7th Circuit Criminal Law Alert

4th Amendment Search and Seizure: Six Day Delay by Police to Get Search Warrant for Cell Phone Is Not Unreasonable

UNITED STATES OF AMERICA v. JOSHUA BURGARD, No. 11-1863.

Expecting to find evidence of child pornography, police officers seized Joshua Burgard's cell phone without a warrant. At that point, however, they seemed to have lost their sense of urgency: they did nothing with the phone right away and allowed six days to elapse before they applied for a search warrant.

Once they had the warrant in hand, they searched the phone and, as anticipated, they found sexually explicit images of underage girls. Burgard pleaded guilty to two counts of receiving child pornography in violation of 18 U.S.C. § 2252(a)(2), and was sentenced to 210 months' imprisonment and 15 years of supervised release.

On appeal Burgard challenges only the district court's denial of his motion to suppress the photographs found on the phone. The pictures should have been excluded, in his view, because the police tarried too long before obtaining the warrant.

Although we agree with Burgard that the officers did not act with perfect diligence, we do not find the delay here to be so egregious that it renders the search and seizure unreasonable under the Fourth Amendment. We therefore affirm.

This case requires us to address one narrow question: did the six-day delay in securing a warrant render the seizure of Burgard's phone unreasonable for purposes of the Fourth Amendment? (All parties agree that the warrant was necessary, and so we make no comment on that point. The search here was of the more invasive type excluded from our discussion in United States v. Flores-Lopez, No. 10-3803, 2012 WL 652504 at *7 (7th Cir. Feb. 29, 2012).)

In general, "seizures of personal property are `unreasonable within the meaning of the Fourth Amendment. . . unless . . . accomplished pursuant to a judicial warrant.'" Illinois v. McArthur, 531 U.S. 326, 330 (2001) (quoting United States v. Place, 462 U.S. 696, 701 (1983)). An officer may temporarily seize property without a warrant, however, if she has "probable cause to believe that a container holds contraband or evidence of a crime" and "the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present." Place, 462 U.S. at 701.

Even a permissible warrantless seizure, such as the initial seizure here, must comply with the Fourth Amendment's reasonableness requirement. Thus, the Supreme Court has held that after seizing an item, police must obtain a search warrant within a reasonable period of time. See, e.g., Segura v. United States, 468 U.S. 796, 812 (1984) ("[A] seizure reasonable at its inception because based on probable cause may become unreasonable as a result of its duration.").

When officers fail to seek a search warrant, at some point the delay becomes unreasonable and is actionable under the Fourth Amendment. Moya v. United States, 761 F.2d 322, 325 n.1 (7th Cir. 1984) ("Even if the officers had probable cause to believe Moya's bag contained contraband, there would be a question whether the three hour detention of the bag before seeking a search warrant was reasonable."). We review the district court's decision about the reasonableness of the delay prior to the issuance of the warrant de novo, see United States v. Richmond, 641 F.3d 260, 261-62 (7th Cir. 2011).

There is unfortunately no bright line past which a delay becomes unreasonable. Instead, the Supreme Court has dictated that courts must assess the reasonableness of a seizure by weighing "the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." Place, 462 U.S. at 703. A

On the individual person's side of this balance, the critical question relates to any possessory interest in the seized object, not to privacy or liberty interests. "A seizure affects only the person's possessory interests; a search affects a person's privacy interests." Segura, 468 U.S. at 806. The longer the police take to seek a warrant, the greater the infringement on the person's possessory interest will be, for the obvious reason that a longer seizure is a greater infringement on possession than a shorter one. But unnecessary delays also undermine the criminal justice process in a more general way: they prevent the judiciary from promptly evaluating and correcting improper seizures. Thus the "brevity" of the seizure is "an important factor" for us to weigh. Place, 462 U.S. at 709.

Turning to the state's side, a key factor in our analysis is the strength of the state's basis for the seizure. The state has a stronger interest in seizures made on the basis of probable cause than in those resting only on reasonable suspicion. All else being equal, the Fourth Amendment will tolerate greater delays after probable-cause seizures. Finally, when we balance these competing interests we must "take into account whether the police diligently pursue[d] their investigation." Place, 462 U.S. at 709. When police act with diligence, courts can have greater confidence that the police interest is legitimate and that the intrusion is no greater than reasonably necessary. McArthur, 531 U.S. at 331.

When police neglect to seek a warrant without any good explanation for that delay, it appears that the state is indifferent to searching the item and the intrusion on an individual's possessory interest is less likely to be justifiable. B

Applying these factors, we cannot say that the six-day delay here was so long that the seizure was unreasonable.

We acknowledge that Burgard had a strong interest in possessing his cell phone. At no point before the seizure did he abandon the phone or relinquish it to a third party. He even asserted his possessory interests over the phone by voluntarily going to the police station to obtain a property receipt, which would help him obtain the phone's return. On the other side of the equation, law enforcement's interests were also strong. Burgard has conceded that police had probable cause to believe that the phone would contain evidence of a crime.

Although the Supreme Court found a 90-minute delay to be unreasonable in Place, 462 U.S. at 696, the Court said nothing to suggest that 90 minutes is an outer limit for all cases. For one thing, the seizure in Place was made on the basis of reasonable suspicion, not probable cause. See Martin, 157 F.3d at 64. Given these facts, Burgard leans heavily on the diligence factor, arguing that the officer was not diligent because he should have been able to submit the warrant application more quickly.

We are willing to assume that Burgard is correct on this point. It strikes us as implausible that an officer with over 14 years of experience, like Krug, could not write a two-page affidavit in fewer than six days, especially when the affidavit drew largely on information that was contained in the initial report that he received from Wilson. But police imperfection is not enough to warrant reversal.

With the benefit of hindsight, courts "can almost always imagine some alternative means by which the objectives of the police might have been accomplished," but that does not necessarily mean that the police conduct was unreasonable. United States v. Sharpe, 470 U.S. 675, 686-87 (1985). Krug may theoretically have been able to work more quickly, but his delay was not the result of complete abdication of his work or failure to "see any urgency" as in Mitchell, 565 F.3d at 1351. He wanted to be sure that he had all the information he needed from the seizing officer and he wanted to consult with the AUSA, all the while attending to his other law enforcement duties.

