7th Circuit Criminal Law Alert

On Restitutuion: Beyond a Reasonable Doubt Not Required

USA v. VERNON BONNER AND MARIA MAGANA-BONNER,  06-3350.The defendants challenge various aspects of restitution payments they are required to make under the Mandatory Victims Restitution Act ("MVRA"), 18 U.S.C. § 3663A. In particular, the defendants claim that restitution under the MVRA is a criminal punishment and that the facts underlying the restitution amount must be proven beyond a reasonable doubt to a jury.

These arguments lack merit. This court has consistently held that restitution under the MVRA is not a criminal punishment and does not need to be proven to a jury. And the district court properly relied on intended loss in calculating Vernon Bonner's advisory guidelines range. Therefore, we affirm the district court's awards of restitution.

The defendants claim that the district court erred by ordering restitution without accounting for various protections set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296 (2004), and Booker, 543 U.S. 220 (2005). These cases hold that facts underlying certain criminal punishments must be proven beyond a reasonable doubt to a jury.

The defendants claim that restitution is in fact a criminal punishment and these protections apply.  The defendants rely on Pasquantino v. United States, 544 U.S. 349, 365 (2005), which mentions in passing, "The purpose of awarding restitution [under the MVRA] in this action is not to collect a foreign tax, but to mete out appropriate criminal punishment for that conduct."

The problem with the defendants' argument is that we have rejected it many times, even after Pasquantino was decided.  See, e.g., United States v. Lagrou Distrib. Sys., 466 F.3d 585, 593 (7th Cir. 2006) ("We reiterate: restitution is not a penalty for a crime for Apprendi purposes since restitution for harm done is a classic civil remedy that is administered for convenience by the courts that have entered criminal convictions." Restitution under the MVRA is not a criminal punishment, at least not in this circuit.

Moreover, the Third Circuit, which recognizes that restitution under the MVRA is a criminal penalty, has held: restitution constitutes a return to the status quo, a fiscal realignment whereby a criminal's ill-gotten gains are returned to their rightful owner. In these circumstances, we do not believe that ordering a convicted defendant to return ill-gotten gains should be construed as increasing the sentence authorized by a conviction pursuant to Booker.  United States v. Leahy, 438 F.3d 328, 338 (3d Cir. 2006)

Alternatively, the defendants suggest that if restitution is a civil remedy, then the Seventh Amendment guarantees them a jury trial.  We have already implicitly rejected this argument. See United States v. Scott, 405 F.3d 615, 619 (7th Cir. 2005) ("[T]he amount of criminal restitution is determined by the judge, whereas a suit for damages is a suit at law within the [Seventh] [A]mend-ment's meaning.").

Finally, the defendants point out that the district court's written judgments still prohibit the defendants from obtaining any federal benefits until they have completed their restitution payments, even though the district court did not mention this requirement when pronouncing judgment at the sentencing hearings. The government claims these were merely clerical errors. The defendants do not dispute this characterization.

We agree that these errors were likely clerical in nature [and] "[i]f an inconsistency exists between an oral and the later written sentence, the sentence pronounced from the bench controls." United States v. Becker, 36 F.3d 708, 710 (7th Cir. 1994).

The judgments are AFFIRMED, but the cases are REMANDED solely for the district court to correct the above-specified clerical errors in the judgments.

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

For more about attorney Michael J. Petro, visit www.mjpetro.com .

Honest Services Fraud Explained

USA v. Robert Sorich, 06-4251.  Despite the existence of a federal consent decree and other measures that for decades have sought to bring more transparency and legitimacy to the City of Chicago's civil service hiring, patronage appointments have continued to flourish. The centerpiece of this appeal is a challenge to the government's theory of prosecution: they contend that their behavior, while dubious, is not criminal  and that the honest services mail fraud statute, 18 U.S.C. § 1346, is unconstitutionally vague.

We conclude that the defendants' actions do constitute mail fraud, and that the statute is not unconstitutionally vague as applied to the facts of this case.

The defendants' chief argument on appeal is that the district court's jury instructions on honest services mail fraud impermissibly expand the scope of that crime beyond the statute. They also contend that the honest services mail fraud statute is unconstitutionally vague, and that only state law can supply the fiduciary duty that runs between public officials and the citizenry. Before turning to those arguments, we provide a bit of background on honest services mail fraud.

The mail fraud statute, 18 U.S.C. § 1341, criminalizes the use of the mails for carrying out a "scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises." The courts had long interpreted this statute as encompassing schemes to defraud another not just of money and property, but also "intangible rights," chief among them the right of citizens to the honest discharge of public duties by public servants.

In most honest services cases, the defendant violates a fiduciary duty in return for cash-kickbacks, bribes, or other payments.  The "[m]isuse of office (more broadly, misuse of position) for private gain is the line that separates run-of-the-mill violations of state-law fiduciary duty . . . from federal crime." United States v. Bloom, 149 F.3d 649, 655 (7th Cir. 1998).

The defendants' chief argument centers on the "private gain" requirement. The district court's jury instruction stated that a scheme to defraud requires an intent "to deprive a governmental entity of the honest services of its employees for personal gain to a member of the scheme or another".

Imagine scenario (A) in which a mayor surreptitiously channels city contracts to his cronies in the business community; they get a windfall whereas he has merely helped his friends and takes no money. Or imagine scenario (B) in which an attorney bribes a court in order to obtain favorable results for his clients in their lawsuits. Or scenario (C) where a union boss sells union property to a senator even though the senator did not offer the highest price, and in exchange receives the senator's vote on a matter that concerns the union.

