U.S. vs. Jerry Strahan

Jerry Strahan was convicted by a
jury of conspiracy to distribute cocaine base and distribution
of cocaine base and was sentenced to life in prison,
the mandatory sentence based on his two prior felony
drug convictions. See 21 U.S.C. § 841(b). Strahan appeals
his convictions and sentence, arguing that the district
court should have instructed the jury on his publicauthority
defense. He also challenges the sufficiency of
the evidence against him and the constitutionality of the
mandatory life term under the Sixth and Eighth Amendments.

We affirm. The evidence was insufficient to support a
public-authority defense and easily sufficient to support
the jury’s verdict of guilty on both counts. Strahan’s
constitutional challenges to his sentence run contrary to
Supreme Court caselaw. A mandatory-minimum sentence
based on judge-found facts regarding prior felony
drug convictions does not violate the Sixth Amendment,
and a life term based on recidivism is not cruel and
unusual punishment in violation of the Eighth Amendment.

I. Background
Jerry Strahan delivered drugs for Johnny McCray Jr.,
who ran a drug-distribution operation out of a house on
College Street in East St. Louis, Illinois. McCray Jr. sold
mainly heroin and crack cocaine, and employed at least
three others to help serve his customers: his father, Johnny
McCray Sr.; Mitchell Brown; and Strahan. All three were
drug users, and McCray Jr. paid them for their work in
both drugs and money.

Strahan had been involved with this group as far back
as 1996, when he was caught trying to buy drugs from a
drug house run by the McCrays and Eugene Falls, a
coconspirator. He was making drug deliveries for the
group in 1999 when he was arrested again. This time
he cooperated with the government. It was this prior
association that led Deputy U.S. Marshal Tom Woods to
ask Strahan in 2003 if he knew the whereabouts of McCray
Sr. or Cortez McCray (Johnny McCray Sr.’s other son). Both
were wanted on arrest warrants. Strahan later contacted
Deputy Woods with information that led to the arrest of
both McCrays, and he was put on Woods’s payroll as a
confidential informant.

The activity at the College Street residence soon drew
the attention of other law-enforcement officials. Officer
Brian Gimpel of the O’Fallon Police Department, who
was deputized to the FBI, was approached by Richard
Baker, a confidential informant, with information about
the McCray drug operation on College Street. Officer
Gimpel specialized in controlled purchases of narcotics
and arranged for Baker to buy crack cocaine from Falls
at the College Street house. Gimpel also used Joe
Mitchell, another informant, to make multiple controlled
drug buys at the College Street house. Each transaction
was recorded using a device worn by Baker or
Mitchell. On the strength of these recordings, Officer
Gimpel obtained a search warrant for the McCray drug
house.

Based on the evidence collected in the search, a grand
jury returned an indictment charging both McCrays,
Brown, Falls, and Strahan with conspiracy to distribute
crack cocaine and heroin in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), and 846. Strahan was also
charged with violating 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B) by distributing cocaine base on September 29,
2004. Because Strahan had two prior state convictions for
delivery of controlled substances, the government filed
notice pursuant to 21 U.S.C. § 851 that it would seek
enhanced punishment under 21 U.S.C. § 841(b). All of the
coconspirators, save Strahan, pleaded guilty to the
charges, and the coconspirators agreed to testify against
Strahan.

In advance of trial, Strahan gave notice pursuant to
Rule 12.3 of the Federal Rules of Criminal Procedure that he
intended to offer a “public authority” defense based on
his interactions with Deputy Woods. In response the
government denied that Strahan was acting pursuant to
public authority when he committed the charged acts
and notified Strahan and the district court that it would
call Deputy Woods to testify in opposition to Strahan’s
public-authority defense.

At trial Deputy Woods testified that he “does not do
controlled [drug] buys” and that his contact with Strahan
was limited to obtaining information about the whereabouts
of persons for whom there were active arrest
warrants. Strahan took the stand and testified in his
own defense; he admitted being a drug user but denied
any involvement in the McCray drug conspiracy operated
out of the College Street house. He said he knew
Deputy Woods but denied giving him information
about drug dealing at the College Street house. In
response to a question about whether he thought he
had authority to engage in the drug-trafficking activity
alleged against him because Woods told him so, Strahan
responded, “No, that’s not correct, I wasn’t doing what
is alleged in this case.”

At the close of evidence, Strahan asked the district court
to issue a public-authority instruction to the jury, arguing
that he believed he was authorized by Deputy Woods to
sell narcotics. The court refused to do so. The judge
noted Strahan’s own testimony flatly denying any involvement
in drug dealing and the complete lack of
evidence that Woods ever led Strahan to believe he
could distribute drugs as part of his role gathering information
on the whereabouts of fugitives. The jury
found Strahan guilty of both counts.

Because of Strahan’s previous drug convictions, he
was classified as a career offender under the sentencing
guidelines, pushing his offense level to 37 and his
criminal history category to VI. That yielded an advisory
guidelines range of 360 months to life in prison for both
counts. But because of Strahan’s two previous convictions
for state drug felonies, the statutory minimum for
the conspiracy count was life in prison. 21 U.S.C. § 841(b).
The court imposed a sentence of life on the conspiracy
count and a concurrent 360 months on the crack-distribution
count. Strahan appealed, challenging both his convictions
and sentence.

