On the morning of September 2,
2007, officers of the Fairview Heights Police Department
arrested Kenneth Kirkland after a search of his vehicle
revealed crack cocaine. On September 4, Kirkland was
transferred to the custody of the Drug Enforcement
Agency. While in DEA custody, Kirkland made several
inculpatory remarks, and he was arraigned later that
afternoon. On April 30, 2008, Kirkland was convicted of
possession with intent to distribute fifty grams or more of
cocaine base. He now appeals, arguing that his statements
to DEA agents were inadmissible under Federal
Rule of Criminal Procedure 5(a), 18 U.S.C. § 3501(c), and
the Fourth Amendment. Because defense counsel did not
adequately develop these arguments in the district court,
Kirkland has forfeited his right to appeal these issues, and
his conviction will be affirmed.
I. BACKGROUND
In the early morning hours of September 2, 2007, Fairview
Heights police responded to a report of suspicious activity
related to Kenneth Kirkland at the Ramada Inn. A drug
detection dog brought to the scene conducted an exterior
“sniff” of Kirkland’s vehicle and alerted to the presence of
controlled substances. After the positive alert, police
continued to monitor the hotel and Kirkland’s vehicle.
As Kirkland left the Ramada Inn later that morning,
Officer Brian Rogers stopped him for driving with a
cracked windshield and failing to wear his seatbelt. After
Rogers asked Kirkland some initial questions and issued
him a warning for the traffic violations, Sergeant Mike
Origliosso and DEA Task Force Officer (“TFO”) Chris
Modrusic arrived at the scene. Without notifying Kirkland
of his rights, Rogers asked Kirkland to step out of the
vehicle, told him he was free to leave, and asked if he
would answer some questions. Kirkland agreed and gave
consent for Rogers, Origliosso, and Modrusic to search the
vehicle. The search revealed rifle cartridges and crack
cocaine.
Kirkland was arrested at around 10:00 that morning. He
was held in police custody until he was transferred to the
DEA’s office on the morning of September 4, approximately
forty-eight hours later. TFO Mark Rigel read
Kirkland his Miranda rights, and Kirkland agreed to
speak with him.1 When Rigel asked if Kirkland wanted
to make a written statement, Kirkland responded that
he would accept responsibility for the cocaine. Kirkland
was arraigned before a magistrate judge at approximately
3:00 p.m. that afternoon. He was later indicted for
possession with intent to distribute fifty grams or more
of a mixture or substance containing cocaine base, in
violation of 21 U.S.C. § 841(a)(1).
On November 30, Kirkland filed a motion to suppress
“certain evidence in this matter.” After reciting the
events that occurred while in the custody of the Fairview
Police Department, Kirkland claimed that his detention
was “unreasonable, illegal, unlawful and unconstitutional.”
Specifically, he claimed that the length of the
detention was constitutionally unreasonable and that the
police violated the Fourth Amendment by detaining him
without a reasonable articulable suspicion that he was
involved in criminal activity. He also argued that the
interrogation roadside was coercive and conducted before
he was advised of his constitutional rights under Miranda.
He claimed that all subsequent statements and admissions
were thus tainted by this illegal conduct.
On February 1, 2008, Kirkland filed a memorandum in
support of this motion, in which he repeated his Fourth
Amendment argument and requested that the seized
crack be suppressed. Conspicuously absent from both
the motion and memorandum was any mention whatsoever
of the DEA or Kirkland’s statements to TFO Rigel.
On February 28, the court held a suppression hearing.
Defense counsel repeated the arguments made in his
motion and memorandum and added:
Regarding the statements that he ultimately makes
at the DEA office several days later, I believe those
warrant suppression as well, Your Honor, based
upon the fact that he had been in custody for over
48 hours at that point, apparently had not even had
a change of clothing. My understanding is that he
was brought to Court later that day, but not before
being interviewed at the DEA office.
The District Court issued an order on April 15. The
court declined to suppress the physical evidence because
the search was supported by probable cause and was
consensual. However, it held that any statements made
at the side of the road were in violation of Miranda. In
deciding which statements to suppress, the district court
noted:
[I]n his motion, Kirkland does not specify which
particular statements were unconstitutionally
obtained, and this Court “need not try to fish a
gold coin from a bucket of mud” in determining
which specific statements Kirkland intends to
challenge. United States ex rel. Garst v. Lockheed-
Martin Corp., 328 F.3d 374, 378 (7th Cir. 2003).
Nonetheless, at the hearing, Kirkland referred
specifically to statements he made at the scene . . .
as well as the September 4, 2007[,] statement he
made to Officer Rigel.
United States v. Kirkland, No. 07-CR-30137, 2008 WL
1774602, at *6 (S.D. Ill. Apr. 15, 2008). The court then
determined that, with respect to his statements to TFO
Rigel, Kirkland had received Miranda warnings and
indicated a willingness to speak to officers. Thus, the
court determined that these statements were constitutionally
obtained and admissible.
On April 30, following a jury trial, Kirkland was convicted.
On September 19, he was sentenced to 240
months’ imprisonment and ten years’ supervised release.
II. ANALYSIS
On appeal, Kirkland argues that he was held for an
unreasonable amount of time prior to being brought before
a magistrate for a probable cause determination. The
Fourth Amendment requires that a defendant receive
a judicial determination of probable cause promptly
after arrest or detention. Gerstein v. Pugh, 420 U.S. 103, 114
(1975). In County of Riverside v. McLaughlin, 500 U.S. 44, 56
(1991), the Supreme Court held that, absent evidence of
ill will or unreasonable justifications for delay, a judicial
probable cause determination is generally prompt for
purposes of the Fourth Amendment if it occurs within
forty-eight hours after arrest or detention. Where a defendant
does not receive a probable cause determination
within forty-eight hours, the burden shifts to the
government to justify the delay. Id. at 57.
Similarly, Rule 5(a) of the Federal Rules of Criminal
Procedure requires that a person arrested on a federal
charge be presented to a magistrate judge “without
unnecessary delay.” Even given a delay in presentment,
however, a voluntary confession made within six hours of
arrest remains admissible. 18 U.S.C. § 3501(c). On the other
hand, a voluntary confession made after the six-hour safeharbor
period may be inadmissible as a Rule 5(a) violation
and pursuant to McNabb v. United States, 318 U.S. 332, 344-
47 (1943), and Mallory v. United States, 354 U.S. 449, 455-56
(1957). Corley v. United States, 129 S. Ct. 1558, 1571 (2009)
(holding that § 3501 did not supplant McNabb-Mallory and
that “[i]f the confession occurred before presentment and
beyond six hours . . . the court must decide whether
delaying that long was unreasonable or unnecessary under
the McNabb-Mallory cases”).
Time spent in state custody does not generally count
toward § 3501(c)’s six-hour limitation. United States v.
Carter, 910 F.2d 1524, 1528 (7th Cir. 1990). To suppress a
statement in a federal prosecution based on excessive time
spent in state custody, the defendant must establish a clear
“working arrangement between federal agents and state or
local officials.” Id. It is not enough to provide a “bare
suspicion” of such a working arrangement. United States v.
Gaines, 555 F.2d 618, 622 (7th Cir. 1977). Instead, the
defendant must “show that state custody was ‘designingly
utilized’ to circumvent Rule 5(a).” Id. at 625 (quoting United
States v. Chadwick, 415 F.2d 167, 171 (10th Cir. 1969)); see
also Carter, 910 F.2d at 1528.
Kirkland claims that the district court erred in failing
to suppress his confession to TFO Rigel. He argues that
his extended detention before presentment to a magistrate
judge violated Rule 5(a), § 3501(c), and the McNabb-Mallory
line of cases because TFO Modrusic’s involvement in the
state investigation constituted a collusive working arrangement
between federal and state authorities.2 He also
claims that the length of time he spent in custody before
receiving a probable cause determination—over forty-eight
hours—violated the Fourth Amendment under Riverside.
For the reasons that follow, we find that Kirkland has
forfeited his right to raise these issues on appeal.
It is well established that a criminal defendant seeking
to suppress evidence must do so prior to trial. See Fed. R.
Crim. P. 12(b)(3)(C); United States v. Brodie, 507 F.3d 527,
530 (7th Cir. 2007). Under Federal Rule of Criminal Procedure
12(e), “a defendant who does not assert a timely
motion to suppress ‘waives’ the defense.” Brodie, 507
F.3d at 530; see Fed. R. Crim. P. 12(e). We have held that the
term “waiver” in Rule 12(e) encompasses not only the
typical definition of waiver, where a defendant intentionally
relinquishes a known right, but also forfeiture,
where a defendant fails to assert a right in a timely
fashion. Brodie, 507 F.3d at 530-31. Thus, we apply Rule
12(e) where a defendant has either waived or forfeited
his right to seek suppression of evidence. See id.
Under ordinary circumstances, waiver precludes appellate
review altogether, whereas we review a forfeited
issue for plain error. Id. A forfeited suppression argument
presents a special situation because, under Rule 12(e), “the
defendant must first show good cause for failing to make
that argument in the district court” before we may review
it. United States v. Murdock, 491 F.3d 694, 699 (7th Cir. 2007).
Kirkland does not make a good cause argument, and we
therefore will review his claims only if we find that he
adequately raised them in the district court, i.e., that he did
not forfeit them in the first place. See United States v.
Hargrove, 508 F.3d 445, 450 (7th Cir. 2007) (holding that a
defendant who gave no explanation for his failure to seek
suppression had not made the good cause showing required
by Rule 12(e)).
Not only must the defendant move to suppress
evidence to preserve an issue for appeal, but he also
must identify the grounds upon which he believes suppression
is warranted. United States v. Pope, 467 F.3d 912,
919 (5th Cir. 2006); United States v. Dewitt, 946 F.2d 1497,
1502 (10th Cir. 1991); cf. Brodie, 507 F.3d at 531 (“This
court has repeatedly held that there is no good cause to
excuse a Rule 12 forfeiture where a defendant files a
timely motion to suppress on one ground, and later
seeks to assert a new ground for suppression for the
first time on appeal.”). Kirkland maintains that, although
his memoranda did not raise the specific issues he now
appeals, his counsel’s statement at the suppression hearing
was sufficient to preserve them. We disagree.
Near the end of the suppression hearing, defense
counsel requested for the first time that the court
suppress Kirkland’s statements to the DEA. He noted
that Kirkland had been in custody for more than fortyeight
hours without a change of clothing. He also stated
that Kirkland had been brought before the court later
that day, but not before being interviewed at the
DEA office. In this context, he did not mention the Fourth
Amendment, Riverside, Rule 5(a), § 3501(c), McNabb,
Mallory, or a “working arrangement” between federal and
state officials. In other words, he failed to develop the
argument with citation to any relevant authority or meaningful
discussion. Such a failure results in forfeiture, see
Jarrard v. CDI Telecomm., Inc., 408 F.3d 905, 916 (7th Cir.
2005), because it does not give the government a meaningful
opportunity to rebut Kirkland’s claims, nor does it
notify the district court that it needs to address them, see
Pope, 467 F.3d at 919.
We do not demand that a defendant’s argument be a
“model[] of trial advocacy” to avoid forfeiture. United
States v. Roque-Espinoza, 338 F.3d 724, 727 (7th Cir. 2003).
For example, in Roque-Espinoza, we held that the
defendant did not forfeit his right to raise a due process
challenge on appeal, even though he had failed to label
his argument as such in the court below. See id. In that case,
however, the defendant cited the applicable law, and the
district judge was “plainly able to discern” from the
defendant’s filings which combination of cases formed the
basis of his argument. Id. In contrast, Kirkland’s counsel
did not cite any applicable cases at the suppression hearing,
nor did he articulate any of their underlying principles.
The district court was, therefore, unable to ascertain
the grounds upon which Kirkland based his argument.
This is evident from the district court’s order, which mentioned
counsel’s comments only insofar as they related
to Kirkland’s Miranda argument. For us to rule on these
additional issues when the district court had no opportunity
to do so “would run counter to axiomatic
principles of appellate review.” Pope, 467 F.3d at 919.
Perhaps in hindsight we can discern a plausible connection
between defense counsel’s comments and the
grounds Kirkland now raises on appeal. After all, counsel
did mention the forty-eight-hour detention and the fact
that Kirkland had not been brought before the court
prior to the interview at the DEA office. But these comments
could just as easily have been directed to the
argument in Kirkland’s suppression motion that his
statement was involuntary. Courts “are not in the
business of formulating arguments for the parties,” United
States v. McClellan, 165 F.3d 535, 550 (7th Cir. 1999); it is
defense counsel’s job to develop suppression arguments
in a meaningful way so that the government has an
adequate opportunity to respond and the district court to
make an informed decision, cf. Pope, 467 F.3d at 919
(holding that forfeiture had occurred where neither the
government nor the district court was put on notice of
the issue). Thus, just as the district court “ ‘need not try
to fish a gold coin from a bucket of mud’ ” in determining
which evidence to suppress, Kirkland, 2008 WL 1774602,
at *6 (quoting Lockheed-Martin Corp., 328 F.3d at 378), it
also need not try to imagine every plausible argument
that could be extracted from an attorney’s comments.
Finally, we also note that defense counsel’s perfunctory
comments were untimely. The district court set a November
28, 2007, deadline for Kirkland’s suppression
motions, and Kirkland’s final reply brief was due on
January 25, 2008. Yet Kirkland did not mention the statement
to the DEA until his suppression hearing on
February 28. Not only must the defendant raise a suppression
motion prior to trial to avoid waiver or
forfeiture, but he must also comply with any timing
requirements set by the district court. Fed. R. Crim. P.
12(c); see United States v. Mancillas, 183 F.3d 682, 703 (7th
Cir. 1999). If a defendant makes a motion or raises an
argument in an untimely manner, it is within the discretion
of the district court to refuse to address it. United
States v. Moralez, 964 F.2d 677, 680-81 (7th Cir. 1992); see
also Mancillas, 183 F.3d at 703-04 (affirming the district
court’s refusal to consider a motion to suppress where
it was raised for the first time at a suppression hearing
that took place after the period set by the court had
ended). Considering that Kirkland gives no explanation
for his failure to raise these arguments in his initial
motion, it would have been within the district court’s
discretion to refuse to consider them in the first instance.
See Mancillas, 183 F.3d at 703-04.
III. CONCLUSION
Defense counsel’s comments at the sentencing hearing
were not sufficiently developed to preserve the issues
Kirkland now raises on appeal. Kirkland has therefore
forfeited his right to appeal these issues under Rule 12(e).
We AFFIRM the judgment of the district court.
Chicago Criminal Lawyer - Robert J Callahan
Tuesday, June 30, 2009
U.S. vs. Harris
We consider in this case the
appeals of three defendants convicted of conspiring to
sell crack cocaine in southern Illinois. Only Damian
James challenges his conviction, and we find there was
no Speedy Trial Act violation in his case because, after
excluding the time attributable to the continuances James
himself requested, his trial commenced in a timely fashion.
We also conclude that sufficient evidence supported
his conviction for conspiring to sell crack cocaine as he
pooled his money with others to buy crack that all knew
would be resold, was dependent on others for the crack
that he resold, and tried on more than one occasion to get
another person to join the crew buying crack cocaine from
Memphis.
With respect to the defendants’ sentences, we affirm
James’s sentence because the Supreme Court’s decision
in Kimbrough v. United States, 128 S. Ct. 558 (2007), had no
impact on his sentence. The district court’s decision to
sentence him above a mandatory statutory minimum
that exceeded the guidelines ranges for crack and
powder cocaine offenses was not affected by the
crack/powder disparity. Next, the government agrees that
Robert Harris should receive a remand in light of
Kimbrough, and he receives a full resentencing because
he preserved his argument before the district court.
Finally, we remand David Morrow’s case for resentencing
as we cannot be assured that the district court
considered all of the relevant 18 U.S.C. § 3553(a) factors,
including his health problems, when it imposed a 504-
month sentence.
I. BACKGROUND
David Morrow began selling marijuana in the Mt.
Vernon, Illinois area in 2002 or 2003. After about a year, he
ventured into crack cocaine. He obtained the crack from
sources in Memphis and St. Louis. Robert Harris and
Damian James also dealt crack cocaine in the Mt. Vernon
and nearby areas. To obtain the crack they sold, Morrow,
Harris, James, and others pooled their money together
to purchase it. Morrow and Harris often made the out of
town trips together to purchase the crack, and James
came along on occasion too. These trips occurred frequently—
at least once every two weeks for about three
years, if not more. Sometimes after the two bought crack
from the St. Louis source, Morrow and Harris would
head to a local mall to meet up with James.
The men who pooled their money together to buy
crack resold it separately in southern Illinois. This arrangement
went on for several years. During that time, James
tried to recruit others to join the team of people purchasing
crack from out of state. He tried to convince
another drug dealer to join Morrow, James, and Harris
in purchasing crack from their source, saying he could get
a better price than the one he was getting from his
current supplier. The dealer declined, but James, this
time with Morrow present, asked the dealer to join the
“Memphis crew” again a few weeks later. That attempt
also failed.
Multiple witnesses testified that they bought crack from
Harris or James. One witness testified that on one
occasion when he tried to purchase crack from Harris,
Harris said he was out and would have to wait until
Morrow and James returned from Memphis so he would
have more crack. Another testified that he started buying
crack from James in 2003 and purchased it about twice
a week for five or six months. He also said James would
give him crack on credit, expecting him to pay James
back after he resold the crack. Another testified that he
once called Morrow to get crack cocaine, and Morrow
said he was out and referred him to Harris instead.
