7th Circuit Criminal Law Alert

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.

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

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.

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

Permanent Disfigurement for USSG Determined on Date of Sentencing

USA v. Bronson L. Webster, 06-4430.  Bronson Webster punched Leah Tourtillott in the face five times and, after she collapsed, kicked her in the face five times. The attack broke her nose and the bone around her right eye; it also caused lacerations that a physician concluded would leave prominent facial scars. Because the attack occurred on an Indian reservation, it came within federal jurisdiction. 18 U.S.C. §1153. Webster pleaded guilty to an assault that caused serious bodily injury. 18 U.S.C. §113(a)(6).  The district judge imposed a sentence of 68 months.

Webster maintains that the offense level should have been 16 rather than 18. The range corresponding to an offense level of 16 would have been 46 to 57 months' imprisonment. The two-level difference depends on the application of U.S.S.G. §2A2.2(b)(3), which prescribes seven offense levels for battery that produces "permanent or life-threatening bodily injury" but only five levels for an attack that causes "serious bodily injury". According to Webster, Tourtillott's injuries were "serious" but not "permanent or life-threatening".

They aren't "life-threatening", but they are "permanent", the district court found.  The district judge concluded that Tourtillott's scars are "obvious disfigurement" even if her eye and nose bones will mend without degrading her appearance.

Enhancement for a permanent disfigurement is appropriate, Webster maintains, only if the prosecution can prove that the condition cannot be corrected by plastic surgery.  No evidence in the record would allow a judge to find this; the most that any of the surgeons whose evaluations are in this record would venture is that correction "may" be possible. These physicians opined that the prospects for cosmetic surgery could not be evaluated until Tourtillott's condition had stabilized in a year or so.

Like the district judge, we think that this line of argument misunderstands U.S.S.G. §2A2.2(b)(3)(C) and the application note. Uncertainty does not preclude a finding of permanence. Instead of asking whether a victim's future might be brighter, a district court should act on the basis of the victim's current condition and current medical information. If an impairment has not been corrected by the time of sentencing, and will last for life unless surgically corrected in the future, then it should be treated as "permanent" under the Guidelines unless future correction would be a straightforward procedure.

This understanding makes the physical-injury rules parallel to the financial-injury rules.  An amount taken from a victim counts as "loss" even if an offender promises to repay in the future.

The date on which the wrongdoer is sentenced represents the end of predictions; only what has happened by then need be taken into account. Talk is cheap, and it is easy to foresee (or purport to foresee) that victims will be repaid, or their bodily injuries repaired. A judge should rely on what is known at the time of sentencing rather than on predictions of doubtful accuracy.

Prominent facial scars are a form of "obvious disfigurement." See United States v. Phillips, 239 F.3d 829, 848 (7th Cir. 2001); United States v. Cree, 166 F.3d 1270, 1271--72 (8th Cir. 1999). The physician who treated Tourtillott at the emergency room testified that the scarring will be permanent. Webster does not deny that her scars, if permanent, are obvious disfigurement. Correction by plastic surgery is not a sure thing. No more is required to support an enhancement under U.S.S.G. §2A2.2(b)(3)(C).

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 .

Jury Deliberation Allegations of Juror Misconduct - USA Has Burden to Overcome Presumption of Prejudice to Defendant

USA v. Felix Vasquez-Ruiz, 06-2180.  Felix Vasquez-Ruiz ostensibly practiced medicine in the Chicago area. In reality, he was bilking insurance companies by ordering a multitude of unnecessary tests for patients who visited his clinic. Eventually he was caught and tried on multiple counts of mail and healthcare fraud.

Nine days into his trial, however, the proceedings took an unexpected and unsettling turn when a juror, Elva Diaz, the only Hispanic member of the jury, complained to the district judge that the word "GUILTY" had mysteriously appeared written in the notebook she had been using during the trial. The anonymous message, she reported, intimidated her.

The district court immediately interviewed the juror to make sure that she could remain impartial; it then issued a cautionary instruction to the rest of the jury. Later, it denied Vasquez-Ruiz's motion for a mistrial.