II. Discussion

A. Public-Authority Defense
At the close of the evidence, Strahan requested a jury
instruction on the public-authority defense, arguing that
if the jurors disbelieved his testimony that he did not
take part in the conspiracy, he was entitled to defend on
the basis that his actions were the result of a reasonable
belief that he was authorized by Deputy Woods to sell
narcotics in connection with his work as a confidential
informant. The district court declined to give the
requested instruction, finding that the public-authority
defense was not supported by the evidence.

Our review of a district court’s refusal to give a theoryof-
defense jury instruction is de novo. United States v. Van
Allen, 524 F.3d 814, 832 (7th Cir. 2008). A criminal defendant
is entitled to such an instruction only if there is
evidentiary support for it. Id.; see also United States v.
Millet, 510 F.3d 668, 675 (7th Cir. 2007).

The public-authority defense is closely related to
another affirmative defense, entrapment by estoppel.
United States v. Baker, 438 F.3d 749, 753 (7th Cir. 2006)
(noting that “[t]he elements that comprise the two
defenses are quite similar”); see also United States v. Neville,
82 F.3d 750, 761 (7th Cir. 1996) (noting that “ ‘public authority’
[is] sometimes called ‘entrapment by estoppel’ ”). We
have recently clarified the distinction between the two
defenses: “[I]n the case of the public authority defense,
the defendant engages in conduct at the request of a
government official that the defendant knows to be
otherwise illegal, while in the case of entrapment by
estoppel, because of the statements of an official, the
defendant believes that his conduct constitutes no offense.”
United States v. Jumah, 493 F.3d 868, 874 n.4 (7th
Cir. 2007) (citing 53 AM. JUR. PROOF OF FACTS 3D 249 Proof
of Defense of Entrapment by Estoppel § 20 (1999)). In other
words, the public-authority defense requires reasonable
reliance by a defendant on a public official’s directive to
engage in behavior that the defendant knows to be
illegal. Id.; see also United States v. Cao, 471 F.3d 1, 4 (1st
Cir. 2006). In contrast, a defendant who believed his
conduct legal because of an official’s statement of the
law may assert an entrapment-by-estoppel defense. Jumah,
493 F.3d at 874 n.4; see also United States v. Apperson, 441
F.3d 1162, 1204 (10th Cir. 2006). Strahan’s situation is
the former; he maintains that he was entitled to argue
that he engaged in illegal drug trafficking at the behest
of Deputy Woods, not that he relied on Woods’s statement
that such conduct was actually lawful.

Here, the district court’s refusal to instruct the jury
on the public-authority defense was manifestly correct.
No witness—not even Strahan—testified that Deputy
Woods ever instructed or authorized Strahan to
distribute crack cocaine. It is true that Woods used
Strahan as a confidential informant, but their interaction
was limited to Strahan helping Woods find fugitives.
Indeed, Deputy Woods testified that he “didn’t do controlled
buys.” Strahan’s own testimony eliminated any
possibility of a public-authority defense. When asked
by the prosecutor if Deputy Woods had ever authorized
him to sell drugs as part of his interaction with Woods
as an informant, Strahan responded, “He never said I
could sell drugs, no.” He later added that he had never
asked Woods for permission to do so either. Strahan was
plainly not entitled to a public-authority instruction;
the defense was utterly unsupported by the evidence.

B. Sufficiency of the Evidence
Strahan also argues that the evidence was insufficient to
convict him on either count. We will overturn the verdict
on this basis only if, viewing the evidence in the light
most favorable to the government, there is “ ‘no evidence,
no matter how the evidence is weighed, from which the
jury could have found guilt beyond a reasonable doubt.’ ”
United States v. Burke, 425 F.3d 400, 415 (7th Cir. 2005)
(quoting United States v. Albarran, 233 F.3d 972, 975 (7th
Cir. 2000)).

The record is overflowing with evidence of Strahan’s
guilt. Johnny McCray Jr. testified that Strahan helped him
sell drugs from the College Street house in late 2003 and
through most of 2004. According to McCray Jr., Strahan
was responsible for answering a prepaid cell phone used
to take drug orders and would also deliver drugs when
necessary. He also testified about a letter sent to him
from jail by his father, Johnny McCray Sr., in December
2004. In the letter McCray Sr. asked if Strahan had been
using some of the drugs he was supposed to sell. (The
answer was “yes.”)

Johnny McCray Sr. testified that Strahan lived with the
McCrays and sold drugs for the McCray Jr. crack cocaine
and heroin distribution group, initially in Granite City,
Illinois, and later from the College Street house in East
St. Louis. Coconspirators Falls and Brown also testified
that Strahan lived at McCray Jr.’s College Street house
and participated in the drug-distribution operation conducted
there by (among other things) taking phone
orders and delivering drugs. This evidence is more than
sufficient for the jury to convict Strahan on the conspiracy
count. See United States v. Sachsenmaier, 491 F.3d 680, 684
(7th Cir. 2007) (finding a conspiracy where the defendant
“took drug orders, arranged sales, collected drug money,
No. 07-1494 9
and acted as an intermediary” between the seller and
his customers).