Law enforcement officers arrested James in 2006 after
they responded to a call of shots fired and found a rifle
in his back seat. James was indicted on January 11, 2007
with two counts of distributing crack cocaine. He made
his initial appearance eight days later. A superseding
indictment on March 8, 2007 added Morrow, Harris, and
two others as defendants, charging them all with participating
in a conspiracy to distribute more than 50 grams of
crack cocaine. The indictment also added a felon-inpossession
charge against James and other charges
against the other defendants. Morrow, Harris, and James
took their cases to trial. A jury convicted Morrow of
conspiring to distribute crack cocaine and maintaining a
crack house. He received a sentence of 504 months’ imprisonment.
After a trial separate from Morrow’s, a jury
convicted James of conspiring to distribute crack cocaine,
possession of a firearm by a felon, and distribution of
crack cocaine. That same jury convicted Harris of conspiring
to distribute crack cocaine. The district court
sentenced James to 295 months’ imprisonment and
Harris to 235 months. All three appeal.
II. ANALYSIS
A. James’s Appeal
1. There was no Speedy Trial Act violation.
James first argues that the district court should have
granted the motion he made to dismiss his case with
prejudice under the Speedy Trial Act, 18 U.S.C. § 3161. In
federal prosecutions, the Speedy Trial Act provides that
a defendant’s trial must commence within seventy days
of the filing date of the information or indictment, or of
the defendant’s initial appearance, whichever comes later.
18 U.S.C. § 3161(c). James initially appeared on January 19,
2007 and his trial commenced on September 24, 2007, so he
maintains that a Speedy Trial Act violation occurred. We
review James’s challenge de novo. See United States v.
Rollins, 544 F.3d 820, 829 (7th Cir. 2008).
Although James’s trial commenced more than seventy
calendar days after his initial appearance, the Speedy
Trial Act specifically excludes certain periods of delay
from the time within which a trial must begin. 18 U.S.C.
§ 3161(h) (2008). Two of these exceptions are particularly
relevant in our case. First, the Act specifically excludes:
A reasonable period of delay when the defendant
is joined for trial with a codefendant as to whom
the time for trial has not run and no motion for
severance has been granted.
18 U.S.C. § 3161(h)(6); see also Rollins, 544 F.3d at 829 (“An
excludable delay of one defendant may be excludable as
to all defendants, absent severance.”). After James’s
initial appearance, the grand jury returned a superseding
indictment on March 8, 2007 that added additional defendants
and charged them, as well as James, with conspiring
to sell crack cocaine. Codefendant Harris made his initial
appearance on May 1, 2007. Therefore, under § 3161(h)(6),
the time from January 19 to May 1 is excluded from the
speedy trial computation if it was reasonable, and James
makes no argument that the three and one-half month
delay until Harris’s appearance was unreasonable. Cf.
Rollins, 544 F.3d at 829 (stating that five and one-half
month period until codefendant’s initial appearance not
unduly long).
Our decision in United States v. Asubonteng, 895 F.2d
424, 426 (7th Cir. 1990), does not direct otherwise. We did
not exclude time in Asubonteng between the initial and
superseding indictment from the speedy trial computation,
but we did not do so because that case involved
only a single defendant. Here, though, because the superseding
indictment added additional defendants, the
relevant document that marks the beginning of the
speedy trial calculation is the superseding indictment, not
the initial indictment. See Henderson v. United States, 476
U.S. 321, 323 n.2 (1986); see also United States v. Farmer, 543
F.3d 363, 368 (7th Cir. 2008) (“When more than one defendant
is charged in an indictment, the Speedy Trial clock
begins to run on the date of the last co-defendant’s initial
appearance, which is usually arraignment.”). The days
through May 1, 2007 did not count against the seventyday
limit.
The continuances James himself requested further kept
the speedy trial clock from running. The Speedy Trial Act
also specifically excludes from the time computation:
Any period of delay resulting from a continuance
granted . . . at the request of the defendant or his
counsel . . . , if the judge granted such continuance
on the basis of his findings that the ends of justice
served by taking such action outweigh the best
interest of the public and the defendant in a
speedy trial.
18 U.S.C. § 3161(h)(3)(7)(A). If the district court is inclined
to grant a continuance under this provision, it must also
set forth “its reasons for finding that the ends of justice
served by the granting of such continuance outweigh the
best interests of the public and the defendant in a
speedy trial.” Id.
On April 18, 2007, even before Harris made his initial
appearance, James filed a motion to continue his trial. In
support of the motion, counsel stated that he needed
additional time to review discovery, confer with James
and prepare his defense. The district court granted
James’s motion and continued the trial until July 2, 2007.
Before July 2 arrived, James filed another motion to
continue his trial. The district court granted that motion
as well and continued the trial until August 20.1 The
district court specifically found during each grant that a
failure to grant the motion would likely result in a miscarriage
of justice and that the ends of justice warranted
the continuances. Therefore, the additional time
resulting from James’s own requests to continue the
trial are excluded. The days after August 20 counted
toward the seventy-day limit, but the trial’s commencement
on September 24 meant that it fell within the time
allowed under the Act. No Speedy Trial Act violation
occurred.
2. Sufficient evidence supported James’s conspiracy
conviction.
James also argues that insufficient evidence supports
his conviction for conspiring to distribute crack cocaine.
When reviewing a challenge to the sufficiency of the
evidence supporting a verdict, we ask whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable
doubt. United States v. Seymour, 519 F.3d 700, 714 (7th Cir.
2008). We will overturn the jury’s guilty verdict only if
“ ‘the record contains no evidence, regardless of how it is
weighed,’ ” from which the jury could have found beyond
a reasonable doubt that James was guilty of conspiring
to sell crack cocaine. United States v. James, 540 F.3d 702,
706 (7th Cir. 2008) (quoting United States v. Gougis, 432
F.3d 735, 743-44 (7th Cir. 2005)).
James does not dispute that he was a crack cocaine
dealer. Instead, he maintains that he was not a member of
a conspiracy to sell crack. The essence of a conspiracy is
an agreement between two or more people to engage in
criminal activity. United States v. Zaragoza, 543 F.3d 943,
947 (7th Cir. 2008). Simple buy-sell transactions are not
enough to constitute the separate criminal object
necessary for a conspiracy conviction, so the fact that
James sold crack is not enough. See id.
In this case, sufficient evidence supports the jury’s
conclusion that James conspired with Morrow, Harris, and
others to distribute crack cocaine. The jury could have
concluded that James and the other indicted co-conspirators
depended on each other to further their drug-trafficking
goals. See James, 540 F.3d at 707. That evidence included
that members of the conspiracy obtained their
crack cocaine together, from Morrow’s sources in
Memphis and St. Louis. Morrow also referred customers
to Harris when he ran out of crack cocaine. See id. (referring
customers to others’ houses if supply was low supports
conclusion that conspiracy existed).
The jury also heard evidence of James’s participation
in the conspiracy and of how he worked to further the
conspiracy. In United States v. Haywood, 324 F.3d 514,
517 (7th Cir. 2003), we found sufficient evidence supported
a conspiracy conviction where two alleged coconspirators
“pooled their money and shared rides . . . in
order to buy inexpensive crack, meaning that each could
run a cheaper operation—and earn higher profits—
if the other succeeded.” That is true here as well. The
jury heard that James pooled his money with that of
Harris, Morrow, and the other alleged co-conspirators
to buy larger amounts of crack cocaine from outside
the state for resale. As in Haywood, James and the
others pooled their money and shared rides to buy cheaper
crack, meaning that each could earn more if the others
succeeded.
The out of state purchases happened at least biweekly, if
not more, for several years, with all involved knowing that
the crack cocaine would be resold. Although it is not clear
from the record exactly how long James was involved with
the other defendants, it is clear that it was far from a onetime
occurrence. Notably, he tried to recruit others to join
Morrow, Harris, and the others who were pooling their
money together. A dealer who had been obtaining his
crack from another source testified that James tried to talk
him into going in with Morrow, Harris, and James to
purchase crack in Memphis, saying he could get it for a
better price than the other dealer’s current supplier. James
referred to his group as “the Memphis crew.” Although
the offer was declined, a few weeks later, James, with
Morrow present, again unsuccessfully tried to persuade
the same dealer to join his team. Also, from another
witness’s testimony that Harris’s response to a request to
buy crack cocaine was that he needed to wait for Morrow
and James to return with the drugs, the jury could have
concluded that James at least occasionally went along on
the drug-purchasing trips. The jury therefore had sufficient
evidence to find that James was a member of a conspiracy
to distribute crack cocaine.
James emphasizes a statement in one of our previous
cases that to find a conspiracy, we are “looking for evidence
of a prolonged and actively pursued course of
sales coupled with the seller’s knowledge of and a shared
stake in the buyer’s illegal venture.” United States v.
Contreras, 249 F.3d 595, 599 (7th Cir. 2001) (internal quotation
marks and citation omitted). In Contreras, we were
distinguishing a conspiracy from a mere buyer-seller
relationship, the latter meaning a situation where one
person merely buys drugs from another, which is insufficient
to find a conspiracy. See id. at 598-99. As we discussed,
James and his co-conspirators put their money
and transportation resources together for an extended
period of time, thereby having a stake in each other’s
success, see Haywood, 324 F.3d at 517, and knowing that
the others intended to resell the crack cocaine. James
may have had only a buyer-seller relationship with his
customers, but the jury could have found he was
involved in a conspiracy with Morrow, Harris, and the
other indicted co-conspirators rather than a simple buyerseller
relationship. See United States v. Williams, 298 F.3d
688, 692 (7th Cir. 2002). Sufficient evidence supports
James’s conspiracy conviction.
3. Kimbrough did not affect James’s sentence.
James’s final argument is that we should remand his
case to ensure that the district court understood its
ability to fashion a sentence in light of the Supreme
Court’s decision in Kimbrough v. United States, 128 S. Ct. 558
(2007), which the Court decided before James’s sentencing
hearing. We decline to do so because any disagreement
with the crack cocaine guidelines would not
have impacted James’s sentence.
Had there not been an applicable statutory minimum,
James’s advisory guidelines imprisonment range would
have been 188 to 235 months. This range was calculated
using guidelines for crack cocaine offenses and was
higher than the range for powder cocaine offenses involving
similar quantities. But, because his offense involved
more than 50 grams of cocaine base and he had a
prior felony drug conviction, James was subject to a
statutory minimum of 240 months’ imprisonment on his
conspiracy conviction. See 21 U.S.C. §§ 841(b)(1)(A)(iii),
846, 851. After Kimbrough, sentencing courts are still
bound by the minimum sentences set forth in the United
States Code, Kimbrough, 128 S. Ct. at 573, so the district
court had to sentence James to at least 240 months.
During the sentencing hearing, the district court recognized
the statutory minimum and then explained why
it decided to sentence James to 295 months’ imprisonment,
nearly five years above the minimum. This explanation
included a discussion of James’s past, which
contained a state-court murder conviction, multiple
problems with the law, and a history of disobeying
court orders. In that light, the district court concluded
that a 295-month sentence was necessary to deter James
from committing future crimes and to protect the public.
Any disagreement the district court might have had with
the crack cocaine guidelines would not have impacted
James’s sentence. The crack and powder guidelines
ranges were both below the statutory minimum. So even
if the district court had been inclined to treat a crack
cocaine offense equivalent to a powder cocaine one, it
would not have made a difference here as the higher 240-
month statutory minimum took precedence and the
district court explained why it decided to impose a sentence
well above that minimum. Cf. United States v.
Padilla, 520 F.3d 766 (7th Cir. 2008) (vacating aboveminimum
sentence and remanding where sentencing
took place before Kimbrough and it was unclear whether
court would have sentenced differently in its wake).
Therefore, James is not entitled to the limited remand
under United States v. Taylor, 520 F.3d 746 (7th Cir. 2008),
that he seeks. Finally, we note that James filed a pro se
statement with undeveloped claims. If James wishes to
pursue his ineffective assistance of counsel claim, it
would best be brought in a proceeding under 28 U.S.C.
§ 2255. See United States v. Chavers, 515 F.3d 722, 726
(7th Cir. 2008); United States v. Turcotte, 405 F.3d 515, 537
(7th Cir. 2005).
B. Harris’s case is remanded in light of Kimbrough.
Harris challenges only his sentence. At his sentencing
hearing about a month after Kimbrough, Harris’s counsel
argued that Harris should receive the ten-year
statutory mandatory minimum, or, in light of recent
Supreme Court cases, a sentence more consistent with
that of a powder cocaine offender. By doing so, the government
agrees that Harris preserved his Kimbrough
argument for review. During the hearing, Harris’s
counsel also called Harris “a rarity” and pointed out that
he had no criminal history points, had been employed
at the time his case went to trial, and had the support of
his mother and other family members who were present
at the sentencing. His counsel further argued, and the
government agreed, that he had a lesser role in the
scheme than that of other defendants.
The district court calculated Harris’s advisory guidelines
range of imprisonment (based on the offense involving
crack cocaine) as 235 to 293 months. It did not
address Harris’s argument that he should receive a
sentence more in line with that of a powder cocaine
offender. The district court ultimately imposed a sentence
of 235 months, at the low end of this range, but it
said that it was “truly a waste of time for someone like
[Harris] to be going to prison for as long as [he’s] going to
be in prison.” In light of this statement, the government
agrees a remand is needed to ensure the district court
understood that it could vary from the crack/powder
ratio set forth in the guidelines, and also from the guidelines
themselves. See Kimbrough, 128 S. Ct. at 575. Although
the government’s brief stated that a limited remand in
accordance with the procedure we announced in United
States v. Taylor, 520 F.3d 746, 748 (7th Cir. 2008), is in order,
Harris is entitled to a full resentencing because he preserved
his argument by raising it at the initial sentencing
hearing. See United States v. Bryant, 557 F.3d 489, 496 (7th
Cir. 2009) (vacating sentence and remanding for
resentencing where issue preserved at sentencing hearing).
C. Morrow’s case is remanded for resentencing.
Finally, we turn to David Morrow, who like Harris
challenges only his sentence. Morrow maintains that the
district court provided an insufficient explanation for its
decision to sentence him to 504 months’ imprisonment.
After the prosecutor and defense counsel concluded
their arguments at the sentencing hearing, the district
court said:
the Court’s considered all the information in the
presentence report including guideline computations
and factors set forth in 18 U.S.C. § 3553(a).
Pursuant to the Sentencing Reform Act of 1984, it
is the judgment of this Court that the defendant,
David T. Morrow, is hereby committed for a term
of 504 months on Count I, 240 months on Count 10.
The terms are to run concurrently.
The district court said nothing further during the hearing
about its rationale for imposing a 504-month sentence,
and Morrow maintains that more explanation is needed.
A provision in the United States Code, 18 U.S.C. § 3553(c),
states that “at the time of sentencing,” a sentencing judge
“shall state in open court the reasons for its imposition of
the particular sentence.” The statute also says that if a
sentence is within an advisory guidelines range, “and that
range exceeds 24 months,” the judge shall state as well “the
reason for imposing a sentence at a particular point within
the range.” 18 U.S.C. § 3553(c)(1). The Supreme Court
explained that the requirement in § 3553(c) that a judge
state its reasons for a sentence in court reflects sound
judicial practice, but that the appropriateness of how much
to say “depends upon circumstances.” Rita v. United States,
551 U.S. 338, 356 (2007).
An appellate court’s review of a sentence is for reasonableness,
and the more explanation we have, the better
equipped we are to assess whether an imposed sentence
meets that standard. See id. at 356-57. Less explanation is
typically needed when a district court sentences within an
advisory guidelines range. See id.; United States v. Dean, 414
F.3d 725, 729 (7th Cir. 2005); see also United States v.
Rodriguez-Alvarez, 425 F.3d 1041, 1047 (7th Cir. 2005)
(explaining that § 3553(c) does not require a detailed
recitation of all the § 3553(a) factors when a court sentences
within a guidelines range). Here, the 504-month sentence
was within the guidelines range. But it’s quite the range:
360 months to life. That means that the 504-month sentence
Morrow received was twelve years more than the low end
of his advisory guidelines range. (The 33 to 41 month range
at issue in Rita spanned only 8 months, and the longest span
in a guidelines range where “life” is not an endpoint is 81
months.)
If the oral explanation were the only one the district
court provided, we might have more concern. That is
especially true since neither party requested a sentence
of 504 months (the government had asked for life). However,
the record also contains a Statement of Reasons
that the district court filed four days after judgment. In
it, the court explained as the reason for its sentence: “The
Court sentences the defendant to 504 months. This is
the defendant’s fifth felony conviction with four being
drug cases. The defendant has prior convictions
involving guns. The defendant was a leader in the drug
business.”2 Although the parties did not direct us to the
statement, in line with our encouragement that sentencing
judges commit difficult sentencing decisions to
paper, we have considered such statements before. See
United States v. Burton, 543 F.3d 950, 953 (7th Cir. 2008). We
consider it here as well, but it does not end our inquiry
into whether the sentencing explanation was sufficient.
We have long recognized that a discourse of every
single § 3553(a) factor is not always necessary or practical,
especially when the sentence is within the guidelines
range. Dean, 414 F.3d at 729. But it is also the case that a
“rote statement that the judge considered all relevant
factors will not always suffice.” United States
v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005). In particular,
when a court has “passed over in silence the
principal argument made by the defendant even though
the argument is not so weak as not to merit discussion,”
we do not have the assurance we need to satisfy ourselves
that the defendant’s individual circumstances
have been thoroughly considered. Id. Morrow’s counsel
raised his client’s poor health to the district court at
sentencing and argued that it militated in favor of a
sentence at the low end of the guidelines range. The
Presentence Report spelled out that Morrow had been
diagnosed with diabetes in January 2006, and, only ten
months later, had to have his left leg amputated. In a
separate sentencing recommendation section, the
Report also said: “Mitigating factors in this case include
health concerns. He has had significant complications as
a result of diabetes, including the amputation of one leg.”