Before this court, Vasquez-Ruiz challenges the judge's refusal to grant a mistrial. We conclude that this incident gave rise to a presumption of prejudice to the defendant, and that the evidence was insufficient to rebut that presumption. Under these circumstances, it was error for the court to refuse to declare a mistrial.

The district judge immediately brought the issue to the parties' attention and identified two concerns raised by the existence of the note: that Juror Diaz herself may have been influenced by the mysterious writer, and that someone else, perhaps another juror, may have prejudged the case and was potentially trying to sway others on the jury. The district court and the parties attempted to identify the author of the note.

The district court tried to compare the handwriting of the word "guilty" with that of the jurors' questionnaires, but it failed to detect anything conclusive. At that point, Vasquez-Ruiz moved for a mistrial.

The district court denied the motion on two grounds. First, the judge stated that "it's not at all clear that this was done by another juror." Second, the court believed that a curative instruction to the entire jury would be sufficient.

Vasquez-Ruiz's primary argument on appeal is that the district court mishandled the situation involving Juror Diaz and should have granted his motion for a mistrial on the ground of the apparent presence of juror bias. He challenges the district judge's decision not to conduct voir dire of each juror to ferret out the person who wrote "GUILTY" in Diaz's notebook.

The proper standard of review is the familiar abuse of discretion standard, which is the one we use to review an order denying a motion for mistrial based on juror bias. See United States v. McClinton, 135 F.3d 1178, 1186 (7th Cir. 1998).  A mistake of law is automatically an abuse of discretion. See United States v. Jaderany, 221 F.3d 989, 994 (7th Cir. 2000).

There are a number of aspects of this record that give us grave concern. First is the content of the note. Nothing could be more central to the jury's function than an opinion on ultimate guilt or innocence.

Second is the district court's assumption that the note could have been written only by another juror or a member of the courthouse cleaning staff. True, those are two logical possibilities, but the third is that another person might have obtained access to Diaz's notebook and tried to interfere with the jury's deliberations. This possibility went largely unexplored before the district court.

If the note was written by an outsider, then we must analyze what happened using the line of cases that govern external influences on a jury. The Supreme Court has held that such influence is presumptively prejudicial. See Remmer v. United States, 347 U.S. 227 (1954).

Under Remmer, the burden is on the government to rebut the presumption of prejudice from an external influence on the jury. 327 U.S. at 229. We see no way that the government can satisfy that burden without developing all the information.

The broader point here is to come to a reasoned conclusion on the question whether the district court's curative steps were adequate. We are not saying, in this connection, that there is an ironclad requirement that individualized voir dire is always necessary.

It is true that the district court tried to address the situation by giving a curative instruction. We have previously found a curative instruction to be sufficient in an instance of serious jury misconduct. United States v. Read, 658 F.2d 1225 (7th Cir. 1981).

Vasquez-Ruiz argues that his case is more like United States v. Resko, 3 F.3d 684 (3d Cir. 1993), than it is like Read.

We come back, in the end, to the lack of information in this record about the source of the notation in Juror Diaz's notebook. The record is too sparse to permit us to conclude that the government rebutted the presumption of prejudice that arises under Remmer, on the assumption that the writer was someone not on the jury. Even if the writer was another juror, we agree with Vasquez-Ruiz that this case is more like Resko than like Read.

If someone on the jury was trying to pressure Juror Diaz into voting to convict Vasquez-Ruiz, before deliberations began and before the court instructed the jury, then the court might have taken different remedial measures. Perhaps it would have dismissed the miscreant juror; perhaps it would have issued a different cautionary instruction; perhaps it would have declared a mistrial. As it was, however, we conclude that the unexplained apparent attempt by someone to tell Juror Diaz to vote "GUILTY" could be cured only by granting a mistrial.

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

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

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

Sentencing Disparity. OK For More Culpable Co-Defendant To Get Lower Sentence

USA v. Scott Serfling,  06-1613.  Scott Serfling and co-defendant Mary Capri engaged in a scheme to defraud Western United Life Assurance Company ("WULA") of nearly $12 million by procuring a loan through repeated false representations.