Similarly, the testimony at trial gave the jury sufficient
evidence to find Strahan guilty of distributing crack
cocaine to informant Joe Mitchell on September 29, 2004.
The transaction was recorded, and although Strahan
disputed the accuracy of the audio recording, he
admitted being present when Mitchell received the
drugs at the College Street address on that day. McCray
Jr. testified that one of the voices on the recording was
Strahan’s and that Strahan gave Mitchell the drugs,
collected payment, and brought the money to him for
change. Mitchell testified and confirmed the details of the
September 29 controlled buy and Strahan’s role in the
transaction. Notwithstanding the poor quality of the
audio recording, McCray and Mitchell were able to
identify Strahan’s voice, and both testified in detail to
Strahan’s participation. This evidence amply supports
the guilty verdict on the crack-distribution count.

C. Sentencing Claims
Strahan raises two constitutional challenges to his
sentence. First, he argues that the mandatory-minimum
sentence of life imprisonment runs afoul of the Sixth
Amendment by allowing facts not proven to a jury
beyond a reasonable doubt—in this case, his two prior
convictions for drug felonies—to affect the severity of
his punishment. See 21 U.S.C. § 841(b)(1)(A). But this
argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998), and Harris v. United States, 536
U.S. 545 (2002). Strahan acknowledges that we have
repeatedly rejected the argument that United States v.
Booker, 543 U.S. 220 (2005), has called into question either
Almendarez-Torres or Harris. See, e.g., Sachsenmaier, 491
F.3d at 685 (noting “this court’s many decisions holding
that Almendarez-Torres is still good law after Booker”);
United States v. Jones, 418 F.3d 726, 732 (7th Cir. 2005)
(finding that “[t]he distinction drawn by the Court in
Harris appears to have survived” Booker). He seeks only
to preserve these issues for review in the Supreme Court,
and we confirm that he has done so. Sachsenmaier, 491
F.3d at 685.

Next, Strahan contends that the mandatory-minimum
sentence of life in prison violates the Eighth Amendment’s
prohibition on cruel and unusual punishment because
the sentence is grossly disproportionate. But the
Supreme Court has rejected Eighth Amendment challenges
to statutorily mandated life sentences for defendants
with two prior felony convictions, see Ewing v.
California, 538 U.S. 11, 25 (2003) (upholding California’s
“three-strikes” law); Lockyer v. Andrade, 538 U.S. 63 (2003),
and we have followed suit, see United States v. Cannon, 429
F.3d 1158, 1161 (7th Cir. 2005). Accordingly, Strahan’s life
sentence does not violate the Eighth Amendment.

Strahan makes a host of other sentencing arguments—
most notably, that the district court should not
have applied a guidelines enhancement for obstruction of
justice, U.S.S.G. § 3C1.1 & cmt. n.4(b), based on his trial
testimony—but we need not address them. Based on his
two prior convictions for felony drug offenses, Strahan
was subject to the statutory-minimum sentence of life in
prison on the conspiracy count, and that sentence
trumped any guidelines calculation. Id. § 5G1.1(b). His
concurrent sentence of 360 months on the crack-distribution
count was also unaffected by any of his other claims
of error. Strahan was deemed a career offender under
the guidelines because of two prior state convictions,
pushing his base offense level to a minimum of 37
and rendering other enhancements meaningless. Id.
§ 4B1.1(a)-(b).

Strahan submitted a pro se brief after his counsel filed
his opening brief. We agreed to accept the supplemental
brief only after Strahan specified the arguments he intended
to advance. We therefore confine our review to the
arguments raised in his motion. These are: (1) that he
did not act in furtherance of the alleged conspiracy; and
(2) one of the two convictions listed in the § 851 notice
was disregarded by the district court for purposes of the
guidelines calculation. The first argument fails along
with the sufficiency-of-the-evidence argument, which
we have rejected for the reasons noted above. Strahan
appears to contend that his actions were aimed at thwarting
what he sees as two separate conspiracies—one
involving Falls and Baker, the other involving the
McCrays—but the testimony at trial was to the contrary,
and that evidence was easily sufficient to sustain his
convictions.

Finally, Strahan notes that the district court disregarded
one of his prior drug convictions listed in the § 851 notice
because it was not clear from the charging document
whether it would have counted as a “controlled substance
offense” for purposes of U.S.S.G. § 4B1.1(a)(2) and
.2(b). He contends that this invalidates his life sentence.
But Strahan conflates two separate standards. Damerville
v. United States, 197 F.3d 287 (7th Cir. 1999). The district
court did not disregard this conviction for purposes of the
§ 851 notice, required for application of the statutoryminimum
life sentence. Instead, the court declined to
rely on the record of conviction for one of Strahan’s prior
drug convictions in calculating his guidelines sentence
because the record was unclear whether it met the guidelines
definition of a “controlled substance offense.” In
contrast, the mandatory life sentence applies when a
defendant convicted under § 841(a) has two or more
prior “felony drug offense[s].” 21 U.S.C. § 841(b)(1)(A).
There is no dispute that the two state narcotics convictions
identified in the government’s § 851 notice met this
standard.
AFFIRMED.