It is true that counsel could have done a better job
highlighting the disease’s complications at the sentencing
hearing. Nonetheless, Morrow’s argument based
on his health was not one that was clearly without merit
such that it could be passed over without comment. A
district court, in its discretion, can consider a defendant’s
physical impairments in determining an appropriate
sentence. See United States v. Millet, 510 F.3d 668, 680
(7th Cir. 2007) (stating that although U.S.S.G. § 5H1.4
provides that physical condition is not ordinarily
relevant in the decision to depart downward from the
guidelines unless the impairment is “extraordinary,” a
district court can consider physical impairments when
exercising its discretion in accordance with § 3553(a)); cf.
United States v. Allday, 542 F.3d 571, 573-74 (7th Cir. 2008)
(affirming sentence where court explained its reasons,
took into account the defendant’s health problems, and
concluded that the Bureau of Prisons could adequately
treat the defendant’s health issues, including his sleep
apnea and diabetes).
More to the point, in United States v. Wurzinger, 467
F.3d 649 (7th Cir. 2006), we said in considering a sentencing
challenge that the defendant’s “strongest
argument is that his diabetes will kill him before he is
free.” Id. at 651. Like Morrow, the defendant in Wurzinger
was already experiencing complications from his diabetes.
Because the district court in Wurzinger explicitly
recognized the defendant’s illness at sentencing but
pointed to other factors that, despite the illness, warranted
the sentence, we found no error in the sentencing decision.
Id. at 653-54. (We expressed no opinion as to whether
a lower sentence also would have been reasonable.)
Similarly, in United States v. Bullion, 466 F.3d 574 (7th Cir.
2006), we affirmed a sentence where the district court had
weighed the defendant’s insulin-dependent diabetic status
and age against his dangerousness to society. In this case,
though, we cannot assure ourselves that the district court
weighed Morrow’s health complications against other
factors when it imposed the 504-month sentence, as we see
no indication that the district court considered it. We
therefore remand Morrow’s case for resentencing.
As we do so, we note that we asked the government at
oral argument whether, if we rejected Morrow’s argument
that the explanation was insufficient, a remand
under Taylor, 520 F.3d 746, was appropriate for Morrow as
the government had said it was for Harris. The government
responded that such a remand would not aid Morrow
because he admitted responsibility for more than 4.5
kilograms of crack cocaine (he admitted to 4.88 kilograms,
to be exact).
In 2008, the United States Sentencing Commission
reduced the base offense levels for many crack cocaine
offenses. See U.S.S.G. § 2D1.1(c); Supp. to App. C, 226-31
(2008) (Amendment 706). The Commission made these
changes retroactive. See U.S.S.G. § 1B1.10(a)(1); see also 18
U.S.C. § 3582(c). However, the new guideline, like the
previous guideline, kept the base offense level at 38 for
a defendant who is responsible for more than
4.5 kilograms of crack cocaine. See U.S.S.G. § 2D1.1(c).
Therefore, a defendant responsible for more than 4.5
kilograms of crack cocaine cannot benefit from Amendment
706 and will not receive any relief on an 18 U.S.C.
§ 3582(c) motion for a reduction in sentence in light of
that amendment. United States v. Forman, 553 F.3d 585,
590 (7th Cir. 2009).
But there is no 4.5 kilogram limitation on the applicability
of Kimbrough at an initial sentencing hearing.
Under the new guidelines, while the base offense level is
38 when the controlling quantity is 4.5 kilograms or more
of crack cocaine, the level is only 30 when the measuring
stick is 4.5 kilograms (or 4.88 kilograms) of powder
cocaine. See U.S.S.G. § 2D1.1(c). Under Kimbrough, a
sentencing judge can take this disparity into account
when deciding what sentence to impose. So the district
court may consider the impact of Kimbrough during Morrow’s
resentencing as well.
III. CONCLUSION
We AFFIRM the convictions and sentence of appellant
James. Harris’s and Morrow’s cases are REMANDED for
resentencing.
Chicago Criminal Lawyer - Robert J Callahan
appeals of three defendants convicted of conspiring to
sell crack cocaine in southern Illinois. Only Damian
James challenges his conviction, and we find there was
no Speedy Trial Act violation in his case because, after
excluding the time attributable to the continuances James
himself requested, his trial commenced in a timely fashion.
We also conclude that sufficient evidence supported
his conviction for conspiring to sell crack cocaine as he
pooled his money with others to buy crack that all knew
would be resold, was dependent on others for the crack
that he resold, and tried on more than one occasion to get
another person to join the crew buying crack cocaine from
Memphis.
With respect to the defendants’ sentences, we affirm
James’s sentence because the Supreme Court’s decision
in Kimbrough v. United States, 128 S. Ct. 558 (2007), had no
impact on his sentence. The district court’s decision to
sentence him above a mandatory statutory minimum
that exceeded the guidelines ranges for crack and
powder cocaine offenses was not affected by the
crack/powder disparity. Next, the government agrees that
Robert Harris should receive a remand in light of
Kimbrough, and he receives a full resentencing because
he preserved his argument before the district court.
Finally, we remand David Morrow’s case for resentencing
as we cannot be assured that the district court
considered all of the relevant 18 U.S.C. § 3553(a) factors,
including his health problems, when it imposed a 504-
month sentence.
I. BACKGROUND
David Morrow began selling marijuana in the Mt.
Vernon, Illinois area in 2002 or 2003. After about a year, he
ventured into crack cocaine. He obtained the crack from
sources in Memphis and St. Louis. Robert Harris and
Damian James also dealt crack cocaine in the Mt. Vernon
and nearby areas. To obtain the crack they sold, Morrow,
Harris, James, and others pooled their money together
to purchase it. Morrow and Harris often made the out of
town trips together to purchase the crack, and James
came along on occasion too. These trips occurred frequently—
at least once every two weeks for about three
years, if not more. Sometimes after the two bought crack
from the St. Louis source, Morrow and Harris would
head to a local mall to meet up with James.
The men who pooled their money together to buy
crack resold it separately in southern Illinois. This arrangement
went on for several years. During that time, James
tried to recruit others to join the team of people purchasing
crack from out of state. He tried to convince
another drug dealer to join Morrow, James, and Harris
in purchasing crack from their source, saying he could get
a better price than the one he was getting from his
current supplier. The dealer declined, but James, this
time with Morrow present, asked the dealer to join the
“Memphis crew” again a few weeks later. That attempt
also failed.
Multiple witnesses testified that they bought crack from
Harris or James. One witness testified that on one
occasion when he tried to purchase crack from Harris,
Harris said he was out and would have to wait until
Morrow and James returned from Memphis so he would
have more crack. Another testified that he started buying
crack from James in 2003 and purchased it about twice
a week for five or six months. He also said James would
give him crack on credit, expecting him to pay James
back after he resold the crack. Another testified that he
once called Morrow to get crack cocaine, and Morrow
said he was out and referred him to Harris instead.
Law enforcement officers arrested James in 2006 after
they responded to a call of shots fired and found a rifle
in his back seat. James was indicted on January 11, 2007
with two counts of distributing crack cocaine. He made
his initial appearance eight days later. A superseding
indictment on March 8, 2007 added Morrow, Harris, and
two others as defendants, charging them all with participating
in a conspiracy to distribute more than 50 grams of
crack cocaine. The indictment also added a felon-inpossession
charge against James and other charges
against the other defendants. Morrow, Harris, and James
took their cases to trial. A jury convicted Morrow of
conspiring to distribute crack cocaine and maintaining a
crack house. He received a sentence of 504 months’ imprisonment.
After a trial separate from Morrow’s, a jury
convicted James of conspiring to distribute crack cocaine,
possession of a firearm by a felon, and distribution of
crack cocaine. That same jury convicted Harris of conspiring
to distribute crack cocaine. The district court
sentenced James to 295 months’ imprisonment and
Harris to 235 months. All three appeal.
II. ANALYSIS
A. James’s Appeal
1. There was no Speedy Trial Act violation.
James first argues that the district court should have
granted the motion he made to dismiss his case with
prejudice under the Speedy Trial Act, 18 U.S.C. § 3161. In
federal prosecutions, the Speedy Trial Act provides that
a defendant’s trial must commence within seventy days
of the filing date of the information or indictment, or of
the defendant’s initial appearance, whichever comes later.
18 U.S.C. § 3161(c). James initially appeared on January 19,
2007 and his trial commenced on September 24, 2007, so he
maintains that a Speedy Trial Act violation occurred. We
review James’s challenge de novo. See United States v.
Rollins, 544 F.3d 820, 829 (7th Cir. 2008).
Although James’s trial commenced more than seventy
calendar days after his initial appearance, the Speedy
Trial Act specifically excludes certain periods of delay
from the time within which a trial must begin. 18 U.S.C.
§ 3161(h) (2008). Two of these exceptions are particularly
relevant in our case. First, the Act specifically excludes:
A reasonable period of delay when the defendant
is joined for trial with a codefendant as to whom
the time for trial has not run and no motion for
severance has been granted.
18 U.S.C. § 3161(h)(6); see also Rollins, 544 F.3d at 829 (“An
excludable delay of one defendant may be excludable as
to all defendants, absent severance.”). After James’s
initial appearance, the grand jury returned a superseding
indictment on March 8, 2007 that added additional defendants
and charged them, as well as James, with conspiring
to sell crack cocaine. Codefendant Harris made his initial
appearance on May 1, 2007. Therefore, under § 3161(h)(6),
the time from January 19 to May 1 is excluded from the
speedy trial computation if it was reasonable, and James
makes no argument that the three and one-half month
delay until Harris’s appearance was unreasonable. Cf.
Rollins, 544 F.3d at 829 (stating that five and one-half
month period until codefendant’s initial appearance not
unduly long).
Our decision in United States v. Asubonteng, 895 F.2d
424, 426 (7th Cir. 1990), does not direct otherwise. We did
not exclude time in Asubonteng between the initial and
superseding indictment from the speedy trial computation,
but we did not do so because that case involved
only a single defendant. Here, though, because the superseding
indictment added additional defendants, the
relevant document that marks the beginning of the
speedy trial calculation is the superseding indictment, not
the initial indictment. See Henderson v. United States, 476
U.S. 321, 323 n.2 (1986); see also United States v. Farmer, 543
F.3d 363, 368 (7th Cir. 2008) (“When more than one defendant
is charged in an indictment, the Speedy Trial clock
begins to run on the date of the last co-defendant’s initial
appearance, which is usually arraignment.”). The days
through May 1, 2007 did not count against the seventyday
limit.
The continuances James himself requested further kept
the speedy trial clock from running. The Speedy Trial Act
also specifically excludes from the time computation:
Any period of delay resulting from a continuance
granted . . . at the request of the defendant or his
counsel . . . , if the judge granted such continuance
on the basis of his findings that the ends of justice
served by taking such action outweigh the best
interest of the public and the defendant in a
speedy trial.
18 U.S.C. § 3161(h)(3)(7)(A). If the district court is inclined
to grant a continuance under this provision, it must also
set forth “its reasons for finding that the ends of justice
served by the granting of such continuance outweigh the
best interests of the public and the defendant in a
speedy trial.” Id.
On April 18, 2007, even before Harris made his initial
appearance, James filed a motion to continue his trial. In
support of the motion, counsel stated that he needed
additional time to review discovery, confer with James
and prepare his defense. The district court granted
James’s motion and continued the trial until July 2, 2007.
Before July 2 arrived, James filed another motion to
continue his trial. The district court granted that motion
as well and continued the trial until August 20.1 The
district court specifically found during each grant that a
failure to grant the motion would likely result in a miscarriage
of justice and that the ends of justice warranted
the continuances. Therefore, the additional time
resulting from James’s own requests to continue the
trial are excluded. The days after August 20 counted
toward the seventy-day limit, but the trial’s commencement
on September 24 meant that it fell within the time
allowed under the Act. No Speedy Trial Act violation
occurred.
2. Sufficient evidence supported James’s conspiracy
conviction.
James also argues that insufficient evidence supports
his conviction for conspiring to distribute crack cocaine.
When reviewing a challenge to the sufficiency of the
evidence supporting a verdict, we ask whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable
doubt. United States v. Seymour, 519 F.3d 700, 714 (7th Cir.
2008). We will overturn the jury’s guilty verdict only if
“ ‘the record contains no evidence, regardless of how it is
weighed,’ ” from which the jury could have found beyond
a reasonable doubt that James was guilty of conspiring
to sell crack cocaine. United States v. James, 540 F.3d 702,
706 (7th Cir. 2008) (quoting United States v. Gougis, 432
F.3d 735, 743-44 (7th Cir. 2005)).
James does not dispute that he was a crack cocaine
dealer. Instead, he maintains that he was not a member of
a conspiracy to sell crack. The essence of a conspiracy is
an agreement between two or more people to engage in
criminal activity. United States v. Zaragoza, 543 F.3d 943,
947 (7th Cir. 2008). Simple buy-sell transactions are not
enough to constitute the separate criminal object
necessary for a conspiracy conviction, so the fact that
James sold crack is not enough. See id.
In this case, sufficient evidence supports the jury’s
conclusion that James conspired with Morrow, Harris, and
others to distribute crack cocaine. The jury could have
concluded that James and the other indicted co-conspirators
depended on each other to further their drug-trafficking
goals. See James, 540 F.3d at 707. That evidence included
that members of the conspiracy obtained their
crack cocaine together, from Morrow’s sources in
Memphis and St. Louis. Morrow also referred customers
to Harris when he ran out of crack cocaine. See id. (referring
customers to others’ houses if supply was low supports
conclusion that conspiracy existed).
The jury also heard evidence of James’s participation
in the conspiracy and of how he worked to further the
conspiracy. In United States v. Haywood, 324 F.3d 514,
517 (7th Cir. 2003), we found sufficient evidence supported
a conspiracy conviction where two alleged coconspirators
“pooled their money and shared rides . . . in
order to buy inexpensive crack, meaning that each could
run a cheaper operation—and earn higher profits—
if the other succeeded.” That is true here as well. The
jury heard that James pooled his money with that of
Harris, Morrow, and the other alleged co-conspirators
to buy larger amounts of crack cocaine from outside
the state for resale. As in Haywood, James and the
others pooled their money and shared rides to buy cheaper
crack, meaning that each could earn more if the others
succeeded.
The out of state purchases happened at least biweekly, if
not more, for several years, with all involved knowing that
the crack cocaine would be resold. Although it is not clear
from the record exactly how long James was involved with
the other defendants, it is clear that it was far from a onetime
occurrence. Notably, he tried to recruit others to join
Morrow, Harris, and the others who were pooling their
money together. A dealer who had been obtaining his
crack from another source testified that James tried to talk
him into going in with Morrow, Harris, and James to
purchase crack in Memphis, saying he could get it for a
better price than the other dealer’s current supplier. James
referred to his group as “the Memphis crew.” Although
the offer was declined, a few weeks later, James, with
Morrow present, again unsuccessfully tried to persuade
the same dealer to join his team. Also, from another
witness’s testimony that Harris’s response to a request to
buy crack cocaine was that he needed to wait for Morrow
and James to return with the drugs, the jury could have
concluded that James at least occasionally went along on
the drug-purchasing trips. The jury therefore had sufficient
evidence to find that James was a member of a conspiracy
to distribute crack cocaine.
James emphasizes a statement in one of our previous
cases that to find a conspiracy, we are “looking for evidence
of a prolonged and actively pursued course of
sales coupled with the seller’s knowledge of and a shared
stake in the buyer’s illegal venture.” United States v.
Contreras, 249 F.3d 595, 599 (7th Cir. 2001) (internal quotation
marks and citation omitted). In Contreras, we were
distinguishing a conspiracy from a mere buyer-seller
relationship, the latter meaning a situation where one
person merely buys drugs from another, which is insufficient
to find a conspiracy. See id. at 598-99. As we discussed,
James and his co-conspirators put their money
and transportation resources together for an extended
period of time, thereby having a stake in each other’s
success, see Haywood, 324 F.3d at 517, and knowing that
the others intended to resell the crack cocaine. James
may have had only a buyer-seller relationship with his
customers, but the jury could have found he was
involved in a conspiracy with Morrow, Harris, and the
other indicted co-conspirators rather than a simple buyerseller
relationship. See United States v. Williams, 298 F.3d
688, 692 (7th Cir. 2002). Sufficient evidence supports
James’s conspiracy conviction.
3. Kimbrough did not affect James’s sentence.
James’s final argument is that we should remand his
case to ensure that the district court understood its
ability to fashion a sentence in light of the Supreme
Court’s decision in Kimbrough v. United States, 128 S. Ct. 558
(2007), which the Court decided before James’s sentencing
hearing. We decline to do so because any disagreement
with the crack cocaine guidelines would not
have impacted James’s sentence.
Had there not been an applicable statutory minimum,
James’s advisory guidelines imprisonment range would
have been 188 to 235 months. This range was calculated
using guidelines for crack cocaine offenses and was
higher than the range for powder cocaine offenses involving
similar quantities. But, because his offense involved
more than 50 grams of cocaine base and he had a
prior felony drug conviction, James was subject to a
statutory minimum of 240 months’ imprisonment on his
conspiracy conviction. See 21 U.S.C. §§ 841(b)(1)(A)(iii),
846, 851. After Kimbrough, sentencing courts are still
bound by the minimum sentences set forth in the United
States Code, Kimbrough, 128 S. Ct. at 573, so the district
court had to sentence James to at least 240 months.
