Criminal Law

Gearing up for the Post-Rita/Claiborne World?

Posted on February 21, 2007
United States v. Nitch, No. 05-2603 (February 21, 2007): Mr. Nitch received a sentence of 168 months, which was apparently within his calculated guidelines range, although the opinion does not state what that range was. In imposing sentence, the district court stated:Mr...

Ineffective Assistance of Counsel

Posted on February 13, 2007
Christopher Raygoza v. Don Hulick, No. 05-2340 (January 25, 2007): Mr. Raygoza was convicted of murder. The Seventh Circuit granted habeas corpus relief based on ineffective assistance of counsel.Counsel presented an alibi defense, but did very little to develop it...

Fraud Guidelines and the Risk of Death or Bodily Injury

Posted on February 12, 2007
United States v. Adam Babul, No. 05-4538 (february 9, 2007): Mr. Babul aided applicants for truck driving licenses. In order to take advantage of the easier licensing procedures in Wisconsin, he helped his applicants create false claims of residency in Wisconsin...

Sex Offender Treatment for a Liar

Posted on February 12, 2007
United States v. Kenneth Ross, No. 06-1821 (January 29, 2007): Mr. Ross was sentenced for making false statements to the FBI. His false statement consisted of telling the FBI that he knew the location of a disappeared child victim. In reality, he had no such knowledge...

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Drug Treatment as a Condition of Supervised Release

Posted on February 12, 2007
United States v. Jose A. Tejeda, No. 06-1492 (February 7, 2007): The judge required as a condition of supervised release that Mr. Tejeda participate in a drug program at the direction of the probation officer. This sentence was illegal, since it gave too much discretion to the probation officer, but counsel did not object...

Acquitted Conduct in Sentencing

Posted on February 12, 2007
United States v. Dewan Anthony Horne, No. 05-4049 (February 5, 2007): Mr. Horne?s sentence was increased because of his use of a gun, a charge on which he had been acquitted. The Court restated the conventional doctrine that acquitted conduct may be considered, but it did suggest that it might have a different view if the defendant is convicted of a "very minor crime," but sentenced on the basis of serious acquitted crimes...

Tracking Devices on Automobiles

Posted on February 12, 2007
United States v. Garcia, No. 06-2741 (February 2, 2007): The police attached a tracking device to Mr. Garcia?s truck and learned valuable information about the location of his drug lab. The Court found no Fourth Amendment violation. Since the police could have legitimately followed him by tailing him in a police car, they could equally make use of modern technology.

Scheduling of Oral Arguments

Posted on January 25, 2007
Our office recently received an order adjusting the briefing schedule in a pending appeal. The order contained the following language, which was captioned "Important Scheduling Notice!," "Criminal appeals are scheduled shortly after the filing of the main brief...

Escape as a Crime of Violence

Posted on January 10, 2007
United States v. Deondery Chambers, No. 06-2405 (January 9, 2007): Mr. Chambers was sentenced as an armed career criminal. One of his three crimes of violence was a state conviction for escape from a penal institution. His escape was not of the "Escape from Alcatraz" variety; instead, he merely failed to report on time to begin serving a sentence...

The Appendix Is Not a Body Part

Posted on December 20, 2006
United States v. Robert White, No. 06-1769 (December 19, 2006): Defense counsel presented a seriously inadequate appendix to the opening brief and, worse, signed a certificate that the appendix was complete and in compliance with the rules. The Court re-emphasized that the appendix is not a mindless formality; it serves an important purpose...

New Direction for Eyewitness Identification?

Posted on December 20, 2006
United States v. Shaun Brown, No. 05-4690 (December 19, 2006): Mr. Brown argued that the eyewitness identification of him by two police officers was tainted because, after they saw the alleged offender, a confederate gave them a name for the face, and they immediately consulted a mug shot of that person, confirming the information provided by the informer...

Amnesia and Fitness for Trial

Posted on December 12, 2006
United States v. Rodney Andrews, No. 06-1448 (December 7, 2006): Mr. Andrews was examined and found fit to stand trial, even though he was suffering from amnesia that covered the time of the charged bank robbery. The courts, both at trial and on review, seemed to take as a given that Mr...

Implicit Waiver of Counsel at Trial

Posted on December 08, 2006
United States v. Glen Murphy, No. 06-1309 (December 8, 2006): This opinion suggests that a defendant can impliedly waive the right to be represented by counsel. Mr. Murphy was appointed counsel, but then successfully moved to discharge him. He interviewed several attorneys as potentially retained counsel, one of whom rejected the case since the retainer being offered was $20...

