In December 2007, Ronnie Lauderdale
was tried for conspiracy to distribute and possess
with intent to distribute more than five kilograms of
cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846;
and possession of a firearm by a previously convicted
felon in violation of 18 U.S.C. § 922(g)(1). After the jury
was unable to reach a unanimous verdict, a new trial
was scheduled to commence some six weeks later. In
the days leading up to the second trial, the government
disclosed new evidence to Lauderdale. Lauderdale
moved to exclude that evidence on the grounds that it
was provided to him at the eleventh hour; the district
court considered the motion, but delayed a ruling.
During the trial, with the judicial determination on the
admissibility of the evidence still pending, the government
elicited witness testimony concerning the evidence.
Lauderdale moved for a mistrial, alleging bad faith by
the government and resulting prejudice. The district
court denied that motion, but then ruled to exclude
much of the originally-challenged evidence.
The trial proceeded to verdict and this time, the jury
returned a conviction. On appeal, Lauderdale argues
that the district court erred in denying his motion for a
mistrial. We affirm.
I. BACKGROUND
After Lauderdale’s first trial resulted in a hung jury on
December 27, 2007, the case was reset for trial on
February 11, 2008. Between the two trials, the government
provided defense counsel with several hundred
pages of telephone records which it intended to introduce
as corroborative evidence of the alleged drug conspiracy.
The records were produced in two installments;
the first approximately two weeks before trial, and the
second on the eve of trial. Lauderdale, through counsel,
requested a continuance based on the short setting and
the amount of newly disclosed evidence; he also filed
a motion in limine, urging the court to exclude this evidence
from trial. The government advised the court that
it had produced all the phone records within 24 hours
of receiving them from the cellular telephone providers.
The court denied the continuance but admonished the
prosecutor, stating “I can’t imagine I would let you use
this at this late date. I’ll consider it.” The court continued,
“[i]t’s dangerous for a judge to say never but my inclination
is I’m going to grant this motion, but it’s under
advisement.” The case proceeded to trial.
The government’s case consisted of the testimony of
cooperating witnesses Jesse Lee Hale and John Ball; the
statements made at the time of arrest by Lauderdale,
Hale, and Ball; statements of two jailhouse informants;
and corroborating records. The evidence presented established
that Ball and Hale grew up together in Madison,
Illinois. Hale later moved to Turrell, Arkansas, where
he met Lauderdale. Lauderdale began moving large
quantities of cocaine and offered Hale a piece of the
action; Hale, in turn, recruited his friend Ball to join the
business. The three men began distributing cocaine together.
Lauderdale obtained the cocaine from Mexican
suppliers; Ball distributed it on the local streets; and
Hale acted as the middleman, often delivering the drugs
to Ball in Illinois and staying behind to collect money.
After numerous successful transactions, something went
awry.
In late September 2006, the men met in a hotel room
in Sikeston, Missouri where they counted out 20 kilograms
of cocaine and placed the drugs in a black duffel bag. Ball
and Hale then drove to Madison, while Lauderdale
returned to Arkansas. Ball arranged to sell 1.5 kilos of
the supply to two buyers, but the transaction didn’t go
down; instead, the two men robbed Ball at gunpoint
and made off with the cocaine. In a rather bold but
foolish move, Ball flagged down police officers and told
them that he had been robbed. The officers were able to
apprehend one of the men and brought him and Ball to
the police station. Ball then provided police with a
mind boggling complaint: what the thieves had stolen
was not money but cocaine and, apparently by way of
full disclosure, Ball said he had an additional 18.5 kilograms
of it, along with two guns, in his house.
Ball took the officers to his house to show them the
goods but the cocaine was not there. Unbeknownst to
Ball, it had been moved by his uncle who, having received
word of his nephew’s arrest, took possession of the cocaine.
Hale and Lauderdale also got wind of Ball’s predicament.
When Lauderdale learned the news, he drove to
Madison immediately, obtained the duffle bag of cocaine,
and rented a hotel room in the area. Like a game of hot
potato, numerous accomplices briefly held, then passed
along, the cocaine over the course of several days.
As to Ball, the jig was up. Ball spoke to Hale by telephone
and told him to come over with the cocaine.
When Hale arrived, police arrested him. Although Hale
did not have the cocaine, he helped police recover
the drugs. Lauderdale was arrested shortly thereafter;
when police searched his car, they found a gun.
The government also presented testimony from
Frederick Goss and Marcel Fields, prison inmates who
were housed in the detention center with Lauderdale.
Goss testified that, during a game of chess, Lauderdale
told Goss that he had a business partner in Madison,
Illinois who was robbed of 1.5 kilograms of cocaine.
According to Goss, Lauderdale also told him that his
partner was testifying against him and that he wished
he could pay someone to kill him. According to Fields,
Lauderdale stated that he had been seen by Ball’s girlfriend
transporting cocaine, and that Lauderdale
wanted her dead. Lauderdale enlisted Fields to provide
someone who could accomplish this and agreed to pay
Fields $5,000 to do so.
On the final day of trial, Drug Enforcement Administration
(DEA) officer Brian Lammers testified that he and
another DEA officer interviewed Lauderdale at the Madison,
Illinois police department following Lauderdale’s
arrest. Lauderdale was made aware that other suspects
were cooperating and that, based on the cocaine which
had been seized, he was facing a possible sentence of life
imprisonment. Lauderdale then related an account of
his involvement in the drug conspiracy that was consistent
with that told by Hale and Ball. According to
Lammers, Lauderdale stated that he received the black
duffel bag containing the 20 kilograms of cocaine via a
courier from his Mexican supplier. At the hotel room
in Sikeston, Missouri, Lauderdale turned the cocaine
over to Hale and Ball, who were to transport it to
Madison, Illinois. However, when Lauderdale received
a call later that night from Hale informing him that “a
problem” had arisen, he also drove to Madison, where
he was arrested by police.
Lammers further testified that Lauderdale’s cellular
phone records established that Lauderdale was in communication
with Ball on September 23, 2006, and with
Hale on September 22 through 24, 2006. Lauderdale also
called Ball on the morning of September 25, 2006, the
day the three men met in Sikeston, Missouri. After the
call to Ball’s phone, there were two calls between Lauderdale
and Hale. Finally, there were a series of calls between
Lauderdale and Hale on the evening of September 25,
2006, the day Ball was arrested. Lammers then discussed
Ball’s cellular phone records.
Lammers also identified a number of government
exhibits relating to the telephone records. At that point,
Lauderdale’s counsel requested a sidebar and objected
to the admission of the telephone records, contending
that they were the subject of his earlier limine motion. The
district court noted that it had not yet ruled on Lauderdale’s
motion to exclude certain documents. The government
continued with its direct examination of Lammers.