During the sentencing hearing, the district court recognized
the statutory minimum and then explained why
it decided to sentence James to 295 months’ imprisonment,
nearly five years above the minimum. This explanation
included a discussion of James’s past, which
contained a state-court murder conviction, multiple
problems with the law, and a history of disobeying
court orders. In that light, the district court concluded
that a 295-month sentence was necessary to deter James
from committing future crimes and to protect the public.
Any disagreement the district court might have had with
the crack cocaine guidelines would not have impacted
James’s sentence. The crack and powder guidelines
ranges were both below the statutory minimum. So even
if the district court had been inclined to treat a crack
cocaine offense equivalent to a powder cocaine one, it
would not have made a difference here as the higher 240-
month statutory minimum took precedence and the
district court explained why it decided to impose a sentence
well above that minimum. Cf. United States v.
Padilla, 520 F.3d 766 (7th Cir. 2008) (vacating aboveminimum
sentence and remanding where sentencing
took place before Kimbrough and it was unclear whether
court would have sentenced differently in its wake).
Therefore, James is not entitled to the limited remand
under United States v. Taylor, 520 F.3d 746 (7th Cir. 2008),
that he seeks. Finally, we note that James filed a pro se
statement with undeveloped claims. If James wishes to
pursue his ineffective assistance of counsel claim, it
would best be brought in a proceeding under 28 U.S.C.
§ 2255. See United States v. Chavers, 515 F.3d 722, 726
(7th Cir. 2008); United States v. Turcotte, 405 F.3d 515, 537
(7th Cir. 2005).
B. Harris’s case is remanded in light of Kimbrough.
Harris challenges only his sentence. At his sentencing
hearing about a month after Kimbrough, Harris’s counsel
argued that Harris should receive the ten-year
statutory mandatory minimum, or, in light of recent
Supreme Court cases, a sentence more consistent with
that of a powder cocaine offender. By doing so, the government
agrees that Harris preserved his Kimbrough
argument for review. During the hearing, Harris’s
counsel also called Harris “a rarity” and pointed out that
he had no criminal history points, had been employed
at the time his case went to trial, and had the support of
his mother and other family members who were present
at the sentencing. His counsel further argued, and the
government agreed, that he had a lesser role in the
scheme than that of other defendants.
The district court calculated Harris’s advisory guidelines
range of imprisonment (based on the offense involving
crack cocaine) as 235 to 293 months. It did not
address Harris’s argument that he should receive a
sentence more in line with that of a powder cocaine
offender. The district court ultimately imposed a sentence
of 235 months, at the low end of this range, but it
said that it was “truly a waste of time for someone like
[Harris] to be going to prison for as long as [he’s] going to
be in prison.” In light of this statement, the government
agrees a remand is needed to ensure the district court
understood that it could vary from the crack/powder
ratio set forth in the guidelines, and also from the guidelines
themselves. See Kimbrough, 128 S. Ct. at 575. Although
the government’s brief stated that a limited remand in
accordance with the procedure we announced in United
States v. Taylor, 520 F.3d 746, 748 (7th Cir. 2008), is in order,
Harris is entitled to a full resentencing because he preserved
his argument by raising it at the initial sentencing
hearing. See United States v. Bryant, 557 F.3d 489, 496 (7th
Cir. 2009) (vacating sentence and remanding for
resentencing where issue preserved at sentencing hearing).
C. Morrow’s case is remanded for resentencing.
Finally, we turn to David Morrow, who like Harris
challenges only his sentence. Morrow maintains that the
district court provided an insufficient explanation for its
decision to sentence him to 504 months’ imprisonment.
After the prosecutor and defense counsel concluded
their arguments at the sentencing hearing, the district
court said:
the Court’s considered all the information in the
presentence report including guideline computations
and factors set forth in 18 U.S.C. § 3553(a).
Pursuant to the Sentencing Reform Act of 1984, it
is the judgment of this Court that the defendant,
David T. Morrow, is hereby committed for a term
of 504 months on Count I, 240 months on Count 10.
The terms are to run concurrently.
The district court said nothing further during the hearing
about its rationale for imposing a 504-month sentence,
and Morrow maintains that more explanation is needed.
A provision in the United States Code, 18 U.S.C. § 3553(c),
states that “at the time of sentencing,” a sentencing judge
“shall state in open court the reasons for its imposition of
the particular sentence.” The statute also says that if a
sentence is within an advisory guidelines range, “and that
range exceeds 24 months,” the judge shall state as well “the
reason for imposing a sentence at a particular point within
the range.” 18 U.S.C. § 3553(c)(1). The Supreme Court
explained that the requirement in § 3553(c) that a judge
state its reasons for a sentence in court reflects sound
judicial practice, but that the appropriateness of how much
to say “depends upon circumstances.” Rita v. United States,
551 U.S. 338, 356 (2007).
An appellate court’s review of a sentence is for reasonableness,
and the more explanation we have, the better
equipped we are to assess whether an imposed sentence
meets that standard. See id. at 356-57. Less explanation is
typically needed when a district court sentences within an
advisory guidelines range. See id.; United States v. Dean, 414
F.3d 725, 729 (7th Cir. 2005); see also United States v.
Rodriguez-Alvarez, 425 F.3d 1041, 1047 (7th Cir. 2005)
(explaining that § 3553(c) does not require a detailed
recitation of all the § 3553(a) factors when a court sentences
within a guidelines range). Here, the 504-month sentence
was within the guidelines range. But it’s quite the range:
360 months to life. That means that the 504-month sentence
Morrow received was twelve years more than the low end
of his advisory guidelines range. (The 33 to 41 month range
at issue in Rita spanned only 8 months, and the longest span
in a guidelines range where “life” is not an endpoint is 81
months.)
If the oral explanation were the only one the district
court provided, we might have more concern. That is
especially true since neither party requested a sentence
of 504 months (the government had asked for life). However,
the record also contains a Statement of Reasons
that the district court filed four days after judgment. In
it, the court explained as the reason for its sentence: “The
Court sentences the defendant to 504 months. This is
the defendant’s fifth felony conviction with four being
drug cases. The defendant has prior convictions
involving guns. The defendant was a leader in the drug
business.”2 Although the parties did not direct us to the
statement, in line with our encouragement that sentencing
judges commit difficult sentencing decisions to
paper, we have considered such statements before. See
United States v. Burton, 543 F.3d 950, 953 (7th Cir. 2008). We
consider it here as well, but it does not end our inquiry
into whether the sentencing explanation was sufficient.
We have long recognized that a discourse of every
single § 3553(a) factor is not always necessary or practical,
especially when the sentence is within the guidelines
range. Dean, 414 F.3d at 729. But it is also the case that a
“rote statement that the judge considered all relevant
factors will not always suffice.” United States
v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005). In particular,
when a court has “passed over in silence the
principal argument made by the defendant even though
the argument is not so weak as not to merit discussion,”
we do not have the assurance we need to satisfy ourselves
that the defendant’s individual circumstances
have been thoroughly considered. Id. Morrow’s counsel
raised his client’s poor health to the district court at
sentencing and argued that it militated in favor of a
sentence at the low end of the guidelines range. The
Presentence Report spelled out that Morrow had been
diagnosed with diabetes in January 2006, and, only ten
months later, had to have his left leg amputated. In a
separate sentencing recommendation section, the
Report also said: “Mitigating factors in this case include
health concerns. He has had significant complications as
a result of diabetes, including the amputation of one leg.”
It is true that counsel could have done a better job
highlighting the disease’s complications at the sentencing
hearing. Nonetheless, Morrow’s argument based
on his health was not one that was clearly without merit
such that it could be passed over without comment. A
district court, in its discretion, can consider a defendant’s
physical impairments in determining an appropriate
sentence. See United States v. Millet, 510 F.3d 668, 680
(7th Cir. 2007) (stating that although U.S.S.G. § 5H1.4
provides that physical condition is not ordinarily
relevant in the decision to depart downward from the
guidelines unless the impairment is “extraordinary,” a
district court can consider physical impairments when
exercising its discretion in accordance with § 3553(a)); cf.
United States v. Allday, 542 F.3d 571, 573-74 (7th Cir. 2008)
(affirming sentence where court explained its reasons,
took into account the defendant’s health problems, and
concluded that the Bureau of Prisons could adequately
treat the defendant’s health issues, including his sleep
apnea and diabetes).
More to the point, in United States v. Wurzinger, 467
F.3d 649 (7th Cir. 2006), we said in considering a sentencing
challenge that the defendant’s “strongest
argument is that his diabetes will kill him before he is
free.” Id. at 651. Like Morrow, the defendant in Wurzinger
was already experiencing complications from his diabetes.
Because the district court in Wurzinger explicitly
recognized the defendant’s illness at sentencing but
pointed to other factors that, despite the illness, warranted
the sentence, we found no error in the sentencing decision.
Id. at 653-54. (We expressed no opinion as to whether
a lower sentence also would have been reasonable.)
Similarly, in United States v. Bullion, 466 F.3d 574 (7th Cir.
2006), we affirmed a sentence where the district court had
weighed the defendant’s insulin-dependent diabetic status
and age against his dangerousness to society. In this case,
though, we cannot assure ourselves that the district court
weighed Morrow’s health complications against other
factors when it imposed the 504-month sentence, as we see
no indication that the district court considered it. We
therefore remand Morrow’s case for resentencing.
As we do so, we note that we asked the government at
oral argument whether, if we rejected Morrow’s argument
that the explanation was insufficient, a remand
under Taylor, 520 F.3d 746, was appropriate for Morrow as
the government had said it was for Harris. The government
responded that such a remand would not aid Morrow
because he admitted responsibility for more than 4.5
kilograms of crack cocaine (he admitted to 4.88 kilograms,
to be exact).
In 2008, the United States Sentencing Commission
reduced the base offense levels for many crack cocaine
offenses. See U.S.S.G. § 2D1.1(c); Supp. to App. C, 226-31
(2008) (Amendment 706). The Commission made these
changes retroactive. See U.S.S.G. § 1B1.10(a)(1); see also 18
U.S.C. § 3582(c). However, the new guideline, like the
previous guideline, kept the base offense level at 38 for
a defendant who is responsible for more than
4.5 kilograms of crack cocaine. See U.S.S.G. § 2D1.1(c).
Therefore, a defendant responsible for more than 4.5
kilograms of crack cocaine cannot benefit from Amendment
706 and will not receive any relief on an 18 U.S.C.
§ 3582(c) motion for a reduction in sentence in light of
that amendment. United States v. Forman, 553 F.3d 585,
590 (7th Cir. 2009).
But there is no 4.5 kilogram limitation on the applicability
of Kimbrough at an initial sentencing hearing.
Under the new guidelines, while the base offense level is
38 when the controlling quantity is 4.5 kilograms or more
of crack cocaine, the level is only 30 when the measuring
stick is 4.5 kilograms (or 4.88 kilograms) of powder
cocaine. See U.S.S.G. § 2D1.1(c). Under Kimbrough, a
sentencing judge can take this disparity into account
when deciding what sentence to impose. So the district
court may consider the impact of Kimbrough during Morrow’s
resentencing as well.
III. CONCLUSION
We AFFIRM the convictions and sentence of appellant
James. Harris’s and Morrow’s cases are REMANDED for
resentencing.
Chicago Criminal Lawyer - Robert J Callahan
U.S. vs. Hosking
Jean M. Hosking pleaded guilty to
one count of embezzlement and was sentenced to 34
months in prison and ordered to pay restitution. Hosking
appeals, arguing that her victim’s costs to investigate her
fraud should not have been included in the restitution
award. She also challenges the district court’s failure to
provide a complete accounting of the loss caused by her
fraud, and the order to make a lump-sum payment of
$100,000 from her retirement account.
We affirm the principle of including a private victim’s
investigative costs in the restitution award but vacate and
remand for the district court to make findings regarding
the amount of those costs. Without such findings it is
impossible to review the award’s propriety. We also affirm
the aspect of the order requiring Hosking to make a lumpsum
restitutionary payment from her retirement account.
I.
Hosking worked for the Cross Plains Bank in Cross
Plains, Wisconsin, for almost twenty years. When her fraud
was discovered in 2007, she was an assistant vice president,
responsible for among other things loans granted under the
Wisconsin Petroleum Environmental Cleanup Fund Award
(PECFA) program. The bank provides intermediary
financing for the PECFA program, which pays for environmental
cleanup costs incurred by owners of property
contaminated by petroleum storage tanks. After a cleanup
site is deemed eligible for a PECFA grant, the property
owner takes out a line of credit with the bank, and then
submits invoices for cleanup costs to the bank. The bank
pays the invoices by allowing advances on the line of
credit, and then submits claims for reimbursement to
PECFA.
In 1994, Hosking began embezzling money from the
bank’s PECFA loan program. Her scheme involved taking
unauthorized cash advances funded by PECFA loan
accounts and covering her tracks by reimbursing those loan
accounts with money taken from other PECFA loan
accounts, thereby “lapping” the loan accounts. Hosking’s
lapping scheme went on for twelve years, and she embezzled
funds from twenty-three PECFA accounts. Ultimately,
bank officials started asking questions about discrepancies
in PECFA loan files, and Hosking confessed. She thought
she had taken about $135,000. The bank’s internal investigation
revealed that she had actually embezzled more than
$500,000.
At sentencing, the bank requested restitution of
$1,144,889.92. The probation office recommended a reduced
restitution award of $712,776.52, which included the
$502,246.52 in embezzled funds, $206,280 for the bank’s inhouse
staff costs and $4,250 for miscellaneous paper and
copying expenses. Hosking objected, arguing that there was
insufficient documentation to support the bank’s claim for
in-house costs. In response, the government submitted
minutes from the bank’s meetings relating to the investigation;
a declaration of losses from the bank; a description of
the PECFA loan process and Hosking’s lapping scheme;
and a description of each expense the bank incurred in the
investigation, with attached invoices and a listing of inhouse
staff members and the hours they spent on the
project.
The district court ordered restitution of $627,895.52. This
figure included the $502,246.52 Hosking embezzled from
the bank, plus $125,649 for the bank’s investigation costs.
To reach this new amount for investigation costs, the court
added $6,733.90 in legal fees; $11,655.00 in accounting
consultant fees; $4,250.00 in miscellaneous paper and
copying expenses; and $103,140.00 for in-house staff costs,
or half the amount recommended by the probation office to
reimburse the bank for the time its employees spent on the
investigation. The district court failed to explain why it cut
the in-house staff costs in half, stating only that the reduced
amount was “clearly legitimate.”1 The district court
also ordered Hosking to make an immediate lump-sum
payment of $100,000.00 from her retirement account.
II.
The district court’s authority to order restitution is
reviewed de novo, United States v. Wells, 177 F.3d 603, 608
(7th Cir. 1999), while the amount of restitution is reviewed
for an abuse of discretion, United States v. Sensmeier, 361
F.3d 982, 988 (7th Cir. 2004) (citing United States v. Newman,
144 F.3d 531, 542 (7th Cir. 1998)). Hosking argues that the
district court abused its discretion by including the bank’s
investigation costs in the restitution award because the
only “actual loss” caused by her embezzlement was the
$502,246.52 that she took. She labels the additional amount
the bank spent on the investigation and professional fees as
“consequential damages” not caused by her fraud and
therefore not properly included in the award. We disagree
in principle but question the amounts claimed.
The Mandatory Victims Restitution Act (MVRA) requires
a defendant convicted of certain crimes, “including any
offense committed by fraud or deceit,” to make restitution
to the victims of the offense in an amount equal to the
value of the property damaged or lost. 18 U.S.C.
§§ 3663A(a)(1), (b)(1), (c)(1)(A)(ii).2 The MVRA also expressly
contemplates inclusion of the cost of “lost income
and necessary child care, transportation, and other expenses
incurred during participation in the investigation or prosecution
of the offense or attendance at proceedings related to the
offense.” 18 U.S.C. § 3663A(b)(4) (emphasis added). The
bank’s investigation was clearly an important part of “the
investigation . . . of the offense” in this case. It led to the
determination of the actual amount embezzled, and
therefore the costs of that investigation may be included in
the restitution award under § 3663A(b)(4). See United States
v. Adcock, 534 F.3d 635, 643 (7th Cir. 2008) (applying
§ 3663A(b)(4) to include the cost of an external audit in a
restitution award because it qualified as “other expenses
incurred during participation in the investigation or
prosecution of the offense. . . .”); United States v. Amato, 540
F.3d 153, 161 (2d Cir. 2008) (including attorney fees and
accounting costs in a restitution award “because these
expenses are so obviously associated with investigation
and prosecution, particularly in the case of fraud offenses”).
In response to Hosking’s argument that allowing the
bank to recover these costs improperly reimburses the bank
for “consequential damages,” we have repeatedly explained
that it does no such thing. In fact,
“[t]his measure of relief is less generous than common
law damages, since it does not extend to consequences
beyond the diminution of the value of the property
stolen or damaged.” This is because criminal restitution
refers only “to the restoration of something that
the defendant had taken from the plaintiff, including a
profit.”
Adcock, 534 F.3d at 642 (quoting United States v. Havens, 424
F.3d 535, 537 (7th Cir. 2005), further quoting United States
v. Scott, 405 F.3d 615, 618, 619 (7th Cir. 2005)) (other
citations omitted). See also Scott, 405 F.3d at 619 (allowing
restitution under § 3663A(b)(1) for a victim’s external audit
costs because such costs represented a diminution in value
of the victim’s property).
The time and effort spent by the bank’s employees and
outside professionals in unraveling the twelve-year
embezzlement scheme was a direct and foreseeable result
of the defendant’s conduct that contributed to the diminution
of the value of the bank’s property. See § 3663A(b)(1);
Scott, 405 F.3d at 619. See also United States v. Donaby, 349
F.3d 1046, 1054–55 (7th Cir. 2003). The bank’s activities
were also an important part of “the investigation . . . of the
offense.” § 3663A(b)(4); Adcock, 534 F.3d at 643. The
sentencing judge was selective. She included only those
costs related to uncovering Hosking’s fraud. This was not
an abuse of discretion.