In all three scenarios the public has been defrauded of the honest services of its public servants: the mayor, the court, and the senator. Moreover, in all three scenarios the defendant-the mayor, the attorney, and the union boss-was not the one who stood to gain financially. Certainly the defendants all received something: in (A), the mayor received the gratitude of his friends; in (B), the attorney could boast to future clients of a high success rate, which is good for business; and in (C) the union boss curried valuable favor with the senator. But the money went to another party. All three scenarios have played out in the federal courts and have resulted in convictions for mail fraud.  See United States v. Fernandez, 282 F.3d 500, 503-05 (7th Cir. 2002), United States v. Silvano, 812 F.2d 754, 759-60 (1st Cir. 1987) (scenario A); Ginsburg v. United States, 909 F.2d 982 (7th Cir. 1990) (scenario B); Lombardo v. United States, 865 F.2d 155, 159-60 (7th Cir. 1989) (scenario C).

Reading Bloom's private gain requirement to include gain by non-schemers does not, as the defendants warn, "effectively eliminate[ ]" this limit on the scope of honest services mail fraud. As we have noted, it will be a rare case when a party engaged in fraud directs the benefits to non-schemers. 

Unlikely scenarios, maybe, but mail fraud nevertheless. Robin Hood may be a noble criminal, but he is still a criminal.

The defendants also contend that United States v. Thompson, 484 F.3d 877 (7th Cir. 2007)
compels a decision in their favor. The point that distinguishes Thompson from this case is the absence of a scheme to defraud.

The present case, by contrast, features a massive scheme to defraud, complete with specific intent and material misrepresentations. The defendants created an illegitimate, shadow hiring scheme based on patronage and cronyism by filling out sham interview forms, falsely certifying that politics had not entered into their hiring, and covering up their malfeasance. These are the hallmarks of a fraud. See United States v. Bush, 522 F.2d 641, 647-48 (7th Cir. 1975). Thompson is miles away.

For the foregoing reasons, we AFFIRM the convictions and sentences of the defendants.

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

For more about attorney Michael J. Petro, visit www.mjpetro.com .

Narcotics Police Officer Not an Expert Under FRE 702

USA v. TAOFIQ AFONJA, 06-3347.  Michael Sanders arrived in the United States from Nigeria with 3.6 kilograms of heroin in his luggage. When caught, he claimed to be a courier with no interest in the drugs apart from a $3,000 fee for his services; he agreed to participate in a controlled delivery to the next people in the chain, who were to collect the heroin at a bus station in Chicago.

Afonja, who did not confess, was tried separately to avoid Bruton problems and convicted of conspiracy and attempt. His sentence, too, is 121 months.  Afonja has a non-frivolous argument: that a witness testifying as an expert for the prosecution did not satisfy the requirements of Fed. R. Evid. 702.

Robert Coleman, a police officer employed by Will County, Illinois, and assigned to a drug task force, testified for the prosecution as an expert about drug transactions. One of the questions he addressed was whether innocent persons participate in drug transactions. Over Afonja's objection, Coleman testified that, except for children, only "people that are involved in the drug deal" will be present-and by "involved" Coleman meant people who "have knowledge as to what's taking place, the illegal activity". Afonja maintains that the district judge should have prevented Coleman from giving this testimony.

The district judge concluded that Coleman's training and experience make him an expert on drug transactions.  But Rule 702 does not say that any testimony within the scope of a witness's expertise is admissible.

The district judge did not address any of the Rule 702's three questions: (1) whether Coleman's view "is based upon sufficient facts or data"; (2) whether it is "the product of reliable principles and methods"; and (3) whether the "witness has applied the principles and methods reliably to the facts of the case."

Both the judge and the prosecutor supposed that decisions in this circuit make it unnecessary to address the questions posed by Rule 702. We have held that an agent's field experience can provide "specialized knowledge" that supports expert testimony. See, e.g., United States v. Ceballos, 302 F.3d 679, 686--88 (7th Cir. 2002); United States v. Allen, 269 F.3d 842, 846 (7th Cir. 2001). And we have twice held that district judges did not err in admitting testimony of the kind that Coleman gave here. See United States v. Garcia, 439 F.3d 363, 367--68 (7th Cir. 2006); United States v. Love, 336 F.3d 643, 646--47 (7th Cir. 2003). But neither Garcia nor Love dealt with Rule 702.

On what "facts or data" does Coleman's opinion rest? Are his inferential methods reliable? Coleman did not describe either the facts he considered or the methods of analysis used to get from facts to a conclusion.

Facts are essential to testimony based on "specialized knowledge" as well as to scientific and technical expertise. Yet Coleman did not describe any data, and his evaluation does not seem to be falsifiable. Coleman is certain that every adult involved in every drug transaction knows what is going on. That's not a reliable way to proceed.

The prosecutor's brief and oral argument rest on the proposition that testimony by any genuine expert is admissible under Rule 702. That's not so.

Most junk science is the work of people with Ph.D. degrees and academic positions. Good credentials may be a necessary condition for expert testimony but are not a sufficient condition.

Because the right questions were not asked, we cannot know whether Coleman should have been allowed to testify. It is difficult to say that the district judge abused his discretion-that's the standard when the information on which a sound exercise of discretion depends was never placed before the judge.

A judge is not obliged to look into the questions posed by Rule 702 when neither side either requests or assists. So there was no error; the judge answered correctly the only question that the parties posed (whether Coleman qualified as an expert).

Afonja's conviction is affirmed.

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

For more about attorney Michael J. Petro, visit www.mjpetro.com .

Boilerplate Sentencing Law Post Rita and Gall

USA v. Ralph Shannon, 07-2794.  Ralph Shannon pleaded guilty to one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4). The district court sentenced Shannon to 46 months' imprisonment and a life term of supervised release. On appeal, he argues that (1) the federal sentencing scheme approved in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) violates the Fifth and Sixth Amendments; and (2) his sentence was unreasonable. For the following reasons, we affirm.