Capri pleaded guilty, and a jury found Serfling guilty of two counts of wire fraud, 18 U.S.C. § 1343, and one count of mail fraud, id. § 1341. The district court entered judgment against Serfling and sentenced him to 78 months' imprisonment, three years' supervised release, and restitution in the amount of $6.75 million.

Among other trial and sentencing issues, Serfling challenges as unreasonable the length of his prison term as compared to Capri's.

In short, Serfling argues that his sentence is unreasonably high. The 78-month sentence is within the guidelines range that we have just concluded was properly calculated, and so we presume that it is reasonable. United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005); see Rita v. United States, ___ U.S. ___, 127 S.Ct. 2456, 2462-63, (2007).

Serfling may rebut the presumption by showing that his sentence is unreasonably long in light of specific factors under § 3553(a). See Mykytiuk, 415 F.3d at 608.

The sole factor that Serfling points to as compelling a lower sentence is § 3553(a)(6), which requires a sentencing court to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." Serfling contends that an unwarranted disparity exists because he received a harsher sentence than Mary Capri despite her more extensive criminal history and the fact that she "admitted her intimate involvement in the fraudulent scheme."

We held in United States v. Boscarino, 437 F.3d 634 (7th Cir. 2006), that a sentence within a properly calculated guidelines range "cannot be treated as unreasonable by reference to § 3553(a)(6)." Id. at 638; see United States v. Babul, 476 F.3d 498, 501-02 (7th Cir. 2007). In Boscarino, we rejected the argument that the difference between the defendant's sentence and that of his co-defendant, who had pleaded guilty and assisted the government, amounted to an unwarranted disparity. We emphasized that valid reasons exist for sentencing similar defendants differently, and only unwarranted disparities are problematic. Id. at 638 ("[A] sentencing difference is not a forbidden 'disparity' if it is justified by legitimate considerations."); see United States v. Duncan, 479 F.3d 924, 929 (7th Cir. 2007).

Serfling does not even mention Boscarino or the other cases that squarely reject the argument he makes. Nor does he explain why the disparity between his sentence and Capri's is unwarranted rather than justified by legitimate considerations.

In fact, he notes her lower guidelines range (46 to 57 months), her acceptance of responsibility, and the district court's finding that "extraordinary" family circumstances weighed in favor of a below-guidelines sentence. These factors suggest that the difference is a natural outgrowth of a sentencing scheme based on individualized factors. See United States v. Newsom, 428 F.3d 685, 689 (7th Cir. 2005) ("[O]ne needs to know more than the crime of conviction and the total length of the sentence to evaluate disparities; the specific facts of the crimes and the defendant's individual characteristics are also pertinent.").

Serfling's arguments are directed more to the unreasonableness of Capri's sentence than his own, but if there is any argument that Capri's sentence is too low, it would be for the government, not Serfling, to make. Serfling has not come close to rebutting the presumption that his own within-guidelines sentence is reasonable.

We therefore AFFIRM the convictions and 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 .

Guidelines Sentence Presumption of Reasonableness Not Allowed

USA v. William Ross III, 07-1215.  William Ross challenges his 78-month sentence for his role in a conspiracy to possess and distribute cocaine and marijuana. See 21 U.S.C. §§ 846, 841(a)(1). Because it appears from the record that the district court improperly applied a presumption of reasonableness for a within-guidelines sentence, we vacate the sentence and remand for resentencing.

Ross, along with 16 co-defendants, was indicted for a drug conspiracy that began in 1995 and lasted until 2003. Two days before trial he pleaded guilty to the conspiracy charge (a second count was dropped, although the parties insist that there was no bargain).

At the change-of-plea hearing, the district court explained to Ross that it would apply the guidelines to his case and calculate "a range of months within which I am supposed to sentence you." The court added: "I do have the power to give you a different sentence, but I need some kind of good reason to do it. Otherwise I have to give you the guideline sentence."

At sentencing the parties agreed that Ross's truthfulness during this safety-valve interview made him eligible for a sentence below the statutory minimum. They also agreed that the appropriate guidelines imprisonment range was 78 to 97 months.

