7th Circuit Criminal Law Alert

FRCP 32: U. S. Probation Officer's Confidential Recommendation to the District Court Passes Constitutional Scrutiny

United States v. Ollie Peterson, No. 12-2484.      Defendant Ollie Peterson pled guilty to one count of bank robbery in violation of
18 U.S.C. § 2113(a) after robbing a bank to pay off a debt with a drug dealer. During Peterson’s sentencing hearing, the district court read from a portion of the probation officer’s confidential sentencing recommendation, which she had submitted only to the court.

At the conclusion of the hearing, the district court sentenced Peterson to 168 months in prison, which fell within Peterson’s sentencing guidelines range. On appeal, Peterson argues that the district court’s reliance on the probation officer’s confidential sentencing recommendation violated his Fifth and Sixth Amendment
rights because he had no opportunity to respond to the analysis contained therein.  

Peterson’s sole contention on appeal is that the district court’s reliance on the probation officer’s confidential sentencing recommendation violated his Fifth and Sixth Amendment rights. He maintains he had no
meaningful opportunity to respond to what he viewed as an argument in aggravation made secretly to the district court. 

Fifth Amendment Challenge 

Peterson first challenges the district court’s consideration of the probation officer’s justification contained in the confidential recommendation as a violation of his right to due process under the Fifth Amendment. He does not contest that the recommendation contained facts that were not disclosed in the PSR, but argues that
his inability to view the recommendation prior to sentencing prevented him from responding to the probation officer’s analysis.

In his brief, Peterson explicitly frames his appeal as an as-applied challenge to the district court’s procedure. He explains that he had no notice that the court would use the evidence demonstrating his lack of drug abuse and criminal involvement during childhood and his upportive family against him. 

Confidential recommendations and Local Rule 32.1  

In order to assist district courts in compiling evidence and fashioning reasonable sentences in criminal cases, Federal Rule of Criminal Procedure 32 requires probation officers to conduct presentence investigations and submit reports of their investigations to the court. See Fed. R. Crim. P. 32.

Rule 32 requires the probation officer assigned to a case to disclose her report to the defendant, the defendant’s counsel, and the attorney for the government prior to sentencing, and the district court must ensure that the defendant and his counsel have read and discussed the report before imposing the sentence. Fed. R. Crim. P.32(e)(2).

There are two exceptions to Rule 32’s disclosure requirement. First, subsection (d)(3) allows the probation officer to exclude from the version of the PSR given to the defendant any information relating to confidential sources, diagnoses that could seriously disrupt a rehabilitation program, and “any other information that, if disclosed, might result in physical or other harm to the defendant or others.” Fed. R. Crim. P. 32(d)(3)(A)-(C).

Second, a court may direct, “by local rule or by order in a case,” that the probation officer not “disclose to anyone other than the court the officer’s recommendation on the sentence.” Fed. R. Crim P. 32(e)(3). At the time of its enactment, the purpose behind the latter exception was to allow probation officers the opportunity to provide a candid assessment of the defendant to the court and to protect the effectiveness of the probation officer in the supervisory context. See Fed. R. Crim. P. 32 Advisory Comm. Note (1974). 

 

In line with Rule 32(e)(3), the Northern District of Illinois has adopted a local rule, which specifies that “[t]he recommendation of the presentence report shall be submitted only to the Court.” LCrR. 32.1(f). The rule also indicates that “[t]he recommendation section shall not include any factual information not already contained in the other sections of the report.” Id. The recommendation itself is therefore given to the judge confidentially, but every underlying fact on which the recommendation is based must be disclosed to the parties. 

Due process requirements  

Here, Peterson is not challenging the probation officer’s authority to submit a confidential recommendation to the district court, a procedure that courts have consistently upheld as constitutional. Rather, he is suggesting that the probation officer’s explanation, rationale, or justification contained in the confidential recommendation amounts to an argument to which a defendant has no opportunity to respond. 

“Due process entitles defendants to fair sentencing procedures, especially a right to be sentenced on the basis of accurate information.” United States v. Pless, 982 F.2d 1118, 1127 (7th Cir. 1992).  Consequently, we have held that if all facts on which the probation officer’s recommendation is based appear in the PSR, the district court’s consideration of the recommendation at sentencing does not violate due process. 

Here, the confidential portion of the PSR that the district court referenced during sentencing contained both a numeric recommendation and the probation officer’s analysis justifying that recommendation. Importantly,however, all of the underlying factual information supporting the probation officer’s rationale is contained in the version of the PSR both parties received prior to sentencing. Under the precedent in this circuit and others, Peterson received the process he was due: he reviewed the PSR and “had an opportunity to refute
its contents before the district court.” Heilprin, 910 F.2d at 474.  By ensuring that Peterson received and reviewed all of the facts referenced in the probation officer’s sentencing  recommendation, the district court gave Peterson all the process he was due, and we therefore find no Fifth Amendment violation or plain error.

The policy question nevertheless remains whether disclosure of a probation officer’s sentencing recommendation is desirable even if not constitutionally compelled. A blanket rule against disclosure of a probation officer’s sentencing recommendation, though explicitly endorsed by several of the district courts in this circuit, is far from universal. Many district courts favor releasing the sentencing recommendation to the parties and others leave disclosure to the district judge’s discretion. See, e.g.,E.D. Cal., L.R. 460(c). 

Concern about an absolute non-disclosure rule stems from a desire to maintain openness in the sentencing process. Because so few defendants proceed to trial, the sentencing hearing is often a defendant’s first and last opportunity to present argument to the court. And probation officers play an important role in that process.

We have often explained that a probation officer “acts as an arm of the court” during sentencing and does not take on the role of an adversary.  But we have also urged “district judges, U.S. Attorneys, and probation officers [to take steps] to prevent the perception that probation officers are ‘surrogate prosecutors.’ ” United States v. Turner, 203 F.3d 1010, 1014 (7th Cir. 2000).

To the extent confidential sentencing recommendations create the appearance of hidden information or a secret tilt in the government’s
favor, we offer the view that our federal sentencing procedures might be better served by allowing the parties to evaluate any analysis that might form the basis of a judicial determination.

We do not suggest that district courts should necessarily release confidential sentencing recommendations in all cases and under all circumstances. But the federal rules allow courts the opportunity to make these determinations on a case-by-case basis. See Fed. R. Crim.P. 32(e)(3).

If a district court is concerned about a probation officer’s ability to produce a forthright assessment because of a potential supervisory relationship or a case-specific factor, the court could request that the probation officer submit the sentencing recommendation to the court confidentially. An order from the district court requiring confidentiality would produce the added benefit of informing the defendant that a confidential recommendation exists, something that could remain a mystery to defendants when the court does not reference the recommendation during sentencing.

If, on the other hand, no such concerns exist because of the structure of the probation office or because of the nature of the case, the district court could direct that the parties receive all portions of the PSR, including the probation officer’s sentencing recommendation. This practice could allow the defense an opportunity to see and comment on the recommendation and independently confirm that all facts forming the basis for the recommendation are contained elsewhere
in the report.

Because due process does not require disclosure of the sentencing recommendation, we have conducted an independent review of the probation officer’s analysis and can confirm the district court’s conclusion that all facts on which she based that analysis are contained in the version of the PSR given to the parties in this case.

Sixth Amendment Challenge

Notwithstanding our concern about rules requiring the confidentiality of sentencing recommendations, Peterson’s Sixth Amendment challenge to the procedure fairs no better. Peterson contends that his inability to review and respond to the probation officer’s confidential  recommendation prior to sentencing amounted to a violation
of his Sixth Amendment right to counsel. Specifically, he argues that the district court’s consideration of his childhood and family circumstances as a potential aggravating factor was unforeseeable and that his counsel
was unable to address or refute the probation officer’s analysis prior to sentencing.