Chicago Criminal Lawyer - Robert J Callahan

U.S. vs. Rahul Mannava

Rahul Mannava was convicted
by a jury of violating 18 U.S.C. § 2422(b), which makes it
a crime to persuade, induce, entice, or coerce a minor
“to engage in prostitution or any sexual activity for
which any person can be charged with a criminal offense,
or [to attempt] to do so.” The judge sentenced Mannava
to 10 years in prison.
A detective posing as a 13-year-old girl named “Gracie”
had engaged in email conversations with Mannava
during which Mannava had sought to persuade “her” to
have sex with him (also to fondle herself in a sexual
manner) and they had arranged to meet at an ice cream
parlor. The indictment charged him with having engaged
in sexual activity chargeable as criminal offenses under
Indiana law. In response to his motion for a bill of particulars,
the government identified two Indiana statutes.
One, the “vicarious sexual gratification” law, makes it a
felony for an adult knowingly to induce a child under 16
“to touch or fondle” herself “with intent to arouse or
satisfy” the child or the adult. Ind. Code § 35-42-4-5(a). The
other, the “child solicitation” law, forbids an adult knowingly
to solicit a child who is, or who the adult believes is,
under 14 to engage in sexual activity. Ind. Code § 35-42-4-
6(b). The jury rendered a general verdict; it was not
asked to specify the Indiana offense that the defendant
had committed.

Mannava challenges his conviction on four grounds.
Only one requires reversal. But since the case must go
back to the district court for further proceedings, we
shall address the others as well.

The ground that requires reversal is the prosecutor’s
incessant harping at the trial on the theme that Mannava
had been intending to “rape” a 13-year-old. Mannava
testified, with some support in the text of the email conversations
with the detective, that he thought “Gracie” was
an adult pretending to be a young girl. It was not a ridiculous
defense. “Gracie” was an adult pretending to be a
child, and maybe the pretense was discernible. The prosecutor
may have feared that the jury would be persuaded.

Sex with a minor is commonly referred to as statutory
rape; but the term in the Indiana statute book is “child
molestation,” Ind. Code § 35-42-4-3; and saying that
someone intends to rape a person implies that he intends
to use force, and there is no evidence of that in this case.
The government concedes, moreover, that under Indiana
law, youth is not one of the “mental deficien[cies]” that
precludes meaningful consent to sexual intercourse
under Ind. Code 35-42-4-1(a). Douglas v. State, 484 N.E.2d
610, 612-13 (Ind. App. 1985); Smith v. State, 497 N.E.2d 601,
606-07 (Ind. App. 1986); Warrick v. State, 538 N.E.2d 952,
954-55 (Ind. App. 1989). By repeatedly accusing
Mannava of intending rape, the prosecutor was undoubtedly
trying to inflame the jury. The case was sufficiently
close to make the trial judge’s permitting such improper
advocacy a reversible error.

Mannava further argues that the jury should have
been required to specify which of the Indiana offenses
it thought he had committed. The argument was not
made in the district court, so our review is for plain
error. An error is plain if it is clearly an error and could
with some nontrivial probability have changed the outcome
of the case. United States v. Olano, 507 U.S. 725, 732-35
(1993); United States v. White, 903 F.2d 457, 466-67 (7th Cir.
1990); United States v. Newman, 965 F.2d 206, 213 (7th Cir.
1992) (citations omitted) (“a plain error is not only a
clear error but an error likely to have made a difference
in the judgment, so that failure to correct it could result
in a miscarriage of justice, that is, in the conviction of an
innocent person or the imposition of an erroneous sentence”).
The second criterion is not satisfied. Had the
jury (unswayed by improper advocacy by the prosecution)
believed Mannava, it would have acquitted him of
both offenses, and if it disbelieved him it would have
convicted him of both. True, the “vicarious sexual gratification”
law, unlike the “child solicitation” law, says
nothing about belief, which has led one Indiana court to
rule that if the victim is indeed not a child (as in the
present case), there is no violation. Indiana v. Kemp, 753
N.E.2d 47, 52 (Ind. App. 2001). (The statute was later
amended to reject that interpretation, see LaRose v. State,
820 N.E.2d 727, 731-32 (Ind. App. 2005), but Mannava
had been charged under the original version.) Recall,
however, that 18 U.S.C. § 2422(b), the federal statute
under which the defendant was charged, includes attempting
to violate a statute that the federal statute incorporates
by reference, such as Indiana’s vicarious
sexual gratification law.