Hosking argues that even if it was proper to include this
category of costs in the restitution award, the sentencing
judge nevertheless erred by failing to provide a complete
accounting of those costs. Instead, she cut the amount
recommended by the probation office for in-house investigation
costs in half, and announced without elaboration
that the reduced amount was “clearly legitimate.” We
agree with Hosking that more is needed, both from the
government and the district court.
As stated above, supra n.2, restitution under the VWPA
and the MVRA is awarded and enforced according to 18
U.S.C. § 3664. The district court is required to base its
restitution order, to the extent practicable, on “a complete
accounting” of the loss. Id. § 3664(a). If the presentence
report or other report of the loss is insufficient for this
purpose, the court may require additional documentation
or hear testimony. Id. § 3664(d)(4). The court may refer any
issue, including the amount of loss, “to a magistrate judge
or special master for proposed findings of fact.” Id.
§ 3664(d)(6). The court is required to resolve any dispute
over the amount of loss by a preponderance of the evidence,
and the government has the burden of proving the
loss. Id. § 3664(e). The court is required to order restitution
in the full amount of the victim’s losses, “without consideration
of the economic circumstances of the defendant.” Id.
§ 3664(f)(1)(A).
Based on the foregoing statutory provisions, we have
held that “the VWPA recognizes that specific findings of
fact reflected in the record still are necessary at times and
contemplates that district courts provide an explanation of
their reasoning, supported by articulated findings of fact.”
United States v. Menza, 137 F.3d 533, 538 (7th Cir. 1998).
Again, these provisions apply equally to the MVRA. 18
U.S.C. § 3663A(d). “Unless we know why a district court
included specific costs in an order granting restitution, we
have no adequate basis upon which to review the decision.”
Menza, 137 F.3d at 538. The sentencing court is only
required to supply findings of fact within the bounds of
reasonableness in justifying the amount of restitution, but
“we have urged district courts to provide articulated
findings in order to facilitate appellate review.” United
States v. Minneman, 143 F.3d 274, 285 (7th Cir. 1998). In
other words, the sentencing court should give enough
detail for us to determine whether the award has factual
support. Should the district court fail to provide a satisfactory
accounting of the items included in a restitution
award, it “runs the risk that we may remand a restitution
award based on ‘inadequate explanation and insufficient
reasoning.’ ” Id. (quoting Menza, 137 F.3d at 538).
The district court ran that risk here. At sentencing, the
government presented a single document supporting the
inclusion of the bank’s in-house costs in the restitution
award. This document listed the name and title of each
employee who worked on the investigation, the number of
hours that the employee worked on the project, and the
employee’s hourly wage rate. The resulting total was a
simple tabulation of the amount paid to the employees for
their collective hours worked.
This document also briefly and generally described the
scope of the investigation. The description included the
activities of a few employees, but made no attempt to
describe the work done by each one. For example, it
explained that many of the employees were not familiar
with the PECFA process and had to educate themselves
before trying to unravel the defendant’s scheme. One
senior employee spent an entire year, with substantial
assistance from two other employees, focusing on recreating
each fraudulent PECFA transaction. A bookkeeping
employee spent his time transferring older data from film,
while another primarily ran the copying machine. These
details are of some help, but they pertain to the work of
only a few of the many employees listed in the government’s
explanatory document. The two-paragraph description
of these few employees’ roles fails to demonstrate that
all of the in-house staff costs—or even half of those
costs—were proximately caused by Hosking’s conduct,
produced a diminution in the value of the bank’s property
or were convincingly claimed as part of the investigation
of the offense. 18 U.S.C. §§ 3663A(a)(2), (b)(1), (b)(4).
As in Menza, there is inadequate explanation and insufficient
reasoning why the district court relied on the face of
the government’s document without requiring evidence
that the costs reported were directly and reasonably
demanded by the bank’s investigation of Hosking’s fraud.
Without such evidence and related findings, we cannot
determine whether the court’s award was appropriate and
reasonable. Indeed, simply cutting the reported costs in
half, while it may not be far off the mark, cannot suffice.
On remand, the government must, to the extent feasible,
provide an explanation, supported by evidence, of how
each employee’s time was spent in pursuing the investigation.
Not only must the work be firmly connected to the
investigation but there must be an adequate indication that
the hours claimed are reasonable. The court must ensure
that all reported costs were in fact incurred in the investigation
of Hosking’s fraud. It is the government’s responsibility
to make the connection between the work and
Hosking’s misconduct. The district court should not have
to delve through pages of exhibits “in order to dissect
legitimate expenditures from illegitimate.” United States v.
Swanson, 394 F.3d 520, 527 (7th Cir. 2005).
Next, Hosking argues that the district court erred in
ordering her to make a lump-sum payment of $100,000
from her retirement account. She asserts that her Individual
Retirement Account (IRA), as a qualified trust under
the tax code, “may not be assigned or alienated,” 26 U.S.C.
§ 401(a)(13)(A), and therefore that it was not proper to
include it in the restitution order. We disagree.
Under the MVRA, “[a] restitution order may direct the
defendant to make a single, lump-sum payment, partial
payments at specified intervals, in-kind payments, or
a combination of payments at specified intervals and inkind
payments.” 18 U.S.C. § 3664(f)(3)(A). An order of
restitution may be enforced “by all . . . available and
reasonable means.” Id. § 3664(m)(1)(A)(ii). In addition,
[t]he United States may enforce a judgment imposing
a fine in accordance with the practices and procedures
for the enforcement of a civil judgment under Federal
law or State law. Notwithstanding any other Federal law
(including section 207 of the Social Security Act), a
judgment imposing a fine may be enforced against all
property or rights to property of the person fined. . . .
Id. § 3613(a) (emphasis added).
We have never considered whether § 3613(a) supersedes
an anti-alienation provision like the one governing
Hosking’s IRA, a qualified trust under the tax code, 26
U.S.C. § 401(a)(13)(A). However, several other circuits have
addressed this question in the context of ERISA’s similarly
worded anti-alienation provision, 29 U.S.C. § 1056(d). Our
sister circuits have concluded that the MVRA allows a
district court to consider a defendant’s retirement plan as
a source of funds to pay restitution. See United States v.
Novak, 476 F.3d 1041, 1053 (9th Cir. 2007); United States v.
Irving, 452 F.3d 110, 126 (2d Cir. 2006); see also United States
v. Hyde, 497 F.3d 103, 107–08 (1st Cir. 2007) (holding that
the MVRA allows the government to enforce a restitution
order against proceeds from the sale of a home notwithstanding
the Bankruptcy Code’s homestead exemption).
We therefore hold that it was within the district court’s
discretion to charge Hosking’s retirement account as a
source of funds to provide restitution.
The MVRA authorizes the government to enforce a
restitution order through a series of specific means including
“all other available and reasonable means.” 18 U.S.C.
§ 3664(m)(1)(A)(ii). And again, § 3613(a) provides that
the United States may enforce a judgment against “all
property or rights to property of the person fined,”
“[n]otwithstanding any other Federal law.” Although there
are several enumerated exceptions to this provision, none
of them exempts an IRA from enforcement. See 18 U.S.C.
§ 3613(a)(1) (exempting from enforcement four types of
federally authorized pension plans under 26 U.S.C.
6334(a)(6), including Railroad Retirement Act pensions,
Railroad Unemployment Insurance Act pensions, pensions
received by those on the Armed Forces Medal of Honor
rolls, and certain pensions paid to military service-members);
see also Novak, 476 F.3d at 1047–48 (concluding that
Congress intended the list of exemptions in § 3613(a)(1) to
be exhaustive).
Moreover, § 3613 treats a restitution order under the
MVRA like a tax liability. This means that any property the
IRS can reach to satisfy a tax lien, a sentencing court can
also reach in a restitution order. See 18 U.S.C. § 3613(c);
United States v. Irving, 452 F.3d 110, 126 (2d. Cir. 2006).
Thus, the IRS can levy on a tax debtor’s IRA or pension
plan to satisfy tax liability, so long as the defendant has a
right to withdraw money from or liquidate the account. See
Kane v. Capital Guardian Trust Co., 145 F.3d 1218, 1223 (10th
Cir. 1998) (“[The defendant’s] right to liquidate his IRA and
withdraw the funds therefrom (even if subject to some
interest penalty) undoubtedly constituted a ‘right to property’
subject to the IRS’ administrative levy.”); United States
v. Sawaf, 74 F.3d 119, 123 (6th Cir. 1996) (The anti-alienation
provision protecting the defendant’s pension fund does not
prevent the IRS from garnishing the fund to collect unpaid
income taxes.); In re McIntyre, 222 F.3d 655, 660 (9th Cir.
2000) (The anti-alienation provision of ERISA does not
prevent the IRS from levying on benefits of the defendant’s
pension plan.); United States v. Metropolitan Life Ins., 874
F.2d 1497, 1501 (11th Cir. 1989) (affirming the district
court’s judgment in favor of the IRS, awarding the cash
withdrawal value of the delinquent taxpayer’s annuity
contract); see also 26 C.F.R. 1.401(a)-(13)(b)(2)(i)–(ii) (Treasury
regulation implementing the tax code’s anti-alienation
provision, stating that a qualified plan does not preclude
“[t]he enforcement of a Federal tax levy made pursuant
to section 6331,” or “[t]he collection by the United States
on a judgment resulting from an unpaid tax assessment”).
Since the IRS may levy on a retirement account, it follows
that a sentencing court, within its discretion, may order a
lump-sum payment from such an account to satisfy a
restitution order. See also United States v. Wahlen, 459
F. Supp. 2d 800, 822 (E.D. Wis. 2006) (The MVRA creates an
exception to the anti-alienation provision protecting a
defendant’s IRA.); United States v. Tyson, 242 F. Supp. 2d
469, 473 (E.D. Mich. 2003) (Section 3613 is an express
statutory exception to the anti-alienation provisions of
ERISA as well as § 401(a)(13)(A).). We hasten to add,
however, that the availability of retirement funds to satisfy
a restitution order does not limit the district court’s
discretion in determining the manner in which restitution
should be paid. See 18 U.S.C. § 3664(f).
In this connection, Hosking argues that the district court
erred by failing to consider her financial situation before
ordering the liquidation of her retirement account.
Although the MVRA requires the district court to
determine the amount of restitution without regard to the
economic circumstances of the defendant, 18 U.S.C.
§ 3664(f)(1)(A), in determining the manner in which the
restitution is to be paid, the court must consider the financial
resources and other assets of the defendant, projected
earnings of the defendant and any financial obligations of
the defendant. Id. § 3664(f)(2)(A)–(C). The court may order
the defendant to make a single lump-sum payment,
reasonable periodic payments, or, if the defendant is
indigent, nominal periodic payments. See 18 U.S.C.
§ 3664(f)(3)(A), (B). The court is also required to craft its
restitution order “pursuant to [18 U.S.C. §] 3572,” id.
§ 3664(f)(2), which provides that “[a] person sentenced to
pay a fine or other monetary penalty, including restitution,
shall make such payment immediately, unless, in the interest
of justice, the court provides for payment on a date certain
or in installments.” 18 U.S.C. § 3572(d)(i) (emphasis
added).
Section 3572 “creates a preference” for immediate
payment, United States v. Coates, 178 F.3d 681, 684 (3d Cir.
1999), but it does not limit the district court’s discretion to
determine a payment schedule according to the other
factors the court must consider under § 3572 and
§ 3664(f)(2). See id. Cf. United States v. Sawyer, 521 F.3d 792,
795 (7th Cir. 2008).
At sentencing, the judge acknowledged Hosking’s
limited financial means and that her IRA, which had a
corpus of roughly $115,000, represented her only source of
savings for retirement other than Social Security payments.
Nevertheless, the court ordered a lump-sum payment of
$100,000 within thirty days of the judgment, to be followed
by nominal payments once the defendant is released from
prison. The judge noted that she “realized that [the retirement
account] does represent the greater amount of money
that’s set aside for you to live on, but you made that
decision a long time ago to take money that didn’t belong
to you and that money has to be paid back.”
The district judge clearly recognized Hosking’s limited
means and ordered a schedule of payments that reflected
those means. She ordered an immediate payment of
$100,000, leaving $15,000 in Hosking’s retirement account.
Further, the restitution schedule requires Hosking to make
only nominal payments after she is released from prison,
taking into account her nonexistent projected future
earnings. We cannot say that the district judge abused her
discretion in this respect. The restitution order is therefore
AFFIRMED in part but vacated and remanded in part for
further proceedings consistent with this opinion.
Chicago Criminal Lawyer - Robert J Callahan
one count of embezzlement and was sentenced to 34
months in prison and ordered to pay restitution. Hosking
appeals, arguing that her victim’s costs to investigate her
fraud should not have been included in the restitution
award. She also challenges the district court’s failure to
provide a complete accounting of the loss caused by her
fraud, and the order to make a lump-sum payment of
$100,000 from her retirement account.
We affirm the principle of including a private victim’s
investigative costs in the restitution award but vacate and
remand for the district court to make findings regarding
the amount of those costs. Without such findings it is
impossible to review the award’s propriety. We also affirm
the aspect of the order requiring Hosking to make a lumpsum
restitutionary payment from her retirement account.
I.
Hosking worked for the Cross Plains Bank in Cross
Plains, Wisconsin, for almost twenty years. When her fraud
was discovered in 2007, she was an assistant vice president,
responsible for among other things loans granted under the
Wisconsin Petroleum Environmental Cleanup Fund Award
(PECFA) program. The bank provides intermediary
financing for the PECFA program, which pays for environmental
cleanup costs incurred by owners of property
contaminated by petroleum storage tanks. After a cleanup
site is deemed eligible for a PECFA grant, the property
owner takes out a line of credit with the bank, and then
submits invoices for cleanup costs to the bank. The bank
pays the invoices by allowing advances on the line of
credit, and then submits claims for reimbursement to
PECFA.
In 1994, Hosking began embezzling money from the
bank’s PECFA loan program. Her scheme involved taking
unauthorized cash advances funded by PECFA loan
accounts and covering her tracks by reimbursing those loan
accounts with money taken from other PECFA loan
accounts, thereby “lapping” the loan accounts. Hosking’s
lapping scheme went on for twelve years, and she embezzled
funds from twenty-three PECFA accounts. Ultimately,
bank officials started asking questions about discrepancies
in PECFA loan files, and Hosking confessed. She thought
she had taken about $135,000. The bank’s internal investigation
revealed that she had actually embezzled more than
$500,000.
At sentencing, the bank requested restitution of
$1,144,889.92. The probation office recommended a reduced
restitution award of $712,776.52, which included the
$502,246.52 in embezzled funds, $206,280 for the bank’s inhouse
staff costs and $4,250 for miscellaneous paper and
copying expenses. Hosking objected, arguing that there was
insufficient documentation to support the bank’s claim for
in-house costs. In response, the government submitted
minutes from the bank’s meetings relating to the investigation;
a declaration of losses from the bank; a description of
the PECFA loan process and Hosking’s lapping scheme;
and a description of each expense the bank incurred in the
investigation, with attached invoices and a listing of inhouse
staff members and the hours they spent on the
project.
The district court ordered restitution of $627,895.52. This
figure included the $502,246.52 Hosking embezzled from
the bank, plus $125,649 for the bank’s investigation costs.
To reach this new amount for investigation costs, the court
added $6,733.90 in legal fees; $11,655.00 in accounting
consultant fees; $4,250.00 in miscellaneous paper and
copying expenses; and $103,140.00 for in-house staff costs,
or half the amount recommended by the probation office to
reimburse the bank for the time its employees spent on the
investigation. The district court failed to explain why it cut
the in-house staff costs in half, stating only that the reduced
amount was “clearly legitimate.”1 The district court
also ordered Hosking to make an immediate lump-sum
payment of $100,000.00 from her retirement account.
II.
The district court’s authority to order restitution is
reviewed de novo, United States v. Wells, 177 F.3d 603, 608
(7th Cir. 1999), while the amount of restitution is reviewed
for an abuse of discretion, United States v. Sensmeier, 361
F.3d 982, 988 (7th Cir. 2004) (citing United States v. Newman,
144 F.3d 531, 542 (7th Cir. 1998)). Hosking argues that the
district court abused its discretion by including the bank’s
investigation costs in the restitution award because the
only “actual loss” caused by her embezzlement was the
$502,246.52 that she took. She labels the additional amount
the bank spent on the investigation and professional fees as
“consequential damages” not caused by her fraud and
therefore not properly included in the award. We disagree
in principle but question the amounts claimed.
The Mandatory Victims Restitution Act (MVRA) requires
a defendant convicted of certain crimes, “including any
offense committed by fraud or deceit,” to make restitution
to the victims of the offense in an amount equal to the
value of the property damaged or lost. 18 U.S.C.
§§ 3663A(a)(1), (b)(1), (c)(1)(A)(ii).2 The MVRA also expressly
contemplates inclusion of the cost of “lost income
and necessary child care, transportation, and other expenses
incurred during participation in the investigation or prosecution
of the offense or attendance at proceedings related to the
offense.” 18 U.S.C. § 3663A(b)(4) (emphasis added). The
bank’s investigation was clearly an important part of “the
investigation . . . of the offense” in this case. It led to the
determination of the actual amount embezzled, and
therefore the costs of that investigation may be included in
the restitution award under § 3663A(b)(4). See United States
v. Adcock, 534 F.3d 635, 643 (7th Cir. 2008) (applying
§ 3663A(b)(4) to include the cost of an external audit in a
restitution award because it qualified as “other expenses
incurred during participation in the investigation or
prosecution of the offense. . . .”); United States v. Amato, 540
F.3d 153, 161 (2d Cir. 2008) (including attorney fees and
accounting costs in a restitution award “because these
expenses are so obviously associated with investigation
and prosecution, particularly in the case of fraud offenses”).