Ross argued that the district court should sentence him below this range based on his disclosures to the government and his short-lived involvement in the drug conspiracy.

When announcing the sentence, the district court noted that it could not see "any reason why the guideline sentence isn't appropriate in this case."

On appeal Ross argues that the district court erroneously deemed the guidelines to be binding. According to Ross, the court thought it could not impose a sentence below the guidelines imprisonment range even after concluding that a lower sentence would be more appropriate. In our view, however, Ross's characterization of the district court's position goes too far.

The guidelines of course still "serve as a necessary starting point" in the sentencing court's deliberations, but they are advisory, not mandatory. United States v. Jointer, 457 F.3d 682, 686 (7th Cir. 2006). We are confident, then, that the district court recognized its discretion to select a sentence-within or outside the guidelines range-in light of the factors set forth in 18 U.S.C. § 3553(a). See United States v. Ngatia, 477 F.3d 496, 501 (7th Cir. 2007).  Indeed, contrary to Ross's contention, the district court explicitly acknowledged its power to impose a sentence outside the guidelines range.

But Ross's argument points to a more subtle error. He suggests that the district court, in settling on 78 months, erroneously presumed that a within-guidelines sentence was appropriate instead of a fashioning a sentence with reference to the § 3553(a) factors. 

The Supreme Court has now answered the question definitively, holding in Rita v. United States, 127 S.Ct. 2456, 2465 (2007), that the presumption of reasonableness applicable when reviewing a within-guidelines sentence on appeal does not carry over to the choice of sentence by the district court.

Although the sentencing court's language is ambiguous, we are constrained to conclude that the court applied a presumption that Ross should be sentenced within the guidelines range. 

In the end, despite the apparent weighing of § 3553(a) factors, the district court nevertheless told Ross that it could not sentence him below the guidelines range unless he "presented some kind of good reason" to do so.

As such, the district court was wrong to conclude that the "lowest sentence possible" was the bottom of the guidelines range; if it legitimately concluded that Ross's personal characteristics warranted something lower, it was free to sentence Ross below the guidelines range. See 18 U.S.C. § 3553(a)(1).

Accordingly, we VACATE the sentence and REMAND for resentencing.

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

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

Practice Tip: If Client Asks To Appeal, File That Notice

USA v. Armando Nunez, 06-1014.  Charged with multiple cocaine offenses, Armando Nunez negotiated a plea bargain: the prosecutor dismissed all counts but one and recommended a sentence at the lowest point in the Guideline range. As part of the deal, Nunez agreed not to appeal or file a collateral attack unless the sentence exceeded the statutory maximum or the waiver clause itself should be deemed invalid. The sentence of 160 months' imprisonment followed the prosecutor's recommendation and is well under the statutory maximum. See 21 U.S.C. §841(b).

Nunez has never argued that the waiver is invalid. Nonetheless, he told his lawyer to appeal (or so he says; the assertion has been contested, but we shall assume that Nunez did ask). When the lawyer balked, he filed this collateral attack under 28 U.S.C. §2255 charging counsel with providing ineffective assistance.

Although Nunez never asked the district court for leave to withdraw the plea-and in open court assured the judge that the deal was satisfactory and his assent voluntary-he now maintains that the guilty plea was involuntary because he could not understand what his lawyer told him out of court. If the plea was involuntary, then the waiver falls because it is part of the whole package. See United States v. Wenger, 58 F.3d 280 (7th Cir. 1995).

But the lack of a motion to withdraw the plea means that Nunez must overcome that forfeiture by showing cause and prejudice. (On direct appeal the standard would have been plain error, see United States v. Vonn, 535 U.S. 55 (2002), but on collateral attack the forfeiture is complete and the petitioner must meet the higher standard of cause and prejudice. See United States v. Frady, 456 U.S. 152 (1982).)

Nunez would lose on any standard, however, as the district judge concluded.