We do not want to discourage this sort of careful, attentive police work, even if it appears to us that it could or should have moved more quickly. Encouraging slapdash work could lead to a variety of other problems. See, e.g., Groh v. Ramirez, 540 U.S. 551 (2004).

After seizing an item without a warrant, an officer must make it a priority to secure a search warrant that complies with the Fourth Amendment. This will entail diligent work to present a warrant application to the judicial officer at the earliest reasonable time.

We find that this standard was met here and that the six-day delay was not so unreasonable as to violate the Constitution.

We AFFIRM the district court's denial of Burgard's suppression motion and thus the judgment of the court.

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

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USSG 3E1.1: One Point for Timely Acceptance MUST Be Granted By Court If Government Asks

UNITED STATES OF AMERICA v. JAYMIE T. MOUNT, No. 11-2616.

Jaymie Mount disappeared while on release awaiting trial on a charge of possession of a gun by a felon, in violation of 18 U.S.C. § 922(g)(1). He was captured nearly three months later and pleaded guilty two weeks before his trial was set to begin.

At sentencing, the district court granted him a two-level reduction in his offense level under the U.S. Sentencing Guidelines for acceptance of responsibility. See U.S.S.G. § 3E1.1(a). In keeping with the plea agreement, the government moved for Mount to receive an additional one-level reduction, because it was satisfied that he had given prosecutors timely notice of his intention to plead guilty. See id. § 3E1.1(b).

The district court denied that motion, however, citing Mount's flight as its reason. Mount appeals, arguing that the additional one-level reduction is mandatory once the government determines that the criteria spelled out in § 3E1.1(b) are satisfied and it makes the necessary motion.

We conclude that Mount is correct, and we thus remand for resentencing.

We have not had occasion squarely to address this question in the past.
Returning to the language of the guideline, we come back to the point we noted earlier: since 2003 there have been essentially three requirements under the current text of § 3E1.1(b): (1) a decision that the defendant qualifies for the first two levels under subpart (a); (2) an offense level of 16 or greater before subpart (a) is applied; and (3) a government motion certifying assistance through a timely plea.

The language just quoted, we have held, is mandatory: subsection (b) "directs rather than allows the sentencing court to reduce the defendant's offense level if the qualifying conditions are met." United States v. Townsend, 73 F.3d 747, 755 (7th Cir. 1996). And we are not alone. Every circuit to consider the matter has also adopted this reading of the pre-amendment version of subsection (b). See, e.g., United States v. Rood, 281 F.3d 353, 357 (2d Cir. 2002); United States v. Rice, 184 F.3d 740, 742 (8th Cir. 1999); United States v. Tello, 9 F.3d 1119, 1124 (5th Cir. 1993).

We conclude that the district court erred here by failing to grant Mount the one-level reduction under § 3E1.1(b) that was triggered by the government's motion. His advisory guideline range was affected by that error, and we cannot say on this record that the error was harmless.

The judgment of the district court is VACATED and the case is REMANDED for further proceedings consistent with this opinion.

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

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FRE 404(b): Government Use of Defendant's Prior Drug Conviction to Prove Intent Leads to Reversal

USA v. Sharriff Miller, 11-1038

In April 2008, acting on a tip from a confidential informant, police obtained a search warrant and then raided a home where defendant Shariff Miller and several other people were staying. After apprehending Miller on his way out the side door, police searched the house and found several guns and a quantity of crack cocaine. The cocaine and a pistol were found close to some of Miller's personal effects in a room where he was alleged to be staying.

Miller was tried and convicted of three offenses: possessing more than five grams of crack cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), possession of a firearm in furtherance of a drug crime in violation of 18 U.S.C. § 924(c)(1)(A).

Miller appeals his convictions and raises three issues.....The third issue requires reversal of two of Miller's convictions and a remand for re-sentencing on the third.

At trial, the prosecution used Rule 404(b) to admit evidence that Miller had been convicted in 2000 of felony possession of cocaine with intent to distribute it. We conclude that admission of the details of Miller's prior drug conviction violated the character evidence prohibition of Rule 404(b) and was an abuse of discretion.

We conclude that admission of the details of Miller's prior drug conviction violated the character evidence prohibition of Rule 404(b) and was an abuse of discretion.

We conclude that admission of the details of Miller's prior drug conviction violated the character evidence prohibition of Rule 404(b) and was an abuse of discretion.

Use of a prior drug distribution conviction to prove intent to distribute is often a disguised use for impermissible propensity purposes, and was so here. We have often warned about the dangers of applying the exceptions in Federal Rule of Evidence 404(b) too loosely to admit prior bad acts, especially in drug cases, without paying close attention to both the legitimacy of the purpose for which the evidence is to be used and the need for it. See, e.g., United States v. Beasley, 809 F.2d 1273, 1277-80 (7th Cir. 1987).

III. Evidence of Prior Intent to Distribute Cocaine

The government's use of Miller's eight-year-old conviction for possession of cocaine with intent to distribute was far more problematic, and the admission of that evidence here requires reversal of his conviction on the two drug-related charges. Miller has never argued that the bags of drugs — some of which had price tags attached — were not intended for distribution. His defense at trial was instead that, despite the proximity to his personal effects, the drugs were not in fact his and he was not staying in the room where the drugs and pistol were found.

Because felon status is an element of the felon-in-possession charge, the government needed to prove that Miller was a convicted felon. The fact of his prior conviction of an unspecified felony was admissible for that purpose. E.g., Old Chief v. United States, 519 U.S. 172, 190-92 (1997). The nature and underlying story of that prior conviction, however, were not necessary or admissible merely to prove felon status — although they might have been admissible for another purpose under Rule 404(b). Id.

The district court wisely waited until after opening statements and cross-examination of a key witness to learn the defense theory before deciding whether to admit the details under Rule 404(b).

Miller contends, and we agree, that the drug crime evidence from 2000 was substantially more prejudicial than it was probative. The only purpose for which it could have been used by the jury here was to draw an impermissible propensity inference. The arguments presented in this case suggest that admission of prior drug crimes to prove intent to commit present drug crimes has become too routine. Closer attention needs to be paid to the reasons for using prior drug convictions — to lessen the danger that defendants like Miller will be convicted because the prosecution invited, and the jury likely made, an improper assumption about propensity to commit drug crimes.