The presentencing investigation report ("PSR"), which the district court adopted, stated that based on Shannon's criminal history category (I) and the offense level (twenty-three), the guidelines range was forty-six to fifty-seven months' imprisonment with a range of two years to life of supervised release. The PSR recommended a sentence of 57 months' imprisonment with a life term of supervised release.

Shannon raises two issues on appeal, the first of which we can dispose of in haste. Shannon argues (as far as we can discern) that his sentence was unconstitutional under the Fifth Amendment and the Sixth Amendment as interpreted by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) because the post-Booker guidelines scheme impermissibly allows district court judges to find facts that affect federal sentences. Because Shannon failed to raise this issue before the trial court, it is forfeited, and our review is for plain error. United States v. Matthews,505 F.3d 698, 707 (7th Cir. 2007).

We have considered similar arguments on multiple occasions, and have rejected them. See United States v. Roti, 484 F.3d 934, 937 (7th Cir. 2007); United States v. Savage, 505 F.3d 754, 764 (7th Cir. 2007); United States v. Hollins, 498 F.3d 622, 633 (7th Cir. 2007); United States v. White, 472 F.3d 458, 464-65 (7th Cir. 2006).

District court judges do not violate the Constitution when they find facts by a preponderance of the evidence for purposes of calculating a guideline range, as long as the guidelines remain advisory and the ultimate decision is based on consideration of the § 3553(a) factors. Hollins, 498 F.3d at 633.

In his other argument on appeal, Shannon also contends that the district court failed to adequately articulate the reasons for her decision to sentence Shannon to the guidelines recommendation of lifetime supervision. We review sentences for reasonableness, using an abuse of discretion standard. United States v. Sura, 511 F.3d 654, 664 (7th Cir. 2007).

A sentence is reasonable if the district court gives meaningful consideration to the factors enumerated in 18 U.S.C. § 3553(a), including the advisory sentencing guidelines, and arrives at a sentence that is objectively reasonable in light of the statutory factors and the individual circumstances of the case. Gall v. United States, 552 U.S. ___, 128 S.Ct. 586, 596-97, 169 L.Ed.2d 445 (2007); United States v. Wachowiak, 496 F.3d 744, 748 (7th Cir. 2007). The court need not address every § 3553(a) factor in checklist fashion, explicitly articulating its conclusions regarding each one. United States v. Brock, 433 F.3d 931, 934-36 (7th Cir. 2006); United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005). Instead the court may simply give an adequate statement of reasons, consistent with § 3553(a), for thinking the sentence it selects is appropriate. United States v. Harris, 490 F.3d 589, 597 (7th Cir. 2007).

A sentence within a properly calculated guideline range is presumed reasonable. United States v. Haskins, 511 F.3d 688, 695 (7th Cir. 2007) (citing Rita v. United States, ___ U.S. ___, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005) (adopting a rebuttable presumption of reasonableness for within-guidelines sentences).

In this case, the district court sufficiently explained Shannon's sentence, including the life term of supervised release. The court took into consideration: (1) Shannon's limited criminal history, see § 3553(a)(1); (2) the serious nature of the offense, see id.; (3) the fact that Shannon's interest in child pornography demonstrated a "substantial need to protect the public," see § 3553(a)(2)(C); and (4) Shannon's need for sex offender treatment and supervision, see § 3553(a)(2)(D).

After explaining these factors, the court found that a sentence at the low end of the guidelines range for imprisonment and at the high end of the range for supervised release was required in this case. The court adequately addressed the objections raised by Shannon, and demonstrated nothing short of a thorough and thoughtful analysis of Shannon's case. Shannon presents nothing to disturb the rebuttable presumption of reasonableness of his within-guidelines sentence.

Accordingly, we AFFIRM Shannon's sentence.

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

For more about attorney Michael J. Petro, visit www.mjpetro.com .

Relevant Conduct Calculation Found Beyond Realm of Permissable Calculations

USA v. GERALD E. ANDERSON, 06-2205.  In December 2004, Anderson and Meisch were indicted on charges of bribery and wire and honest services fraud. The two men had been caught offering a $10,000 bribe to the Aurora Director of Public Works in order to smooth the way for Anderson's latest development project. Meisch pleaded guilty and testified against Anderson at trial. Anderson was ultimately convicted on two counts.

He now appeals and argues that the district judge improperly calculated his sentencing range under the U.S. Sentencing Guidelines by overestimating the net benefit he received from his wrongdoing.

We agree that the district court improperly calculated the Guidelines range but we find that the error was harmless. We AFFIRM.

Anderson's appeal focuses largely on sentencing issues.  A fourteen-point enhancement was added because the "benefit received" from the bribe was more than $400,000 but less than $1,000,000. See U.S.S.G. § 2B1.1(b)(1)(H) (2003).

We now turn to the most hotly contested issue in this case, which is the proper calculation of the "benefit received" in return for the bribe. See U.S.S.G. § 2C1.1(b)(2) (2003).  Both parties agree that the value of the "benefit received or to be received" is the proper measure in this case, but they disagree on how it should be calculated.

Basically, the dispute in this case is over whether Anderson's offense conduct should include convicted conduct, relevant conduct or both.  The Government is correct here, at least in theory.

It is well settled that the sentencing judge may consider not only the conduct that formed the basis of the conviction but also "relevant conduct." See U.S.S.G. § 1B1.3(a)(2) (2003). Relevant conduct may include "uncharged conduct and even conduct that formed the basis of an acquittal," as long as the judge makes factual findings based on the preponderance of the evidence. United States v. Schaefer, 291 F.3d 932, 938 (7th Cir. 2002) (citations omitted).