Peterson does not assert that his counsel committed any professional errors. Instead, he maintains that he was in the same position
he would have been in had he been unrepresented because his counsel could not respond to arguments that were not disclosed prior to sentencing.

Peterson seemingly argues for the application of the standard articulated in the Supreme Court’s decision in United States v. Cronic, 466 U.S. 648 (1984). In Cronic, the Supreme Court recognized that a Sixth Amendment violation will result if the defendant’s “counsel entirely fails to subject the prosecution’s case to meaningful
adversarial testing.” Id. at 659. In order for this standard to apply, however, the attorney’s failure must be complete, meaning that the defense counsel must have “failed to oppose the prosecution throughout the sentencing proceeding as a whole.” Bell v. Cone, 535 U.S. 685, 697 (2002).

Here, Peterson’s counsel engaged in a comprehensive discussion of what he viewed to be the mitigating factors in the case. He explained that Peterson’s criminal activity resulted from his drug use and that Peterson had never used a weapon to commit a robbery. He emphasized Peterson’s motivation to rehabilitate and argued that the court should consider his strong support group, including his family and friends, when fashioning a sentence.

Surely, Peterson’s counsel could have formulated a more tailored response to the district court’s interpretation of Peterson’s personal background had he known the probation officer would adopt a different
view of those facts. But there is nothing remarkable about the probation officer’s gloss on Peterson’s personal history.

And this court has expressed that “[w]hat a defendant proposes as an argument in mitigation may sound to the court more like a factor in aggravation.” United States v. Vasquez-Pita, 411 F. App’x 887, 892 (7th
Cir. 2011) (nonprecedential decision). “That is a risk inherent in discretionary sentencing,” id., not a basis for a Sixth Amendment claim.

Conclusion

For these reasons, we AFFIRM the sentence imposed by the district court. 

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

 

4th Amendment Terry Stop and Frisk Explained. Boilerplate Analysis

USA v. Raphael W. Patton,  No,. 11-2659.       After a Ruger nine-millimeter pistol was discovered in the waistband of his pants in the course of a stop and frisk, Robert W. Patton was charged with being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). Patton moved to suppress evidence relating to the gun, contending that the officer who frisked him lacked a reasonable suspicion that he might be armed. See Terry v. Ohio, 392 U.S. 1, 27, 30-31, 88 S. Ct. 1868, 1883, 1884-85 (1968).    

At approximately 1:30 a.m. on August 11, 2010, Peoria police officer Ryan Winkle and his partner were dispatched to investigate a group of seven or eight men who reportedly were drinking beers on a public sidewalk, in violation of a city ordinance.     At this point, Winkle noticed Patton doing something that distinguished himself from the other members of the group. Instead of stepping over to the Cadillac as the officers had instructed, Patton was backing away from the other men, looking from side to side nervously, like a "deer in the headlights."    

The district court's determination that the protective patdown of Patton was supported by reasonable suspicion that he might be armed is a legal determination that we review de novo. E.g., United States v. Snow, 656 F.3d 498, 500 (7th Cir. 2011), cert. denied, 132 S. Ct. 1910 (2012). Absent clear error, we of course defer to any findings of historical fact and credibility determinations that the district court made based on the testimony presented to it. Id. As the district court credited Winkle's testimony, we accept, as the district court did, his description of the events culminating in his pat-down of Patton.    

We begin by noting that there is no dispute that the officers had sufficient cause to stop and detain the group of men for investigatory purposes. Terry authorizes such a stop when an officer has a reasonable suspicion, based on specific and articulable facts, that criminal activity may be afoot. 392 U.S. at 21-22, 30, 88 S. Ct. at 1880, 1884. In this case, the officers arrived on scene to observe a number of men on the public way with open cans of beer in their hands.    

The disputed issue is whether Winkle was justified in conducting the pat-down which revealed the presence of the firearm on Patton's person. In addition to authorizing an investigatory stop when there is reason to believe a crime is being committed, Terrypermits the officer conducting such a stop to conduct a limited search of the suspect to determine whether he is armed, when the circumstances give rise to a reasonable belief that the individual may have a weapon and thus pose a danger to the officer or others in the immediate vicinity. 392 U.S. at 27, 30-31, 88 S. Ct. at 1883, 1884-85.           

Before we turn to those circumstances, it bears emphasis that the reasonable suspicion standard is an objective one. Terry, 392 U.S. at 27, 88 S. Ct. 1883; United States v. Barnett, 505 F.3d 637, 639-40 (7th Cir. 2007).    Whether the ensuing frisk of Patton was justified under Terry does not turn on Winkle's subjective intent and perception of the facts, however. SeeBarnett, 505 F.3d at 640. What matters is whether a reasonable police officer, faced with the circumstances confronting Winkle, would believe that Patton posed a danger to those in the immediate vicinity. Terry, 392 U.S. at 27, 88 S. Ct. at 1888.

We now turn to those circumstances, beginning with the general and moving toward the specific. 

We note first, as the district court did, that the area in which the incident occurred gave police officers particular reason to be concerned about the possibility of gun-related violence.    The incidence of crime in the area would not by itself legally justify a protective pat-down. Illinois v. Wardlow,528 U.S. 119, 124, 120 S. Ct. 673, 676 (2000)    But it is one factor which, in conjunction with the other circumstances we discuss, contributed to a reasonable suspicion that Patton might be armed. See United States v. Oglesby, 597 F.3d 891, 894 (7th Cir. 2010). 

Second, the investigatory stop occurred at 1:30 a.m., essentially the middle of the night. We have recognized that "[a] nighttime traffic stop, especially in an area where crime is not a stranger, is more fraught with potential danger to an officer than would be a stop during the light of day." United States v. Brown, 273 F.3d 747, 748 (7th Cir. 2001)    

Third, the men were consuming alcohol when the officers arrived.    But given that a number of the men were drinking, Winkle and his colleagues had greater reason to be concerned that any one of the men might do something unpredictable, unwise, and dangerous.    See, e.g., United States v. Knight,562 F.3d 1314, 1327 (11th Cir. 2009) (smell of marijuana and alcohol among factors that supported pat-down); United States v. Holmes, 385 F.3d 786, 789-90 (D.C. Cir. 2004) (Roberts, J.) (suspect's admission that he was drinking cited as a factor supporting protective frisk).     

Turning now to Patton's behavior, two aspects of his conduct bear discussion. First, Patton set himself apart from the other men when, rather than complying with the officers' instruction to step over to the car parked in the street, Patton took a number of steps backward, covering a distance of (by the district court's estimation) ten feet. We agree with the district court that Patton's movement was telling.   The Supreme Court has recognized that an individual's evasive behavior is a factor that contributes to a reasonable suspicion to the officers who confront him. Wardlow, 528 U.S. at 124, 120 S. Ct. at 676 (coll. cases).   

At the same time, a suspect's failure or refusal to comply with a police officer's order is also a factor that contributes to a reasonable suspicion that he may be dangerous. See, e.g., United States v. Denney, 771 F.2d 318, 322 (7th Cir. 1985)(refusal to keep hands in sight and exit vehicle); United States v. Simmons, 560 F.3d 98, 108 (2d Cir. 2009) (refusal to remove hands from pocket); United States v. Stachowiak, 521 F.3d 852, 856-57 (8th Cir. 2008) (refusal to step out of car); United States v. Soares, 521 F.3d 117, 121 (1st Cir. 2008) (refusal to remain still and keep hands within officer's view); United States v. Bell, 762 F.2d 495, 502 (6th Cir. 1985)(refusal to place hands on car dashboard, exit from car, and place hands on roof of car).