Rule 404(b) does not provide a rule of automatic admission whenever bad acts evidence can be plausibly linked to "another purpose," such as knowledge or intent, listed in the rule. The Rule 402 requirement of relevance and the unfair prejudice balancing inquiries of Rule 403 still apply with full force. United States v. Beasley, 809 F.2d 1273, 1279-80 (7th Cir. 1987);

This must be so because the "list of exceptions in Rule 404(b), if applied mechanically, would overwhelm the central principle. Almost any bad act evidence simultaneously condemns by besmirching character and by showing one or more of `motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident', not to mention the `other purposes' of which this list is meant to be illustrative." Beasley, 809 F.2d at 1279 (emphasis in original).
The trial judge must balance the relevance of the proposed use of the evidence to the case — and the evidence's relevance to that proof — against the high risk that the evidence will also tend to establish bad character and propensity to commit the charged crime. Citing United States v. Manganellis, 864 F.2d 528, 532-33 (7th Cir. 1988), that if a mere claim of innocence were enough to automatically put intent at issue, the resulting exception would swallow the general rule against admission of prior bad acts.

Whether the intent element is specific or general for the charged crimes, all bad acts evidence must be balanced for probative value and unfair prejudice. Id.; Jones, 455 F.3d at 806-07.
It is helpful to distinguish between two aspects of the relevance inquiry.

The first aspect concerns whether a Rule 404(b) exception, like intent, is "at issue" — that is, whether the issue is relevant to the case. For example, knowledge may not be at issue at all where the charge is a strict liability offense, so that knowledge is not even an element of the crime. Similarly, while intent is at least formally relevant to all specific intent crimes, intent becomes more relevant, and evidence tending to prove intent becomes more probative, when the defense actually works to deny intent, joining the issue by contesting it. When, as in this case, the drugs in question were clearly a distribution quantity, the packages had price tags, and the defendant did not deny they were intended for distribution by someone, intent was "at issue" in only the most attenuated sense.
Whether the bad acts evidence offered is relevant to and probative of intent, without being too unfairly prejudicial by invoking a propensity inference.

In other words, can the government fairly use this evidence to meet its burden of proof on this issue?

We recognize that many of our cases approve the admission of prior drug-dealing crimes to show intent in drug-dealing prosecutions, despite the fact that, of the Rule 404(b) other purpose exceptions, intent is the exception most likely to blend with improper propensity uses. E.g., United States v. Perkins, 548 F.3d 510, 514-15 (7th Cir. 2008). We have never approved admission of bad acts evidence solely because it was formally relevant to intent and intent was "at issue."

There may be enough cases affirming such admissions, however, that in cases charging specific-intent drug crimes, the admission of prior drug convictions may have come to seem almost automatic. It is not. We need to recall first principles. "To meet the test of Rule 404(b), there must be a showing that an issue has been joined as to intent, or another of the 404(b) categories, discrete from a showing of mere propensity." Chavis, 429 F.3d at 673 (Cudahy, J., concurring).

To differentiate between "the illegitimate use of a prior conviction to show propensity and the proper use of a prior conviction to prove intent," "the government must affirmatively show why a particular prior conviction tends to show the more forward-looking fact of purpose, design, or volition to commit the new crime." United States v. Jones, 389 F.3d 753, 757-58 (7th Cir. 2004).

In every Rule 404(b) case relying on intent, the court (1) must consider the probative value of the prior act to prove present intent, and (2) must weigh that value against the tendency of the evidence to suggest unfairly a propensity to commit similar bad acts. The availability of precedent that balances the relevance of bad acts evidence and decides to admit it does not excuse prosecutors or courts from asking in each new case whether and how prior bad acts evidence might be relevant, probative, and fair.

Confusion and misuse of Rule 404(b) can be avoided by asking the prosecution exactly how the proffered evidence should work in the mind of a juror to establish the fact the government claims to be trying to prove. Here, Miller claimed that the drugs found in the shoe box and on the bed were not his, that he was in effect an innocent bystander.

How, exactly, does Miller's prior drug dealing conviction in 2000 suggest that he intended to deal drugs in 2008? When the question is framed this way, the answer becomes obvious, even though implicit: "He intended to do it before, ladies and gentlemen, so he must have intended to do it again." That is precisely the forbidden propensity inference.

And this is where the district court erred, even as it undertook the correct Rule 402 relevance and Rule 403 prejudice analysis — and cited some of our cases mentioned above. The court focused on whether intent was at issue based on Miller's defense and on the government's obligations of proof. Having concluded that intent was at issue, the court turned to analyze prejudice and, citing Hurn, simply stated that the evidence was highly probative of intent.

Had the court asked more specifically how the prior conviction tended to show intent eight years later, it would have recognized that it was dealing with propensity evidence all the way down. Unless there is a persuasive and specific answer to the question, "How does this evidence prove intent?" then the real answer is almost certainly that the evidence is probative only of propensity.

The court focused on whether intent was at issue based on Miller's defense and on the government's obligations of proof. Having concluded that intent was at issue, the court turned to analyze prejudice and, citing Hurn, simply stated that the evidence was highly probative of intent. Had the court asked more specifically how the prior conviction tended to show intent eight years later, it would have recognized that it was dealing with propensity evidence all the way down.

Unless there is a persuasive and specific answer to the question, "How does this evidence prove intent?" then the real answer is almost certainly that the evidence is probative only of propensity.
Miller's prior conviction for possession of cocaine with intent to distribute shows he once had an intent to distribute drugs. When intent is an essential element of the charged crime, prior bad acts evidence directed to intent can easily be nothing more than propensity evidence. This is why cases so often look to the nature of the defense to seek a possible justification for use of the evidence.

The admission of the details of Miller's 2000 conviction was an abuse of the district court's discretion. The government argues in the alternative that the error was harmless. We disagree as to the two drug-related charges, though the evidence of Miller's guilt in this case was strong. Police found a scale suitable for measuring drugs, and crack cocaine packaged for distribution, both in shoe boxes containing Miller's personal papers.