The judge, however, must make sure that the conduct forms a part of the "same course of conduct" or "ongoing series of offenses." U.S.S.G. § 1B1.3 cmt. n.9(B) (2003). Further, we have cautioned that when the benefit calculation is based largely on conduct for which the defendant was not convicted, the district court must be careful to explain exactly how the conduct factors into the benefit calculus. See Schaefer, 291 F.3d at 939.

We are aware that benefit calculations cannot always be precise, and so we accept reasonable estimates based on the information available in the record. See U.S.S.G. 2B1.1(b)(1), cmt. n.3(c) (2003). To be rejected, a district court's calculation must not only be "inaccurate but outside the realm of permissible computations." United States v. Peterson-Knox, 471 F.3d 816, 822 (7th Cir. 2006).

Because more than 90% of the district court's net benefit figure reflects benefits derived from relevant conduct, we will scrutinize the numbers more closely. See Schaefer, 291 F.3d at 939.  In the end, there has been no reasonable basis presented for calculating the value of Misty Creek on the basis of a discount. This is a rare occasion in which the district court's calculation is "outside the realm of permissible calculations." Peterson-Knox, 471 F.3d at 822.

Before we remand the case, however, we must determine whether the error was harmless. See e.g., United States v. Saunders, 129 F.3d 925, 932-33 (7th Cir. 1997). An error is harmless if it "did not affect the district court's selection of the sentence imposed." Williams v. United States, 503 U.S. 193, 203, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992).

So, knowing what we now know, would the district court have selected the same sentence? There is no need for speculation here. The district court stated explicitly at the sentencing hearing that it believed that seventy-two months was the reasonable sentence under § 3553(a), even if its benefit calculations were incorrect.  Because it has clearly stated its intention to do so, any error in the calculation of the sentencing range was harmless.

AFFIRMED

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

For more about attorney Michael J. Petro, visit www.mjpetro.com .

Textbook Search and Seizure Law Leads to Reversal

UNITED STATES OF AMERICA v. EARKLE J. TYLER, 06-2904.  Earkle Tyler was charged with possessing crack with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Tyler moved to suppress the crack, arguing that it was discovered only after police officers detained and searched him without reasonable suspicion. The district court denied this motion, and Tyler entered a conditional guilty plea. He now challenges the denial of his motion to suppress.

Because the officers detained Tyler without reasonable suspicion that criminal activity may be afoot, the suppression motion should have been granted. We vacate Tyler's conviction and remand with instructions.

Officers Adam Clark and James Onohan of the Hammond, Indiana police department testified that at around 4:30 p.m. on Saturday, September 17, 2005, they were patrolling together in their squad car through a residential neighborhood in Hammond. They noticed a man, later identified as 29-year-old Earkle Tyler, walking near the intersection of Merrill and Rhode Streets with an open beer bottle in his hand.

Onohan immediately told Clark, "[W]e need to stop this guy because he's got a beer bottle in his hand." Clark testified that he and Onohan were then under the mistaken impression that it is illegal to have an open alcoholic beverage on the streets of Hammond, so they pulled over "to confront Tyler about the beer bottle." Neither officer knew Tyler, and both conceded that other than seeing him carrying the open beer bottle, they had no reason to stop or question him.

The officers got out of the squad car and approached Tyler. Clark informed Tyler he was violating the law and asked "why he was being so nonchalant about walking on the street with a beer bottle." Tyler answered that he had just picked up the bottle and was going to go throw it in the trash.

The officers then asked Tyler for identification in order to check for outstanding warrants.  Once the warrant check was completed, Clark handed Tyler's identification back to him and told him he was free to go.

As Tyler was putting his identification back in his pocket, however, Clark noticed a "bulge" either under Tyler's waistband or in his front pocket.  Clark grabbed at the bulge in Tyler's pants and a struggle ensued.  The bulge recovered Tyler from contained about 30.3 grams of crack and 24 grams of powder cocaine.

Clark and Onohan issued Tyler for an open alcohol citation, but a few days later, their supervisor informed them that it was not illegal to have an open alcohol container on the streets of Hammond.

At the suppression hearing, Clark acknowledged he and Onohan made a mistake about the open intoxicant law but testified that the main purpose for stopping Tyler was to see if he was publicly intoxicated, which is a violation of Indiana law. See IND. CODE § 7.1-5-1-3. The only basis for this suspicion, according to the officers' testimony, was the open beer bottle.

The district court found both officers credible and held that Tyler's presence on a public sidewalk at 4:30 p.m. carrying an almost-empty beer bottle gave the officers reasonable suspicion that he may be publicly intoxicated. Thus, the court concluded, the officers had adequate justification for an investigative detention under Terry v. Ohio,392 U.S. 1 (1968).

We review the district court's denial of Tyler's suppression motion according to a split standard of review. Historical facts are reviewed for clear error, and "due weight" deference is given "to [the] inferences drawn from those facts by resident judges and local law enforcement officers." Ornelas v. United States,517 U.S. 690, 699 (1996).  Fourth Amendment determinations regarding the existence of a seizure and reasonable suspicion are reviewed de novo. Ornelas,517 U.S. at 697.

The government, however, argues for the first time on appeal that Clark and Onahan did not detain Tyler at all. In the district court, the government argued that the officers conducted a Terry stop justified by reasonable suspicion that Tyler was publicly intoxicated, and the district court accepted this argument.