In response to Hosking’s argument that allowing the
bank to recover these costs improperly reimburses the bank
for “consequential damages,” we have repeatedly explained
that it does no such thing. In fact,
“[t]his measure of relief is less generous than common
law damages, since it does not extend to consequences
beyond the diminution of the value of the property
stolen or damaged.” This is because criminal restitution
refers only “to the restoration of something that
the defendant had taken from the plaintiff, including a
profit.”
Adcock, 534 F.3d at 642 (quoting United States v. Havens, 424
F.3d 535, 537 (7th Cir. 2005), further quoting United States
v. Scott, 405 F.3d 615, 618, 619 (7th Cir. 2005)) (other
citations omitted). See also Scott, 405 F.3d at 619 (allowing
restitution under § 3663A(b)(1) for a victim’s external audit
costs because such costs represented a diminution in value
of the victim’s property).
The time and effort spent by the bank’s employees and
outside professionals in unraveling the twelve-year
embezzlement scheme was a direct and foreseeable result
of the defendant’s conduct that contributed to the diminution
of the value of the bank’s property. See § 3663A(b)(1);
Scott, 405 F.3d at 619. See also United States v. Donaby, 349
F.3d 1046, 1054–55 (7th Cir. 2003). The bank’s activities
were also an important part of “the investigation . . . of the
offense.” § 3663A(b)(4); Adcock, 534 F.3d at 643. The
sentencing judge was selective. She included only those
costs related to uncovering Hosking’s fraud. This was not
an abuse of discretion.
Hosking argues that even if it was proper to include this
category of costs in the restitution award, the sentencing
judge nevertheless erred by failing to provide a complete
accounting of those costs. Instead, she cut the amount
recommended by the probation office for in-house investigation
costs in half, and announced without elaboration
that the reduced amount was “clearly legitimate.” We
agree with Hosking that more is needed, both from the
government and the district court.
As stated above, supra n.2, restitution under the VWPA
and the MVRA is awarded and enforced according to 18
U.S.C. § 3664. The district court is required to base its
restitution order, to the extent practicable, on “a complete
accounting” of the loss. Id. § 3664(a). If the presentence
report or other report of the loss is insufficient for this
purpose, the court may require additional documentation
or hear testimony. Id. § 3664(d)(4). The court may refer any
issue, including the amount of loss, “to a magistrate judge
or special master for proposed findings of fact.” Id.
§ 3664(d)(6). The court is required to resolve any dispute
over the amount of loss by a preponderance of the evidence,
and the government has the burden of proving the
loss. Id. § 3664(e). The court is required to order restitution
in the full amount of the victim’s losses, “without consideration
of the economic circumstances of the defendant.” Id.
§ 3664(f)(1)(A).
Based on the foregoing statutory provisions, we have
held that “the VWPA recognizes that specific findings of
fact reflected in the record still are necessary at times and
contemplates that district courts provide an explanation of
their reasoning, supported by articulated findings of fact.”
United States v. Menza, 137 F.3d 533, 538 (7th Cir. 1998).
Again, these provisions apply equally to the MVRA. 18
U.S.C. § 3663A(d). “Unless we know why a district court
included specific costs in an order granting restitution, we
have no adequate basis upon which to review the decision.”
Menza, 137 F.3d at 538. The sentencing court is only
required to supply findings of fact within the bounds of
reasonableness in justifying the amount of restitution, but
“we have urged district courts to provide articulated
findings in order to facilitate appellate review.” United
States v. Minneman, 143 F.3d 274, 285 (7th Cir. 1998). In
other words, the sentencing court should give enough
detail for us to determine whether the award has factual
support. Should the district court fail to provide a satisfactory
accounting of the items included in a restitution
award, it “runs the risk that we may remand a restitution
award based on ‘inadequate explanation and insufficient
reasoning.’ ” Id. (quoting Menza, 137 F.3d at 538).
The district court ran that risk here. At sentencing, the
government presented a single document supporting the
inclusion of the bank’s in-house costs in the restitution
award. This document listed the name and title of each
employee who worked on the investigation, the number of
hours that the employee worked on the project, and the
employee’s hourly wage rate. The resulting total was a
simple tabulation of the amount paid to the employees for
their collective hours worked.
This document also briefly and generally described the
scope of the investigation. The description included the
activities of a few employees, but made no attempt to
describe the work done by each one. For example, it
explained that many of the employees were not familiar
with the PECFA process and had to educate themselves
before trying to unravel the defendant’s scheme. One
senior employee spent an entire year, with substantial
assistance from two other employees, focusing on recreating
each fraudulent PECFA transaction. A bookkeeping
employee spent his time transferring older data from film,
while another primarily ran the copying machine. These
details are of some help, but they pertain to the work of
only a few of the many employees listed in the government’s
explanatory document. The two-paragraph description
of these few employees’ roles fails to demonstrate that
all of the in-house staff costs—or even half of those
costs—were proximately caused by Hosking’s conduct,
produced a diminution in the value of the bank’s property
or were convincingly claimed as part of the investigation
of the offense. 18 U.S.C. §§ 3663A(a)(2), (b)(1), (b)(4).
As in Menza, there is inadequate explanation and insufficient
reasoning why the district court relied on the face of
the government’s document without requiring evidence
that the costs reported were directly and reasonably
demanded by the bank’s investigation of Hosking’s fraud.
Without such evidence and related findings, we cannot
determine whether the court’s award was appropriate and
reasonable. Indeed, simply cutting the reported costs in
half, while it may not be far off the mark, cannot suffice.
On remand, the government must, to the extent feasible,
provide an explanation, supported by evidence, of how
each employee’s time was spent in pursuing the investigation.
Not only must the work be firmly connected to the
investigation but there must be an adequate indication that
the hours claimed are reasonable. The court must ensure
that all reported costs were in fact incurred in the investigation
of Hosking’s fraud. It is the government’s responsibility
to make the connection between the work and
Hosking’s misconduct. The district court should not have
to delve through pages of exhibits “in order to dissect
legitimate expenditures from illegitimate.” United States v.
Swanson, 394 F.3d 520, 527 (7th Cir. 2005).
Next, Hosking argues that the district court erred in
ordering her to make a lump-sum payment of $100,000
from her retirement account. She asserts that her Individual
Retirement Account (IRA), as a qualified trust under
the tax code, “may not be assigned or alienated,” 26 U.S.C.
§ 401(a)(13)(A), and therefore that it was not proper to
include it in the restitution order. We disagree.
Under the MVRA, “[a] restitution order may direct the
defendant to make a single, lump-sum payment, partial
payments at specified intervals, in-kind payments, or
a combination of payments at specified intervals and inkind
payments.” 18 U.S.C. § 3664(f)(3)(A). An order of
restitution may be enforced “by all . . . available and
reasonable means.” Id. § 3664(m)(1)(A)(ii). In addition,
[t]he United States may enforce a judgment imposing
a fine in accordance with the practices and procedures
for the enforcement of a civil judgment under Federal
law or State law. Notwithstanding any other Federal law
(including section 207 of the Social Security Act), a
judgment imposing a fine may be enforced against all
property or rights to property of the person fined. . . .
Id. § 3613(a) (emphasis added).
We have never considered whether § 3613(a) supersedes
an anti-alienation provision like the one governing
Hosking’s IRA, a qualified trust under the tax code, 26
U.S.C. § 401(a)(13)(A). However, several other circuits have
addressed this question in the context of ERISA’s similarly
worded anti-alienation provision, 29 U.S.C. § 1056(d). Our
sister circuits have concluded that the MVRA allows a
district court to consider a defendant’s retirement plan as
a source of funds to pay restitution. See United States v.
Novak, 476 F.3d 1041, 1053 (9th Cir. 2007); United States v.
Irving, 452 F.3d 110, 126 (2d Cir. 2006); see also United States
v. Hyde, 497 F.3d 103, 107–08 (1st Cir. 2007) (holding that
the MVRA allows the government to enforce a restitution
order against proceeds from the sale of a home notwithstanding
the Bankruptcy Code’s homestead exemption).
We therefore hold that it was within the district court’s
discretion to charge Hosking’s retirement account as a
source of funds to provide restitution.
The MVRA authorizes the government to enforce a
restitution order through a series of specific means including
“all other available and reasonable means.” 18 U.S.C.
§ 3664(m)(1)(A)(ii). And again, § 3613(a) provides that
the United States may enforce a judgment against “all
property or rights to property of the person fined,”
“[n]otwithstanding any other Federal law.” Although there
are several enumerated exceptions to this provision, none
of them exempts an IRA from enforcement. See 18 U.S.C.
§ 3613(a)(1) (exempting from enforcement four types of
federally authorized pension plans under 26 U.S.C.
6334(a)(6), including Railroad Retirement Act pensions,
Railroad Unemployment Insurance Act pensions, pensions
received by those on the Armed Forces Medal of Honor
rolls, and certain pensions paid to military service-members);
see also Novak, 476 F.3d at 1047–48 (concluding that
Congress intended the list of exemptions in § 3613(a)(1) to
be exhaustive).
Moreover, § 3613 treats a restitution order under the
MVRA like a tax liability. This means that any property the
IRS can reach to satisfy a tax lien, a sentencing court can
also reach in a restitution order. See 18 U.S.C. § 3613(c);
United States v. Irving, 452 F.3d 110, 126 (2d. Cir. 2006).
Thus, the IRS can levy on a tax debtor’s IRA or pension
plan to satisfy tax liability, so long as the defendant has a
right to withdraw money from or liquidate the account. See
Kane v. Capital Guardian Trust Co., 145 F.3d 1218, 1223 (10th
Cir. 1998) (“[The defendant’s] right to liquidate his IRA and
withdraw the funds therefrom (even if subject to some
interest penalty) undoubtedly constituted a ‘right to property’
subject to the IRS’ administrative levy.”); United States
v. Sawaf, 74 F.3d 119, 123 (6th Cir. 1996) (The anti-alienation
provision protecting the defendant’s pension fund does not
prevent the IRS from garnishing the fund to collect unpaid
income taxes.); In re McIntyre, 222 F.3d 655, 660 (9th Cir.
2000) (The anti-alienation provision of ERISA does not
prevent the IRS from levying on benefits of the defendant’s
pension plan.); United States v. Metropolitan Life Ins., 874
F.2d 1497, 1501 (11th Cir. 1989) (affirming the district
court’s judgment in favor of the IRS, awarding the cash
withdrawal value of the delinquent taxpayer’s annuity
contract); see also 26 C.F.R. 1.401(a)-(13)(b)(2)(i)–(ii) (Treasury
regulation implementing the tax code’s anti-alienation
provision, stating that a qualified plan does not preclude
“[t]he enforcement of a Federal tax levy made pursuant
to section 6331,” or “[t]he collection by the United States
on a judgment resulting from an unpaid tax assessment”).
Since the IRS may levy on a retirement account, it follows
that a sentencing court, within its discretion, may order a
lump-sum payment from such an account to satisfy a
restitution order. See also United States v. Wahlen, 459
F. Supp. 2d 800, 822 (E.D. Wis. 2006) (The MVRA creates an
exception to the anti-alienation provision protecting a
defendant’s IRA.); United States v. Tyson, 242 F. Supp. 2d
469, 473 (E.D. Mich. 2003) (Section 3613 is an express
statutory exception to the anti-alienation provisions of
ERISA as well as § 401(a)(13)(A).). We hasten to add,
however, that the availability of retirement funds to satisfy
a restitution order does not limit the district court’s
discretion in determining the manner in which restitution
should be paid. See 18 U.S.C. § 3664(f).
In this connection, Hosking argues that the district court
erred by failing to consider her financial situation before
ordering the liquidation of her retirement account.
Although the MVRA requires the district court to
determine the amount of restitution without regard to the
economic circumstances of the defendant, 18 U.S.C.
§ 3664(f)(1)(A), in determining the manner in which the
restitution is to be paid, the court must consider the financial
resources and other assets of the defendant, projected
earnings of the defendant and any financial obligations of
the defendant. Id. § 3664(f)(2)(A)–(C). The court may order
the defendant to make a single lump-sum payment,
reasonable periodic payments, or, if the defendant is
indigent, nominal periodic payments. See 18 U.S.C.
§ 3664(f)(3)(A), (B). The court is also required to craft its
restitution order “pursuant to [18 U.S.C. §] 3572,” id.
§ 3664(f)(2), which provides that “[a] person sentenced to
pay a fine or other monetary penalty, including restitution,
shall make such payment immediately, unless, in the interest
of justice, the court provides for payment on a date certain
or in installments.” 18 U.S.C. § 3572(d)(i) (emphasis
added).
Section 3572 “creates a preference” for immediate
payment, United States v. Coates, 178 F.3d 681, 684 (3d Cir.
1999), but it does not limit the district court’s discretion to
determine a payment schedule according to the other
factors the court must consider under § 3572 and
§ 3664(f)(2). See id. Cf. United States v. Sawyer, 521 F.3d 792,
795 (7th Cir. 2008).
At sentencing, the judge acknowledged Hosking’s
limited financial means and that her IRA, which had a
corpus of roughly $115,000, represented her only source of
savings for retirement other than Social Security payments.
Nevertheless, the court ordered a lump-sum payment of
$100,000 within thirty days of the judgment, to be followed
by nominal payments once the defendant is released from
prison. The judge noted that she “realized that [the retirement
account] does represent the greater amount of money
that’s set aside for you to live on, but you made that
decision a long time ago to take money that didn’t belong
to you and that money has to be paid back.”
The district judge clearly recognized Hosking’s limited
means and ordered a schedule of payments that reflected
those means. She ordered an immediate payment of
$100,000, leaving $15,000 in Hosking’s retirement account.
Further, the restitution schedule requires Hosking to make
only nominal payments after she is released from prison,
taking into account her nonexistent projected future
earnings. We cannot say that the district judge abused her
discretion in this respect. The restitution order is therefore
AFFIRMED in part but vacated and remanded in part for
further proceedings consistent with this opinion.
Chicago Criminal Lawyer - Robert J Callahan
U.S. vs. Taylor
The appellant, Johnnie Taylor,
was accused of being a felon in possession of a firearm
and was tried twice in front of a jury. The first trial
resulted in a deadlocked jury, prompting the court to
declare a mistrial. At the second trial, the jury found Taylor
guilty as charged. On appeal, Taylor presents three arguments,
the first two of which relate to the mistrial. First,
Taylor argues that the district court erred in declaring
the mistrial. Second, he claims that trial counsel was
ineffective because the attorney did not seek Taylor’s
input on whether to recommend to the court that it
declare a mistrial. Taylor’s third argument, which
involves Taylor’s second trial, is that the district court
should have excluded certain statements from the government’s
evidence. We find no merit in Taylor’s
claims and now affirm.
I. BACKGROUND
In the early evening of September 12, 2005, local law
enforcement responded to a domestic disturbance call at
an apartment complex in Alorton, Illinois. Police Officer
Rick Schell was the first to arrive on the scene, where
he spoke with Mary Weaver, the woman who had placed
the call. Weaver pointed across the street and informed
Schell that a man later identified as Johnnie Taylor had
taken a gun in that direction. She said that Taylor took
the weapon to a man she called “Mario,” who the
police subsequently learned was Mario Dowell.
Looking in the direction that Weaver pointed, Officer
Schell saw Dowell working on an automobile in front of
a neighboring apartment building. At the same time,
Taylor appeared and approached Officer Schell from
across the street. Warned by Weaver that Taylor might
be armed, Officer Schell handcuffed Taylor and checked
him for a weapon, finding none. Chief Leondra Hughes
and Captain Robert Cummings then arrived on the
scene and began investigating the handgun’s whereabouts.
Upon questioning by Hughes, Dowell admitted
that Taylor had given him a gun and that he had hidden
it for Taylor in a third party’s apartment. Dowell then
led the police to the gun’s hiding place, where they recovered
the weapon.
On August 18, 2006, the government filed a two-count
indictment against Taylor, only the first count of which
is at issue on this appeal. That count alleged that Taylor,
who had previously been convicted of burglary, was
a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1).
Taylor’s first jury trial began on June 18, 2007. The
presentation of evidence took approximately six hours
over two days and concluded shortly after 2:30 p.m. on
the afternoon of June 19. After final instructions, the
jury began deliberations that same afternoon at 3:58 p.m.,
and the court recessed at 5:10 p.m. The jury resumed
deliberations at 9:00 a.m. the next morning, June 20,
and deliberated throughout the day.
The jury sent three notes to the judge over the course
of its deliberations on June 20. In the first, the jury requested
to rehear Mary Weaver’s 911 telephone call
and the recorded statements Taylor and Dowell had
given to the police. In the second note, the jury asked for
clarification on a point of Chief Hughes’s testimony. The
court granted the first request and, while working with
the attorneys to formulate a response to the second,
received the jury’s third note. Sent to the judge at
3:50 p.m., the third note read: “We are undecided on
guilty/not guilty. There are several points we can’t agree
on. The jury is divided on whether to continue. Your
direction is required.” After discussions with both attorneys,
the court sent the requested transcript excerpt of
Chief Hughes’s testimony and stated only, “Please consider
the Court’s reply to your request regarding Chief’s
Hughes [sic] testimony and in conjunction with all the
other evidence in the case.” The jury later asked to
adjourn for the day, writing that “we are aggressively
going over (flow charting) each witness and piece of
evidence to arrive at a unanimous decision.” The judge
granted the jury’s request and recessed the court at
5:00 p.m.