 Second, as he backed away from the others, Patton exhibited a nervous demeanor, glancing from side to side.    A display of nervousness is frequently recognized as a sign that a suspect has something to hide, including a weapon. See Oglesby, 597 F.3d at 894 ("The Supreme Court has recognized in numerous cases that nervous or evasive behavior `is a pertinent factor in determining reasonable suspicion.'") (quoting Wardlow, 528 U.S. at 124, 120 S. Ct. at 676); Barnett, 505 F.3d at 640 (noting suspect's "high degree of nervousness" as a reason that initial suspicion suspect might be armed did not dissipate during questioning, notwithstanding suspect's cordiality and cooperation with officers); United States v. Brown, supra, 188 F.3d at 865 (citing nervousness and refusal to make eye contact as a factor relevant to reasonable suspicion).    

We acknowledge that the possession of a gun was not the only possible explanation for Patton's behavior. But the reasonable suspicion standard does not demand that the possession of a weapon be the sole or most likely explanation for a suspect's behavior. Terry rejected the notion that an officer must be certain that an individual is armed. 392 U.S. at 27, 88 S. Ct. at 1883.     Subsequent cases have emphasized that "[r]easonable suspicion is a less demanding standard than probable cause . . .," Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416 (1990),which itself "requires only that a probability or substantial chance of criminal activity exists; it does not require the existence of criminal activity to be more likely true than not true," Thayer v. Chiczewski, ___ F.3d ___, 2012 WL 6621169, at *6 (7th Cir. Nov. 27, 2012).    

An "inchoate and unparticularized suspicion or `hunch'" will not do, United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585 (1989) (quoting Terry, 392 U.S. at 27, 88 S. Ct. at 1883); but so long as the suspicion that an individual could be armed is supported by specific, identifiable facts, it is an objectively reasonable suspicion that satisfies Terry, e.g., United States v. Thomas, 512 F.3d 383, 388 (7th Cir. 2008).

For all of the reasons we have discussed, the time, place, and reason for the stop, coupled with Patton's evasive behavior as the officers approached the group and the men were directed to step forward, supported a reasonable suspicion that he might be armed.   

Contrary to Patton's suggestion, that suspicion did not evaporate when, after taking several steps backward, he ultimately changed course and walked over to the car with the others of his own volition. We cannot know what went on inside of Patton's head.    His subsequent accession to the officers' command to step over to the car did nothing to undermine that suspicion. See United States v. Snow, supra, 656 F.3d at 501, 503-04 (defendant's cordial and cooperative interaction with officer during stop did not undermine reasonable suspicion, based on independent facts, that he might be armed).  

AFFIRMED.  

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

Judge Posner Weighs In on the Costs and Benefits of Long Prison Sentences

USA v. David Michael Craig, No. 12-1262.       

PER CURIAM

The defendant pleaded guilty to four counts of producing child pornography. 18 U.S.C. § 2251(a).    Because his total offense level was 43, his guidelines sentence for each count was life. U.S.S.G. ch. 5, pt. A (Sentencing Table). But the judge could not impose that sentence because the statutory maximum sentence for each count of conviction was 30 years. 18 U.S.C. § 2251(e).

The judge sentenced him to the 30-year maximum on one count and to concurrent sentences of 20 years on each of the remaining three counts, but he ordered that the set of 20-year sentences be served consecutively to the 30-year sentence, making the total sentence 50 years. The judge was entitled to do this.

 The lawyer has filed an Anders motion to withdraw as counsel on the ground that the appeal is frivolous; we grant the motion and dismiss the appeal.              

 

POSNER, Circuit Judge, concurring. 

I write separately merely to remind the district judges of this circuit of the importance of careful consideration of the wisdom of imposing de facto life sentences. If the defendant in this case does not die in the next 50 years he will be 96 years old when released (though "only" 89 or 90 if he receives the maximum good-time credits that he would earn if his behavior in prison proves to be exemplary).  

Federal imprisonment is expensive to the government; the average expense of maintaining a federal prisoner for a year is between $25,000 and $30,000, Notice, Bureau of Prisons, 76 Fed. Reg. 57081 (Sept. 15, 2011), and the expense rises steeply with the prisoner's age because the medical component of a prisoner's expense will rise with his age, especially if he is still alive in his 70s (not to mention his 80s or 90s). It has been estimated that an elderly prisoner costs the prison system between $60,000 and $70,000 a year.      

The social costs of imprisonment should in principle be compared with the benefits of imprisonment to the society, consisting mainly of deterrence and incapacitation. A sentencing judge should therefore consider the incremental deterrent and incapacitative effects of a very long sentence compared to a somewhat shorter one.                        

For suppose the defendant had been sentenced not to 50 years in prison but to 30 years. He would then be 76 years old when released (slightly younger if he had earned the maximum good-time credits). How likely would he be to commit further crimes at that age?     

It is true that sex offenders are more likely to recidivate than other criminals, Virginia M. Kendall and T. Markus Funk, Child Exploitation and Trafficking: Examining the Global Challenges and U.S. Responses 310 (2012), because their criminal behavior is for the most part compulsive rather than opportunistic. But capacity and desire to engage in sexual activity diminish in old age. Moreover, when released, a sexual criminal is subject to registration and notification requirements that reduce access to potential victims. Id. at 320.

As for the benefits of a lifetime sentence in deterring other sex criminals, how likely is it that if told that if apprehended and convicted he would be sentenced to 50 years in prison the defendant would not have committed the crimes for which he's been convicted, but if told he faced a sentence of "only" 30 years he would have gone ahead and committed them?

Sentencing judges should try to be realistic about the incremental deterrent effect of extremely long sentences. Even unsophisticated persons tend to discount future costs and benefits. Most people prefer to receive a dollar today than a dollar a year from now, even if that future dollar is certain, and likewise they prefer to pay a dollar a year from now than today. If you face a 50 year sentence rather than a 25 year sentence for some crime you're thinking of committing, you consider it heavier punishment but probably not twice as heavy; every year added to the prospective sentence has a lesser deterrent effect than the preceding year of the sentence because it is added on at the end.

Sentencing judges are not required to engage in cost-benefit analyses of optimal sentencing severity with discounting to present value. Such analyses would involve enormous guesswork because of the difficulty of assessing key variables.

But virtually all sentencing, within the usually broad statutory ranges—the minimum sentence that the judge could have imposed in this case, by making the sentences on all four counts run concurrently, as he could have done, would have been 15 years, 18 U.S.C. § 2251(e), and the maximum sentence, by making them all run consecutively, as he could also have done, would have been 120 years—involves guesswork.

I am merely suggesting that the cost of imprisonment of very elderly prisoners, the likelihood of recidivism by them, and the modest incremental deterrent effect of substituting a superlong sentence for a merely very long sentence, should figure in the judge's sentencing decision.

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

FRCP 8 and 14 Joinder of Offenses: Bolierplate Rules

US v. Jeffery Carter et al, No. 11-3608.

KANNE, Circuit Judge. As Darrick and Geraldine Anderson were returning home from a birthday party, two men—Jeffery Carter and Kentrell Willis—appeared and robbed the couple at gunpoint. Carter and Willis made off with the couple’s vehicle and their belongings, but, unbeknownst to them, one of the cell phones taken from the Andersons was enabled with a GPS tracking feature. As a result, police were easily able to monitor their movements and track them down that same night.

Carter and Willis were arrested and, in a joint trial with separate juries for each defendant, convicted of carjacking, using a firearm during the carjacking, and being a felon in possession of a firearm.

Joinder of Offenses

Carter and Willis next that their respective felon-in-possession counts (Count Three as to Willis and
Count Four as to Carter) should not have been tried together with their counts relating to the carjacking. They argue that joinder was improper under both Rules 8 and 14 of the Federal Rules of Criminal Procedure, and we address each argument separately.

1. Misjoinder

The defendants claim that their felon-in-possession counts were improperly joined under Rule 8(b) of the Federal Rules of Criminal Procedure because they bear no relation to the other counts of the indictment. “We review claims of misjoinder de novo based on the allegations on the face of the indictment, not the proofs at trial.” United States v. Hosseini, 679 F.3d 544, 552 (7th Cir. 2012). 