The government now characterizes the encounter as consensual police-citizen questioning, which does not implicate the Fourth Amendment and need not be supported by reasonable suspicion. United States v. Drayton,536 U.S. 194, 200-01 (2002) ("Law enforcement officers do not violate the Fourth Amendment's prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen."); United States v. Burton,441 F.3d 509, 511 (7th Cir. 2006) ("Even though approaching a person on the street (or at work, or on a bus) to ask him a question causes him to stop for at least the time needed to hear the question and answer (or refuse to answer), the curtailment of the bystander's mobility, privacy, and peace of mind is so slight that neither probable cause nor reasonable suspicion is required to justify the police action.") (citation and internal quotation omitted); United States v. Adamson,441 F.3d 513, 519-20 (7th Cir. 2006) ("It is well settled that police may approach an individual in a public place and seek the individual's cooperation in answering a few questions. Such an encounter is not a 'seizure' within the meaning of the Fourth Amendment."); United States v. Childs, 277 F.3d 947, 950 (en banc) (7th Cir. 2002) ("[T]he Supreme Court has held repeatedly that police may approach persons and ask questions or seek their permission to search, provided that the officers do not imply that answers or consent are obligatory.").

'[A] person has been "seized" within the meaning of the Fourth Amendment . . . only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' " Michigan v. Chesternut,486 U.S. 567, 573 (1988);  United States v. McCarthur,6 F.3d 1270, 1275 (7th Cir. 1993).

Determining whether a seizure has occurred is a highly fact-bound inquiry, but the following are relevant factors: whether the encounter took place in a public place or whether police removed the person to another location; whether the police told the person he was not under arrest and was free to leave; whether the police informed the person that he was suspected of a crime or the target of an investigation; whether the person was deprived of identification or other documents without which he could not leave (such as a driver's license or train or airline ticket); and whether there was any limitation of the person's movement such as physical touching, display of a weapon, or other coercive conduct on the part of the police that indicates cooperation is required. McCarthur,6 F.3d at 1275-76.

We find this case analogous to a line of cases in this circuit involving airport and train station stops by narcotics officers. See McCarthur,6 F.3d at 1276-77; United States v. Soto-Lopez,995 F.2d 694, 698 (7th Cir. 1993); United States v. Williams, 945 F.2d 192, 197 (7th Cir. 1991); United States v. Sterling,909 F.2d 1078, 1083 (7th Cir. 1990); United States v. Palen,793 F.2d 853, 857 (7th Cir. 1986); United States v. Borys,766 F.2d 304, 311 (7th Cir. 1985); United States v. Cordell,723 F.2d 1283, 1285 (7th Cir. 1983). In each of these cases, narcotics officers stopped travelers at airports or train stations on some but generally insufficient suspicion to justify a Terry stop. In each case we characterized the initial encounter as consensual questioning and moved on to the question of whether the consensual encounter ripened into an investigative detention requiring reasonable suspicion under Terry. Where the officers told the defendant he was under investigation for carrying drugs or retained possession of his identification, travel documents, and/or luggage, we held there was a seizure.

In this case, the officers told Tyler-mistakenly, as it turns out-that he was violating the law by carrying an open container of alcohol in public. A reasonable person would not feel free to walk away after being confronted by two police officers and told he was committing a crime in the officers' presence. Moreover, the officers retained Tyler's identification while they ran a warrant check and told him he could not leave until the check was completed. Under these circumstances, a reasonable person would have believed he was obliged to stay put.

As to the first argument, we have held that a mistake of law (as opposed to a mistake of fact) cannot justify an investigative detention. United States v. McDonald, 453 F.3d 958, 962 (7th Cir. 2006). Here, the officers' mistake was one of law. They thought the Hammond City Code prohibited carrying open alcoholic beverages in public; it did not.

We come, then, to the question of the district court's reasonable suspicion ruling, which we review independently. Reasonable suspicion "is less than probable cause but more than a hunch," United States v. Lawshea, 461 F.3d 857, 859 (7th Cir. 2006), and "articulable facts" must support the officer's belief "that criminal activity is afoot,". The test is an objective one based on the totality of the circumstances. United States v. Arvizu,534 U.S. 266, 273 (2002). Here, the officers were unable to articulate a single fact-other than the open beer bottle-that would support a reasonable suspicion that Tyler was intoxicated.

That Tyler was walking down the street on a Saturday afternoon in September lawfully carrying an open beer supports only a suspicion that he was drinking, not that he was drunk.  If carrying an open bottle of beer in public is enough to create a reasonable suspicion of intoxication, then the police may detain and investigate any person who drinks beer in public.

"The spirit of the public intoxication statute is to prevent people from becoming inebriated and then bothering and/or threatening the safety of other people in public places." Wright v. State,772 N.E.2d 449, 456 (Ind. Ct. App. 2002).

The absence of reasonable suspicion to justify the officers' initial Terry stop decides this case; everything that followed was fruit of the poisonous tree. See, e.g., United States v. Jerez, 108 F.3d 684, 694-95 (7th Cir. 1997); see also Wong Sun v. United States,371 U.S. 471, 488 (1963).

VACATED and REMANDED.

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

For more about attorney Michael J. Petro, visit www.mjpetro.com .

Alternate Jurors - FRCP 24 Requires Strict Compliance

United States v. Mendoza, No 06-2999.

A jury found José Mendoza guilty of distributing amphetamine in violation of 21 U.S.C. § 841(a)(1).  Mendoza challenges the sufficiency of the government's evidence against him and the district court's procedure for identifying alternate jurors.  We affirm.

At the beginning of his trial on the charge of distributing amphetamine in violation of 21 U.S.C. § 841(a)(1), the district court informed counsel that it intended to select 16 tentative jurors to hear the evidence and, after closing arguments, designate four at random to be the alternates. During voir dire, the district court noted that this system "seems to work very well for everybody, and it has been in use here for close to 25 years." The procedure, however, happened to result in the clerk randomly designating the one Hispanic among the 16 tentative jurors as an alternate juror.

The jury then found Mendoza guilty.

Mendoza filed motions for judgment of acquittal and for a new trial under Federal Rules of Criminal Procedure 29 and 33, and the district court denied both motions.

Primarily, Mendoza challenges the district court's practice of seating 16 jurors to hear the evidence presented and randomly selecting four individuals to be alternates after the presentation of evidence. Although we disapprove of this procedure, the error was harmless.