Thereafter, Lauderdale’s counsel moved for a mistrial,
arguing that the government had used exhibits containing
phone records that had been excluded by the
court pursuant to Lauderdale’s motion in limine. The
court stated that it would go back and consider the
earlier order on the motion in limine.
Following a break, the court reconvened outside the
presence of the jury. It noted that Lauderdale’s motion in
limine had been taken under advisement, but not ruled
upon as Lauderdale had asserted. The court then elected
to admit the exhibits concerning records produced two
weeks before trial and bar the exhibits produced on the
eve of trial.
At the trial’s conclusion, the jury found Lauderdale
guilty of both counts; the district court sentenced him to
a term of life imprisonment for the drug conspiracy
conviction and a concurrent term of 360 months’ imprisonment
for the unlawful possession of a firearm conviction.
II. DISCUSSION
On appeal, Lauderdale contends that the district court
erred in denying his motion for a mistrial. He argues that
a mistrial was necessary because, by adducing witness
testimony concerning the challenged records, the government
deliberately disregarded the court’s de facto
ruling that the records would be excluded and, in doing
so, “snuck in” evidence that was critical to his conviction.
Moreover, he argues, the district court’s refusal
either to delay the trial’s start and allow sufficient time
for review of the late-arriving records or deliver on its
assurance that it would exclude the records in full, rendered
the trial fundamentally unfair.
We review the district court’s denial of a motion for a
mistrial for an abuse of discretion. Unites States v. Bermea-
Boone, 563 F.3d 621, 625 (7th Cir. 2009). We use such a
highly deferential standard of review because, “the trial
judge is in the best position to determine the seriousness
of the incident in question, particularly as it relates to
what has transpired in the course of the trial.” United States
v. Danford, 435 F.3d 682, 686 (7th Cir. 2006) (internal
quotation marks and citation omitted). The essential
inquiry is whether Lauderdale was deprived of a fair
trial. Id.
Lauderdale argues that the government’s actions
amounted to prosecutorial misconduct and compromised
the fairness of his trial. To evaluate such a claim, we
engage in a two-step analysis. United States v. White, 222
F.3d 363, 370 (7th Cir. 2000). We first examine the challenged
remarks in isolation to determine whether they
were improper; if they were, we look at the remarks in
the context of the entire record to determine whether
they could have so prejudiced the jury that the
defendant cannot be said to have received a fair trial. Id.
Here, neither the government’s direct examination of
Lammers concerning the telephone records nor its use
of exhibits containing those records violated an existing
court order. As the district court noted, Lauderdale’s pretrial
motion in limine to exclude the records had been
taken under advisement, but never ruled upon.
Nevertheless, Lauderdale contends that in light of the
district court’s indication that it would probably disallow
the use of such eleventh hour discovery, the government’s
decision to press forward on the subject matter
violated the spirit if not the letter of the law and was
improper all the same.
We disagree. Lauderdale’s argument ignores a key
development that took place during the course of the
trial. The record suggests that the district court had
softened on its stance on disallowing use of the records.
In response to Lauderdale’s objection to Lammers’ identification
of the government’s exhibits containing the
records, the prosecutor stated, “[t]he reason I even
began with [the disputed phone records] is because the
Court will recall, in chambers yesterday, you commented
that at this point [Lauderdale] had ample opportunity
to review them, having received them last
week and [now] a week deep into trial.” Shortly thereafter,
when the district court excluded the majority of the
challenged records, it noted, “[n]ow look, this is not a
case where the Court is suggesting with regards to these
exhibits that the [government] did something improper.
It did not.”
The district court’s comments throughout trial demonstrate
that, in its view, the admissibility of the telephone
records hinged on timing. The district court opted to
delay a decision on whether the government would
be allowed to use the telephone records until the point
at trial when it sought to do so. By withholding a
ruling until that time, the court could better reflect on how
limited or sufficient was defense counsel’s opportunity
to review and meet the evidence. It was not an
unqualified certainty that the district court would
exclude the records in their entirety. Understanding this,
the government proceeded with aggressive but fair
trial tactics.
Having established that there was no prosecutorial
misconduct, we need not consider whether Lauderdale
was prejudiced by the prosecutor’s trial tactics. Still, we
return to the essential question of whether Lauderdale
received a fair trial. It is clear to us that he did.
It may be true that, had the district court granted Lauderdale’s
motion for a continuance, defense counsel would
have been afforded the opportunity to more thoroughly
review and prepare the telephone records for trial. It
may also be true that some of Lammers’ testimonial
statements, made in the presence of the jury, related to
evidence later ruled inadmissible. However, neither the
telephone records themselves nor the corresponding
testimony introduced new proof of Lauderdale’s
guilt. Far from being critical, these records were simply
cumulative.
During their respective testimonies, Hale and Ball each
made numerous references to the other co-conspirators’
use of telephones to communicate with one another.
Moreover, independent of the excluded evidence, the
district court admitted several exhibits which were corroborative
of the telephone records. For example,
although the records relating to one of Lauderdale’s
mobile phones were excluded, the physical telephone
that corresponded to those records and the phone’s call
history log that demonstrated communication with
Hale were admitted into evidence without objection.
It also bears noting that, without a single mention of
the phone records, the weight of the evidence presented
at trial was more than sufficient to establish Lauderdale’s
guilt beyond a reasonable doubt. The jury heard testimony
concerning Lauderdale’s post-arrest statement in
which he admitted to transporting the cocaine involved
in the conspiracy, along with the testimony of each of
Lauderdale’s co-conspirators, Hale and Ball, attesting
to Lauderdale’s instrumental role in the drug ring. Two
of Lauderdale’s prison acquaintances also testified that
Lauderdale expressed his desire and intention to have
incriminating witnesses killed. Lauderdale’s contention
that the district court abused its discretion in denying
a mistrial is without merit.
For the reasons set forth above, we AFFIRM Lauderdale’s
conviction.
Chicago Criminal Lawyer - Robert J Callahan
Thursday, July 9, 2009
U.S. vs. Brown
After being charged with several
counts of drug-related offenses, Marcus Brown entered
into a plea agreement with the government. Under the
agreement, if Brown pleaded guilty to one conspiracy
count and fully cooperated, the government would move
to dismiss the remaining counts and reduce Brown’s
sentence. The district court accepted Brown’s guilty
plea and sentenced him in accordance with the terms of
the plea agreement. Nonetheless, Brown now argues that
the record is ambiguous as to whether the district court
accepted the agreement. Brown requests a remand to
determine if the court actually intended to reject the
agreement, in which case Brown is entitled to withdraw
his guilty plea. We conclude that the district court’s
acceptance of Brown’s plea agreement was unambiguous
and, accordingly, dismiss Brown’s appeal.