Nevertheless it was an error to allow the jury to
convict without a unanimous determination that the
defendant had violated one or both of the Indiana
statutes, and the error should be corrected in any retrial.
Denying that there was an error, the government argues
that if half (or some other fraction) of the jurors had
agreed among themselves that Mannava had violated
just one of the Indiana statutes and the rest of the jurors
had agreed among themselves that he had violated just
the other statute, the conviction would be valid because
the offense of which he was convicted was the federal
offense of committing an offense or offenses chargeable
under state law, and the jury was unanimous that he
had committed that offense. This reasoning leads to the
absurd conclusion, which the government’s lawyer embraced
at argument while acknowledging its absurdity,
that the government could charge a defendant with
violating the federal statute by violating 12 state statutes
and that he could be properly convicted even though
with respect to each of the 12 state offenses 11 jurors
thought him innocent and only one thought him guilty. If
a further reductio ad absurdum is desired, imagine a
federal statute that made it a crime to commit a chargeable
offense on any federal property, and a prosecution in
which the government charged that the defendant had
committed 25 such offenses and the jury rendered a
general verdict of guilty.

These examples bring out the reasoning behind the
rule that the jury must, to convict, be unanimous with
respect to all the elements of the charged offense. Richardson
v. United States, 526 U.S. 813, 817 (1999). Without the
rule, the requirement of unanimity would be without
force in a case like this. The liability created by 18 U.S.C.
§ 2422(b) depends on the defendant’s having violated
another statute, and the elements of the offense under
that other statute must therefore be elements of the federal
offense in order to preserve the requirement of jury
unanimity. This is most easily seen in a case in which
only one other statute besides section 2422(b) is involved.
Suppose a defendant had been charged just with
vicarious sexual gratification. The jury would have to be
unanimous that he had committed that offense before
it could return a verdict of guilty of violating section
2422(b). If so, then in a case in which the defendant is
accused of having violated several statutes incorporated
by reference, the jury has to be unanimous with regard to
the violation of at least one of them. Richardson v. United
States, supra, 526 U.S. at 818-20; United States v. Carr,
424 F.3d 213, 224 (2d Cir. 2005).

The government relies on cases in which jurors disagree
over details of the defendant’s conduct. Suppose it were
uncertain whether the defendant had committed the
offense on January 1 or January 2, and some jurors thought
it was the first and others that it was the second. Since
nothing would turn on the disagreement, it would not
invalidate the verdict. United States v. Gibson, 530 F.3d
606, 611-12 (7th Cir. 2008); United States v. Jackson, 479
F.3d 485, 490-92 (7th Cir. 2007); United States v. Johnson, 495
F.3d 951, 974-75 (8th Cir. 2007). That is different from
disagreement over which offense the defendant committed.

But from what we said earlier it should be apparent that
Mannava’s further argument that because the “vicarious
sexual gratification” statute, unlike the “child solicitation”
statute, does not prohibit conduct by a person who mistakenly
believes that he is enticing a child, he cannot be
convicted. The argument ignores not only the federal
statute under which Mannava was convicted, 18 U.S.C.
§ 2422(b), which criminalizes an attempt to violate an
incorporated statute, but also Indiana’s general attempt
statute, Ind. Code § 35-41-5-1. Subsection (b) of that
statute states that “it is no defense that, because of a
misapprehension of the circumstances, it would have
been impossible for the accused person to commit the
crime attempted.”

Against this Mannava cites Aplin v. State, 889 N.E.2d 882,
884 (Ind. App. 2008), in which the charge was an “attempt
to perform or engage in deviate sexual conduct with
Dan Claasen, a person he believed to be” under 16. Claasen
was a detective impersonating a 15-year-old, and the
court ruled that “if proven, this did not constitute the
offense of attempted Sexual Misconduct with a Minor,
because Detective Claasen is an adult . . . . The State
alleged that Aplin attempted to engage in sexual
conduct with a specified adult, not that Aplin attempted
to engage in sexual misconduct with a child but it was
impossible to do so because of his misapprehension of
the circumstances. It is no defense that, because of misapprehension
of the circumstances, it would have been
impossible for the accused to commit the crime attempted.”
Id. at 884 and n. 4 (citing the Indiana general
attempt statute). Mannava’s belief that Gracie was an
adult (if he did believe that) would negate the offense,
because belief that one is dealing with a child is an element
of the offense. But whether one is actually dealing
with a child or an adult is irrelevant to attempt, given
that impossibility is not a defense to the attempt.