In deciding whether the non-constitutional error was harmless, we do not try to guess what the jury might have decided if it had not known that Miller had been convicted of this same crime eight years earlier. We instead ask whether an average juror would find the prosecution's case significantly less persuasive without the improper evidence. See Hicks, 635 F.3d at 1073-74.

We do not agree with the government that its evidence was overwhelming. Nor do we agree that the strength of the other evidence is the sole relevant factor. Our role in deciding whether an error was harmless is not to "become in effect a second jury to determine whether the defendant is guilty." See Neder v. United States, 527 U.S. 1, 19 (1999).

IV. Conclusion

Miller's convictions for possession with intent to distribute and for possession of a firearm in furtherance of that crime are REVERSED. Miller's conviction for being a felon in possession of a firearm was not tainted by the Rule 404(b) error and is AFFIRMED, but the sentence on that charge is VACATED so that the district court can resentence Miller on that charge once the other charges are resolved. The case is REMANDED for new sentencing on the felon-in-possession charge and a new trial on the other charges consistent with this opinion.

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

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

18 USC 1341 and 1343: Mail and Wire Fraud Do Not Require Allegations of Pecuniary Harm or Economic Loss

USA v. Steven Fenzl. No. 11-2459.

Fenzl is part-owner of Company U, an Illinois corporation engaged in the business of refurbishment and repair of refuse disposal containers. The government alleges that Fenzl engaged in a scheme to defraud the City of Chicago (the "City") of money and property related to bids submitted for, and the performance of, Specification No. 17390A (the "Contract"), to repair and refurbish the City's refuse disposal containers.

According to the indictment, in addition to submitting a bid for Company U, Fenzl orchestrated the submission of "sham" bids by three other companies with "materially false and fraudulent" documents. In addition to the bid rigging scheme, the indictment also alleges that Fenzl "fraudulently" obtained the Contract, in part, by certifying that Company U would subcontract for goods or services from a certified Minority Business Enterprise ("MBE") and a certified Women Business Enterprise ("WBE"), when in fact Defendants did not actually obtain such goods or services.

On August 24, 2009, Fenzl filed a motion to strike portions of the indictment arguing that alleged violations related to subcontracting with a MBE and WBE under the Contract did not constitute "a cognizable scheme to defraud the City of `money or property' under the federal [mail and wire] fraud statutes."

Currently before the Court is Fenzl's motion to dismiss the indictment in its entirety. (R. 65, Fenzl's Mot.) Fenzl asserts that there is no actionable mail or wire fraud because "there is no allegation here that the City [] suffered any pecuniary harm, nor that the alleged scheme contemplated pecuniary harm to the City" as required by Skilling v. United States, 130 S.Ct. 2896 (2010).

When considering a motion to dismiss, a court assumes all facts in the indictment are true and "must view all facts in the light most favorable to the government." United States v. Yashar, 166 F.3d 873, 880 (7th Cir.1999). The court should assess whether the government can produce evidence at trial that a defendant "conceivably" violated a given statute. United States v. Segal, 299 F.Supp.2d 840, 844 (N.D.Ill.2004).

The court should dismiss the indictment only if the government's "inability to produce sufficient evidence `so convincingly appears on the face of the indictment that as a matter of law there need be no necessity for such delay.'"

To convict a defendant of mail fraud under 18 U.S.C. § 1341, the government must prove: "(1) that the defendant knowingly devised or participated in a scheme to defraud or obtain money or property by means of materially false pretenses, representations, promises, or omissions as described in the indictment; (2) that the defendant did so knowingly and with the intent to defraud; and (3) that the defendant used the United States mail as a carrier." United States v. Thyfault, 579 F.3d 748, 751 (7th Cir.2009).

"The elements of wire fraud under 18 U.S.C. § 1343 directly parallel those of the mail fraud statute, but require the use of an interstate telephone call or electronic communication made in furtherance of the scheme." United States v. Leahy, 464 F.3d 773, 787 (7th Cir.2006).

Fenzl argues that the Supreme Court's recent decision in Skilling "compels the conclusion that some form of tangible, pecuniary harm must befall the victim in order to constitute a mail or wire fraud under §§ 1341 or 1343."

Fenzl's reliance on Skilling is misplaced as he has not been charged with honest-services fraud under § 1346. Fenzl points to language in the Skilling opinion where, in providing a history of the development of the "honest-services" doctrine, the Supreme Court distinguishes honest-service fraud from schemes in which the victim suffers loss of money or property.

Nothing in the cited language, however, suggests that the Court was inserting additional elements or limitations to the traditional mail or wire fraud statutes. See Skilling, 130 S.Ct. at 2926-27. As the law stands, the government does not need to establish pecuniary harm or economic loss as an element of the alleged offenses. See, e.g., Leahy, 464 F.3d at 786-87

Accordingly, dismissal of the indictment is not warranted.

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

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USSG and Double Counting: Impermissible Only When Text of the Applicable Guideline Specifically Says So

UNITED STATES OF AMERICA v. DAVID VIZCARRA and ROGELIO AGUIRRE. Nos. 09-1174, 09-2457.

David Vizcarra and Rogelio Aguirre committed a kidnapping for ransom to extract payment of a drug debt, abducting the victim in Indiana, taking her to Illinois, and holding her for two days before federal agents rescued her.

Along with two other coconspirators, they were indicted on conspiracy and kidnapping charges.

They pleaded guilty to the kidnapping count, and each appealed. Vizcarra argues that the district court miscalculated his guidelines sentencing range by applying a six-level enhancement under U.S.S.G. § 2A4.1(b)(1) for kidnapping demanding a ransom. Applying the enhancement, he contends, was impermissible double counting because the underlying offense involved a ransom demand.

We affirm Vizcarra's sentence.

Applying the enhancement for demanding a ransom does not impermissibly double count. In so holding we resolve an inconsistency in our caselaw regarding the concept of double counting.

Despite what we have said or implied—most recently in United States v. Bell, 598 F.3d 366, 371-73 (7th Cir. 2010)—there is no general prohibition against double counting in the guidelines. To the contrary, the default rule is that the same conduct may determine the base offense level and also trigger the cumulative application of enhancements and adjustments unless a specific guideline instructs otherwise. See U.S.S.G. § 1B1.1 cmt. n.4.

In other words, double counting is impermissible only when the text of the applicable guideline specifically says so.