I. Background
Between 2003 and 2006, Brown participated in a drug
distribution operation based out of a Chicago housing
complex. The government obtained an indictment
against Brown and thirty-nine other individuals involved
in the operation, particularly charging Brown
with conspiracy to possess with intent to distribute more
than 5 kilograms of cocaine, 50 grams of crack cocaine, and
1 kilogram of heroin, in violation of 21 U.S.C. § 846, and
possession with intent to distribute 3.2 grams of crack
cocaine, in violation of 21 U.S.C. § 841(a)(1). The indictment
also contained a forfeiture allegation against all
property derived from or used to facilitate the drug
offenses. In three other cases that are not the subject of
this appeal, the government charged Brown with additional
crack cocaine distribution offenses.
Brown and the government entered into a plea agreement
requiring Brown to plead guilty to the conspiracy
count, resulting in an anticipated sentencing range of 292-
365 months under the Sentencing Guidelines. In exchange,
the government would move to dismiss the
possession count and forfeiture allegation in this case, as
well as all counts against Brown in the other three cases.
In addition, if Brown fully cooperated by providing
complete and truthful information in the other cases, the
government would move under U.S.S.G. § 5K1.1 for a
sentence at 66% of the minimum Guidelines range. If the
government determined that Brown had not fully cooperated
and declined to move for a § 5K1.1 reduction, Brown
could not withdraw his guilty plea. Finally, the plea
agreement required Brown to waive his right to appeal
his conviction or sentence.
The district court held a hearing to accept Brown’s guilty
plea to the conspiracy count. The court reviewed and
explained the terms of the plea agreement, which Brown
indicated that he understood. The court also told the
parties that it would order the Probation Department to
prepare a Presentence Investigation Report (“PSR”) to
assist the court in sentencing. The court would hear
any objections to the PSR’s sentencing calculations
before imposing a final sentence. At no point during
the hearing did the court explicitly accept or reject the
plea agreement.
Brown later decided that he wanted nothing to do with
the plea agreement. He filed a pro se motion to withdraw
his guilty plea on the ground that his appointed
counsel had misrepresented the terms of the plea agreement
and coerced him into pleading guilty. The court
denied the motion without prejudice and appointed
new counsel. Through his new counsel, Brown filed a
second motion to withdraw his plea, arguing that he
entered the plea before receiving a final copy of the
plea agreement describing the full offense conduct attributed
to him. The district court rejected this argument,
noting that Brown had stated under oath at the plea
hearing that he had read and understood the final
plea agreement.
At the sentencing hearing, the district court adopted the
PSR’s sentencing calculations, which specified the same
292-365 month Guidelines range anticipated by the plea
agreement. The court rejected Brown’s objection to the
quantity of crack cocaine attributed to him in the
PSR, noting that Brown had admitted under oath to an
identical quantity specified in the plea agreement. After
the government advised the court that it was not
moving under § 5K1.1 for a below-Guidelines sentence
because Brown had not fully cooperated, the court acknowledged
that the plea agreement gave the government
that right. The court accordingly imposed a Guidelines
sentence of 325 months on the conspiracy count.
The court also recognized that the plea agreement contained
a waiver of Brown’s right to appeal. Nonetheless,
the court chose to state for the record “that the
defendant has the right to appeal,” leaving it to the appellate
court to “determine whether the defendant has
waived his right or not waived his right [to appeal].” After
the sentencing hearing, the court, consistent with the
plea agreement, dismissed the remaining counts in the
case before it. The government also moved to dismiss
the pending indictments against Brown in the other
three cases.
Brown appeals on the ground that the district court
failed to comply with Fed. R. Crim. P. 11(c) because it
never accepted or rejected the plea agreement. More
precisely, Brown argues that the record is ambiguous as to
whether the court intended to accept the agreement and
requests a remand for clarification from the court.
II. Analysis
Fed. R. Crim. P. 11(c) governs the district court’s consideration
of plea agreements. Under Fed. R. Crim. P. 11(h),
Rule 11 violations are generally subject to harmless error
review, requiring the government to prove that the error
did not affect the defendant’s substantial rights. See
United States v. Vonn, 535 U.S. 55, 58 (2002). However,
since Brown never sought clarification regarding the
district court’s acceptance of the plea agreement, Brown
has the burden of showing plain error. See United States v.
Arenal, 500 F.3d 634, 637 (7th Cir. 2007) (citing Vonn, 535
U.S. at 59). To prevail on plain error review, the defendant
must show that “(1) an error has occurred, (2) it was
‘plain,’ (3) it affected a substantial right of the defendant,
and (4) it seriously affected the fairness, integrity, or
public reputation of the judicial proceedings.” United
States v. Nitch, 477 F.3d 933, 935 (7th Cir. 2007) (quotation
omitted).
Under Fed. R. Crim. P. 11(c)(3)(A), for plea agreements
such as Brown’s that require the government to move to
dismiss other charges, the district court “may accept
the agreement, reject it, or defer a decision until the
court has reviewed the presentence report.” If the court
accepts the agreement, it must inform the defendant that
“the agreed disposition will be included in the judgment.”
Fed. R. Crim. P. 11(c)(4). If the court rejects the
agreement, it must inform the parties in open court and
give the defendant an opportunity to withdraw the
guilty plea. Fed. R. Crim. P. 11(c)(5).
Brown argues that the district court plainly erred by
failing to either accept or reject the plea agreement, as
required by Rule 11(c). However, our review of the
record indicates that the court accepted the agreement.
At the plea hearing, the court stated that it would
examine the PSR’s Guidelines calculations before
imposing a final sentence, suggesting that the court
exercised its option under Rule 11 to defer acceptance
“until the court has reviewed the presentence report.” Fed.
R. Crim. P. 11(c)(3)(A). Thereafter, every aspect of the
court’s disposition of Brown’s case was consistent with
an acceptance of the plea agreement. At the sentencing
hearing, the court recalled that Brown had pleaded
guilty to the conspiracy count “pursuant to a written
plea agreement.” The court rejected Brown’s objection
to the quantity of crack cocaine attributed to him in the
PSR, noting that Brown had admitted under oath to an
identical quantity specified in the plea agreement. The
court would not have bound Brown to facts described in
a plea agreement that the court intended to reject.
After the government declined to move for a § 5K1.1
reduction, the court stated that it would proceed “under
the plea agreement” to sentence Brown in accordance
with the sentencing factors of 18 U.S.C. § 3553. Finally, the
court actually implemented the terms of the plea agreement
by dismissing the remaining counts in the case. The
government, also consistent with the plea agreement,
moved to dismiss the pending counts against Brown in
the other three cases. Because all of these acts were
fully consistent with the terms of the plea agreement, the
record unambiguously establishes that the district court
accepted the agreement.