Mannava further argues that by stating that anyone who
in enticing, etc., a minor “can be charged with a criminal
offense,” section 2422(b) denies a defendant due process
of law by allowing him to be convicted on less than proof
beyond a reasonable doubt. Indeed, read literally, the
quoted language would make it a federal offense to
engage in conduct that created only probable cause to
think that one had committed a criminal offense, since
probable cause is all that is required to charge someone
with an offense. That would be a good example of an
interpretation that, though literally correct—though
dictated by “plain meaning”—was absurd, and therefore
erroneous. Burns v. United States, 501 U.S. 129, 137 (1991);
United States v. American Trucking Associations, 310 U.S. 534,
543 (1940); Armstrong Paint & Varnish Works v. Nu-Enamel
Corp., 305 U.S. 315, 332-33 (1938); Green v. Bock Laundry
Machinery Co., 490 U.S. 504, 527-28 (1989) (Scalia, J., concurring);
Sompo Japan Ins. Inc. v. Nippon Cargo Airlines Co., Ltd.,
522 F.3d 776, 787 (7th Cir. 2008); United States v. Vallery, 437
F.3d 626, 630 (7th Cir. 2006). Literal interpretations that
produce absurd results are not only unacceptable grounds
for legal rulings that affect rights and interests; they
misunderstand “interpretation.” Language is a reliable
means of communication only because (and when) speaker
and listener or reader share implicit contextual understandings
rich enough to bridge the inevitable gaps in
explicit communicating that economize on communication.
If you order a cup of coffee in a restaurant, the waiter
does not bring you a cup full of coffee beans, or a cup
containing only two drops of (liquid) coffee. One doesn’t
need an “anti-absurdity canon of construction” to disambiguate
your order, or to understand the sense in which
18 U.S.C. § 2422(b) uses “charged with a criminal offense.”

The judge did not commit the fallacy of acontextual
interpretation. He told the jury that it had to find that the
defendant had violated a state statute and that the government
had to prove a violation beyond a reasonable
doubt. The judge could have been clearer, however, and
in instructing the jury on retrial he should tell it that
although the statute uses the term “can be charged with
a criminal offense,” the meaning is (with a qualification
about to be noted) “committed a criminal offense.”

This is not to say that a defendant must always violate
the underlying state statute in order to be convicted under
section 2422(b). If state law criminalizes only the completed
sexual act, section 2422(b) would still impose
liability for attempting to induce or persuade a minor to
engage in the act, because an attempt “to engage in . . . any
sexual activity for which any person can be charged with
a criminal offense” is explicitly criminalized by that
section. But that is not an issue here, because the state
law offenses are offenses of solicitation and hence
do not require a completed sexual act.
REVERSED AND REMANDED.


Chicago Criminal Lawyer - Robert J Callahan

U.S. vs. Jose J. Loera, Jr.

Jose Loera, Jr. was riding as a
passenger in an SUV when Indiana state police pulled it
over for a pair of traffic violations. This case, of course,
isn’t here because of traffic violations: the rig was packed
with cocaine, and the stop was just an excuse to make
a drug bust. Despite the precedent authorizing this
tactic, Whren v. United States, 517 U.S. 806 (1996), Loera
contends that the district court should have suppressed
the drug evidence. He also asks us to overturn his conviction
for want of a speedy trial and, in the alternative, to
vacate his sentence for what he claims is a violation of
the rule announced in Apprendi v. New Jersey, 530 U.S.
466 (2000).

A road trip from Atlanta, Georgia, to Valparaiso, Indiana,
requires driving some 685 miles. That’s not too bad if
you have some company and a good radio. But it’s downright
frightening if your “company” includes 21 kilos of
cocaine. That’s the position in which Loera found himself
when he sat down in the passenger seat of a Ford Explorer
on the night of December 13, 2004. The driver, a woman
named Angela Bennett, no doubt shared Loera’s fears.
But money is a pretty good anti-anxiety medication, so,
with the promise of a big payday upon delivery, they
hit the road.

Everything looked good for a while, but unbeknownst
to Bennett and Loera, the DEA had the case scooped.
With an undercover agent posing as the ultimate buyer
and an informant in on the planning, the DEA knew just
about everything, including the identity of the vehicle.
For whatever reason, though, the DEA wasn’t in a position
to intercept the rig on its own—which is where the
Indiana State Police came in. A DEA agent phoned Trooper
Jason Carmin on December 13 asking him if he could be
in the Lafayette area the next day for a “possible vehicle
stop.” The agent didn’t tell Carmin why he wanted the car
stopped—though a call from the DEA usually means
drugs—but he described the vehicle and its driver, and
Carmin agreed to be on the lookout.

Carmin spotted the Explorer the next morning on I-65.
Another officer, Trooper Mark Bloom, was patrolling the
area with Carmin but had gone down the road a short
distance in his cruiser to stop a speeding car. As Bloom
was stopping the other vehicle, Carmin saw the Explorer
swerve into an exit lane and then quickly swerve back
into the main flow of traffic, all without using a turn
signal. Carmin immediately gave chase, but as the
Explorer passed by Bloom’s patrol car (now stopped on
the shoulder of the road) it failed to yield to Bloom’s
vehicle by switching to the left lane—traffic violation
number two. Carmin flipped on his lights, and the
Explorer came to heel.