The indictment’s allegations clearly indicate that the felon-in-possession counts are logically related to, and are part of the same series of acts as, the carjacking counts. The felon-in-possession counts allege that Willis
and Carter, respectively, possessed the same Ruger pistol as that used to commit the carjacking, within one day of the carjacking.

It would be a waste of judicial resources to conduct a separate trial for the felon-in possession counts when the same key evidentiary issue would be identical—the use and possession of the Ruger pistol on or about the time of the carjacking by each defendant.

Moreover, the cases on which the defendants rely to argue that joinder was improper are materially different because none involved the same firearm or a close temporal connection. E.g., United States v. Hawkins, 589 F.3d
694, 703-04 (4th Cir. 2009).  Joinder of the offenses was proper.

2. Prejudicial Joinder

Finally, the defendants argue that even if joinder was proper under Rule 8, the district court should have severed the felon-in-possession counts under Rule 14 to avoid prejudice. See United States v. Lanas, 324 F.3d
894, 900 (7th Cir. 2003). 

We review the district court’s denial of severance under Rule 14 only for an abuse of discretion. United States v. Del Valle, 674 F.3d 696, 704 (7th Cir. 2012). We have described the Rule 14 standard as “exacting,” apart from the deferential standard of review, because it is not enough for a defendant to show “that separate trials may have provided him a better opportunity for
an acquittal.” United States v. Calabrese, 572 F.3d 362, 368
(7th Cir. 2009). 

Rather, a defendant “must be able to show that the denial of severance
caused him actual prejudice in that it prevented him from receiving a fair trial.” Id.  Even if the defendants can show prejudice, that alone may not necessarily suffice for them to prevail; limiting instructions will often cure any risk of prejudice, and tailoring relief from prejudice is within the district court’s discretion. Warner, 498 F.3d at 700.

Carter and Willis contend that they suffered prejudice
for two related reasons.

First, the felon-in-possession counts necessarily introduced evidence that each defendant had prior felony convictions. Each defendant stipulated that he had been convicted of a previous felony, and the jury heard no evidence concerning the nature of the prior felony or any factual details of the crime. Nonetheless, the defendants maintain that knowledge of their status as felons increased the risk that the jury reached its verdict because the defendants
are “bad people,” rather than on the basis of the evidence at trial.

Second, the government used evidence of the uncharged robbery of Jose Garcia in order to prove the felon-in-possession counts. The defendants
argue that this evidence necessarily prejudiced the jury as to the remaining counts because the government was able to point to another robbery they committed that same night—inviting the jury to convict based on the defendants’ propensity for crime.

Although the defendants highlight legitimate concerns, we nevertheless
find that the district court did not abuse its discretion.

First, the evidence relating to the carjacking was overwhelming as to both Carter and Willis, so we are confident that the jury’s verdict was not based on the defendants’ status as felons or their propensity for armed robbery. See United States v. Ross, 510 F.3d 702, 711 (7th Cir. 2007). 

The evidence proving the carjacking was straightforward. The jury heard testimony that the defendants robbed the Andersons at gunpoint, and then escaped in the Andersons’ stolen vehicle. Darrick identified Willis in a lineup, and Geraldine identified both defendants in court. The defendants’  movements from the time of the carjacking through their arrest  were tracked by GPS, thanks to Geraldine’s stolen cell phone—which Carter also used to call his mother in between robberies.

Their movements were also verified through a number of red-light cameras
along their route, and video surveillance footage taken both from the gas station where they first entered Chew’s van, as well as from the gas station where the defendants were eventually arrested. And the evidence was particularly overwhelming as to Carter, whoconfessed as to his involvement in the carjacking prior to trial. 

Moreover, the defendants ignore the fact that the evidence of Garcia’s robbery was admitted not only for the felon-in-possession counts, but also as circumstantial evidence of the defendants’ possession of the Ruger pistol for the remaining counts of the indictment. As we have already discussed, the defendants contested whether the Ruger pistol was the same firearm used to
commit the carjacking. The use of that firearm during Garcia’s robbery, roughly an hour after the carjacking, is strong circumstantial evidence of the defendants’ use and possession of the Ruger pistol earlier that night.
 

Accordingly, the district court admitted evidence of Garcia’s robbery as to all four counts of the indictment under Federal Rules of Evidence 404(b).  The defendants cannot demonstrate prejudice because “evidence on the severed counts would be admissible in the trial of the remaining counts.” United States v. Quilling, 261 F.3d 707, 715 (7th Cir. 2001).

Finally, any prejudice the defendants may have suffered was properly mitigated by the district court’s limiting instructions. For example, the jury was instructed to consider each defendant’s felon status only for purposes of the felon-in-possession counts, and not for any other purpose. We must presume that the jury followed these instructions. Ross, 510 F.3d at
711. Given the overwhelming evidence and the district court’s limiting instructions, we find that the defendants suffered no prejudice.

CONCLUSION

For the foregoing reasons, we AFFIRM the conviction of both Carter and Willis.

 

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

Illinois Eavesdropping Statute Explained

Carroll v. Merrill Lynch et al, No. 12-1076.

On Thanksgiving Day at about 9:00 PM, Mary Carroll telephoned one of her co-workers, Jim Kelliher. Hearing Ms. Carroll loudly yelling at her husband over the phone, Jim Kelliher's wife Pat Kelliher began listening in on the call and decided to record the conversation. The call ultimately cost Carroll her job, and she sued under the Illinois eavesdropping statute for the recording and re-playing of the call.

The district court granted defendants' motion for summary judgment, concluding that the recording fell within the statute's fear of crime exemption. Because Ms. Carroll offers no evidence creating a genuine issue of material fact and defendants are entitled to judgment as a matter of law, we affirm.

In 2005, Mary Carroll and Jim Kelliher were co-workers at Merill Lynch. That same year, Ms. Carroll lodged a complaint with human resources that led to the firing of two other Merrill Lynch employees. In October 2005, Ms. Carroll felt that Jim Kelliher—who apparently was not involved with Carroll's previous human resources complaint—was performing some of her job duties.

Around 9:00 PM on Thanksgiving in 2005, Ms. Carroll called Jim Kelliher on his home phone to confront him about this perceived encroachment. As Carroll later admitted, she was "all riled up," "angry," and "enraged." She also described her behavior as "inappropriate[]" and "irrational[]," explaining to co-workers that she had "fucking snapped." Carroll even recognized the startling nature of her call, admitting that, if she had received a similar call, she would have felt "threatened."
 
Pat Kelliher overheard Carroll's loud accusations blaring from the phone. Becoming concerned, she began listening in on the phone call from another receiver in a different room. As Ms. Carroll's rant continued, Pat Kelliher became increasingly concerned and upset. She pushed the "record" button on her answering machine and recorded the rest of the call. When the call finally ended, Pat Kelliher told her husband, "I'm scared and I think we should call the police."

Despite Pat Kelliher's concerns, the Kellihers did not call the police that night. Jim Kelliher did call his supervisor at Merrill Lynch, though, and reported Ms. Carroll's phone call. The next day, at his supervisors' request, Jim Kelliher played the recording. After work that day, the Kellihers reported Carroll's call to the police.

Two months later, in January 2006, Ms. Carroll filed her own police report, accusing the Kellihers of violating the Illinois eavesdropping statute. The following month, Merrill Lynch fired Carroll for her conduct on the call, and she then filed this suit against Jim Kelliher, Pat Kelliher, and Merrill Lynch.

Illinois law prohibits recording a telephone conversation without the consent of all parties. 720 ILCS 5/14-2(a)(1). It also prohibits the subsequent use or dissemination of any information obtained through an unauthorized recording. Id. at § 2(a)(3).