To try to show that the district court’s acceptance of
the plea agreement was ambiguous, Brown notes that
the court never explicitly stated that it was accepting
or rejecting the agreement. Brown also highlights the
court’s statement at the sentencing hearing that “the
defendant has the right to appeal,” even though the
agreement required Brown to waive the right to appeal.
According to Brown, this statement expresses doubt
about the validity of the appellate waiver and suggests a
rejection of the plea agreement.
As to the appellate waiver, although the district court
may have expressed doubt about the waiver’s validity,
we disagree with Brown that this statement suggests
that the court was rejecting the plea agreement. We
routinely hear challenges to an appellate waiver on the
ground that the defendant did not agree to the waiver
knowingly and voluntarily. E.g., United States v. Linder,
530 F.3d 556, 561 (7th Cir. 2008); United States v. Blinn,
490 F.3d 586, 588 (7th Cir. 2007); United States v. Sura, 511
F.3d 654, 655-56 (7th Cir. 2007). Far from a rejection of
the plea agreement, the district court’s reference to
Brown’s right to appeal simply recognized that Brown
might challenge the voluntariness of the agreement that
the court was enforcing.
As to the court’s failure to explicitly state that it was
accepting the plea agreement, that omission does not
overcome the court’s other acts that uniformly point to
acceptance. We addressed a similar situation in United
States v. Ray, 828 F.2d 399, 415-16 (7th Cir. 1987), in
which the district court never stated that it was
accepting the plea agreement. We nonetheless found
an acceptance because the court sentenced the defendant
in accordance with the agreement’s terms. Id. at 416. In
particular, the district court in Ray, like the district court
in this case, accepted the government’s motion to
dismiss other pending counts as required by the plea
agreement. Id. In fact, the court’s intention in Ray to
accept the agreement was so apparent that we disregarded
the court’s statement that the agreement was
“not accepted.” Id. Given all of the surrounding circumstances
indicating an acceptance, we concluded that
this statement must have been a “mistake or clerical
error.” Id.
As in Ray, the district court’s sentencing of Brown was
fully consistent with the terms of the plea agreement. The
court even chose a sentence within a Guidelines range
identical to the range anticipated by the plea agreement.
Cf. United States v. Smith, 500 F.3d 1206, 1213 & n.3 (10th
Cir. 2007) (concluding that the imposition of an upward
adjustment to the defendant’s Guidelines range did not
amount to a rejection of the plea agreement, since the
agreement did not address the specific adjustment at
issue). Under these circumstances, remanding the case
as Brown requests for clarification of the district court’s
intention would place “ritual” over “reality.” Ray, 828
F.2d at 404 (quotation omitted).
We also note that, even if the record were ambiguous
as to whether the district court accepted Brown’s plea
agreement, some authority exists for resolving that ambiguity
in favor of acceptance. In United States v. Skidmore,
998 F.2d 372, 374 (6th Cir. 1993), the district court
accepted the defendants’ guilty pleas pursuant to a plea
agreement but never stated whether it was accepting
the agreement. In subsequent sentencing proceedings, the
district court refused to enforce a provision of the agreement
requiring the forfeiture of the defendants’ property
to the United States. The Sixth Circuit reversed and
enforced the forfeiture provision as if the district court
had accepted the agreement. Id. at 375. “[T]he district
court’s failure to indicate the status of the plea agreement,
within the requirements of [Rule 11(c)(3)], at the
time the court accepts the guilty pleas operates as an
acceptance of the agreement.” Id. (citation omitted); see
also Smith, 500 F.3d at 1213 n.3 (citing Skidmore to find a
“constructive acceptance” of the plea agreement).
We acknowledge that the better practice under Rule 11(c)
would be for district courts to explicitly indicate the
status of plea agreements. A defendant like Brown who
trades cooperation for government leniency finds
himself in an uncertain bargaining position. Armed with
significant resources and prosecutorial charging discretion,
the government may demand highly favorable terms
in its plea agreement. Perhaps the most favorable of
these is the unilateral authority to determine whether
the defendant performed under the agreement by fully
cooperating, an authority subject only to certain constitutional
constraints. See United States v. Wilson, 390 F.3d
1003, 1009-10 (7th Cir. 2004) (concluding that the government’s
refusal to move for a substantial assistance
reduction lacked a rational basis); United States v. Lezine,
166 F.3d 895, 901-03 (7th Cir. 1999) (recognizing the defendant’s
due process right to a hearing on whether he
breached the plea agreement by failing to cooperate). As
if the uncertainty of placing this authority in one’s adversary
weren’t enough, the defendant must also defer
to the authority of the district court, which retains the
right to reject the plea agreement. Fed. R. Crim.
P. 11(c)(3), (5).
Here, the district court would have done well to minimize
this uncertainty in plea bargaining by sticking as
close as possible to the virtual “checklist” that Rule 11
provides. Consistent with the requirements of Rule 11(c),
the court might have explicitly stated at the plea
hearing that it was deferring acceptance pending the PSR
and, at the sentencing hearing, that it was accepting the
plea agreement. See Fed. R. Crim. P. 11(c)(3)(A). But since
the Rule does not require such explicit statements,1 we
cannot say that the court plainly erred by failing to
specify that it was accepting Brown’s plea agreement.
Brown could have “dispelled any uncertainty” by simply
asking the court for clarification. Arenal, 500 F.3d at 639.
We also suggest that the government could have
sought assurances that the court was accepting the plea
agreement, thereby preventing Brown from trying to
withdraw his guilty plea on the theory that the court
rejected the agreement.
III. Conclusion
Because we find that the district court accepted Brown’s
plea agreement, we DISMISS Brown’s appeal pursuant to
the appellate waiver contained in the agreement.
Chicago Criminal Lawyer - Robert J Callahan
counts of drug-related offenses, Marcus Brown entered
into a plea agreement with the government. Under the
agreement, if Brown pleaded guilty to one conspiracy
count and fully cooperated, the government would move
to dismiss the remaining counts and reduce Brown’s
sentence. The district court accepted Brown’s guilty
plea and sentenced him in accordance with the terms of
the plea agreement. Nonetheless, Brown now argues that
the record is ambiguous as to whether the district court
accepted the agreement. Brown requests a remand to
determine if the court actually intended to reject the
agreement, in which case Brown is entitled to withdraw
his guilty plea. We conclude that the district court’s
acceptance of Brown’s plea agreement was unambiguous
and, accordingly, dismiss Brown’s appeal.