The first thing Carmin noticed when he approached
the Explorer was Bennett’s extreme nervousness. Her
hands were shaking so badly that Carmin wondered
whether she would even be able to retrieve her license
from her wallet. Carmin asked Bennett to step out of the
vehicle, and she complied. Alone with Bennett behind the
Explorer, Carmin explained why he pulled her over and
asked where she was driving. Bennett—still visibly nervous—
stated that she was driving back to Chicago from
Atlanta with her boyfriend (Loera). She said they drove
together to Atlanta to visit Loera’s sick father for a
couple of days. When Carmin left Bennett to question
Loera, however, he received a different story. Loera said
he was in Atlanta by himself for two weeks—not two
days—and that Bennett drove alone from Chicago to
pick him up. Though Carmin detected the inconsistencies,
he didn’t press Loera. Instead, he returned to Bennett,
told her she could wait in the Explorer, and walked back
to his cruiser. Given the totality of the circumstances—
including the DEA call—Carmin radioed
Bloom and asked him to bring along his drug dog. In
the meantime, Carmin walked back to the Explorer
and handed Bennett a written warning for the minor
traffic violations. But if Bennett and Loera thought
they were off the hook, they were mistaken.

After taking three steps towards his cruiser, Carmin
turned on his heels, freezing Bennett in position as she
was reaching to put the truck in gear. Playing Columbo
to perfection, Carmin had “just one more thing.” Nothing
major, only a small matter of drugs—were they carrying
any? Bennett responded that they were not and agreed
to a search of the vehicle. That was the nail in the coffin.
Bloom showed up with his drug dog, which alerted to
Some of the packages had 2 stickers warning “No Fumar,”
Spanish for “No Smoking.” That’s curious—powder cocaine is
normally snorted, not smoked—but perhaps this was some
kind of marketing strategy. Cocaine peddlers often brand
their products with logos (authorities have seen everything
from Nike “swooshes” to Teletubbies). If that’s what these
dealers had in mind, it gives no meaning to the expression
“mere puffery.”
the presence of cocaine in a hidden compartment built
into the floor of the rear cargo area. Carmin lifted the
trap door to reveal several packages, wrapped in black
duct tape, emanating an “overwhelmingly strong odor
of raw cocaine.” Loera and Bennett were immediately
placed in handcuffs.

If the arrest was swift, however, it was offset by the
delay leading up to trial. Nearly two-and-a-half years
passed from the date Loera was apprehended (December
14, 2004) to the date his trial began (April 23, 2007).
(We bid adieu to Bennett at this point. Though she was
tried with Loera—and convicted—she has not appealed.)
There was little holdup in the beginning: Loera was
indicted in early May 2005, and the court scheduled trial
for September. Then the continuances—granted at the
request of both parties—started piling up. Coupled with
a slew of pretrial motions, the trial date was gradually
pushed further and further into the distance. Finally, on
December 4, 2006, the court dismissed the indictment
for a violation of the Speedy Trial Act, finding that it
had improperly excluded a five-month delay from the
calculation under 18 U.S.C. § 3161. But the dismissal was
without prejudice (over Loera’s objection), so a fresh
indictment was handed up on February 7, 2007. Things
went much quicker this time. The trial started just twoand-
a-half months later, well within the period set forth
in the Speedy Trial Act, 18 U.S.C. § 3161(c)(1). Still,
Loera says the overall delay was excessive.

Before trial, the parties clashed over the admissibility
of the drug evidence. Then, as now, Loera maintained that
the evidence should be suppressed for violation of the
Fourth Amendment. The court rejected this argument,
concluding that there was probable cause to effect the
stop; the officers’ subjective motivations were
irrelevant; the questioning unrelated to the traffic violations
did not unreasonably prolong the stop; and Bennett’s
consent to the search was valid (albeit unnecessary since
a dog sniff is not a “search” within the meaning of the
Fourth Amendment, United States v. Place, 462 U.S. 696,
706-07 (1983), and the canine’s alert provided probable
cause to search the SUV thereafter). With the drug and
other evidence in place, the jury found Loera guilty as
charged—guilty of conspiring to distribute cocaine and
of possessing five kilograms or more of cocaine with
the intent to distribute it, all in violation of 21 U.S.C.
§ 841(a)(1).

At sentencing, the court found that Loera had been
convicted of a felony drug offense in Illinois state court
in 2002, mandating a 20-year minimum custodial sentence
under 21 U.S.C. § 841(b). Loera argued that the prior
conviction should not be counted because the surrounding
facts (including whether he was represented
by counsel) were not submitted to the jury and proven
beyond a reasonable doubt. The court overruled
Loera’s objection and sentenced him to the enhanced
mandatory minimum of 20 years.

Loera renews on appeal the arguments he made in the
district court: The evidence should have been suppressed;
the court should have dismissed the first indictment
with prejudice and, at any rate, the overall delay
ran afoul of his constitutional right to a speedy trial; and
finally the court erred in enhancing his sentence for a
prior felony drug offense. We take these issues in order.