The fear of crime exemption, however, allows unconsented recordings when: (1) the recording is made by or at the request of a person who is a party to the conversation; (2) under a reasonable suspicion that another party to the conversation is committing, is about to commit, or has committed a criminal offense against that person or a member of his or her immediate household; and (3) the recording may yield evidence of that criminal offense. Id. at § 3(i).

On appeal, Ms. Carroll principally challenges only the second element—whether Pat Kelliher had a reasonable suspicion to believe that Carroll was committing, was about to commit, or had committed a criminal offense against Pat Kelliher or someone in her immediate household.

The Illinois eavesdropping statute exempts certain recordings made with a reasonable suspicion that the caller is committing or may commit a crime against the person requesting the recording or someone in that person's immediate household. 720 ILCS 5/14-3(i). Thus, the exemption requires (1) a subjective suspicion that criminal activity is afoot, and (2) that the suspicion be objectively reasonable. Cf. People v. Allen, 950 N.E.2d 1164, 1177 (Ill. App. Ct. 2011). Pat Kelliher's fears arising from Carroll's conduct on the phone call satisfy both of these requirements.

First, Ms. Carroll continues arguing that Pat Kelliher feared, not commission of a crime, but rather that Carroll would report her dispute with Jim Kelliher to the human resources department at Merrill Lynch. Because such a report is not criminal, she argues, Pat Kelliher's recording falls outside the fear of crime exemption. But Ms. Carroll ignores Pat Kelliher's unrebutted testimony that she feared the caller might vandalize her home that night. Indeed, Carroll's call itself may have been criminal: Illinois criminalizes phone calls made "with intent to abuse, threaten or harass any person at the called number." 720 ILCS 135/1-1(2).

Next, Ms. Carroll launches a volley of arguments attacking the reasonableness of Pat Kelliher's fear. All agree—even Carroll—on the threatening and abusive nature of the call. Given this agreement, Pat Kelliher's fear of crime is reasonable. Carroll's own testimony establishes this: she acknowledges that she was "enraged," "all riled up," and had "fucking snapped"; and that she used profanity. These facts parallel McWilliams v. McWilliams, where the recorded individual made "repeated threats" and showed "aggression" against those who made the recording. No. 06 C 3060, 2007 WL 1141613, at *8 (N.D. Ill. Apr. 16, 2007).

Ms. Carroll next accuses Pat Kelliher of having "personal mental problems" that predispose her to "fearfulness," making her suspicion of crime unreasonable. Even assuming that psychological propensities do influence the reasonableness determination, Carroll offers no evidence that Pat Kelliher did, in fact, have personal mental problems predisposing her to fearfulness.

Finally, Ms. Carroll argues—for the first time in her reply—that the state's decision not to prosecute her for the phone call shows that Pat Kelliher's fear of crime was unreasonable. See Blount v. Stroud, 915 N.E.2d 925, 950 n.6 (Ill. App. Ct. 2009) (noting absence of prosecution for eavesdropping in concluding fear of crime exemption would likely apply). Because not raised in her opening brief, Ms. Carroll has waived this argument. See Dye, 360 F.3d at 751 n.7.

Even so, the exemption does not require proof beyond a reasonable doubt or even the probable cause required for arrest or indictment. Instead, it requires something far less—reasonable suspicion. See Terry v. Ohio, 392 U.S. 1, 27 (1968). Thus, that the district attorney did not charge Carroll with any crime—either telephone harassment or something else— does not preclude Pat Kelliher from reasonably believing that Carroll was committing or would commit a crime against Jim Kelliher.
 
Ultimately, the undisputed facts reveal that Pat Kelliher worried that the unidentified, threatening caller might commit a crime against her husband and that fear was reasonable. Thus, her recording satisfies the fear of crime exemption under the Illinois eavesdropping statute, and summary judgment for the defendants is proper.

For the foregoing reasons, we AFFIRM the district court's grant of summary judgment for defendants.

 

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 3501(c) and the Six Hour Rule: Boilerplate Rules

United States of America v. Dhawndric McDowell, No. 10-2543

Sykes, Circuit Judge. 

Dhawndric McDowell occasionally worked for the Chicago Police Department (“CPD”) as a confidential informant, but his primary job was selling cocaine for a Mexican drug cartel. One of his suppliers, known to him only as “Jose,” agreed to assist the Drug Enforcement Administration (“DEA”) with a sting.

Under the direction of federal agents, “Jose” arranged to deliver ten kilograms of cocaine to McDowell at a drop point in Chicago. McDowell was arrested at the point of delivery.

Once in federal custody, McDowell announced to the agents that he was an informant for the Chicago police. Because it was after hours and they needed to sort out this claim, the agents asked him if he would be willing to waive his right to prompt presentment before a magistrate judge. See FED. R. CRIM. P. 5(a). McDowell agreed, signed a written Rule 5(a) waiver, and spent the night in jail.

The next morning he signed a Miranda waiver and confessed his involvement in cocaine trafficking. He was taken before a magistrate judge early that afternoon. Based on his confession and other evidence, a jury convicted McDowell of conspiracy and attempted possession of cocaine with intent to distribute.

McDowell argues that the district court should have suppressed his confession under 18 U.S.C. § 3501(c) and the McNabb-Mallory rule because of the delay in his presentment before a magistrate judge. See McNabb v. United States, 318 U.S. 332 (1943).

 
We reject [this] argument[] and affirm. McDowell knowingly waived his right to prompt presentment under Rule 5(a), so the exclusionary rule of McNabb-Mallory, as modified by § 3501(c), does not apply.

 
I. Background

McDowell became a confidential informant for the CPD in 2008, but unbeknownst to his “handler,” continued to sell cocaine on the side. In the fall of that year, in an independent investigation, the DEA developed a cooperating source—a high-ranking member of a Mexican cartel who supplied cocaine to Chicago-area dealers, including McDowell. Federal agents thereafter arranged a series of stings using this source.

On December 1, 2008, the supplier—known to McDowell only as “Jose” and whom he had never met—called McDowell to collect on a drug debt. The next day Jose called again and offered McDowell a large quantity of cocaine at $28,500 a kilogram. In this conversation (all these calls were recorded), Jose asked McDowell, “How many [kilograms] do you want me to send you?” McDowell replied, “Whatever you can.” Jose promised ten kilos, and McDowell agreed to meet Jose’s runner that evening to take delivery. Jose directed him to a parking lot next to a Dollar Bazaar store on the west side of Chicago.

At the appointed hour—6 p.m.—McDowell pulled into the Dollar Bazaar parking lot driving a Porsche SUV. An undercover officer approached and asked if he needed “ten,” to which McDowell replied, “Yeah.” (This transaction was audio- and video-recorded.) McDowell popped his trunk and the runner placed a bag containing sham cocaine inside. The runner then sought payment, asking McDowell if he had “something for me.” McDowell replied that he had been told by Jose that “he can get me on the next one.” When McDowell got back in his SUV, officers converged on the scene. DEA agents arrested McDowell ... It was approximately 6:30 p.m.

The agents took McDowell to a local police precinct and made him wait in a conference room while they verified his surprising claim that “I work for you.” At 10 p.m. McDowell’s CPD handler arrived and confirmed that McDowell was indeed a CPD informant. But the Chicago officer also told the agents that McDowell was not working under the direction of the CPD at the time of the transaction that led to his arrest.

Because it was after normal business hours, the federal agents asked McDowell if he would waive his right to prompt presentment before a magistrate judge. See FED. R. CRIM. P. 5(a) (“A person making an arrest . . . must take the defendant without unnecessary delay before a magistrate judge . . . .”). He agreed and signed a written Rule 5(a) waiver consenting to forgo his right to be taken before a federal magistrate for a period of up to 72 hours.