I. Background
Between 2003 and 2006, Brown participated in a drug
distribution operation based out of a Chicago housing
complex. The government obtained an indictment
against Brown and thirty-nine other individuals involved
in the operation, particularly charging Brown
with conspiracy to possess with intent to distribute more
than 5 kilograms of cocaine, 50 grams of crack cocaine, and
1 kilogram of heroin, in violation of 21 U.S.C. § 846, and
possession with intent to distribute 3.2 grams of crack
cocaine, in violation of 21 U.S.C. § 841(a)(1). The indictment
also contained a forfeiture allegation against all
property derived from or used to facilitate the drug
offenses. In three other cases that are not the subject of
this appeal, the government charged Brown with additional
crack cocaine distribution offenses.
Brown and the government entered into a plea agreement
requiring Brown to plead guilty to the conspiracy
count, resulting in an anticipated sentencing range of 292-
365 months under the Sentencing Guidelines. In exchange,
the government would move to dismiss the
possession count and forfeiture allegation in this case, as
well as all counts against Brown in the other three cases.
In addition, if Brown fully cooperated by providing
complete and truthful information in the other cases, the
government would move under U.S.S.G. § 5K1.1 for a
sentence at 66% of the minimum Guidelines range. If the
government determined that Brown had not fully cooperated
and declined to move for a § 5K1.1 reduction, Brown
could not withdraw his guilty plea. Finally, the plea
agreement required Brown to waive his right to appeal
his conviction or sentence.
The district court held a hearing to accept Brown’s guilty
plea to the conspiracy count. The court reviewed and
explained the terms of the plea agreement, which Brown
indicated that he understood. The court also told the
parties that it would order the Probation Department to
prepare a Presentence Investigation Report (“PSR”) to
assist the court in sentencing. The court would hear
any objections to the PSR’s sentencing calculations
before imposing a final sentence. At no point during
the hearing did the court explicitly accept or reject the
plea agreement.
Brown later decided that he wanted nothing to do with
the plea agreement. He filed a pro se motion to withdraw
his guilty plea on the ground that his appointed
counsel had misrepresented the terms of the plea agreement
and coerced him into pleading guilty. The court
denied the motion without prejudice and appointed
new counsel. Through his new counsel, Brown filed a
second motion to withdraw his plea, arguing that he
entered the plea before receiving a final copy of the
plea agreement describing the full offense conduct attributed
to him. The district court rejected this argument,
noting that Brown had stated under oath at the plea
hearing that he had read and understood the final
plea agreement.
At the sentencing hearing, the district court adopted the
PSR’s sentencing calculations, which specified the same
292-365 month Guidelines range anticipated by the plea
agreement. The court rejected Brown’s objection to the
quantity of crack cocaine attributed to him in the
PSR, noting that Brown had admitted under oath to an
identical quantity specified in the plea agreement. After
the government advised the court that it was not
moving under § 5K1.1 for a below-Guidelines sentence
because Brown had not fully cooperated, the court acknowledged
that the plea agreement gave the government
that right. The court accordingly imposed a Guidelines
sentence of 325 months on the conspiracy count.
The court also recognized that the plea agreement contained
a waiver of Brown’s right to appeal. Nonetheless,
the court chose to state for the record “that the
defendant has the right to appeal,” leaving it to the appellate
court to “determine whether the defendant has
waived his right or not waived his right [to appeal].” After
the sentencing hearing, the court, consistent with the
plea agreement, dismissed the remaining counts in the
case before it. The government also moved to dismiss
the pending indictments against Brown in the other
three cases.
Brown appeals on the ground that the district court
failed to comply with Fed. R. Crim. P. 11(c) because it
never accepted or rejected the plea agreement. More
precisely, Brown argues that the record is ambiguous as to
whether the court intended to accept the agreement and
requests a remand for clarification from the court.
II. Analysis
Fed. R. Crim. P. 11(c) governs the district court’s consideration
of plea agreements. Under Fed. R. Crim. P. 11(h),
Rule 11 violations are generally subject to harmless error
review, requiring the government to prove that the error
did not affect the defendant’s substantial rights. See
United States v. Vonn, 535 U.S. 55, 58 (2002). However,
since Brown never sought clarification regarding the
district court’s acceptance of the plea agreement, Brown
has the burden of showing plain error. See United States v.
Arenal, 500 F.3d 634, 637 (7th Cir. 2007) (citing Vonn, 535
U.S. at 59). To prevail on plain error review, the defendant
must show that “(1) an error has occurred, (2) it was
‘plain,’ (3) it affected a substantial right of the defendant,
and (4) it seriously affected the fairness, integrity, or
public reputation of the judicial proceedings.” United
States v. Nitch, 477 F.3d 933, 935 (7th Cir. 2007) (quotation
omitted).
Under Fed. R. Crim. P. 11(c)(3)(A), for plea agreements
such as Brown’s that require the government to move to
dismiss other charges, the district court “may accept
the agreement, reject it, or defer a decision until the
court has reviewed the presentence report.” If the court
accepts the agreement, it must inform the defendant that
“the agreed disposition will be included in the judgment.”
Fed. R. Crim. P. 11(c)(4). If the court rejects the
agreement, it must inform the parties in open court and
give the defendant an opportunity to withdraw the
guilty plea. Fed. R. Crim. P. 11(c)(5).
Brown argues that the district court plainly erred by
failing to either accept or reject the plea agreement, as
required by Rule 11(c). However, our review of the
record indicates that the court accepted the agreement.
At the plea hearing, the court stated that it would
examine the PSR’s Guidelines calculations before
imposing a final sentence, suggesting that the court
exercised its option under Rule 11 to defer acceptance
“until the court has reviewed the presentence report.” Fed.
R. Crim. P. 11(c)(3)(A). Thereafter, every aspect of the
court’s disposition of Brown’s case was consistent with
an acceptance of the plea agreement. At the sentencing
hearing, the court recalled that Brown had pleaded
guilty to the conspiracy count “pursuant to a written
plea agreement.” The court rejected Brown’s objection
to the quantity of crack cocaine attributed to him in the
PSR, noting that Brown had admitted under oath to an
identical quantity specified in the plea agreement. The
court would not have bound Brown to facts described in
a plea agreement that the court intended to reject.
After the government declined to move for a § 5K1.1
reduction, the court stated that it would proceed “under
the plea agreement” to sentence Brown in accordance
with the sentencing factors of 18 U.S.C. § 3553. Finally, the
court actually implemented the terms of the plea agreement
by dismissing the remaining counts in the case. The
government, also consistent with the plea agreement,
moved to dismiss the pending counts against Brown in
the other three cases. Because all of these acts were
fully consistent with the terms of the plea agreement, the
record unambiguously establishes that the district court
accepted the agreement.