Section 1B1.1 and its application note 4 establish the general principle that the various step increases in the guidelines are cumulative.

Subsection B of application note 4 explains that cumulative application is the rule even if multiple increases are based on the same conduct, unless a specific guidelines instructs otherwise.

This holding is consistent with the outcomes of our post-1996 cases as well as double-counting cases from other circuits.

To be sure, other circuits have developed slightly different "tests" for finding "impermissible" double counting. We have grouped the circuits together according to their general approaches to double counting:

• The Third, Fourth, and Fifth Circuits allow double counting in the absence of an explicit textual bar.

• The Second, Sixth, and Eighth Circuits allow double counting if Congress or the Sentencing Commission intended it, but presume such intent in the absence of a textual bar, effectively aligning themselves with the Third, Fourth, and Fifth Circuits.

• The First Circuit allows double counting absent an explicit textual bar or a compelling basis to recognize an implicit one. Because there are some explicit double-counting prohibitions in the guidelines, however, the court is openly cautious about "implying further such prohibitions where none are written.'" United States v. Stella, 591 F.3d 23, 30 n.9 (1st Cir. 2009) (quoting Lilly, 13 F.3d at 19).

• The Ninth, Tenth, and Eleventh Circuits allow double counting unless the competing guidelines provisions address identical harms caused by the defendant's conduct. These circuits appear to presume, however, that separate guidelines provisions punish separate harms unless otherwise indicated in the text.

• The D.C. Circuit does not have much meaningful commentary on double counting but appears to presume that double counting is permissible absent a textual bar.

As this survey shows, our colleagues in other circuits generally adhere to the principle that double counting is permissible unless the text of the applicable guideline instructs otherwise.

Returning to Vizcarra's case, applying the ransom enhancement was not impermissible double counting. The guidelines require the application of a six-level enhancement when the kidnapper demanded a ransom, see U.S.S.G. § 2A4.1(b)(1), and nothing in the text of this guideline or its application notes suggests that the enhancement does not apply to a defendant in Vizcarra's situation.

Accordingly, the district court properly applied the ransom enhancement.

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

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USSG 3B1.1 "Otherwise Extensive" Leadership Enhancement Explained

USA v. NAEIL HUSSEIN. No. 11-2248.

Naeil Hussein and his girlfriend, Lisa Bazian, operated what appeared to be convenience stores on the south side of Chicago. In fact they were little more than fronts where the couple rang up phony sales for food-stamp recipients looking to exchange their benefits for discounted amounts of cash. When federal investigators discovered the fraudulent scheme at one location, the pair simply obtained government authorization to accept food stamps at a different address where they continued their operation. Through a surrogate Hussein opened a third store and even attempted to qualify an ineligible restaurant.

Hussein eventually pleaded guilty to eight counts of wire fraud, 18 U.S.C. § 1343, and was sentenced to a total of 60 months' imprisonment and ordered to pay almost $1.7 million in restitution. Hussein next contends that the district court erroneously assessed a 4-level increase under § 3B1.1(a). Hussein does not dispute that he was an organizer or leader of the scam. But he insists that the court should have added only 2 levels under § 3B1.1(c) because, he maintains, the scheme was not "otherwise extensive" and did not involve five or more participants.

For purposes of § 3B1.1, a participant must be "criminally responsible for the commission of the offense, but need not have been convicted." U.S.S.G. § 3B1.1 cmt. n.1.

The government insists, as it did at sentencing, that anyone who sold food-stamp benefits to Hussein or Bazian was actively involved in their scam and thus a "participant" for purposes of § 3B1.1. This reasoning seems sensible, though the government could have strengthened its point by introducing evidence that many of the LINK cardholders who sold their benefits to Hussein and Bazian did so repeatedly.

Yet simply accepting fraud proceeds, stolen goods, or other contraband does not make recipients participants in the underlying scheme that produced the ill-gotten benefits when they are simply customers and not part of the operation. See United States v. Barrie, 267 F.3d 220, 223 (3d Cir. 2001); United States v. Egge, 223 F.3d 1128, 1133 (9th Cir. 2000). What matters is whether the recipient played an active role in the scheme. See United States v. Butler, 646 F.3d 1038, 1041-42 (8th Cir. 2011) (counting as participants recipients of fraudulent checks who cashed checks and split proceeds with other schemers); United States v. Zichettello, 208 F.3d 72, 108 (2d Cir. 2000) (counting as participant the recipient of an illegally discounted car where evidence permitted inference that recipient was criminally involved in broader scheme).

We decline to decide on which side of this line the food-stamp sellers in this case fall because we agree with the district court that the fraud scheme was "otherwise extensive," and thus the number of participants does not matter.

An offense can be otherwise extensive for purposes of § 3B1.1 even if fewer than five people participated. See U.S.S.G. § 3B1.1 cmt. n.3; United States v. Sheikh, 367 F.3d 683, 688-89 (7th Cir. 2004). And a scheme such as this one can be otherwise extensive when the defendant made a substantial portion of his income (close to two million dollars) through fraudulent redemptions, continued in operation for an extended period, and "used many people (including the food stamp vendors) to make the profit from the scheme." Sheikh, 367 F.3d at 688-89 (food-stamp fraud); see also United States v. Diekemper, 604 F.3d 345, 354 (7th Cir. 2010) (bankruptcy fraud); United States v. Dong Jin Chen, 497 F.3d 718, 722 (7th Cir. 2007) (extortion and tax fraud).

Similar factors were present here; the district court noted that Hussein ran his scam from multiple locations, traded cash for benefits with "probably hundreds" of customers, and supervised employees at his stores. Thus the court did not clearly err in finding the scheme otherwise extensive.

In the alternative Hussein contends that the 4-level upward adjustment should not apply because he did not exercise control over at least four participants during the scheme. But a leader or organizer under § 3B1.1 need control only one participant, not four. § 3B1.1 cmt. n.2; United States v. Blaylock, 413 F.3d 616, 621 (7th Cir. 2005).

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

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FRE 902(11). Boilerplate Rules for Admission of Certified Business Records.

USA v. James Green. 09-3098.

