement.   Cole contends that the district court's sentencing decision did not comport with the requirements of Rule 11. 

The merits of Cole's Rule 11 claim are intertwined with the enforceability of his appeal waiver; if Rule 11 did not require the district court to use the drug-quantity amounts in Cole's plea agreement for sentencing purposes, then the plea is valid and Cole's appeal waiver is enforceable. Thus, "the plea and the waiver stand or fall together." Latham v. United States, 527 F.3d 651, 653 (7th Cir. 2008).

Plea agreements are governed by Rule 11(c), which makes some types of agreements between the government and a defendant binding upon the district court and others not.

Not all particularized provisions in a plea agreement operate to make a plea agreement binding on the district court. See FED. R. CRIM. P. 11(c)(1)(B) (providing that the district court is not bound by the parties' agreement that the government will "recommend, or agree not to oppose the defendant's request, that a particular sentence or sentencing range is appropriate or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does not apply").

Cole's plea agreement contained many provisions explicitly preserving the non-binding character of the agreement. For example, the agreement specifically stated that the district court "will determine the applicable guidelines range" and "will determine all matters, whether factual or legal, relevant to the application" of the guidelines, and that "the specific sentence to be imposed . . . will be determined by the judge."

Rule 11(c)(1)(C) only applies to agreements regarding sentences, sentencing ranges, or sentencing factors; it does not apply to factual stipulations.

Typically, Rule 11(c)(1)(C) agreements explicitly contain an agreed-upon sentence, e.g., United States v. Weathington, 507 F.3d 1068, 1070 (7th Cir. 2007), or an agreed-upon sentencing range, e.g., United States v. Blinn, 490 F.3d 586, 587 (7th Cir. 2007). Rule 11(c)(1)(C) agreements may also explain how an agreed-upon sentence will be affected by a court's resolution of disputed issues. See, e.g., United States v. Linder, 530 F.3d 556, 559 (7th Cir. 2008) (parties agreed defendant would be sentenced to 50% of the low end of the applicable guidelines range)(Linder is my work. mjp.).

Cole's plea agreement contains none of these indicia.

Instead, Cole's admissions regarding drug quantities are the equivalent of a stipulation of facts that falls outside Rule 11's scope. The district court is not bound by the parties' stipulations, a point confirmed by the guide-lines. See U.S.S.G. § 6B1.4 ("A plea agreement may be accompanied by a written stipulation of facts relevant to sentencing. . . . The court is not bound by the stipulation, but may with the aid of the presentence report, determine the facts relevant to sentencing.")

The commentary accompanying § 6B1.4 emphasizes this point:  Section 6B1.4(d) makes clear that the court is not obliged to accept the stipulation of the parties. Even though stipulations are expected to be accurate and complete, the court cannot rely exclusively upon stipulations in ascertaining the factors relevant to the determination of the sentence. Rather, in determining the factual basis for the sentence, the court will consider the stipulation, together with the results of the presentence investigation, and any other relevant information.

Simply mentioning a particular guide-line provision (as Cole's plea agreement does) is not enough to convert a factual stipulation into a binding Rule 11(c)(1)(C) agreement.

If the parties meant to bind the district court at sentencing, then the agreement would have contained specific language to that effect. As it was, the agreement explicitly left all aspects of the guidelines calculation and the ultimate sentence up to the court. As such, the court was free to accept the plea yet rely on the presentence report to reach its own drug-quantity findings notwithstanding the parties' stipulation about the drug quantities.

Rule 11(c)(1)(C) does not apply to stipulated facts, and so the drug-quantity amounts in Cole's agreement did not constrain the district court's sentencing decision. Accordingly, the district court did not nullify Cole's plea by rejecting the drug-quantity stipulations in the plea agreement, and the appeal waiver in Cole's plea agreement is enforceable.

The appeal is DISMISSED.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about Chicago Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com.