To try to show that the district court’s acceptance of
the plea agreement was ambiguous, Brown notes that
the court never explicitly stated that it was accepting
or rejecting the agreement. Brown also highlights the
court’s statement at the sentencing hearing that “the
defendant has the right to appeal,” even though the
agreement required Brown to waive the right to appeal.
According to Brown, this statement expresses doubt
about the validity of the appellate waiver and suggests a
rejection of the plea agreement.
As to the appellate waiver, although the district court
may have expressed doubt about the waiver’s validity,
we disagree with Brown that this statement suggests
that the court was rejecting the plea agreement. We
routinely hear challenges to an appellate waiver on the
ground that the defendant did not agree to the waiver
knowingly and voluntarily. E.g., United States v. Linder,
530 F.3d 556, 561 (7th Cir. 2008); United States v. Blinn,
490 F.3d 586, 588 (7th Cir. 2007); United States v. Sura, 511
F.3d 654, 655-56 (7th Cir. 2007). Far from a rejection of
the plea agreement, the district court’s reference to
Brown’s right to appeal simply recognized that Brown
might challenge the voluntariness of the agreement that
the court was enforcing.
As to the court’s failure to explicitly state that it was
accepting the plea agreement, that omission does not
overcome the court’s other acts that uniformly point to
acceptance. We addressed a similar situation in United
States v. Ray, 828 F.2d 399, 415-16 (7th Cir. 1987), in
which the district court never stated that it was
accepting the plea agreement. We nonetheless found
an acceptance because the court sentenced the defendant
in accordance with the agreement’s terms. Id. at 416. In
particular, the district court in Ray, like the district court
in this case, accepted the government’s motion to
dismiss other pending counts as required by the plea
agreement. Id. In fact, the court’s intention in Ray to
accept the agreement was so apparent that we disregarded
the court’s statement that the agreement was
“not accepted.” Id. Given all of the surrounding circumstances
indicating an acceptance, we concluded that
this statement must have been a “mistake or clerical
error.” Id.
As in Ray, the district court’s sentencing of Brown was
fully consistent with the terms of the plea agreement. The
court even chose a sentence within a Guidelines range
identical to the range anticipated by the plea agreement.
Cf. United States v. Smith, 500 F.3d 1206, 1213 & n.3 (10th
Cir. 2007) (concluding that the imposition of an upward
adjustment to the defendant’s Guidelines range did not
amount to a rejection of the plea agreement, since the
agreement did not address the specific adjustment at
issue). Under these circumstances, remanding the case
as Brown requests for clarification of the district court’s
intention would place “ritual” over “reality.” Ray, 828
F.2d at 404 (quotation omitted).
We also note that, even if the record were ambiguous
as to whether the district court accepted Brown’s plea
agreement, some authority exists for resolving that ambiguity
in favor of acceptance. In United States v. Skidmore,
998 F.2d 372, 374 (6th Cir. 1993), the district court
accepted the defendants’ guilty pleas pursuant to a plea
agreement but never stated whether it was accepting
the agreement. In subsequent sentencing proceedings, the
district court refused to enforce a provision of the agreement
requiring the forfeiture of the defendants’ property
to the United States. The Sixth Circuit reversed and
enforced the forfeiture provision as if the district court
had accepted the agreement. Id. at 375. “[T]he district
court’s failure to indicate the status of the plea agreement,
within the requirements of [Rule 11(c)(3)], at the
time the court accepts the guilty pleas operates as an
acceptance of the agreement.” Id. (citation omitted); see
also Smith, 500 F.3d at 1213 n.3 (citing Skidmore to find a
“constructive acceptance” of the plea agreement).
We acknowledge that the better practice under Rule 11(c)
would be for district courts to explicitly indicate the
status of plea agreements. A defendant like Brown who
trades cooperation for government leniency finds
himself in an uncertain bargaining position. Armed with
significant resources and prosecutorial charging discretion,
the government may demand highly favorable terms
in its plea agreement. Perhaps the most favorable of
these is the unilateral authority to determine whether
the defendant performed under the agreement by fully
cooperating, an authority subject only to certain constitutional
constraints. See United States v. Wilson, 390 F.3d
1003, 1009-10 (7th Cir. 2004) (concluding that the government’s
refusal to move for a substantial assistance
reduction lacked a rational basis); United States v. Lezine,
166 F.3d 895, 901-03 (7th Cir. 1999) (recognizing the defendant’s
due process right to a hearing on whether he
breached the plea agreement by failing to cooperate). As
if the uncertainty of placing this authority in one’s adversary
weren’t enough, the defendant must also defer
to the authority of the district court, which retains the
right to reject the plea agreement. Fed. R. Crim.
P. 11(c)(3), (5).
Here, the district court would have done well to minimize
this uncertainty in plea bargaining by sticking as
close as possible to the virtual “checklist” that Rule 11
provides. Consistent with the requirements of Rule 11(c),
the court might have explicitly stated at the plea
hearing that it was deferring acceptance pending the PSR
and, at the sentencing hearing, that it was accepting the
plea agreement. See Fed. R. Crim. P. 11(c)(3)(A). But since
the Rule does not require such explicit statements,1 we
cannot say that the court plainly erred by failing to
specify that it was accepting Brown’s plea agreement.
Brown could have “dispelled any uncertainty” by simply
asking the court for clarification. Arenal, 500 F.3d at 639.
We also suggest that the government could have
sought assurances that the court was accepting the plea
agreement, thereby preventing Brown from trying to
withdraw his guilty plea on the theory that the court
rejected the agreement.
III. Conclusion
Because we find that the district court accepted Brown’s
plea agreement, we DISMISS Brown’s appeal pursuant to
the appellate waiver contained in the agreement.
Chicago Criminal Lawyer - Robert J Callahan
U.S. vs. Moore
In the early afternoon of
January 23, 2007, three men robbed a branch of Tower
Bank in Fort Wayne, Indiana. During the robbery, at
1:49 p.m., police officers in the Northeast Indiana Federal
Bank Robbery Task Force received an automated text
message that the bank had been robbed and that a GPS
system embedded in the stolen money was transmitting
its location. The GPS was designed to begin transmitting
its location as soon as it left the bank drawer where it
was kept. Detective Robison, of the Task Force, used a
handheld tracker to follow the GPS to the 4200 block of
Darby Drive in Fort Wayne. He arrived there ten
minutes from the time he received the text indicating
the bank had been robbed and joined other law enforcement
units that were already in the area at the time. The
GPS indicated that it was transmitting within 50 feet
of what the GPS identified as 4229 Darby Drive (there
is no such address) when it stopped transmitting.