Nunez contends that he speaks no English, and that, because during some consultations with his counsel an interpreter was not present (or was not used), he could not understand what counsel told him and therefore did not comprehend the plea bargain's terms. That assertion is inconsistent with assurances given to the judge, under oath, when entering the plea. Nunez told the judge- through an interpreter-that he fully understood the plea and the bargain's terms. The judge asked him detailed questions; his answers evinced knowledge. His counsel explained to the court how the plea had been negotiated and that Nunez often spoke in English and understood their exchanges when interpreters were not present (or were not employed). Nunez told the judge that this was correct.

Defendants cannot obtain relief by the expedient of contradicting statements freely made under oath, unless there is a compelling reason for the disparity. See, e.g., United States v. Peterson, 414 F.3d 825, 826--27 (7th Cir. 2005).  What is more, if, as the record demonstrates, Nunez fully understood the bargain's terms by the time he stood before the judge, it doesn't make any difference whether he understood all of what his lawyer had said earlier. The plea was voluntary.

Because the plea was voluntary, the waiver must be enforced. And that waiver knocks out Nunez's argument that his lawyer failed to follow his direction to file an appeal. The waiver has only two exceptions: an illegally high sentence, and a defect in the waiver itself. A claim of post-sentencing ineffective assistance falls squarely within the waiver.

In saying this, we recognize that six courts of appeals have held that a waiver of appeal does not relieve counsel of the duty to file a notice of appeal on his client's request. These decisions all rely on the holding of Roe v. Flores-Ortega, 528 U.S. 470 (2000), that a criminal defendant has a statutory right to appellate review, and that when counsel utterly frustrates that right by failing to appeal on his client's request, counsel's performance is automatically ineffective.

A lawyer who does not show up for trial might as well be a moose, and giving the defendant a moose does not satisfy the sixth amendment. See United States v. Cronic, 466 U.S. 648 (1984). The same understanding applies when the lawyer does not show up for appeal.

There is much to be said for this position, because waivers of appeal are not airtight. As we have already observed, a waiver stands or falls with the plea bargain of which it is a part. A defendant who wants a lawyer to argue on appeal that the plea was involuntary has a right to that legal assistance.

A rule that a lawyer must file an appeal on demand, and let the court of appeals sort out whether the defendant is entitled to appellate review, avoids any need to make nice distinctions during the 10 days allowed for appeal (or on collateral review if the lawyer fails to file the notice).

Simplicity is a virtue, and a mechanical rule ("On request, file a notice of appeal") could be a good addition to the Federal Rules of Criminal Procedure whether or not the Constitution demands this outcome.

We confess to some doubt about the constitutional reasoning of the circuits that have located in the sixth amendment a rule that a lawyer is the client's puppet. In Roe the Court remarked that a failure to file a notice of appeal "cannot be considered a strategic decision; filing a notice of appeal is a purely ministerial task, and the failure to file reflects inattention to the defendant's wishes." 528 U.S. at 477.

The sort of appeal that the Supreme Court considered in Roe is one where the defendant can gain but not lose. The sort of appeal that Nunez wanted to take was one by which he could lose but not gain. Protecting a client from a lay-person's folly is an important part of a lawyer's job. It will not do to reply, along the lines of Roe, that whether to appeal is a decision entrusted to the defendant personally, on which the lawyer may give advice but not act unilaterally.

But we need not decide whether these arguments are a sufficient response to the mandatory-appeal-notwithstanding-the-waiver-of-appeal approach that our colleagues in other circuits have derived from Roe. For there remains the question whether Nunez is entitled to relief based on a conclusion that his lawyer furnished ineffective assistance after the district judge pronounced sentence.

If the plea (and thus the waiver) is valid, an argument that counsel furnished ineffective assistance is among the foreclosed theories. Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999), holds that a claim of ineffective assistance may be open under §2255, but that "the right to mount a collateral attack . . . survives only with respect to those discrete claims which relate directly to the negotiation of the waiver."

Nunez's challenge to his lawyer's handling of the appeal has nothing to do with the negotiation of the waiver. Thus Nunez's waiver must be enforced and his collateral attack dismissed whether or not his lawyer should have filed an appeal on demand.

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 .