McDowell then spent the night in jail. The next morning he was taken to the DEA’s Chicago headquarters. At about 10:50 a.m., he signed a Miranda waiver and began a two-hour interview with federal agents. He admitted that he went to the Dollar Bazaar parking lot to take delivery of ten kilos of cocaine and that he had purchased large quantities of cocaine on 15 to 20 previous occasions from the same supplier, whom he knew as “Jose.” This interview was the first time the agents engaged McDowell in a substantive discussion of his drug-related activities, and it began a little over 16 hours after his arrest. Around 1:30 p.m., approximately 19 hours after his arrest, McDowell was brought before a magistrate judge for his initial appearance.

McDowell was indicted on charges of conspiracy and attempted possession with intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A)(ii). He moved to suppress his statement, arguing that under 18 U.S.C. § 3501(c), the delay in bringing him before a federal magistrate was unreasonable and the McNabb-Mallory exclusionary rule required suppression. The judge denied McDowell’s suppression motion. The case was tried to a jury, and McDowell was convicted on both counts. The judge sentenced him to 360 months in prison. This appeal followed.

II. Discussion

A. Prompt Presentment

McDowell challenges the district court’s denial of his motion to suppress his statement under § 3501(c) and the McNabb-Mallory rule. We review the court’s findings of fact for clear error and its legal conclusions de novo. United States v. Gibson, 530 F.3d 606, 613 (7th Cir. 2008).

The common-law rule of “prompt presentment” required a law-enforcement officer to take an arrested person before a magistrate “as soon as he reasonably could.” Corley, 556 U.S. at 306. This requirement is codified at Rule 5(a) of the Federal Rules of Criminal Procedure, which provides that “[a] person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge . . . unless a statute provides otherwise.”

In McNabb the Supreme Court established an exclusionary remedy for confessions taken in violation of the common-law prompt-presentment requirement; the Court reaffirmed its McNabb holding in Mallory. Thus, under the rule known as McNabb-Mallory, “an arrested person’s confession is inadmissible if given after an unreasonable delay in bringing him before a judge.” Corley, 556 U.S. at 306.

Congress modified the McNabb-Mallory rule in 1968 with legislation that also responded to the Court’s decision in Miranda v. Arizona, 384 U.S. 436 (1966). Corley, 556 U.S. at 309. Congress enacted 18 U.S.C. § 3501 in an effort to override Miranda and mitigate the effects of the McNabb-Mallory rule. Id. Subsections (a) and (b) of the statute address Miranda and are not at issue here. Id.

Subsection (c) addresses the McNabb-Mallory exclusionary rule:
[A] confession made or given by a person . . . while such person was under arrest or other detention in the custody of any law-enforcement officer or lawenforcement agency, shall not be inadmissible solely because of delay in bringing such person before a magistrate judge . . . if such confession is found by the trial judge to have been made voluntarily . . . and if such confession was made or given by such person within six hours immediately following his arrest or other detention: Provided, That the time limitation contained in this subsection shall not apply in any case in which the delay in bringing such person before such magistrate judge . . . beyond such six-hour period is found by the trial judge to be reasonable considering the means of transportation and the distance to be traveled to the nearest available such magistrate judge . . . . 18 U.S.C. § 3501(c).

Subsection (c) thus provides a six-hour “safe harbor” for confessions given before presentment: A confession given within six hours of arrest is admissible notwithstanding a delay in presentment if the judge finds it was voluntary. A confession given outside the six-hour period is also admissible under § 3501(c) if the court finds the confession was voluntary and the delay in presentment was reasonable.

In Corley the Supreme Court explained that in enacting § 3501(c), Congress limited but did not eliminate the McNabb-Mallory exclusionary rule for statements obtained in violation of the Rule 5(a) prompt-presentment requirement. 556 U.S. at 322. The limitation on the rule of McNabb-Mallory is the six-hour safe harbor; beyond that, however, McNabb-Mallory remains intact.  McNabb- Mallory survived § 3501(c) and continues to apply to confessions given before presentment and outside the six-hour statutory window.

McDowell’s confession occurred well beyond § 3501(c)’s six-hour safe harbor. The DEA agents interviewed him more than 16 hours after his arrest and before he was presented to a magistrate judge. Absent a waiver of prompt presentment, this would ordinarily mean that the district court had to “decide whether delaying that long was unreasonable or unnecessary under the McNabb-Mallory cases.” Corley, 556 U.S. at 322.

We have said that this inquiry depends on “ ‘a congeries of factors, including such elements as the deterrent purpose of the exclusionary rule, the importance of judicial integrity, and the likelihood that admission of evidence would encourage violations of the Fourth Amendment.’ ” United States v. Mansoori, 304 F.3d 635, 660-61 (7th Cir. 2002).

Here, however, the government took the position that the McNabb-Mallory inquiry was unnecessary because McDowell signed a written waiver of his Rule 5(a) right to prompt presentment. The judge rejected this argument, treating the question whether the delay was “unreasonable” under § 3501(c) as separate and distinct from whether the delay was “unnecessary” under Rule 5(a) and McNabb-Mallory. The judge held that McDowell’s waiver applied only to his right under Rule 5(a) and did not apply to § 3501(c).

This reasoning misunderstands the relationship between Rule 5(a), § 3501(c), and the McNabb-Mallory rule. As we have explained, under Rule 5(a), an arrested person has a right to prompt presentment before a magistrate without unnecessary delay.

Under McNabb- Mallory a confession obtained in violation of the right to prompt presentment must be suppressed if the delay was unreasonable or unnecessary.

Finally, under § 3501(c) law-enforcement officers have a six-hour safe harbor within which to question a suspect before presentment, but the court must apply McNabb-Mallory to a confession made outside the six-hour time limit and before presentment. In other words, the prompt-presentment right is found in Rule 5(a); § 3501(c) and McNabb-Mallory establish the remedial framework for assessing violations of the right.

And like other important rights, the right to prompt presentment may be waived. By signing this waiver, McDowell gave up his right to prompt presentment for the length of time specified in the waiver. By giving up the right to prompt presentment, McDowell necessarily gave up the corresponding remedy of McNabb-Mallory, as modified by § 3501(c). 

There is no dispute that McDowell signed the Rule 5(a) waiver knowingly and voluntarily.
McDowell’s voluntary waiver of his Rule 5(a) right therefore eliminated any need for the district court to address the remedial framework of § 3501(c) and McNabb-Mallory. McDowell’s confession was admissible without regard to the delay in presentment.  Where, as here, the defendant waives his Rule 5(a) right, there is no reason for judicial inquiry into whether the delay in presentment was unreasonable or unnecessary under § 3501(c) and McNabb-Mallory.

Although much of its analysis was unnecessary, the district court properly denied McDowell’s suppression motion.

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

Who Can Give Consent to Search an Apartment?: Boilerplate Rules

USA v. Victor Garcia, No. 12-1805.    

POSNER, Circuit Judge. The defendant pleaded guilty to attempting to possess cocaine, intending to distribute it, and was sentenced to 120 months in prison. He had given a person who, unbeknownst to him, was working with the federal Drug Enforcement Administration $477,020 for 32 kilograms of what he thought was cocaine (it wasn’t).

After arresting him officers searched his apartment and found 13 kilograms of real cocaine. He hasn’t been prosecuted for that possession although he could have been because the five-year statute of limitations had not yet run. He challenged the legality of the search because he feared that the overnment might use the 13 kilograms against him at trial to bolster its case of attempt; the government did not deny that it might.

The district judge conducted a suppression hearing and denied the defendant’s motion to suppress after making the following findings: When the defendant was arrested, officers found a piece of paper with an address on it and went to the address. It turned out to be the home of the defendant’s sister and her daughter, the defendant’s 18-year-old niece. The defendant’s son, a child of 8, was also present.

Two of the officers who had gone to the relatives’ apartment testified at the suppression hearing. They gave essentially the same testimony: They had interviewed the two women, and the niece had told them that because the defendant was often not in his apartment during the day or even the night, she made sure that the child got to school in the morning and sometimes would wait for him in the defendant’s apartment when the child came home from school if the defendant wasn’t expected to be at home.