The jury returned for a third day of deliberations at
9:00 a.m. on June 21. At 10:10 a.m., the court received a
note from the jury that read as follows:
We, the jury, are “deadlocked” in decision—since
day 1 until today. We are 8 guilty and 4 not
guilty—this spit [sic] has not changed since we
began. We have debated each witness’ testimony
and piece of evidence and no juror has changed
their verdict. We ask the court to accept our deadlocked
condition and conclusion to this case.
The judge sought input from both the prosecutor and
defense counsel. The prosecutor suggested that the judge
encourage the jury to continue its deliberations. Defense
counsel, citing concerns that the jury would “cave in
one way or the other,” recommended that the court
accept the jury’s request and declare a mistrial. The
judge, after discussing the length of the presentation of
evidence during the trial and of the jury’s deliberations,
the simplicity of the issues, the jury’s communications,
and his concerns about the potentially coercive effects of
additional prodding by the court, declared a mistrial.
Taylor’s second trial commenced on July 9, 2007. Over
two days of evidence, the government called a number
of witnesses, including Officer Schell, Captain Cummings,
Chief Hughes, and Mario Dowell. Neither the government
nor the defense called Mary Weaver to testify.
Dowell’s testimony was particularly instructive on the
case’s key issue—whether Taylor had knowingly
possessed the firearm. Dowell explained to the jury that
on September 12, 2005, he had been working on a car in
front of his apartment when Taylor, an acquaintance of
Dowell’s, approached and asked Dowell to “put a gun
up for him,” i.e., hide Taylor’s weapon. Dowell testified
that he believed Taylor later intended to recover the
firearm from its hidden location. Dowell told the jury
that he took Taylor around to the back of the apartment
building, where Taylor gave the gun to Dowell.
Knowing that a nearby apartment belonging to Laricka
Perkins, an uninvolved third party, would be unlocked,
Dowell took the gun and hid it in Perkins’s apartment.
On July 10, the jury returned a verdict of guilty as
charged in count one of the indictment. On December 6,
2007, the district court sentenced Taylor to seventy-eight
months’ imprisonment, followed by a three-year term of
supervised release. Taylor now appeals, citing concerns
related to both the mistrial declaration and the
admission into evidence of certain statements during
his second trial.
II. ANALYSIS
On appeal, we divide Taylor’s arguments according
to the trial to which they pertain. Taylor’s initial two
claims involve the mistrial declaration during his first
trial. His final claim relates to the admission of certain
evidence during his second trial. As we explain below,
we disagree with Taylor’s arguments on all fronts.
A. The Mistrial (Trial Number 1)
The Double Jeopardy Clause of the United States Constitution
bars a defendant’s retrial unless the district court
declared a mistrial either (1) with the defendant’s
consent, or (2) because the declaration was manifestly
necessary. United States v. Combs, 222 F.3d 353, 358-59
(7th Cir. 2000); see also U.S. Const. amend. V; Arizona v.
Washington, 434 U.S. 497, 504-05 (1978) (discussing a
defendant’s “valued right to have his trial completed by
a particular tribunal” and stating that a prosecutor “is
entitled to one, and only one, opportunity to require
an accused to stand trial”). Taylor contests the district
court’s decision to declare the mistrial without his
consent and without finding manifest necessity and
claims that trial counsel was ineffective because the
attorney did not seek Taylor’s consent to the mistrial.
Neither claim withstands scrutiny.
1. The District Court’s Declaration of a Mistrial
A court may declare a mistrial if it determines that such
a declaration is “occasioned by manifest necessity.” Combs,
222 F.3d at 358-59. Such a determination is proper with or
without the defendant’s consent, see id., and need not be
made explicitly, see Camden v. Circuit Court of the Second
Judicial Circuit, 892 F.2d 610, 614 (7th Cir. 1989). A mistrial
is manifestly necessary only if the “scrupulous exercise
of judicial discretion leads to the conclusion that the
ends of public justice would not be served by a continuation
of the proceedings.” Id. (quotations omitted).
We review a court’s decision to declare a mistrial for
an abuse of discretion. United States v. Vaiseta, 333 F.3d
815, 818 (7th Cir. 2003). Our review becomes even
more deferential in a situation such as this, where the
“manifest necessity” prompting the mistrial is a deadlocked
jury. See id.; see also Washington, 434 U.S. at 509;
Williams v. Bartow, 481 F.3d 492, 500 (7th Cir. 2007) (noting
that the reviewing court applies varying degrees of scrutiny
within the abuse-of-discretion standard depending
on the events precipitating the mistrial). Such deference
is warranted because the trial judge is in the best
position to balance the defendant’s interest in having a
given jury decide his fate against the public’s interest
in fair trials and just judgments. Vaiseta, 333 F.3d at 818.
In Vaiseta, we discussed several factors a court should
consider before declaring a mistrial due to a deadlocked
jury: (1) statements from the jury that it cannot agree;
(2) length of the deliberations; (3) length of the trial;
(4) complexity of the issues; (5) the jury’s communications
to the judge; and (6) the potentially prejudicial impact
of continued forced deliberations. Id. Here, although the
court never explicitly stated that it found the mistrial to
be of “manifest necessity,” the court clearly contemplated
each of the Vaiseta factors before it declared a mistrial,
a decision that we conclude was well within the bounds
of the court’s discretion.
First, the court had two written statements from the
jury indicating its inability to agree, one on June 20,
the second on June 21. Second, the court discussed both
the length of the presentation of evidence and the length
of the deliberations, noting that the evidence had taken
approximately six hours and that the jury deliberations
had been ongoing for ten hours. Said the judge: “Just seems
like with six hours of testimony, with over ten hours,
thereabouts, of deliberation, that we’re not going to get
a different result.” Third, the judge expressed his opinion
that the single issue facing the jury—whether Taylor had
knowingly possessed the gun—was relatively simple.
Next, the jury’s communications made clear that it had
made little progress in three days; in fact, the jury’s
split had not changed since it began deliberating. And
finally, the judge explained his fear of coercing the jury
into a decision by requiring further deliberations. The
judge discussed each of these factors on the record
before announcing his decision to declare the mistrial.
We fail to see how such a measured decision, made with
ample information and full appreciation for the Vaiseta
factors, could be an abuse of discretion. Cf. United States v.
Jackson, 546 F.3d 465, 471 (7th Cir. 2008) (noting that a
judge must exercise his discretion, i.e., “consider[] the
factors relevant to that exercise,” before we accord his
decision deference).
On appeal, Taylor essentially asks us to substitute our
judgment for that of the district judge. He suggests, for
example, that the issue was not as simple as the court
believed and that the length of deliberations was not out
of proportion to the length of the evidence. Taylor argues
that the court should have ordered the jury to deliberate
“at least until lunch” and should have reread the Silvern
instruction, see United States v. Silvern, 484 F.2d 879, 883
(7th Cir. 1973),1 an instruction that we have held to be
content-neutral and non-coercive, United States v. Sanders,
962 F.2d 660, 676 (7th Cir. 1992) (quoting United States
v. Beverly, 913 F.2d 337, 352 (7th Cir. 1990)). But when
reviewing only for an abuse of discretion, second-guessing
the district court is something we will not do. See Am. Nat’l
Bank & Trust Co. of Chi. v. Reg’l Transp. Auth., 125 F.3d 420,
431 (7th Cir. 1997). A discretionary decision, as this one
was, implies a range of acceptable outcomes. See United
States v. Koen, 982 F.2d 1101, 1114 (7th Cir. 1992). So long
as the judge’s conclusion was within that range of outcomes,
we will defer to his judgment, not substitute
our own. See id.; see also United States v. Souffront, 338
F.3d 809, 819 (7th Cir. 2003) (stating that when reviewing
for an abuse of discretion, this court will not second-guess
the trial judge’s decision or reweigh the evidence). Further,
even if we were to conduct a more searching analysis
of the court’s conclusions, we see no fault in the decision
it reached. As such, we hold that the district court’s
decision to declare a mistrial during Taylor’s first jury
trial was not an abuse of discretion. We turn now to
Taylor’s ineffective assistance of counsel claim.
2. Ineffective Assistance of Trial Counsel
Taylor next argues that he received ineffective
assistance of counsel because his attorney did not consult
Taylor before recommending to the court that it accept
the jury’s deadlocked position and declare a mistrial.
The test for ineffective assistance of counsel is well established.
See Strickland v. Washington, 466 U.S. 668 (1984). To
prevail on such a claim, Taylor must show both (1) that
his trial counsel’s performance was objectively deficient;
and (2) that counsel’s deficiency prejudiced his defense.
Id. at 687; United States v. Shukri, 207 F.3d 412, 418 (7th Cir.
2000).
As a preliminary matter, we note our standard reluctance
to consider ineffective assistance of counsel claims on
direct appeal. United States v. Brooks, 125 F.3d 484, 495
(7th Cir. 1997). As we have said:
[S]uch claims are very unlikely to find any factual
support in the trial record and an adverse determination
on direct appeal will be res judicata in
any subsequent collateral attack. . . . [A] defendant
who presents an ineffective-assistance claim for
the first time on direct appeal has little to gain
and everything to lose.
United States v. Cooke, 110 F.3d 1288, 1299 (7th Cir. 1997)
(citations and quotations omitted); see also Brooks, 125
F.3d at 495.
The undeveloped record in this case provides a
perfect example of why we typically decline to consider
ineffective assistance arguments for the first time on
direct appeal. Despite Taylor’s arguments to the contrary,
there is no indication in the record whether
Taylor’s trial counsel consulted with him before suggesting
to the court that it declare a mistrial. Due to the
strong presumption of counsel’s effectiveness, see Strickland,
466 U.S. at 689, if we were to express an opinion on
counsel’s performance based on such an incomplete
record, it would have to be in counsel’s favor. But we
need not make such a conclusive finding in this case, nor
need we defer our decision on this claim, because Taylor
fails to make the requisite showing of prejudice. Strickland’s
two-part test requires both deficient performance
and prejudice, 466 U.S. at 687; requiring a more fully
developed record, therefore, would only delay the inevitable.
Courts may deny ineffective assistance of counsel
claims for lack of prejudice without ever considering the
question of counsel’s actual performance. Id. at 697; see, e.g.,
Berkey v. United States, 318 F.3d 768, 772 (7th Cir. 2003);
Matheney v. Anderson, 253 F.3d 1025, 1042 (7th Cir. 2001). To
demonstrate prejudice, Taylor must show “that the decision
reached would reasonably likely have been different
absent the errors.” Strickland, 466 U.S. at 696. Taylor’s
entire argument, however, hinges on his trial counsel’s
purported deficiencies; he makes no claims related to the
prejudice he suffered. We presume this is because he
suffered none. As we have already discussed, the district
court, after careful consideration of the Vaiseta factors
and over the objection of the prosecution, implicitly
found a mistrial to be of manifest necessity. The court
did not need Taylor’s permission to make that decision,
and there is no reason to believe that an objection by
defense counsel, or even by the defendant himself, would
have changed the court’s conclusion. Absent the requisite
showing of prejudice, Taylor’s ineffective assistance of
counsel claim fails. We turn now to Taylor’s final argument.
B. Admissibility of Mary Weaver’s Statement (Trial
Number 2)
Finally, Taylor claims that the district court erred during
the second trial by admitting into evidence Mary
Weaver’s statement to Officer Schell that “he just took a
gun across the street.” Taylor bases this argument on
two grounds. First, he asserts that the evidentiary rules
against hearsay prohibited the admission of Weaver’s
statement. See Fed. R. Evid. 801-802. Second, he argues
that admitting Weaver’s statement without calling
Weaver herself to testify violated his constitutional right
to confront witnesses against him. See U.S. Const.
amend. VI. We find both arguments unavailing.
We typically review a district court’s decision to admit
statements into evidence for an abuse of discretion. United
States v. Akinrinade, 61 F.3d 1279, 1283 (7th Cir. 1995).
During trial, however, defense counsel raised no objections
to the references to Weaver’s statement, limiting
our review to plain error. See United States v. Olano, 507
U.S. 725, 731 (1993); see also Fed. R. Crim. P. 52(b). Under
this standard, we will not reverse unless we find not
only an error, but an error “that is ‘plain’ and that
‘affect[s] substantial rights.’ ” Olano, 507 U.S. at 732 (alteration
in original). Even in the presence of a plain error,
the decision whether to correct the error lies in our discretion,
which the Supreme Court has instructed us not
to exercise “unless the error ‘seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.’
” Id. (alteration in original) (quoting United
States v. Young, 470 U.S. 1, 15 (1985)).
We turn first to Taylor’s hearsay arguments. The
Federal Rules of Evidence prohibit the admission of
hearsay: out-of-court statements made by non-witnesses
that are offered to prove the truth of the matter asserted.
See Fed. R. Evid. 801-802; United States v. Breland, 356
F.3d 787, 792 (7th Cir. 2004). Here, Taylor challenges
numerous references made by Officer Schell and others to
Mary Weaver’s statement that “he just took a gun across
the street.” Such testimony created a potential hearsay
problem because neither side called Weaver to testify,
relying instead on other people to recount to the jury
Weaver’s statements. We find that the district court
committed no error because the challenged statement
did not satisfy the definition of hearsay.
We have recognized repeatedly that statements offered
to “establish the course of the investigation,” rather than
to prove the truth of the matter asserted, are nonhearsay
and therefore admissible. Akinrinade, 61 F.3d at 1283;
see also, e.g., Breland, 356 F.3d at 792; United States v.
Linwood, 142 F.3d 418, 425 (7th Cir. 1998); United States v.
Sanchez, 32 F.3d 1002, 1005 (7th Cir. 1994). But see United
States v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004) (discussing,
in the context of conversations between DEA agents
and their confidential informants, that “[a]llowing agents
to narrate the course of their investigations . . . would go
far toward abrogating the defendant’s rights under
the sixth amendment and the hearsay rule”).
Here, the references to Mary Weaver’s statement by
Schell, Cummings, and Hughes were offered to explain
their own actions in the course of their investigation—for
example, why they looked across the street, why they
questioned Mario Dowell, and why they handcuffed
Taylor when he approached. Indeed, Weaver’s statement
was the jumping-off point for the entire investigation.
Our conclusion might be different if, as in Silva, the
police were testifying to statements harvested from an
ongoing relationship with an informant, see 380 F.3d at
1019, but those are not the facts of this case; here, the
police were responding to a developing, potentially
dangerous situation. The government offered Weaver’s
statement in the context of the officers’ testimony to
explain the course of law enforcement’s investigation,
not as evidence that Taylor possessed the gun. The
district court, with no objections made by either party,
properly admitted the testimony as nonhearsay.
Turning, finally, to Taylor’s Confrontation Clause
argument, we again find no plain error. Absent “complicating
circumstances,” such as a prosecutor who exploits
nonhearsay statements for their truth, nonhearsay testimony
does not present a Confrontation Clause problem.
Lee v. McCaughtry, 892 F.2d 1318, 1325 (7th Cir. 1990); see
also Martinez v. McCaughtry, 951 F.2d 130, 133 (7th Cir.
1991) (citing Tennessee v. Street, 471 U.S. 409, 414 (1985)).
We are satisfied that there were no “complicating circumstances”
here; thus, because the testimony by Schell,
Cummings, and Hughes was nonhearsay, nothing ran
afoul of the Confrontation Clause. See Martinez, 951 F.2d
at 133-34. Furthermore, given the other evidence in the
record of Taylor’s gun possession, namely, Mario
Dowell’s testimony, Taylor cannot claim that his “substantial
rights” were affected. See Olano, 507 U.S. at 734
(stating that in most cases an error affects substantial
rights only if was prejudicial, i.e., it affected the outcome
of the proceedings); Akinrinade, 61 F.3d at 1283 (noting
the absence of a “miscarriage of justice” when reviewing
a Confrontation Clause claim for plain error).
III. CONCLUSION
For the foregoing reasons, we AFFIRM Taylor’s conviction.
Chicago Criminal Lawyer - Robert J Callahan
was accused of being a felon in possession of a firearm
and was tried twice in front of a jury. The first trial
resulted in a deadlocked jury, prompting the court to
declare a mistrial. At the second trial, the jury found Taylor
guilty as charged. On appeal, Taylor presents three arguments,
the first two of which relate to the mistrial. First,
Taylor argues that the district court erred in declaring
the mistrial. Second, he claims that trial counsel was
ineffective because the attorney did not seek Taylor’s
input on whether to recommend to the court that it
declare a mistrial. Taylor’s third argument, which
involves Taylor’s second trial, is that the district court
should have excluded certain statements from the government’s
evidence. We find no merit in Taylor’s
claims and now affirm.
I. BACKGROUND
In the early evening of September 12, 2005, local law
enforcement responded to a domestic disturbance call at
an apartment complex in Alorton, Illinois. Police Officer
Rick Schell was the first to arrive on the scene, where
he spoke with Mary Weaver, the woman who had placed
the call. Weaver pointed across the street and informed
Schell that a man later identified as Johnnie Taylor had
taken a gun in that direction. She said that Taylor took
the weapon to a man she called “Mario,” who the
police subsequently learned was Mario Dowell.
Looking in the direction that Weaver pointed, Officer
Schell saw Dowell working on an automobile in front of
a neighboring apartment building. At the same time,
Taylor appeared and approached Officer Schell from
across the street. Warned by Weaver that Taylor might
be armed, Officer Schell handcuffed Taylor and checked
him for a weapon, finding none. Chief Leondra Hughes
and Captain Robert Cummings then arrived on the
scene and began investigating the handgun’s whereabouts.