The GPS information, combined with fresh tire tracks
at the scene (it was a snowy day), led Robison to
believe that the bank robbers had entered the home at
4217 Darby Drive. The police staked out the location,
ensuring that nobody came or went, and sought a warrant
to enter the home. Fortuitously, Kenyatta Lewis, the
4217 homeowner, arrived home from work with his
wife about three hours into the stakeout. The police asked
him for permission to search the house, which he granted.
The police first entered the house through the garage,
where (because of the tire tracks) the police believed the
bank robbers entered. As the police prepared to enter
the main part of the house, Joseph Lewis1, Kenyatta’s
cousin, walked into the garage and was promptly arrested.
The police proceeded through the house to the second
floor, where they arrested the defendant, Dontrell Moore,
who was seated on the toilet in the bathroom, and Dawan
Warren, who appeared to be sleeping in one of the bedrooms.
In the room where Warren was found, the police
spotted an access panel to the attic, and in the attic they
found a variety of clothes that did not belong to the
Kenyatta Lewis household, including two masks, a hat, a
blue pair of nylon sweatpants with a white stripe, and a
football jersey. They also found the smashed GPS transmitter
taken from the bank, a black bag with an Ozark
Trail label, a gun, bait money and money straps from the
bank, and currency totaling $9,308. The police also found
latex gloves (matching gloves a teller described on the
robbers) in the car parked in the garage. The three men,
Joseph Lewis, Dawan Warren, and Dontrell Moore, were
indicted for bank robbery (count I) and using a firearm
during a robbery (count II) and tried separately. At
his trial, Moore was convicted of both counts.
He appeals, arguing that the evidence was insufficient
to convict him on either count.
Count I
“A defendant faces a nearly insurmountable hurdle
in challenging the sufficiency of the evidence to sustain a
conviction.” United States v. Woods, 556 F.3d 616, 621 (7th
Cir. 2009) (quotations and citation omitted). Moore must
convince us that even “after viewing the evidence in the
light most favorable to the prosecution, no rational trier
of fact could have found him guilty beyond a reasonable
doubt.” Id. “[W]e will overturn a conviction based on
insufficient evidence only if the record is devoid of evidence
from which a reasonable jury could find guilt
beyond a reasonable doubt.” United States v. Farris, 532
F.3d 615, 618 (7th Cir. 2008) (citation omitted).
Moore’s appeal requires us to articulate the somewhat
difficult-to-describe distinction between our role, on
review, to correct errors in the trial process and the
jury’s role, at trial, to act as the final arbiters of the facts
of any given case. Our deference to the jury’s role is
expressed most plainly in Jackson v. Virginia, 443 U.S.
307 (1979):
[T]he critical inquiry on review of the sufficiency of
the evidence to support a criminal conviction must
be not simply to determine whether the jury was
properly instructed, but to determine whether the
record evidence could reasonably support a finding
of guilt beyond a reasonable doubt. But this
inquiry does not require a court to ask itself
whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt.
Instead, the relevant question is 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.
Id. at 318-19 (1979) (quotations and citations omitted)
(emphasis in the original).
In other words, our task is not to determine whether or
not we think Moore was actually guilty of the bank robbery;
we must only ask whether a rational jury could have
believed he was, and believed so beyond a reasonable
doubt. A verdict may be rational even if it relies solely on
circumstantial evidence. United States v. Robinson, 177
F.3d 643, 647 (7th Cir. 1999). The question we must
answer is whether “each link in the chain of inferences”
the jury constructed is “sufficiently strong to avoid a
lapse into speculation.” United States v. Jones, 371 F.3d
363, 366 (7th Cir. 2004) (quoting United States v. Peters,
277 F.3d 963, 967 (7th Cir. 2002)). Complicating matters
is that in circumstantial cases “we face head-on the disturbing
truth that guilty verdicts rest on judgments
about probabilities and those judgments are usually
intuitive rather than scientific.” Stewart v. Coalter, 48
F.3d 610, 614 (1st Cir. 1995).
The task for this jury was to determine whether
Dontrell Moore was the man identified by the government
as Robber #2—the masked man who was photographed
holding a bag as bank employees filled it with
money from the bank’s vault. The government asked
the jury to infer that because law enforcement had
arrived at the Darby Drive address within ten minutes
of the robbery and found items in the house connected
with the robbery along with three men who matched the
descriptions given by the bank’s employees, the three
men robbed the bank. And because, of the three, Dontrell
Moore resembled most closely Robber #2, the government
contends that there was sufficient evidence for the
jury to convict Moore. Furthermore, the government
points out that the identification of the other two people
in the house, Warren and Lewis, is solid—Lewis, because
of his unusually heavy build, and Warren, because the
police took $20 of bait money off him when they booked
him into the Allen County Jail (both of these facts were
presented to the jury unchallenged).
But we must deal with Moore. His theory of the case
is that his description does not really match up with
Robber #2’s description and that because of the ill fit, the
government cannot put Moore in the bank. And, if the
government cannot put Moore in the bank, all the government
can prove is his presence in the house where
the other robbers were caught. “Mere presence,” he tells
us, is not enough to tag him with a bank robbery conviction.
Furthermore, a third of the money from the robbery
is missing.2 This, he argues, supports his theory that
even though the other two guys in the house robbed
the bank, they did it without him.
The evidence from the bank employees and bank security
system is about what you’d expect from a frantic event
like a bank robbery. The terrified witnesses often had
their eyes closed or avoided directly looking at the
robbers; the robbers were masked and generally appear
almost as blurs on the stills captured from the bank
security feed. It is undisputed that three African-American
men robbed the bank; it is also undisputed that at least
one of the men was shorter and very heavy, a description
that matches Joseph Lewis, the cousin of the Darby Drive
homeowner (Joseph Lewis is apparently 5’7”-5’8” tall and
weighs 280 pounds). Robber #1, Dawan Warren, was
identified as wearing a sweatshirt or flannel shirt over a
jersey with a Number 7 on it, and this matches up to
the jersey found in the attic at Darby Drive.