Facts or Factoids?

Posted on December 06, 2006
United States v. Arturo Orozco-Vasquez, No. 05-3920 (December 5, 2006): Mr. Orozco-Vasquez received a sentence of 120 months, well above his calculated guidelines range of 63 to 73 months. Although the opinion is less than clear, it appears that the district court?s explanation for this substantial variance was Mr...

Full Speed Ahead!

Posted on December 06, 2006
United States v. Jose Francisco Gama-Gonzalez, No. 06-1965 (December 5, 2006): Mr. Gama-Gonzalez received a sentence at the low end of his guidelines, and the Seventh Circuit affirmed. This very brief opinion is noteworthy for two reasons.First, the Court saw no reason to hold off decision until the Supreme Court decides the two Booker cases on which it recently granted certiorari...

Insufficient Evidence in a Gun Case; Third-Party Consents

Posted on November 27, 2006
United States v. Daniel Groves, Sr., No. 05-2902 (November 22, 2006): This case raises two issues that are related only in the sense that they arose in the same case.Mr. Groves was charged with being a felon in possession of a gun. No gun was ever recovered, but the government called an expert who stated that Indiana (the place of the alleged crime) is not the home to any "major" manufacturers of shotguns...

Habeas Petitions: The Importance of the Oath

Posted on November 07, 2006
Saidi Kafo v. United States, No. 05-3034 (November 3, 2006): Mr. Kafo submitted a petition to set aside his conviction under 28 U.S.C. sec. 2255. He alleged that his attorney had not filed a notice of appeal even though he had requested the attorney to do so...

Booker Cert Grants

Posted on November 06, 2006
By now probably everyone knows that the Supreme Court has granted certiorari in two Booker cases, one in which the sentence was within the guidelines and one in which the sentence was below the guidelines and the reviewing court reversed. Mario Claiborne v...

Motion to Strike a Brief

Posted on September 25, 2006
Custom Vehicles, Inc. v. Forest River, Inc, No. 06-2009 (September 25, 2006): This is a civil case, and it raises an issue that seldom arises for the criminal practitioner. Yet the in-chambers opinion of Judge Easterbrook contains some information of interest to all practitioners...

A New Twist on Standard of Proof at Sentencing

Posted on September 19, 2006
United States v. Christopher K.P. Reuter, No. 05-4503 (September 19, 2006): Mr. Reuter?s guidelines range, without adjustments, initially topped out at 105 months. However, the district court found that he had committed a murder during the course of the conspiracy...

Plain Error in Calculating Guidelines

Posted on September 05, 2006
United States v. Andre D. Bennett, No. 05-3709 (August 29, 2006): Mr. Bennett received a four-level enhancement for his use of a firearm in connection with another felony offense. Aggravated battery under Illinois law was the designated other felony offense...

Irrelevant Evidence Leads to Reversal

Posted on September 05, 2006
United States v. Herman Cunningham, No. 05-1515 (August 29, 2006): This is a rare reversal for the improper admission of evidence. The Government presented the results of a Title III wiretap. As part of its foundation, it introduced testimony about the review process involved in the Title III application...

Confrontation Clause and Blood Test Results

Posted on September 05, 2006
United States v. Brian K. Ellis, No. 05-3942 (August 22, 2006): Mr. Ellis was arrested on a DUI charge. He was taken to a hospital for blood and urine tests. At trial, the court admitted a hospital report that he tested positive for drugs. He argued that the admission of this report violated the Confrontation Clause, as interpreted in Crawford v...

Use of a Minor

Posted on September 05, 2006
United States v. Brazinskas, No. 05-4181 (August 15, 2006): The district court, relying on U.S.S.G. section 3B1.4, added two levels to Mr. Brazinskas? sentence because he used a minor to commit the offense. The Seventh Circuit rejected the claim on appeal that the defendant must know that he is using a minor...

Review of Below-Guidelines Sentences

Posted on September 05, 2006
United States v. Darryl Wallace, No. 05-3675 (August 14, 2006): The Court reversed a below Guidelines sentence. It perceived that the district court had taken into account the actual loss, not the intended loss, the latter being considerably higher. Although it reversed and remanded, the Court emphasized several points of importance to the defense bar...

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