7th Circuit Criminal Law Alert

Part of Gun Manufactured Outside of Illinois Enough to Meet Interstate Commerce, Illinois Aggravated Battery Conviction Not Always a Violent Crime for ACCA

USA v. James Humphries, 05-3172.  James Humphreys was convicted after a jury trial of possession of a firearm by a felon. See 18 U.S.C. § 922(g)(1). The district court found that he had three prior felony convictions for violent crimes and sentenced him to fifteen and one half years' imprisonment under the Armed Career Criminal Act ("ACCA"). See 18 U.S.C. § 924(e)(1).

At trial, the government  presented Michael Casey, a special agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives, as an expert witness to testify to the existence of a commerce nexus. To support his qualification as an expert, Casey testified that he was trained in firearms identification and had identified between 1,500 and 2,000 firearms in his 25 years as a law enforcement officer. Humphreys failed to object when the district court qualified Casey as an expert witness.

Casey testified that the gun found in Humphreys's bag was manufactured by the High Standard Manufacturing Corporation in Hamden, Connecticut, and thus, in his opinion, had traveled in interstate commerce. When the government asked Casey for the basis of his opinion, he explained that he could identify the gun's manufacturer "based on its stampings." The barrel of the gun was stamped with the words "High Standard Mfg. Corp. Hamden, Conn. USA." Casey also said he conducted research to "verify" that High Standard did manufacture firearms of that type but had never done so in the state of Illinois. On cross-examination, Casey acknowledged that he never attempted to trace the serial number of the gun, but he was not asked why and did not volunteer an explanation. The jury returned a verdict of guilty.

Humphreys argues that the government failed to meet its burden on the commerce element of § 922(g) because, in his view, the evidence established only that the barrel of the gun had traveled in interstate commerce. He argues that the barrel cannot alone satisfy the statutory requirement, and that because barrels are interchangeable, nothing about the origin of the rest of the gun may fairly be inferred.

The Seventh Circuit  refused to accept Humphreys's very speculative and self-serving interpretation of the evidence. The expert testified that the gun-and not just the barrel-traveled in interstate commerce. The expert stated that the weapon was manufactured in Hamden, Connecticut by a company that had never manufactured any weapon in the state of Illinois. He also stated that the gun was not a counterfeit weapon. Thus, there was no need for the jury to rely on any assumption in concluding that the gun had traveled in interstate commerce, since "[t]he requisite interstate commerce nexus can be established . . . merely by evidence that the gun was manufactured outside the state in which it was possessed." United States v. Coleman, 22 F.3d 126, 130-31 (7th Cir. 1994).

The Seventh Circuit analyzes this argument under a sufficiency of evidence standard.  This is a difficult, if not impossible, road for any defendent.  As such, the Seventh Circuit affirms.

Humphreys also contends that even if his conviction can be sustained, his sentence must be vacated because the district court erred in finding that his aggravated battery conviction is a violent felony for purposes of the ACCA. He contends that under the Illinois statute aggravated battery may be nonviolent, and that the only "legitimate" items of evidence for proving that his particular conviction involved violence are inadequate under Shepard v. United States, 544 U.S. 13, 16 (2005). Shepard holds that a court should look to the statutory elements, charging documents, and judicial findings of fact to determine whether a previous conviction was for a violent felony. Id. at 16. In this case, Humphreys argues that the charging information and the state judge's findings of fact are too "ambiguous" to support the district court's finding that his conviction for aggravated battery involved violence.

The Seventh Circuit admits that an aggravated battery under the Illinois statute may in some cases be nonviolent.  United States v. Thigpen, 456 F.3d 766, 770 (7th Cir. 2006).  Specifically, Humphreys argues that he was not the sole defendant and that it cannot be determined whether he personally engaged in any violent conduct under the charging information alone. But Humphreys and his co-defendant were both charged with striking Cook with a gun, and under Illinois law, Humphreys could have been convicted of the offense as a principal or as an aider or abettor to his co-defendant.

The Seventh Circuit holds that when considering the totality of the evidence produced at trial and the charging information, they are convinced that the judge concluded that Humphreys played one role or the other when the Illinois State courts convicted Humphreys of aggravated battery.  Further, the Seventh Circuit has held that a conviction for aiding and abetting in a crime may constitute a violent felony under the ACCA. United States v. Groce, 999 F.2d 1189, 1191-92 (7th Cir. 1993).

As such, the Seventh Circuit has no doubt that this aggravated battery under Illinois law is a violent felony under the ACCA.