She said the defendant had given her or her mother a key to the apartment and she had unlimited access to it to take care of the child—get him ready for school, let kids into the apartment to play with him in her presence, and so forth.

She was willing to allow the officers to search the apartment and told them she thought she was authorized by the defendant to allow people to enter and look through it. She signed a form they handed her, consenting to the search, and led them to the apartment and opened the door for them. They found the 13 kilograms of cocaine in 13 packages in a closet.

So the question is whether the facts as we have recited them show that the officers had a reasonable belief that the niece had been authorized to allow a search of her uncle’s apartment. Illinois v. Rodriguez, 497 U.S. 177 (1990).  The courts typically ask whether the nonoccupant who consented had “common authority [that is, authority in common with the occupant] over or other sufficient relationship to the premises” to allow the nonoccupant to consent to a search. United States v. Matlock, 415 U.S. 164, 171 (1974). 

This is a pretty empty formula. It restates the question rather than answering it. A little more helpful, though still vague, is another formulation in Matlock: “mutual use of the property by persons generally having joint access or control for most purposes.” 415 U.S. at 171 n. 7. 

Sharing a home is the clearest example of such joint access and control.  But what of the common case in which someone besides the occupant or occupants of a house or an apartment or other premises — someone who does not live there . . . has a key to it?

If anyone with a key can permit police to search a person’s home, office, hotel room, or other place of occupancy, personal privacy would be considerably diminished. Courts understandably refuse to grant the police such carte blanche. It is different, however, if an employee, relative, or neighbor is left in charge of the premises. See United States v. Ayoub, 498 F.3d 532, 539 (6th Cir. 2007).

Difficult as it is to draw the line, we can at least mark the extremes—at one extreme a couple married or unmarried (so much cohabitation today is nonmarital) sharing a home. Each spouse or partner has the full run of the house. Each can let anyone in and authorize the visitor to look around—even to look in a closet.

At the other extreme are the neighbor who has a key, the babysitter, the hotel staff: their authority over the place of residence is specific and limited; they are not authorized to compromise the resident’s privacy beyond what they have to do to perform their authorized tasks. If such persons could authorize a police search, personal privacy would be gravely compromised because the average person would be afraid to refuse a police officer’s request to let them into a house to which the person had a key, to search.

We think the facts of the present case as found by the district judge place it slightly nearer the cohabitation pole.

As a single, working parent of a young child, the defendant needed considerable help and some of it was given by his niece and aunt (particularly the former) in his home.  He was fortunate in being able to turn for help to two relatives who were also neighbors of his. He was more likely to trust them than a nonrelative.

He gave them the run of the apartment to take care of the child (to get clothes for the child, for example—one of the things the niece told the officers she did in the apartment). The apartment was very small—it’s not as if there had been a children’s wing to which the relatives could have confined themselves when attending the child. Sometimes there were other children in the apartment, invited to play with the defendant’s child—the relatives were authorized to admit them.

The defendant’s lawyer describes the niece as a mere babysitter. She was more than that. Although neither she nor her mother lived in the defendant’s apartment, when they were there they were in loco parentis. 

The closet, moreover, contained more than packages of cocaine—contained children’s clothing, obviously the clothing of the defendant’s child. This fact supports an inference that the critical part of the apartment that was searched was within the scope of the niece’s authority. Keeping cocaine in the closet was as we said indicative of the defendant’s trust, in his aunt and niece. That the child’s clothes were also kept in the closet further confirms that trust, since part of the niece’s assignment was to see that the child “got clean clothes and . . . [got him] ready for school.”

The facts of this case are thus unlike those held not to create authority to consent to search in the Rodriguez case.   Unlike the niece in this case, who retained continuing authority over the apartment, Fischer (who gave consent in Rodriguez) had become simply an occasional visitor, and was merely that when she consented to the search. 

The facts of the present case, as found by the district judge, establish at the least that the police had a reasonable belief that the niece was authorized to consent to the search; no more is needed to uphold the validity of the search.                                                                     

AFFIRMED.   

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

USSG 3B1.1 Supervisory Role Enhancement: Boilerplate Rules

USA v. Jeanette Grigsby,  No. 11-2473.   

In her sworn statement to the court, however, Grigsby minimized her role in the offense, trying to pin most of the blame on her coconspirators. So at sentencing the district court applied ........ a three-level enhancement to account for her supervisory role in the offense, see id. § 3B1.1(b).  

B. Supervisory-Role Enhancement   

A defendant who is "an organizer or leader" of a criminal scheme involving five or more participants gets a four-level enhancement under U.S.S.G. § 3B1.1(a); "a manager or supervisor" of a scheme involving five or more participants gets a three-level enhancement under § 3B1.1(b); and "an organizer, leader, manager, or supervisor" of a smaller scheme gets a two-level enhancement under § 3B1.1(c).   

The application notes to § 3B1.1 explain that

[i]n distinguishing a leadership and organizational role from one of mere management or supervision, titles such as "kingpin" or "boss" are not controlling. Factors the court should consider include the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others. There can, of course, be more than one person who qualifies as a leader or organizer of a criminal association or conspiracy. This adjustment does not apply to a defendant who merely suggests committing the offense.

U.S.S.G. § 3B1.1 cmt. n.4.       

These factors are sometimes applied to determine whether a defendant was a manager or supervisor for purposes of § 3B1.1(b), but we have recently clarified that these factors are meant to distinguish a leader or organizer from a supervisor or manager. See United States v. Figueroa, 682 F.3d 694, 694-95 (7th Cir. 2012).    

We held in Figueroa that a manager or supervisor should be straightforwardly understood as simply someone who helps manage or supervise a criminal scheme. Id. at 697-98.    

Here, Grigsby initiated the scheme, played a leading role in recruiting the coconspirators, and supervised the execution of the staged robberies from outside the bank. She then took custody of the proceeds and divided the money among the coconspirators. On these facts Grigsby may well have qualified for the "organizer or leader" enhancement, but the district court surely had a sufficient factual basis to apply the lesser "manager or supervisor" enhancement.       

The committee notes to § 3B1.1 make it clear that "[t]here can, of course, be more than one person who qualifies as a leader or organizer of a criminal association or conspiracy." U.S.S.G. § 3B1.1 cmt. n.4. The same is obviously true of the "manager or supervisor" designation.

Grigsby's participation in planning the scheme, recruiting the participants, and directing its execution all confirm her role as a supervisor.    

AFFIRMED                           

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

          

Mandatory Minimum Sentences Do NOT Violate Seperation of Powers Doctrine

USA v. Steven J. Nigg, 11-2340.      Under the Armed Career Criminal Act ("ACCA"), any person convicted of being a felon in possession of a firearm who has "three previous convictions... for a violent felony ... committed on occasions different from one another" is subject to a mandatory minimum prison term of fifteen years. 18 U.S.C. § 924(e)(1). On June 6, 2011, the district judge in this case sentenced Steven J. Nigg—who has three prior felony armed robbery convictions, all of which stem from a crime spree that occurred more than thirty-five years ago—to the mandatory minimum sentence under the ACCA, to be followed by three years of supervised release.           

In November 1976, at the age of twenty-one, Nigg and his cohort, Dennis Oberheim, embarked on an extensive Arizona crime spree which included at least three armed robberies.     He received a concurrent sentence of fifteen to thirty years in prison on each armed robbery count, and additional charges were dismissed as part of a plea agreement.  

Following his release from prison in 1990, Nigg walked a more straight and narrow path.  Prior to sentencing, the district judge received "numerous letters of support testifying to Nigg's kind and generous character, his willingness to help neighbors, and his involvement in community activities, notably marital arts classes for youth and annual appearances as a volunteer Santa Claus and Easter Bunny."  