The government charged defendant James Green with four counts of wire fraud. His cousin, co-defendant Joseph Green, recruited Green to purchase properties in exchange for cash. Throughout the trial, Green argued that he was a victim of the fraudulent scheme, left holding the bag as the purchaser of properties that were supposed to be rehabilitated but were not.

A. Admissibility of Business Records

Green appeals the district court's admission of certain loan documents under Federal Rule of Evidence 902(11). Rule 902(11) streamlines the admission of certain inherently reliable documents by allowing a party to introduce a record of regularly conducted activity without live testimony from a records custodian so long as the record is accompanied by a proper written certification from a custodian or otherwise qualified person. See Fed. R.Evid. 902(11). The Rule requires that the record be admissible under Rule 803(6), which creates a hearsay exception for business records and reports "unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness." Fed.R.Evid. 803(6).

In advance of trial, the government filed notice of its intent to offer evidence pursuant to Rule 902(11). Green and his co-defendants objected, claiming that the records did not meet the Rule's requirements. Relevant to this appeal, they objected to the introduction of records certified by Charlene Batalla, a former employee of Equity Express mortgage brokerage firm, who was also a defendant in the scheme.

They argued that Batalla, as a co-defendant, was not trustworthy as a custodian. In 2008, Batalla pled guilty to falsifying documents in the defendants' conspiracy. In 2009, Batalla certified as records made in the regular course of business.

Rule 902(11) is a powerful and efficient short-cut, but it includes important built-in safeguards that cannot be taken lightly. Those safeguards include providing opposing counsel with advance notice of any Rule 902(11) certifications to give that party "a fair opportunity to challenge" the certifications, which could involve calling the certificate's signer to testify as Green demanded here. See Fed.R.Evid. 902(11). see also United States v. Adefehinti, 510 F.3d 319, 327-28 (D.C.Cir.2008) (amended opinion).

We have noted that in some circumstances a Rule 902(11) certification will not implicate a defendant's Confrontation Clause rights because the certificate itself is not testimonial. See United States v. Ellis, 460 F.3d 920, 927 (7th Cir.2006). But the Rule does not give a party license to dump business records into evidence without giving an adverse party an opportunity to question the certificate's signer where such questioning may be warranted. See Adefehinti, 510 F.3d at 328.

The government was treading on dangerous ground by using Rule 902(11) here to introduce not just these but hundreds of other records to prove the truth of the matters asserted without regard to the many layers of hearsay and the Confrontation Clause rights that those records may have implicated.

In any event, we need not decide whether the district court erred by admitting evidence based on the Batalla certification because any such error would have been harmless. The parties' supplemental materials show that many of the documents within each file were duplicates of business records maintained by other lenders that were also admitted without objection.

Given this overlap and the limited use of the files, Green has not shown that he was prejudiced by the Equity Express records certified by Batalla. In the absence of prejudice, we need not reach Green's arguments that Batalla's certificate of authenticity failed to meet the requirements of Rules 803(6) and 902(11) or that its use violated his Sixth Amendment right.

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

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Deceptive Investigative Techniques Jury Instruction Approved

UNITED STATES OF AMERICA v. ONDRAY McKNIGHT. No. 10-2297.

Mr. McKnight was charged with one count of conspiracy to distribute a controlled substance, 21 U.S.C. § 846, and two counts of using a communication facility (a telephone) to distribute a controlled substance, 21 U.S.C. § 843(b). Mr. McKnight pleaded not guilty, and a jury convicted him on the conspiracy and one of the communication counts.

The district court sentenced Mr. McKnight to 300 months' imprisonment to be followed by a ten-year term of supervised release.

In 2003, a confidential informant provided information to the DEA that led to an investigation of Victor Thompson, a high-ranking member of the Gangster Disciples gang. During their four-year investigation into Thompson's network, DEA agents and officers of the Chicago Police Department gathered evidence by using techniques that have become common in the drug context: confidential informants, undercover officers, controlled buys, surveillance and wiretapping.

During the jury instruction conference, the Government proposed the following jury instruction:

Sometimes the government uses undercover agents and undercover informants who may conceal their true identities in order to investigate suspected violations of law. In the effort to detect violations of the law, it is sometimes necessary for the government to use ruses, subterfuges and employ investigative techniques that deceive. It is not improper or illegal for the government to use these techniques, which are a permissible and recognized means of criminal investigation. Whether or not you approve of such techniques[] should not enter into your deliberations in any way.

Mr. McKnight's attorney objected, contending that the principal case on which the Government relied to support the instruction, Lewis v. United States, 385 U.S. 206 (1966), was inapposite and that the defense had not called the Government's investigative techniques into question.

A. Deceptive Investigative Techniques Instruction

Mr. McKnight raises two arguments on appeal. First, Mr. McKnight contends that the instruction is not an accurate statement of the law and is unsupported by the record. He claims that giving the instruction prejudiced his defense by confusing the jury about its obligation to evaluate Denton's credibility.

The Government counters that the instruction is supported by Lewis, 385 U.S. at 208-09, and that, in any event, the instruction did not prejudice Mr. McKnight's defense.

We engage in a limited review of jury instructions, asking only "`if the instructions as a whole were sufficient to inform the jury correctly of the applicable law.'" United States v. Curry, 538 F.3d 718, 731 (7th Cir. 2008) . "We . . . review de novo whether a particular instruction was appropriate as a matter of law." United States v. Borrasi, 639 F.3d 774, 781 (7th Cir. 2011). "`If the instructions are adequately supported by the record and are fair and accurate summaries of the law, the instructions will not be disturbed on appeal.'" Curry, 538 F.3d at 731. We review the district court's decision to give a particular instruction for an abuse of discretion, United States v. Tanner, 628 F.3d 890, 904 (7th Cir. 2010), affording substantial discretion to its choice of wording, United States v. Noel, 581 F.3d 490, 499 (7th Cir. 2009). Reversal is warranted "only if it appears both that the jury was misled and that the instructions prejudiced the defendant." Curry, 538 F.3d at 731.

Mr. McKnight contends that our decision in United States v. Childs, 447 F.3d 541 (7th Cir. 2006), demonstrates that the jury instruction in question is an inaccurate statement of the law. He submits Childs as support for the proposition that the jury may consider the investigative techniques of law enforcement in its deliberations. We cannot accept this reading of Childs.