Upon questioning by Hughes, Dowell admitted
that Taylor had given him a gun and that he had hidden
it for Taylor in a third party’s apartment. Dowell then
led the police to the gun’s hiding place, where they recovered
the weapon.
On August 18, 2006, the government filed a two-count
indictment against Taylor, only the first count of which
is at issue on this appeal. That count alleged that Taylor,
who had previously been convicted of burglary, was
a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1).
Taylor’s first jury trial began on June 18, 2007. The
presentation of evidence took approximately six hours
over two days and concluded shortly after 2:30 p.m. on
the afternoon of June 19. After final instructions, the
jury began deliberations that same afternoon at 3:58 p.m.,
and the court recessed at 5:10 p.m. The jury resumed
deliberations at 9:00 a.m. the next morning, June 20,
and deliberated throughout the day.
The jury sent three notes to the judge over the course
of its deliberations on June 20. In the first, the jury requested
to rehear Mary Weaver’s 911 telephone call
and the recorded statements Taylor and Dowell had
given to the police. In the second note, the jury asked for
clarification on a point of Chief Hughes’s testimony. The
court granted the first request and, while working with
the attorneys to formulate a response to the second,
received the jury’s third note. Sent to the judge at
3:50 p.m., the third note read: “We are undecided on
guilty/not guilty. There are several points we can’t agree
on. The jury is divided on whether to continue. Your
direction is required.” After discussions with both attorneys,
the court sent the requested transcript excerpt of
Chief Hughes’s testimony and stated only, “Please consider
the Court’s reply to your request regarding Chief’s
Hughes [sic] testimony and in conjunction with all the
other evidence in the case.” The jury later asked to
adjourn for the day, writing that “we are aggressively
going over (flow charting) each witness and piece of
evidence to arrive at a unanimous decision.” The judge
granted the jury’s request and recessed the court at
5:00 p.m.
The jury returned for a third day of deliberations at
9:00 a.m. on June 21. At 10:10 a.m., the court received a
note from the jury that read as follows:
We, the jury, are “deadlocked” in decision—since
day 1 until today. We are 8 guilty and 4 not
guilty—this spit [sic] has not changed since we
began. We have debated each witness’ testimony
and piece of evidence and no juror has changed
their verdict. We ask the court to accept our deadlocked
condition and conclusion to this case.
The judge sought input from both the prosecutor and
defense counsel. The prosecutor suggested that the judge
encourage the jury to continue its deliberations. Defense
counsel, citing concerns that the jury would “cave in
one way or the other,” recommended that the court
accept the jury’s request and declare a mistrial. The
judge, after discussing the length of the presentation of
evidence during the trial and of the jury’s deliberations,
the simplicity of the issues, the jury’s communications,
and his concerns about the potentially coercive effects of
additional prodding by the court, declared a mistrial.
Taylor’s second trial commenced on July 9, 2007. Over
two days of evidence, the government called a number
of witnesses, including Officer Schell, Captain Cummings,
Chief Hughes, and Mario Dowell. Neither the government
nor the defense called Mary Weaver to testify.
Dowell’s testimony was particularly instructive on the
case’s key issue—whether Taylor had knowingly
possessed the firearm. Dowell explained to the jury that
on September 12, 2005, he had been working on a car in
front of his apartment when Taylor, an acquaintance of
Dowell’s, approached and asked Dowell to “put a gun
up for him,” i.e., hide Taylor’s weapon. Dowell testified
that he believed Taylor later intended to recover the
firearm from its hidden location. Dowell told the jury
that he took Taylor around to the back of the apartment
building, where Taylor gave the gun to Dowell.
Knowing that a nearby apartment belonging to Laricka
Perkins, an uninvolved third party, would be unlocked,
Dowell took the gun and hid it in Perkins’s apartment.
On July 10, the jury returned a verdict of guilty as
charged in count one of the indictment. On December 6,
2007, the district court sentenced Taylor to seventy-eight
months’ imprisonment, followed by a three-year term of
supervised release. Taylor now appeals, citing concerns
related to both the mistrial declaration and the
admission into evidence of certain statements during
his second trial.
II. ANALYSIS
On appeal, we divide Taylor’s arguments according
to the trial to which they pertain. Taylor’s initial two
claims involve the mistrial declaration during his first
trial. His final claim relates to the admission of certain
evidence during his second trial. As we explain below,
we disagree with Taylor’s arguments on all fronts.
A. The Mistrial (Trial Number 1)
The Double Jeopardy Clause of the United States Constitution
bars a defendant’s retrial unless the district court
declared a mistrial either (1) with the defendant’s
consent, or (2) because the declaration was manifestly
necessary. United States v. Combs, 222 F.3d 353, 358-59
(7th Cir. 2000); see also U.S. Const. amend. V; Arizona v.
Washington, 434 U.S. 497, 504-05 (1978) (discussing a
defendant’s “valued right to have his trial completed by
a particular tribunal” and stating that a prosecutor “is
entitled to one, and only one, opportunity to require
an accused to stand trial”). Taylor contests the district
court’s decision to declare the mistrial without his
consent and without finding manifest necessity and
claims that trial counsel was ineffective because the
attorney did not seek Taylor’s consent to the mistrial.
Neither claim withstands scrutiny.
1. The District Court’s Declaration of a Mistrial
A court may declare a mistrial if it determines that such
a declaration is “occasioned by manifest necessity.” Combs,
222 F.3d at 358-59. Such a determination is proper with or
without the defendant’s consent, see id., and need not be
made explicitly, see Camden v. Circuit Court of the Second
Judicial Circuit, 892 F.2d 610, 614 (7th Cir. 1989). A mistrial
is manifestly necessary only if the “scrupulous exercise
of judicial discretion leads to the conclusion that the
ends of public justice would not be served by a continuation
of the proceedings.” Id. (quotations omitted).
We review a court’s decision to declare a mistrial for
an abuse of discretion. United States v. Vaiseta, 333 F.3d
815, 818 (7th Cir. 2003). Our review becomes even
more deferential in a situation such as this, where the
“manifest necessity” prompting the mistrial is a deadlocked
jury. See id.; see also Washington, 434 U.S. at 509;
Williams v. Bartow, 481 F.3d 492, 500 (7th Cir. 2007) (noting
that the reviewing court applies varying degrees of scrutiny
within the abuse-of-discretion standard depending
on the events precipitating the mistrial). Such deference
is warranted because the trial judge is in the best
position to balance the defendant’s interest in having a
given jury decide his fate against the public’s interest
in fair trials and just judgments. Vaiseta, 333 F.3d at 818.
In Vaiseta, we discussed several factors a court should
consider before declaring a mistrial due to a deadlocked
jury: (1) statements from the jury that it cannot agree;
(2) length of the deliberations; (3) length of the trial;
(4) complexity of the issues; (5) the jury’s communications
to the judge; and (6) the potentially prejudicial impact
of continued forced deliberations. Id. Here, although the
court never explicitly stated that it found the mistrial to
be of “manifest necessity,” the court clearly contemplated
each of the Vaiseta factors before it declared a mistrial,
a decision that we conclude was well within the bounds
of the court’s discretion.
First, the court had two written statements from the
jury indicating its inability to agree, one on June 20,
the second on June 21. Second, the court discussed both
the length of the presentation of evidence and the length
of the deliberations, noting that the evidence had taken
approximately six hours and that the jury deliberations
had been ongoing for ten hours. Said the judge: “Just seems
like with six hours of testimony, with over ten hours,
thereabouts, of deliberation, that we’re not going to get
a different result.” Third, the judge expressed his opinion
that the single issue facing the jury—whether Taylor had
knowingly possessed the gun—was relatively simple.
Next, the jury’s communications made clear that it had
made little progress in three days; in fact, the jury’s
split had not changed since it began deliberating. And
finally, the judge explained his fear of coercing the jury
into a decision by requiring further deliberations. The
judge discussed each of these factors on the record
before announcing his decision to declare the mistrial.
We fail to see how such a measured decision, made with
ample information and full appreciation for the Vaiseta
factors, could be an abuse of discretion. Cf. United States v.
Jackson, 546 F.3d 465, 471 (7th Cir. 2008) (noting that a
judge must exercise his discretion, i.e., “consider[] the
factors relevant to that exercise,” before we accord his
decision deference).
On appeal, Taylor essentially asks us to substitute our
judgment for that of the district judge. He suggests, for
example, that the issue was not as simple as the court
believed and that the length of deliberations was not out
of proportion to the length of the evidence. Taylor argues
that the court should have ordered the jury to deliberate
“at least until lunch” and should have reread the Silvern
instruction, see United States v. Silvern, 484 F.2d 879, 883
(7th Cir. 1973),1 an instruction that we have held to be
content-neutral and non-coercive, United States v. Sanders,
962 F.2d 660, 676 (7th Cir. 1992) (quoting United States
v. Beverly, 913 F.2d 337, 352 (7th Cir. 1990)). But when
reviewing only for an abuse of discretion, second-guessing
the district court is something we will not do. See Am. Nat’l
Bank & Trust Co. of Chi. v. Reg’l Transp. Auth., 125 F.3d 420,
431 (7th Cir. 1997). A discretionary decision, as this one
was, implies a range of acceptable outcomes. See United
States v. Koen, 982 F.2d 1101, 1114 (7th Cir. 1992). So long
as the judge’s conclusion was within that range of outcomes,
we will defer to his judgment, not substitute
our own. See id.; see also United States v. Souffront, 338
F.3d 809, 819 (7th Cir. 2003) (stating that when reviewing
for an abuse of discretion, this court will not second-guess
the trial judge’s decision or reweigh the evidence). Further,
even if we were to conduct a more searching analysis
of the court’s conclusions, we see no fault in the decision
it reached. As such, we hold that the district court’s
decision to declare a mistrial during Taylor’s first jury
trial was not an abuse of discretion. We turn now to
Taylor’s ineffective assistance of counsel claim.
2. Ineffective Assistance of Trial Counsel
Taylor next argues that he received ineffective
assistance of counsel because his attorney did not consult
Taylor before recommending to the court that it accept
the jury’s deadlocked position and declare a mistrial.
The test for ineffective assistance of counsel is well established.
See Strickland v. Washington, 466 U.S. 668 (1984). To
prevail on such a claim, Taylor must show both (1) that
his trial counsel’s performance was objectively deficient;
and (2) that counsel’s deficiency prejudiced his defense.
Id. at 687; United States v. Shukri, 207 F.3d 412, 418 (7th Cir.
2000).
As a preliminary matter, we note our standard reluctance
to consider ineffective assistance of counsel claims on
direct appeal. United States v. Brooks, 125 F.3d 484, 495
(7th Cir. 1997). As we have said:
[S]uch claims are very unlikely to find any factual
support in the trial record and an adverse determination
on direct appeal will be res judicata in
any subsequent collateral attack. . . . [A] defendant
who presents an ineffective-assistance claim for
the first time on direct appeal has little to gain
and everything to lose.
United States v. Cooke, 110 F.3d 1288, 1299 (7th Cir. 1997)
(citations and quotations omitted); see also Brooks, 125
F.3d at 495.
The undeveloped record in this case provides a
perfect example of why we typically decline to consider
ineffective assistance arguments for the first time on
direct appeal. Despite Taylor’s arguments to the contrary,
there is no indication in the record whether
Taylor’s trial counsel consulted with him before suggesting
to the court that it declare a mistrial. Due to the
strong presumption of counsel’s effectiveness, see Strickland,
466 U.S. at 689, if we were to express an opinion on
counsel’s performance based on such an incomplete
record, it would have to be in counsel’s favor. But we
need not make such a conclusive finding in this case, nor
need we defer our decision on this claim, because Taylor
fails to make the requisite showing of prejudice. Strickland’s
two-part test requires both deficient performance
and prejudice, 466 U.S. at 687; requiring a more fully
developed record, therefore, would only delay the inevitable.
Courts may deny ineffective assistance of counsel
claims for lack of prejudice without ever considering the
question of counsel’s actual performance. Id. at 697; see, e.g.,
Berkey v. United States, 318 F.3d 768, 772 (7th Cir. 2003);
Matheney v. Anderson, 253 F.3d 1025, 1042 (7th Cir. 2001). To
demonstrate prejudice, Taylor must show “that the decision
reached would reasonably likely have been different
absent the errors.” Strickland, 466 U.S. at 696. Taylor’s
entire argument, however, hinges on his trial counsel’s
purported deficiencies; he makes no claims related to the
prejudice he suffered. We presume this is because he
suffered none. As we have already discussed, the district
court, after careful consideration of the Vaiseta factors
and over the objection of the prosecution, implicitly
found a mistrial to be of manifest necessity. The court
did not need Taylor’s permission to make that decision,
and there is no reason to believe that an objection by
defense counsel, or even by the defendant himself, would
have changed the court’s conclusion. Absent the requisite
showing of prejudice, Taylor’s ineffective assistance of
counsel claim fails. We turn now to Taylor’s final argument.
B. Admissibility of Mary Weaver’s Statement (Trial
Number 2)
Finally, Taylor claims that the district court erred during
the second trial by admitting into evidence Mary
Weaver’s statement to Officer Schell that “he just took a
gun across the street.” Taylor bases this argument on
two grounds. First, he asserts that the evidentiary rules
against hearsay prohibited the admission of Weaver’s
statement. See Fed. R. Evid. 801-802. Second, he argues
that admitting Weaver’s statement without calling
Weaver herself to testify violated his constitutional right
to confront witnesses against him. See U.S. Const.
amend. VI. We find both arguments unavailing.
We typically review a district court’s decision to admit
statements into evidence for an abuse of discretion. United
States v. Akinrinade, 61 F.3d 1279, 1283 (7th Cir. 1995).
During trial, however, defense counsel raised no objections
to the references to Weaver’s statement, limiting
our review to plain error. See United States v. Olano, 507
U.S. 725, 731 (1993); see also Fed. R. Crim. P. 52(b). Under
this standard, we will not reverse unless we find not
only an error, but an error “that is ‘plain’ and that
‘affect[s] substantial rights.’ ” Olano, 507 U.S. at 732 (alteration
in original). Even in the presence of a plain error,
the decision whether to correct the error lies in our discretion,
which the Supreme Court has instructed us not
to exercise “unless the error ‘seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.’
” Id. (alteration in original) (quoting United
States v. Young, 470 U.S. 1, 15 (1985)).
We turn first to Taylor’s hearsay arguments. The
Federal Rules of Evidence prohibit the admission of
hearsay: out-of-court statements made by non-witnesses
that are offered to prove the truth of the matter asserted.
See Fed. R. Evid. 801-802; United States v. Breland, 356
F.3d 787, 792 (7th Cir. 2004). Here, Taylor challenges
numerous references made by Officer Schell and others to
Mary Weaver’s statement that “he just took a gun across
the street.” Such testimony created a potential hearsay
problem because neither side called Weaver to testify,
relying instead on other people to recount to the jury
Weaver’s statements. We find that the district court
committed no error because the challenged statement
did not satisfy the definition of hearsay.
We have recognized repeatedly that statements offered
to “establish the course of the investigation,” rather than
to prove the truth of the matter asserted, are nonhearsay
and therefore admissible. Akinrinade, 61 F.3d at 1283;
see also, e.g., Breland, 356 F.3d at 792; United States v.
Linwood, 142 F.3d 418, 425 (7th Cir. 1998); United States v.
Sanchez, 32 F.3d 1002, 1005 (7th Cir. 1994). But see United
States v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004) (discussing,
in the context of conversations between DEA agents
and their confidential informants, that “[a]llowing agents
to narrate the course of their investigations . . . would go
far toward abrogating the defendant’s rights under
the sixth amendment and the hearsay rule”).
Here, the references to Mary Weaver’s statement by
Schell, Cummings, and Hughes were offered to explain
their own actions in the course of their investigation—for
example, why they looked across the street, why they
questioned Mario Dowell, and why they handcuffed
Taylor when he approached. Indeed, Weaver’s statement
was the jumping-off point for the entire investigation.
Our conclusion might be different if, as in Silva, the
police were testifying to statements harvested from an
ongoing relationship with an informant, see 380 F.3d at
1019, but those are not the facts of this case; here, the
police were responding to a developing, potentially
dangerous situation. The government offered Weaver’s
statement in the context of the officers’ testimony to
explain the course of law enforcement’s investigation,
not as evidence that Taylor possessed the gun. The
district court, with no objections made by either party,
properly admitted the testimony as nonhearsay.
Turning, finally, to Taylor’s Confrontation Clause
argument, we again find no plain error. Absent “complicating
circumstances,” such as a prosecutor who exploits
nonhearsay statements for their truth, nonhearsay testimony
does not present a Confrontation Clause problem.
Lee v. McCaughtry, 892 F.2d 1318, 1325 (7th Cir. 1990); see
also Martinez v. McCaughtry, 951 F.2d 130, 133 (7th Cir.
1991) (citing Tennessee v. Street, 471 U.S. 409, 414 (1985)).
We are satisfied that there were no “complicating circumstances”
here; thus, because the testimony by Schell,
Cummings, and Hughes was nonhearsay, nothing ran
afoul of the Confrontation Clause. See Martinez, 951 F.2d
at 133-34. Furthermore, given the other evidence in the
record of Taylor’s gun possession, namely, Mario
Dowell’s testimony, Taylor cannot claim that his “substantial
rights” were affected. See Olano, 507 U.S. at 734
(stating that in most cases an error affects substantial
rights only if was prejudicial, i.e., it affected the outcome
of the proceedings); Akinrinade, 61 F.3d at 1283 (noting
the absence of a “miscarriage of justice” when reviewing
a Confrontation Clause claim for plain error).
III. CONCLUSION
For the foregoing reasons, we AFFIRM Taylor’s conviction.
Chicago Criminal Lawyer - Robert J Callahan
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