In 2009, however, Nigg's life took a sharp turn for the worse. His father passed away, and he became executor of the estate. In a somewhat cruel twist of fate, the estate included over 120 firearms. Nigg's stepmother soon became suspicious that Nigg was selling firearms in violation of the probate court's restraining order. 

On September 4, 2009, the investigator entered Nigg's consignment shop (which he ran out of his home) and purchased two rifles from Nigg for $1,600.00.  The ATF's subsequent investigation resulted in Nigg's arrest and indictment. 

A. Separation of Powers.    Nigg's separation of powers argument goes as follows: giving prosecutors unfettered discretion to use prior convictions against defendants robs the judiciary of discretion, thus violating the separation of powers doctrine.  

Along these lines, many judges and academics have vociferously criticized the rigidity of mandatory minimum sentences, arguing that they amount to a legislative encroachment on the judiciary's territory. See, e.g., United States v. Sidhom, 144 F.Supp.2d 41, 41 (D.Mass. 2001) ("[T]he government ... now has the power to determine the severity of the punishment. As a result, courts are required to react passively as automatons and to impose a sentence which the judge may personally deem unjust."); United States v. Patillo, 817 F.Supp. 839, 841 (C.D.Cal.1993) ("I ... will no longer apply this law without protest, and with no hope for change. Statutory mandatory minimum sentences create injustice because the sentence is determined without looking at the particular defendant."). 

Nigg's policy arguments may be fertile ground for a vigorous debate where reasonable minds can disagree. Given the state of the law, however, such debate is little more than academic fodder. It is well-settled that "Congress has the power to define criminal punishments without giving the courts any sentencing discretion[,]" as "[d]eterminate sentences were found in this country's penal codes from its inception[.]" Chapman v. United States, 500 U.S. 453, 467, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991) . 

As this Court recently recognized, "We have rejected separation of powers challenges to mandatory minimum sentences, and we see no reason to revisit that holding here." United States v. Brucker, 646 F.3d 1012, 1019 (7th Cir.2011); see also United States v. Carraway, 612 F.3d 642, 646-47 (7th Cir.2010) (rejecting as meritless the argument 935*935 that a mandatory life sentence for dealing crack cocaine violates the doctrine of separation of powers); United States v. MacEwan, 445 F.3d 237, 252 (3d Cir.2006) ("Mandatory minimum sentencing provisions do restrict, or in some cases strip, the courts of the power to impose an individually-crafted sentence for a specific defendant; nevertheless, we cannot agree that the use of mandatory minimums violates the doctrine of separation of powers.").

The reasoning in these cases applies with equal force here. 

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

Gun Charge Reversal: Mere Proximity to Gun Not Enough for Constructive Possession

USA v. Cory L. Griffin,  11-1951.          

A jury convicted Cory Griffin of intentional possession of a firearm and ammunition as a convicted felon in violation of 18 U.S.C. § 922(g)(1). On appeal, Griffin’s principal argument is that the evidence presented at his trial was not sufficient to support his conviction because there was no evidence that he actually intended to exercise any control over his father’s firearms in his parents’ home where he was living at the time.

We agree and therefore reverse his conviction. Griffin was present in a home where firearms were present, but the government offered no evidence that would have allowed a reasonable jury to find beyond a reasonable doubt that he had
constructive possession of the firearm and ammunition for which he was convicted by intending to exercise control over them.

I. The Evidence
Against Griffin

After defendant Cory Griffin was released from prison in April 2008 under court supervision, he moved into his parents’ single family home in Milwaukee.  [P]olice S.W.A.T. team executed a search warrant on the Griffin home looking for the defendant’s brother Chauncy. The S.W.A.T. team did not find Chauncy, but they did find the defendant, as well as ten firearms and five sets of ammunition. The firearms and ammunition belonged to the defendant’s father, Phil Griffin, an avid hunter, and to three of his friends who regularly hunted together.

The federal government charged Griffin  with possession of all the firearms and ammunition recovered from his parents’ home during the search.

II. Discussion

Griffin argues that the evidence was insufficient to support the jury’s conclusion that he possessed the shotgun behind the kitchen door and the ammunition on the
stairs of his parents’ home. The issue for trial was whether Griffin knowingly
possessed any firearms or ammunition.

The government had no evidence that Griffin himself ever had actual physical possession of the shotgun behind the kitchen door or the ammunition on the stairs. Under the law, however, unlawful possession can also include only constructive possession.

The
government’s theory at trial was that Griffin constructively possessed the guns
and ammunition seized from his parents’ house. See United States v.
Katz, 582 F.3d 749, 752 (7th Cir. 2009) (explaining actual and constructive
possession). Constructive possession is a legal fiction whereby a person is
deemed to possess contraband even when he does not actually have immediate,
physical control of the object. Morris, 576 F.3d at 666. Constructive
possession may be established by demonstrating that the defendant knowingly had
both the power and the intention to exercise dominion and control over the
object, either directly or through others. Katz, 582 F.3d at 752. This
required “nexus” must connect the defendant to the contraband, separating true
possessors from mere bystanders. See Morris, 576 F.3d at 666.

In
constructive possession cases, the necessary connection between the defendant
and the contraband is typically shown in one of two ways. First, if the
government demonstrates that the defendant had “exclusive control” over the
property where the contraband was discovered, a jury may reasonably infer that
he constructively possessed the items, including the contraband, found on that
property. United States v. Castillo, 406 F.3d 806, 812 (7th Cir.
2005).  Second, in the absence of
exclusive control, “evidence that a defendant had a ‘substantial connection’ to
the location where contraband was seized is sufficient to establish the nexus
between that person and the [contraband].” Morris, 576 F.3d at 667.

The
government argues that, even though Griffin did not have exclusive control of
the residence, he had a “substantial connection” to it, and that constructive
possession has been found in similar circumstances. In essence, the government
argues that residency alone is enough to connect the defendant to the guns even
in a joint residence. Griffin argues that neither control over the surrounding
areas nor proximity to and awareness of the contraband is sufficient by itself
to sustain a guilty verdict. Rather, Griffin argues, we have looked for some
sort of “plus factor” that ties the defendant to the contraband. In each of our
cases finding constructive possession in the context of a joint residence,
argues Griffin, the evidence reflected more than mere residency and knowledge
that the contraband was present.

We have explained repeatedly that mere proximity to contraband is not enough to establish a sufficient nexus to prove constructive possession. See, e.g.,
Morris, 576 F.3d at 666.  Rather, “proximity coupled with evidence of some other factor— including connection with [an impermissible item], proof of motive, a gesture implying control, evasive conduct, or a statement indicating involvement in an enterprise is enough to sustain a guilty verdict.” Id. at 668.

Some of our cases cited by the government, however, use broad language that seems to support the argument that a “substantial connection” to a location is
sufficient to establish a nexus to specific items of contraband in the location. See Richardson, 208 F.3d at 632.  When we look more closely at the facts, the
tension between these two lines of cases can be resolved. Notwithstanding the
broader “substantial connection” language in the joint residence cases cited by
the government, in each one something more than the defendant’s residence
linked him to the contraband.

The facts demonstrated not just a substantial connection between the defendant and the location, but also a substantial connection between the defendant and the contraband itself. In Richardson, for example, the gun was found in Richardson’s bedroom lying on his bed next to envelopes addressed to him and prescription medications with his name and the home’s address on the labels. 208 F.3d at 628.

The facts in these cases make clear that when the defendant jointly occupies a residence, proof of constructive possession of contraband in the resid nce requires the government to demonstrate a “substantial connection” between the defendant and the contraband itself, not just the residence. See Castillo, 406 F.3d at 813.

III. Conclusion

Even when we construe the evidence and all of the reasonable inferences that can be drawn from it in the light most favorable to the government, the evidence was not sufficient to support a finding, beyond a reasonable doubt, that Griffin
intended to exercise control over his father’s shotgun and the nearby ammunition.

Griffin’s conviction is therefore REVERSED.  

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