Federal Rule of Criminal Procedure 24 governs the selection of jurors and alternates in criminal trials. This rule provides in pertinent part that the court may impanel alternate jurors who are identified as such and who replace jurors in the order the alternates are selected:

(c) Alternate Jurors.

(1)  In General. The court may impanel up to 6 alternate jurors to replace any jurors who are unable to perform or who are disqualified from performing their duties.

(2)    Procedure.

(A)  Alternate jurors must have the same qualifications and be selected and sworn in the same manner as any other juror.

(B)   Alternate jurors replace jurors in the same sequence in which the alternates were selected. An alternate juror who replaces a juror has the same authority as the other jurors.

Fed. R. Crim. P. 24(c). We have said that Rule 24(c) contemplates selection of alternates "either by the jury-box system or by a struck-jury method in which defendants know the sequence in which members of the pool will be seated." United States v. Patterson, 215 F.3d 776, 780 (7th Cir. 2000), vacated on other grounds, 531U.S.1033 (2000).

Rather than seating the jury and alternates separately, the district court seated 16 tentative jurors with the intention of randomly naming four of them as alternates just prior to deliberations. There may well be benefits to selecting a jury in this manner.

But this is not the procedure prescribed by Rule 24, nor is this a matter entrusted to the sound discretion of the district court. Rule 24 assumes alternates will be selected separately and sequentially prior to the presentation of evidence and provides for additional peremptory challenges for the parties to use specifically against potential alternates. By delaying the identification of the alternates until after the parties presented evidence, the district court erred.  As a result, Mendoza was unable to exercise peremptory challenges specifically against alternate jurors. See Fed. R. Crim. P. 24(c)(4).

Notwithstanding the logic of this practice and its vintage in the district court, we must join with our sister circuits in "encouraging strict adherence" to the rule, and we now request that the district court discontinue its current practice.

Deviation from the commands of Rule 24 requires reversal only if the error affects the defendant's substantial rights. See Fed. R. Crim. P. 52(a). We held in Patterson that generally the loss of a peremptory challenge does not constitute the deprivation of a substantial right. Only if the loss has a "substantial and injurious effect or influence in determining the jury's verdict" does the loss of a peremptory challenge amount to reversible error. 

Because peremptory challenges exist principally to safeguard the Sixth Amendment's guarantee of trial by an impartial jury,to prevail, Mendoza must demonstrate that the jury was not impartial.

Mendoza does not claim they were), there is no constitutional injury. United States v. Phillips, 239 F.3d 829, 842 (7th Cir. 2001).

Mendoza complains that the district court's procedure excluded the only Hispanic among the 16 tentative jurors and that because this juror was among the first 12 seated, he expected to "try the case" to this juror (despite the district court's warning about the procedure for selecting alternates). But as long as Hispanics were not systematically excluded from the venire (and

Furthermore, Mendoza is not entitled to any Hispanics on the jury, see Taylor v. Louisiana, 419 U.S. 522, 538 (1975), nor by implication is he entitled to any one individual juror.

Finally, Mendoza presents no evidence (other than the fact of conviction, which is insufficient) to suggest that the jury was not impartial. The error was therefore harmless.

AFFIRMED

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

For more about attorney Michael J. Petro, visit www.mjpetro.com .

USSG 2B3.1 Threat of Death Enhancement Not Alllowed With 924(c) Conviction

United States vs. Daniel Katalinic, No. 07-1588.

Daniel Katalinic pleaded guilty to bank robbery (18 U.S.C. § 2113(a)) and carrying a firearm in relation to a crime of violence (18 U.S.C. § 924(c)).  At sentencing, the district court added two levels to the base offense level on the robbery count because Katalinic's co-defendant made a death threat (U.S.S.G. § 2B3.1(b)(2)(F)) during the robbery.

The primary issue on appeal is whether Application Note 4 to § 2K2.4 of the sentencing guidelines prohibits, as double counting, an upward adjustment for a death threat that is related to the firearm for which the defendant received a mandatory consecutive sentence under § 924(c). We agree with our sister circuits and hold that Application Note 4 prohibits the adjustment.

At sentencing, Katalinic objected to the adjustment for the death threat, arguing that it, like brandishing a gun, constituted double counting prohibited by Application Note 4 to § 2K2.4. Because the death threat was related to the firearm, he argued, it could not be used to increase his base offense level for the robbery when he was also subject to a mandatory sentence for the separate firearm conviction.

We review a legal interpretation of the sentencing guidelines and amendments de novo. United States v. Howard, 352 F.3d 332, 335 (7th Cir. 2003). An application note is "authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of " the guideline it interprets.

This case turns on an amendment in 2000 to Application Note 4 of § 2K2.4. Before the amendment, Application Note 4 included examples of the types of firearm characteristics a court could not use to increase an underlying sentence when also imposing a mandatory firearm sentence under § 924(c):

Where a sentence under this section is imposed in conjunction with a sentence for an underlying offense, any specific offense characteristic for the possession, use, or discharge of an explosive or firearm (e.g., § 2B3.1(b)(2)(A)-(F) (Robbery)) is not to be applied in respect to the guideline for the underlying offense.

Courts interpreted the note to mean that they could not even use a death threat to increase the base offense level for an underlying offense if the defendant was also convicted of carrying a firearm under § 924(c) because the note directly referred to the death threat adjustment. See United States v. Smith, 981 F.2d 887, 892-93 (6th Cir. 1992).

The two circuits to consider whether the amended Application Note 4 still prohibits an upward adjustment for a death threat have concluded that it does. Specifically, we have held that Application Note 4 prohibits an increase in the sentence for an underlying offense "for the same weapon and the same conduct that underlie the § 924(c) conviction."