The issue of whether the jury can consider the Government's use of deceptive investigative techniques simply was not before us in Childs.

The Government relies primarily on Lewis, 385 U.S. at 208-09, to support the legal accuracy of the instruction. In Lewis, the Supreme Court held that a federal narcotics agent did not violate the Fourth Amendment when he misrepresented his identity and conducted an undercover purchase of narcotics from the defendant in the defendant's home. Id. at 206-07. The Supreme Court noted that "it has long been acknowledged . . . that, in the detection of many types of crime, the Government is entitled to use decoys and to conceal the identity of its agents." Id. at 208-09.

We believe that the Government's position is correct. Although Lewis did not address specifically jury instructions, we believe the Supreme Court's holding makes quite clear that the statement of law contained in the instruction before us is correct.

We now turn to Mr. McKnight's further contention that the instruction, even if a correct statement of the law, was not appropriate in the context of this case. In Mr. McKnight's view, the instruction barred the jury from evaluating fully the credibility of Denton's testimony about Thompson's operations and about the meaning of coded telephone calls recorded during the investigation.

For its part, the Government takes the view that the district court acted well within its discretion in giving the instruction in order to ensure that the jurors understood that their disapproval of the Government's methodologies was not relevant to their task.

We approach our review of the district court's decision mindful that tailoring jury instructions to ensure that the case is submitted to the jury in a full and fair manner is a quintessential task of the trial court. See Noel, 581 F.3d at 499 ("We . . . give the district court substantial discretion to formulate the instructions . . . .").

We think that the decision as to whether to give this particular instruction is especially within the province of the presiding trial judge. There will be times when circumstances arising during trial will counsel in favor of giving such an instruction. Some of these occurrences may be perceptible to us from the trial record; others, such as the facial expressions of the jurors or similar manifestations of disapproval, will be apparent only to the trial judge.

At times, circumstances grounded in recent local events or local culture, of which the trial judge is especially cognizant, similarly might make the giving of such an instruction prudent. A trial court's obligation includes taking note of all such situations and acting to preserve the integrity of the record.

There are, however, countervailing considerations. We have recognized, for instance, that the giving of unnecessary instructions raises the distinct possibility of cluttering the instructions taken as a whole and, consequently, deflecting the jury's attention from the most important aspects of its task. See, e.g., United States v. Hill, 252 F.3d 919, 923 (7th Cir. 2001) ("Unless it is necessary to give an instruction, it is necessary not to give it, so that the important instructions stand out and are remembered.").

There is also a possibility that singling out this aspect of the case might be interpreted by the jurors as at least indirect approval of the effectiveness of the Government's management of the investigation.

The decision as to whether to give an instruction such as the one in question, of course, must be the product of an affirmative act of judicial discretion. Our difficulty here is that the district court did not elaborate on its reasons for giving the instruction.

Although the record provides very little affirmative information on the district court's reasoning for giving the instruction in question, we see nothing in this record to indicate that its decision to give the instruction constitutes an abuse of discretion.

We conclude that the district court did not commit reversible error by issuing the deceptive investigative practices jury instruction in this case. We therefore affirm Mr. McKnight's conviction.

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

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Restitution in Title 26 Tax Cases is Allowed Only as Condition of Probation or Supervised Release

USA v. Orvil Duane Hassebrock, No. 10-3296.

Orvil Duane Hassebrock was convicted by a jury of tax evasion, a felony offense under 26 U.S.C. § 7201, and failure to file a tax return for the 2004 tax year, a misdemeanor offense under 26 U.S.C. § 7203.

With respect to the narrow issue of restitution, we conclude that, although the district court possessed the statutory authority to impose restitution as a condition of supervised release, we are unclear as to whether it acted pursuant to this authority in its order of restitution.

For the following reasons, we affirm in part, vacate in part, and remand for further proceedings.

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

a. Authority to Impose Restitution

We review de novo questions of law involving the district court's authority to order restitution. United States v. Webber, 536 F.3d 584, 601 (7th Cir. 2008).

The government properly acknowledges that restitution is not permitted pursuant to 18 U.S.C. § 3663 or 18 U.S.C. § 3663A for offenses that fall within Title 26 of United States Code. However, a district court may impose restitution for Title 26 offenses as a condition of probation, see 18 U.S.C. § 3563(b)(2), or as a condition of supervised release, see 18 U.S.C. § 3583(d).

Section 3583(d), the Supervised Release Statute, provides in relevant part: "The court may order, as a further condition of supervised release, . . . any condition set forth as a discretionary condition of probation in section 3563(b) and any other condition it considers to be appropriate . . . ."

See also U.S.S.G. § 5E1.1(a)(2) ("In the case of an identifiable victim, the court shall . . . impose a term of probation or supervised release with a condition requiring restitution for the full amount of the victim's loss, if the offense is not an offense for which restitution is authorized under 18 U.S.C. § 3663(a)(1) but otherwise meets the criteria for an order of restitution under that section.").

Thus, it is clear that district courts possess the authority to impose restitution for tax offenses as a condition of supervised release.

It is less than clear, however, whether the district court in this case actually did impose restitution as a condition of supervised release, rather than as an independent component of the sentence. The court linked the order of restitution to the sentence of supervised release on two occasions but stopped short of directly identifying restitution as a condition of supervised release.

Because a district court can only impose restitution as a condition of supervised release, a defendant cannot be required to pay restitution until his period of supervised release begins. We are therefore troubled by the district court's oral and written statements that require immediate payment of restitution.

For Title 26 offenses, a district court is only authorized to impose restitution as a condition of probation or as a condition of supervised release. Given that the government carefully explained the court's authority, it seems likely that the court was aware that it could only impose restitution as a condition of supervised release.

But because a degree of uncertainty remains, we remand for the limited purpose of allowing the district court to clarify the statutory basis for its order of restitution. The district court does not have the authority to impose restitution pursuant to § 3663, nor does it have the authority to require immediate payment when imposing restitution as a condition of supervised release.

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Entrapment: IMPORTANT! Court Must Consider Defendant's Predispostion Before Government Inducement

USA v. Israel Pillado, Irineo Gonzalez, and Leobardo Lara, 10-1081, 10-1083 &10-1202.