Sentecing Manipulation by Agents Not a Defense in 7th Circuit

United States v. Eric Wagner, 06-1644.  Eric Wagner was charged with eight counts of selling a firearm to a convicted felon in violation of 18 U.S.C. § 922(d)(1) and eight counts of distributing marijuana in violation of 21 U.S.C. § 841(a)(1). On October 20, 2005, Wagner pleaded guilty to one count of selling a firearm to a convicted felon and one count of distributing marijuana. The remaining counts were dismissed.

Wagner contends that the district court erred in applying the U.S.S.G. § 2K2.1(b)(5) enhancement for two reasons, : (1) the evidence at sentencing was insufficient to establish that he transferred a firearm with knowledge, intent, or reason to believe that the firearm would be used or possessed in connection with another felony offense; and (2) the government engaged in sentence manipulation by programming the Confidential Informant to make certain statements while purchasing firearms from the defendant in an effort to enhance his sentence.

The 7th Circuit finds that a factual determination is clearly erroneous only if, after considering all of the evidence, the reviewing court is left with the firm conviction that a mistake has been made. Where there are two permissible inferences from the evidence, the district court's choice between them cannot be clearly erroneous. United States v. Wyatt, 102 F.3d 241, 246 (7th Cir. 1996).

In the case of Wagner, because the district court's factual determinations are supported by the record and not clearly erroneous, the Seventh Circuit affirmed the district court's application of the four-level sentencing enhancement pursuant to U.S.S.G. § 2K2.1(b)(5).

Regarding the doctrine of sentencing manipulation, the 7th Circuit finds that a claim of sentencing manipulation "is distinct from a claim of sentencing entrapment, which occurs when the government causes a defendant initially predisposed to commit a lesser crime to commit a more serious offense." United States v. Garcia, 79 F.3d 74, 75 (7th Cir. 1996).

Specifically, "The doctrine of sentencing manipulation states that a judge cannot use evidence to enhance a defendant's sentence if the government procured the evidence through outrageous conduct solely for the purpose of increasing the defendant's sentence under the Sentencing Guidelines.  United States v. Messino, 55 F.3d at 1256.

HELD:  There is no defense of sentencing manipulation in the 7th circuit. 

Wagner argues that the government engaged in sentencing manipulation by programming the Confidential Informant to make certain statements that Wagner to lengthen his sentence.  The Seventh Circuit disagreed, stating that although SA Richardson admitted that the government's decisions to prolong the investigation and direct the CI to make certain statements to Wagner were motivated in part by the desire to increase his sentence, this was not the government's sole purpose. The record is clear that the government was investigating the sale of guns to prohibited persons. 

Wagner had the opportunity to refuse to sell the CI firearms but failed to do so. Similar to the Garcia case, the government is not the cause of the predicament in which Wagner finds himself; he is.

AFFIRMED

Failing to Report to BOP is a Continuing Offense for Statute of Limitations Calculation

US v. Alfred Elliot, 05-4623.  While he was a partner at Schiff, Hardin & Waite in Chicago, Alfred Elliott used client's confidential information for his own benefit in securities transactions. Eventually, in 1989, he was convicted on 70 counts of securities fraud, mail fraud, tax evasion, and operating a racketeering enterprise. His sentence was five years imprisonment plus fines and forfeitures of about $700,000.

Elliot did not appear at the prison to surrender, and his lawyer lost contact with him.  Fifteen years and an assumed name later, Elliot was arrested in Arizona.

His initial appeal was dismissed under the fugitive disentitlement doctrine.

After his arrest in 2004, Elliot was indicted for failing to report, 18 USC  3146 (a)(2).  His principal defense was that the indictment returned in 2004 came ten years too late, for the statute of limitations is five years from the crime's commission. 18 U.S.C. §3282. The district judge rejected that defense, a jury found Elliott guilty, and the court sentenced him to 21 months imprisonment, which will begin in 2009 after his 60-month sentence ends.

Regarding the statute of limitations defense, the district court concluded that failure to report for imprisonment is a continuing offense, so that the statute of limitations did not commence until Elliott's capture.  Someone who fails to report on time has committed all of the elements that very hour; the length of delay is not an element of the crime. All continuing offenses work the same way.

Further, 18 U.S.C. §3290, provides that "[n]o statute of limitations shall extend to any person fleeing from justice.”  Impossibility and failure to appreciate the obligation to report are legitimate defenses. But such defenses last no longer than the condition that makes reporting impracticable: "It is an affirmative defense to a prosecution under this section that uncontrollable circumstances prevented the person from appearing or surrendering, and that the person did not contribute to the creation of such circumstances in reckless disregard of the requirement to appear or surrender, and that the person appeared or surrendered as soon as such circumstances ceased to exist." 18 U.S.C. §3146(c).