Applying this rule, the district court erred because Maltz's death threat was related to the shotgun for which Katalinic received a mandatory sentence under § 924(c). While Katalinic brandished the shotgun, Maltz told the manager to hurry or he would "shoot" her. The threat to "shoot" was thus directly related to the gun carried into the bank to facilitate the robbery.

Katalinic does not challenge the district court's finding that Maltz's statement was a death threat that was reasonably foreseeable to Katalinic. Thus, because the death threat was related to the shotgun, the district court should not have increased Katalinic's robbery sentence based on Maltz's threat.

Because the district court misapplied the sentencing guidelines in calculating the guidelines range, we must remand the case for resentencing. See United States v. Scott, 405 F.3d 615, 617 (7th Cir. 2005).

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

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Batson: Boilerplate Rules

USA v. Larry Hendrix, 06-4355.  A jury convicted Larry Hendrix of possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The district court sentenced him to 262 months' imprisonment. Hendrix challenges his conviction, claiming that the district court erred in (1) finding that the prosecution made a race-neutral showing for striking two African-Americans during voir dire; (2) allowing testimonial evidence that a judge approved a warrant to search Hendrix's home; and (3) concluding that Hendrix was not subject to interrogation under Miranda. Hendrix also challenges his sentence. For the following reasons, we affirm.

Voir dire took place on September 5, 2006. The venire consisted of thirty-three people, and after questioning by the court, both sides exercised a combined total of eighteen peremptory challenges. The court noted that the prosecution used two of its challenges to exclude Juror Nos. 22 and 16, the only African-Americans in the venire. Recognizing that a prima facie case of discrimination had been established, pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), the court sua sponte called both parties to the bench for a sidebar.

The prosecution offered an explanation as to why he struck those particular jurors, stating, "Mr. Woodland, number 22, he said his stepson is in prison for armed robbery, and that gave me pause. I struck from the panel everyone that I could that has relatives in prison . . . Ms. Hairston, number 16, who said her brother was in prison for murder . . . . " The prosecution also noted that he struck Juror No. 13, Ms. Strock, a Caucasian woman, "who said her [step]father was in prison."

Defense counsel expressed concern that the only two African-Americans were gone, stating "[it] leaves us with a jury without any minorities. And Mr. Hendrix is obviously African-American, and so that gives us some concern."

Defense counsel did not address the fact that Juror Martin, a Caucasian woman, was not struck from the panel, despite the fact that she had a brother who was sent to a reform school for armed robbery at age sixteen.

A. The Batson Challenge

Hendrix contends that (1) the prosecution's strikes were not race-neutral, because the prosecution did not strike Juror Martin-who is Caucasian-even though she had a brother who went to reform school for armed robbery.

(2) the prosecution's recognition that Jurors Woodland and Hairston had friends in law enforcement should have been appealing to the prosecution, and therefore undercuts its assertion that the strikes were race-neutral;

(3) the prosecution's "sudden proffer of a new explanation" that Juror Woodland was "one of those CSI guys" was pretextual, because other white jurors on the panel who watched the show were not struck from the panel; and

4) the district court erred when it did not explain why it was satisfied with the prosecution's explanations of striking the African-American jurors. Batson sets forth a three-step analysis that precludes a prosecutor from striking a juror based on race under the Equal Protection Clause.

First, the defendant must establish a prima facie case that the strike was racially motivated. The burden then shifts to the prosecution to articulate race-neutral reasons for the strike. Finally, the trial judge must assess the credibility of the prosecution's explanation and determine if the defendant has established purposeful discrimination. Batson v. Kentucky, 476 U.S. 79, 96-98 (1986); see also Lamon v. Boatwright, 467 F.3d 1097, 1099 (7th Cir. 2006). The ultimate burden of persuasion regarding racial motivation rests with the opponent of the strike. United States v. Jones, 224 F.3d 621, 624 (7th Cir. 2000).

Not every strike of a racial minority is a violation of Batson. Jones, 224 F.3d at 624. A prosecutor's motives are a question of fact, United States v. George, 363 F.3d 666, 673 (7th Cir. 2004), to be determined by the trial judge, who is in the best position to evaluate the demeanor of the attorney exercising the challenge. Hernandez v. New York, 500 U.S. 352, 365 (1991). Because these are determinations of credibility, we review a district court's resolution of a Batson challenge for clear error. George, 363 F.3d at 673.

We must have a firm and definite conviction that a mistake was made before reversing a trial court's Batson ruling. United States v. White, 416 F.3d 634, 640 (7th Cir. 2005). We must keep in mind, however, that "[o]nce the trial judge has been persuaded of the neutrality of the prosecutor's reason for striking a juror, we have no basis for reversal on appeal unless the reason given is completely outlandish or there is other evidence which demonstrated its falsity." United States v. Griffin, 194 F.3d 808, 826 (7th Cir. 1999).

At the first stage of the Batson analysis, the burden is low, requiring only circumstances raising a suspicion that discrimination occurred, even where those circumstances are insufficient to indicate that it is more likely than not that the challenges were used to discriminate. United States v. Stephens, 421 F.3d 503, 512 (7th Cir. 2005) (citing Johnson v. California, 545 U.S. 162, 170 (2005)).

We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates a prima facie case of discrimination against black jurors. Batson, 476 U.S. at 97. Acknowledging that the only two African-Americans had been struck from the venire by the prosecution, the court found that a prima facie case under Batson had been established.

At the second stage of the Batson inquiry, the burden shifts to the prosecution to make a race-neutral explanation for its strikes. Unless a discriminatory intent is inherent in the prosecution's explanation, the reason offered will be deemed race-neutral. Batson, 476 U.S. at 98 n.20.; see also George, 363 F.3d at 674.