With its decision in Whren, the Supreme Court
“foreclose[d] any argument that the constitutional reasonableness
of traffic stops depends on the actual motivations
of the individual officers involved.” 517 U.S. at 813;
see also United States v. Stribling, 94 F.3d 321, 323 (7th Cir.
1996). Nevertheless, Loera tries to distinguish Whren on
the grounds that in this case, unlike Whren, there was no
need for a pretext. Armed with the information it had
from its undercover agent and informant, the DEA could
have detained the vehicle itself. There was no need to
involve the state police who, lacking the DEA’s information,
first had to witness a traffic violation to effect the
stop. This supposed distinction is not only tortured, it
bears no meaning. If it is permissible to stop a vehicle for
a traffic violation where the ulterior motive of looking
for drugs is prompted by the occupants’ youth and presence
in a “high drug area,” Whren, 517 U.S. at 808, certainly
it is permissible to do so when the impetus is a request
from a DEA agent of all people. For all intents and purposes,
Loera asks us to ignore Whren, not because it isn’t
on point, but because he disagrees with it. As well he
should; Whren dooms his argument, and we cannot
pretend otherwise. There was no violation of the
Fourth Amendment.3

Which brings us to the second issue—pretrial delay.
Here, Loera presents two related arguments: one
under the Speedy Trial Act and the other under the
Sixth Amendment. In both cases, we review legal conclusions
de novo and factual findings for clear error.
United States v. Arceo, 535 F.3d 679, 684 (7th Cir. 2008);
United States v. King, 338 F.3d 794, 797 (7th Cir. 2003).

Loera first claims that the district court didn’t go far
enough in its dismissal of the original indictment under
the Speedy Trial Act. The court was in the right to
throw out the charges, yes, but it should have done so
with prejudice. However, when a violation of the Speedy
Trial Act has occurred—and neither party in this case
asks us to revisit the court’s finding on this score—the
district court has discretion to determine whether to
dismiss the indictment with or without prejudice. United
States v. Killingsworth, 507 F.3d 1087, 1090 (7th Cir. 2007);
United States v. Fountain, 840 F.2d 509, 512 (7th Cir. 1988).
In making this election, the court must consider “the
seriousness of the offense; the facts and circumstances
of the case which led to the dismissal; and the impact of
a reprosecution on the administration of this chapter
and on the administration of justice.” 18 U.S.C. § 3162(a)(2).
Loera concedes that the offense here was serious,
weighing in favor of dismissal without prejudice, but
he says the court failed to assess properly the parties’
relative fault and the burden dismissal would cause
him. We disagree. The district court accurately noted
that both parties requested continuances; Loera suffered
no significant prejudice; and there was nothing to
indicate bad faith on the part of the government. As
we explained in Killingsworth, 507 F.3d at 1091 (citing
United States v. Taylor, 487 U.S. 326, 342 (1988)), dismissal
without prejudice is appropriate in these circumstances.
It is a response commensurate with the magnitude of
the violation and facts of the case.

The analysis is somewhat different under the Sixth
Amendment. See United States v. White, 443 F.3d 582, 588
(7th Cir. 2006) (explaining that the constitutional and
statutory speedy trial rights “are related but distinct, so
that a violation of one may be found without a violation
of the other”). The constitutional right to a speedy trial
is “triggered by an arrest, indictment, or some other
official accusation.” Arceo, 535 F.3d at 684. Once the
right is triggered, a claimed violation is assessed by
considering “whether delay before trial was uncommonly
long, whether the government or the criminal
defendant is more to blame for that delay, whether, in
due course, the defendant asserted his right to a speedy
trial, and whether he suffered prejudice as the delay’s
result.” Doggett v. United States, 505 U.S. 647, 651 (1992).

The first factor—the length of the delay—is not so much
a factor as it is a threshold requirement: “without a
delay that is presumptively prejudicial, we need not
examine the other factors.” White, 443 F.3d at 589. Delay
approaching one year is presumptively prejudicial. Id.
For Loera, this first hurdle is insurmountable. He
admits that the delay between the second indictment
and trial—a mere two-and-a-half months—falls far short.
Yet, he says we should also consider the delay
associated with the first indictment. We cannot do that.
“The Speedy Trial Clause applies only to an accused,”
United States v. Samples, 713 F.2d 298, 301 (7th Cir. 1983), so
when the first indictment was dismissed, Loera was
“legally and constitutionally in the same posture as
though no charges had been made,” United States v.
MacDonald, 456 U.S. 1, 10 (1982). The delay following the
second indictment must be measured independently, and
from that perspective it fails. And to the extent Loera
would have us find a constitutional violation on the
delay after the first indictment alone, the time to make
that argument was then, not now. As the district court
noted, even though Loera mentioned the Sixth Amend
ment in his motion to dismiss, his argument revolved
entirely around the Speedy Trial Act. In his eight-page
supporting memorandum, Loera never uttered a word
about the Constitution. By failing to develop the constitutional
issue in the context of the earlier case, Loera
waived it. United States v. Kumpf, 438 F.3d 785, 791 (7th
Cir. 2006).

Loera’s final argument—that his rights under Apprendi
were violated because the fact of his prior conviction was
not presented to the jury and proved beyond a reasonable
doubt—is a nonstarter. Because we are powerless to
overrule Almendarez-Torres v. United States, 523 U.S. 224
(1998), a decision left intact by Apprendi, we must reject
Loera’s argument on this point.
The judgment of the district court is AFFIRMED.

Chicago Criminal Lawyer - Robert J Callahan