On a high note, the 7th Circuit finds that because the district judge miscalculated the Guideline range the error may have affected Elliott's sentence, and the 7th Circuit must remand.

On a low note, the 7th Circuit finds that this remand does not imply that a sentence of 21 months is unreasonably high; to the contrary, it strikes us as unreasonably low, and United States v. Booker, 543 U.S. 220 (2005), gives the district court ample authority to impose an appropriate sentence on remand.

Conviction Affirmed.  Remanded for Re sentencing.

58 Year Old Man Sentenced to Die in Prison - Not Unreasonable

USA v. Wurzinger. 05-3803. Richard Wurzinger, age fifty-eight, was sentenced to 262 months in prison, the longest sentence within the range indicated by the Sentencing Guidelines for his role at the center of a conspiracy to manufacture methamphetamine. Given his age and his failing health, he will likely die in prison.

He appeals his sentence, arguing that the district court did not follow proper sentencing procedure and that his sentence is unreasonably long. The 7th Circuit affirms the sentence.

Wurzinger’s appeal is based on two arguments.

First, Wurzinger argues that the district court improperly presumed that an appropriate sentence falls within the guidelines range.

Second, Wurzinger argues that his sentence is unreasonably long.  In US v. Hankton, this court decided that the presumption in favor of a guidelines sentence is appropriate and that a court need only consider a non guidelines sentence when a defendant provides “cogent reasons.”

Wurzinger’s strongest argument is that his sentence is unreasonable is based on his age and his health; he argues that his sentence is unreasonable because his diabetes will kill him before he is free.

The 7th Circuit starts by stating that there is a worthy tradition that death in prison is not to be ordered lightly, and the probability that a convict will not live out his sentence should certainly give pause to a sentencing court. US v. Crickon, 240 F.3d 652, 656 (7th Cir. 2001). Death is by universal consensus a uniquely traumatic experience, and prison often deprives defendants of the ability to be with their families or to otherwise control the circumstances of death.

The 7th Circuit says nothing about whether a lower sentence would have been equally reasonable. In short, 7th Circuit held that age and illness do not, without more, make Wurzinger's sentence unreasonable.

AFFIRMED

Motion to Suppress Statement Denied - Miranda Not Required Unless Defendant In Custody

Hello everybody. I am Chicago Criminal Defense Attorney Michael J. Petro. To see more about me, visit my web site at www.mjpetro.com.

Every week I will be summarizing the latest criminal law cases decided by the 7th Circuit Court of Appeals.  For the full opinions visit the 7th Circuit Court of Appeals Web Site.

USA v. Barker. 05-2861.

A jury convicted Riakos Barker of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and two counts of aiding and abetting a straw purchase in violation of 18 U.S.C. § 924(a)(1-2). Barker was sentenced to 108 months of imprisonment. On appeal, Barker argues in part that the district court erred in denying his motion to suppress.

Barker asserts that the district court erred by denying his motion to suppress. He claims that his Fifth Amendment right against self-incrimination was violated when he was subjected to a custodial interrogation without being advised of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436 (1966). Miranda warnings are required if the is 'in custody' and subjected to 'interrogation.' United States v. Abdulla, 294 F.3d 830, 834 (7th Cir. 2002).

A custodial interrogation occurs when there is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444. This inquiry is determined from the view of "how a reasonable man in the suspect's position would have understood his situation." USA v. Jones, 21 F.3d 165, 170 (7th Cir. 1994).

A totality of the circumstances test is used to determine whether a reasonable person would have believed he or she was "free to leave." USA v. Lennick, 917 F.2d 974, 977 (7th Cir. 1990). In considering the totality of the circumstances, factors include the following: (1) whether the encounter occurred in a public place; (2) whether the suspect consented to speak with the officers; (3) whether the officers informed the individual that he was not under arrest and was free to leave; (4) whether the individuals were moved to another area; (5) whether there was a threatening presence of several officers and a display of weapons or physical force; (6) whether the officers deprived the defendant of documents she needed to continue on her way; and (7) whether the officers' tone of voice was such that their requests would likely be obeyed. USA v. Wyatt, 179 F.3d 532, 535 (7th Cir. 1999).

The 7th Circuit finds that the district court correctly decided, based on the totality of the circumstances, that Barker was not in custody. As such, the agents were not required to inform him of his Miranda rights.

Barker voluntarily came to the ATF office, was informed that he was not under arrest and consented to speak with the officers. He was not deprived of his freedom, and there was no threatening presence of officers. Accordingly, although Barker was a suspect, Miranda warnings were not required because Barker was not in custody.

AFFIRMED