A law enforcement operation that began with the promising interdiction of 943 kilograms of marijuana, shipped from Jalisco, Mexico, ended less than admirably.

When government agents executed a "controlled delivery" to an address in McHenry, Illinois, close to the one on the shipping manifest (the addresslisted did not exist), they arrested five people. By the government's own account, three persons ensnared in the sting operation had no prior connection to the illicit cargo. They were merely laborers who happened to be working on-site when they were persuaded to unload the truck. Unload it they did, and after the cargo was on the ground, police raided the scene.

The prosecution charged all five defendants with conspiracy to possess marijuana with the intent to distribute in violation of 21 U.S.C. § 846, and possession with the intent to distribute in violation of § 841(a)(1).

A. Leobarda Lara

2. Entrapment

Lara asserts that he is entitled to acquittal because he was entrapped into his minor involvement with this crime.

Entrapment involves "the apprehension of anotherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law." Jacobson v. United States, 503 U.S. 540, 553-54 (1992). The defense has two elements: government inducement of the crime and a lack of predisposition on the part of the defendant. See Mathews v. United States, 485 U.S. 58, 63 (1988).

In order to obtain an entrapment instruction, a defendant must proffer evidence on both elements. See United States v. Santiago-Godinez, 12 F.3d 722, 728 (7th Cir. 1993). Once a defendant meets this threshold, the burden shifts to the government to prove that the defendant was not entrapped, meaning "the prosecution must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents." Jacobson, 500 U.S. at 549.

We review a district court's refusal to give an entrapment jury instruction de novo, United States v. Hall, 608 F.3d 340, 343 (7th Cir. 2010), bearing in mind that the question whether a defendant has been entrapped is "generally one for the jury, rather than for the court." Mathews, 485 U.S. at 63.

The parties vigorously dispute what the defendant must proffer to warrant an entrapment instruction. The district court thought that absent a showing of "extraordinary inducement," the inquiry ends. Before we explain why the court was wrong on this point, we pause to comment on the court's decision not to consider predisposition before making its final ruling.

It is true that a defendant must proffer some evidence on both elements of the entrapment defense to warrant the instruction, but this is a situation in which the two parts of the inquiry inform one another. A person's lack of predisposition to commit a crime distinctively reveals whether the government has ensnared "an unwary innocent" in a criminal enterprise of its own design. See Mathews, 485 U.S. at 63.

As we explained in United States v. Evans, "the centrality of predisposition can be seen by considering the purpose of the doctrine of entrapment. It is to prevent the police from turning a law-abiding person into a criminal." See 924 F.2d 714, 717 (7th Cir. 1991). Thus, when the entrapment defense is in play, "predisposition . . . must be the key inquiry." Id.; Mathews, 485 U.S. at 63.

We recognize that where there is insufficient evidence of inducement-either because there is no such evidence at all, or because the government did nothing more than offer a standard market deal in a sting-there is no need to consider predisposition. But predisposition will often be the more efficient place to start.

As we have noted before, if there is sufficient evidence that a defendant was pre-disposed to commit the crime, a request for an entrapment instruction may be rejected without considering government inducement. See Santiago-Godinez, 12 F.3d at 728.

But the converse is not true: the court may not, as it did here, begin and end the inquiry with government inducement unless it is confident either that the government did nothing at all or that the record demonstrates that the government's actions simply provided an opportunity for a person who was already ready and willing to commit the offense.

There is an additional reason why it is sensible to begin the inquiry with predisposition. Whether a defendant is predisposed to commit the crime charged informs the nature and level of government inducement that must be identified to warrant an entrapment instruction. As we explained in United States v. Hollingsworth, 27 F.3d at 1200, when a defendant is so "situated by reason of previous training or experience or occupation or acquaintances that it is likely that if the government had not induced him to commit the crime some criminal would have done so," then he may be required to point to "extraordinary inducements" to raise the entrapment defense.

When there is independent evidence that the person was predisposed to commit the crime charged, there is little risk that an innocent person has been transformed into a criminal by the government's presentation of an ordinary opportunity to engage in a particular criminal activity. See United States v. De Marie, 226 F.2d 783, 785 (7th Cir. 1955) ("Where the officers only furnished the defendant with an opportunity to carry out a crime which he was already willing to commit, there is no entrapment.").

Significantly, however, what we have set forth above does not exhaust the possible applications of the entrapment defense. The most important function of the doctrine, the one that the Supreme Court has repeatedly affirmed, is to ensure that people who are not predisposed to commit a crime are not transformed into criminals by the government. See, e.g., Sorrells v. United States, 287 U.S. 435, 442 (1932).

Suppose the rule was that every defendant, even one not predisposed to committing the crime charged, was required to make a showing of extra-ordinary inducement before the defense could be presented to the jury. Government agents would be free to target perfectly law-abiding individuals with inducements that are subtle, persistent, or persuasive-yet not extraordinary-and those individuals would never be able to present the entrapment defense to the jury.

With these principles in mind, we consider Lara's claims. We begin by asking whether Lara was predisposed to the crime charged: possession with the intent to distribute about one ton of marijuana. This requires an evaluation of the following five factors: (1) the defendant's character or reputation; (2) whether the government initially suggested the criminal activity; (3) whether the defendant engaged in the criminal activity for profit; (4) whether the defendant evidenced a reluctance to commit the offense that was overcome by government persuasion; and (5) the nature of the inducement or persuasion by the government.

No single factor controls, but most significant is whether the defendant was reluctant to commit the offense. Id. It is not surprising that the government spends no time arguing that Lara was predisposed to commit the crime charged, since even a cursory review of the record shows no hint of such a predisposition.

Based on these facts, we conclude that Lara has identified enough evidence in the record from which a jury could conclude that the government induced him to commit the crime. So Lara is also entitled to a new trial based on the entrapment defense.

In that proceeding, prosecutors will bear the burden to prove beyond a reasonable doubt that Lara was predisposed to committing the crime by identifying "preinvestigation evidence" bearing on this issue. See Jacobson, 503 U.S. at 548-49 ("Where the Government has induced an individual to break the law and the defense of entrapment is at issue, as it was in this case, the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.").

For the reasons stated above, we REVERSE Lara's conviction and REMAND for a new trial consistent with this opinion.

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

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