The prosecution explained that Jurors Woodland, Hairston, and Strock all had relatives in prison, which is a valid and race-neutral basis for the strikes. Jurors with relatives in prison may sympathize with a defendant, or have feelings of animosity against the prosecution. See United States v. Lewis, 117 F.3d 980, 983 (7th Cir. 1997).

At the last stage of a Batson inquiry, the court must determine whether the defendant has carried his burden of proving purposeful discrimination by the prosecution.

The critical question in determining whether a defendant has proved purposeful discrimination at the last stage is the persuasiveness of the prosecution's justification for his strike. Miller-El v. Cockrell,537 U.S. 322, 338-39 (2003). 

The issue is whether the trial court finds the prosecutor's race-neutral explanations to be credible. Id. at 339. When approaching the issue of credibility, the court assesses "how reasonable, or how improbable, the [prosecutor's] explanations are; and by whether the proffered rationale has some basis in accepted trial strategy." Coulter v. McCann, 484 F.3d 459, 465 (7th Cir. 2007).  Batson and its progeny direct trial judges to assess the honesty-not the accuracy-of a proffered race-neutral explanation. Moreover, at the third stage, the defendant may offer additional evidence to demonstrate that the proffered justification was pretextual.

The district court considered all of the prosecution's explanations as to why Jurors Woodland and Hairston were struck when it found that the explanations were proper.

Furthermore, Hendrix failed to demonstrate any pretext to the court during voir dire.

We find no error in the district court's assessment of the honesty of the prosecution's proffered explanations. The district court had the opportunity to observe the voir dire, and determined that the prosecution gave legitimate and race-neutral showings as to why it struck the two African-Americans from the venire. Hendrix has not provided any sufficient reasons for us to conclude that the district court committed clear error by making this determination. Therefore, we find that the district court's ruling on the prosecution's peremptory challenges on Jurors Woodland and Hairston was proper and did not violate Hendrix's right to equal protection of the law.

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

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Sentencing Defendant In Absentia OK If Court Finds Absense Voluntary

USA v. Lahbib Achbani, 06-4190.  In December 2005, Lahbib Achbani pleaded guilty to making and uttering a counterfeit check in violation of 18 U.S.C. § 513(a). Mr. Achbani disappeared shortly before his scheduled sentencing hearing. The district court postponed the hearing several times while the Government searched for Mr. Achbani. Ultimately the court found that Mr. Achbani had absconded and sentenced him in absentia to 33 months' imprisonment.

We affirm Mr. Achbani's sentence. The district court took all the necessary steps to ensure that Mr. Achbani's absence was voluntary, and the evidence overwhelmingly suggested that he had fled the jurisdiction to avoid imprisonment.

In late 2004, Mr. Achbani manufactured a $100,000 counterfeit check, deposited it and withdrew part of the funds to pay off various debts. Between the time of his indictment in May 2005 and his guilty plea that December, Mr. Achbani assisted in a government investigation that led to the recovery of nearly $2 million in stolen goods and the filing of charges against others.

In February 2006, however, the Government informed the probation officer and defense counsel of its recent discovery that, after his indictment, Mr. Achbani had passed additional counterfeit checks and had been charged with criminal trespass to a vehicle. These discoveries led the Government to propose a higher intended-loss amount than the parties originally had anticipated and to suggest that Mr. Achbani was not entitled to a reduction for acceptance of responsibility.

Mr. Achbani failed to appear for his sentencing that May, and defense counsel informed the court that he did not know of Mr. Achbani's whereabouts. The court therefore asked counsel whether it was appropriate to sentence Mr. Achbani in absentia under Federal Rule of Criminal Procedure 43(c)(1)(B), which provides that a defendant waives his right to be present at sentencing if he is voluntarily absent.

Rule 43 guarantees a defendant the right to be present at both trial and sentencing. See Fed. R. Crim. P. 43(a); United States v. Agostino, 132 F.3d 1183, 1200 (7th Cir. 1997). Rule 43 was amended in 1995 to provide explicitly that a defendant in a non-capital case waives the right to be present at his sentencing if he is "voluntarily absent." See Fed. R. Crim. P. 43(c)(1)(B).  It appears that the 1995 amendment sought to eradicate the disparity in the courts' treatment of defendants' absences from trial and from sentencing. Consequently, we employ the same standard in determining whether the district court proceeded appropriately in this case.

We review for clear error a district court's finding of voluntary absence.  In the trial context, we have explained that the district court should indulge every reasonable inference against a finding of voluntary absence. Before proceeding, the district court must explore on the record any "serious questions" raised about whether the defendant's absence was knowing and voluntary.

For example, a defendant taken into legal custody is not voluntarily absent, see Larson v. Tansy, 911 F.2d 392, 397 (10th Cir. 1990); nor is a defendant who has been hospitalized due to illness, see United States v. Novaton, 271 F.3d 968, 996-97 (11th Cir. 2001).

As the case law makes clear, however, the district court's duty to explore such possibilities varies to the extent that defense counsel suggests circumstances that raise a plausible doubt that the defendant's absence was voluntary.

Here, the district court's finding that Mr. Achbani was voluntarily absent was not clear error. The district court postponed Mr. Achbani's sentencing two times over three months; it drew every possible reasonable inference in his favor; and it required that, before sentencing would proceed, the Government had to conduct an investigation into the alternative possibilities that counsel identified, especially Mr. Achbani's immigration status. The evidence that the Government ultimately collected- particularly evidence that a person with Mr. Achbani's name and birthday had flown to Austria shortly after he had disappeared-ruled out a "serious" possibility that Mr. Achbani was dead, hospitalized or in legal custody. Counsel proffered no additional evidence to demonstrate that Mr. Achbani's absence was involuntary. Moreover, Mr. Achbani had learned of the Government's discovery of his ongoing criminal activity, which certainly gave him ample incentive to flee.

AFFIRMED

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

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