But Robber #2, who the jury found to be Dontrell Moore,
was not so clearly described. Evidence before the jury
included descriptions of Robber #2 that estimated his
height as anywhere from 5’7” to 6’1”. Dontrell Moore is
6’5”. Robber #2 was also described as being slender
(like Moore) and wearing a ski mask slightly askew so
that one of the bank employees could see facial hair
(which Moore wore). We can also see from the bank
surveillance photos that he appeared to be wearing bluishgreen
pants and white tennis shoes.4 The bank photos
also seem to confirm the witnesses’ description of his
attire as being “layered” (perhaps because he was
wearing multiple sets of clothing—and remember, a
variety of unaccounted-for clothing was found in the
Darby Drive home). One employee testified that she
saw someone leaving the bank and that he had long hair,
possibly in braids or cornrows. Dontrell Moore wore his
hair in braided cornrows that, according to his mug shot
from the day of the robbery, would possibly hang below
the base of a ski mask (although from the testimony it’s
unclear whether the man the employee saw was wearing
a ski mask; neither the defendant nor the government
clarified).
Moore points to other evidence, or the lack thereof, to
magnify the uncertainty of the identification.5 For one
thing, the missing money led to a second search of the
Darby Drive address the day after the robbery. No additional
money was found. Moore also alerts us to the
fact that the gang apparently ditched a stolen getaway
car less than a mile from the bank and switched to
Joseph Lewis’s car, the one found in the 4217 Darby Drive
garage.
Moore uses these facts, developed exclusively in the
government’s case, to construct the following scenario
presented both in his argument on appeal and to the
jury. Suppose that a man shorter than Moore (but still
taller than Lewis and Warren) robbed the bank with
Joseph Lewis and Dawan Warren. Lewis and Warren
split up with the man immediately after the robbery and
drove to 4217 Darby Drive together and entered the
house. Moore joined them there. But because police
positioned themselves around the house so shortly after
the robbery, we would have to assume that Moore either
entered the house to join Warren and Lewis less than ten
minutes from the time the bank was robbed or that he
arrived with the two before the robbery and remained
there while they robbed the bank. Moore argues that
either way, this scenario accounts for his presence in the
house and takes him out of the bank.
But his hypothesized version of events is implausible
at best. Moore did not know the owner of the home in
which he was arrested, and the homeowner testified at
trial that neither Moore nor the other two men in the
house (even the homeowner’s cousin) was authorized to
be there. The police had the house staked out ten
minutes after the robbery and, upon entering, they
found that the door from the garage to the home had
been busted, apparently recently. The time frame
implies that the men in the home did not arrive after
the GPS had entered the house and the busted door
(along with the homeowner’s testimony) tells us that the
men had no authorization to be there and that there
could be no innocent explanation for their presence. The
lack of innocent explanation is crucial because of the
money, clothes, gun, and GPS found in the attic of the
home—all of which tied at least one person in the house
to the robbery.
In fact, once we are forced to account for Moore’s unauthorized
presence in the house, we must agree with the
government that Moore was not convicted simply on
the basis of his presence in the house. Moore’s presence
in the house cannot be taken in isolation; he was present
in the house when police arrived ten minutes after a
bank robbery, he resembled a description of one of the
robbers, and he wasn’t supposed to be in the house.
Moore’s presence in the house reinforces the strength of
his similarity to the eyewitnesses’ description of Robber
#2. And, because his presence is so suspicious, it was
rational for the jury to consider this when deciding that
he was one of the robbers.
The defendant overstates the import of our “mere
presence” decisions to his case. We have held that “mere
presence while a crime is being committed is insufficient
to show that a defendant acted to further a conspiracy.”
Jones, 371 F.3d at 366 (quotation omitted). We have also
held that testimony placing a defendant at the scene of a
beating was not sufficient, “by itself,” to prove that he
took part in the beating. Piaskowski v. Bett, 256 F.3d 687,
692-93 (7th Cir. 2001). In other words, the “mere presence”
cases tell us that a defendant cannot be convicted
simply for being in a given place. Here, there was a
multitude of factors—the eyewitness descriptions of
Robber #2, the tracking done by the GPS, the short
window between the robbery and the police presence at
4217 Darby Drive, the unauthorized nature of the defendant’s
presence in the home, and the evidence from
the robbery in the attic panel—that allowed the jury to
link his presence in the home to the events at the bank.
And, his presence in the bank is not so far-fetched as
to force us to begin constructing elaborate theories to
explain away his presence in the house. A witness testified
that she saw a man with long hair—“I don’t know if it
was dreadlocks or braids or what it was”—exiting the
bank; this was not rebutted. There is enough testimony
for the jury to believe that Robber #2 was the taller one
in the bank. While there was a wide range of descriptions
regarding his height, all the witnesses indicated
Robber #2 was the tallest one. Height is notoriously
difficult to gauge and it was up to the jury to resolve the
differing descriptions of Robber #2. See United States v.
Crotteau, 218 F.3d 826, 834 (7th Cir. 2000); United States v.
Hall, 165 F.3d 1095, 1107-08 (7th Cir. 1999). We are not
going to overturn a conviction simply because the government’s
best witness misjudged Moore’s height by
4 inches.
So what we’re left with is the missing money. It lends
some support to the defendant’s thesis that there was
another, yet unidentified person, who participated in
the robbery, but we can think of a variety of other explanations
for its disappearance that conform with the
jury’s verdict. We could speculate that the money was
hidden elsewhere in the house and removed by a third
party after the three were taken into custody (note that
this conforms with the belief of the investigators who
searched Darby Drive again the day after the arrest. It
would also be no surprise if Kenyatta Lewis would consider
found money as reasonable compensation for the
busting of his door and the use of his home as a bank
robbers’ lair). We could guess that the money was lost
during the hurried switch in cars and was found and
pocketed by a not-so-good Samaritan passing by the
abandoned car or that a “getaway” driver arranged for
the theft of the vehicle later abandoned, drove the robbers
to Joseph Lewis’s car, and left with his or her share (or
more) of the loot. We could guess that the money was
discarded or destroyed by defendants who were worried
it was bait money. We could guess that a traumatized
bank employee took an unauthorized bonus, justifying it
as a form of hazard pay (or took the opportunity the
robbery presented to conceal earlier embezzlement). We
can’t know—but the fact of the missing money was
fully argued to and presumably considered by the jury,
and they resolved it in the government’s favor. The
chance that a different Robber #2 is on the loose is not
so great as to render a verdict against Moore irrational.
“[V]ariations in human experience suggest that one
should expect a considerable range of reasonable
estimates about what is likely or unlikely.” Stewart, 48
F.3d at 616. It seems to us that the problems with
Moore’s theory of events are more serious than the problem
with the missing money in the version inculpating
Moore, which the jury adopted. We cannot say that his
proffered scenario is impossible, but we simply note that
Moore’s unexplained presence in the house makes the
resolution of the other issues in the case easier.
“Guilt beyond a reasonable doubt cannot be premised on
pure conjecture. But a conjecture consistent with the
evidence becomes less and less a conjecture, and moves
gradually toward proof, as alternative innocent explanations
are discarded or made less likely.” Id. at 615-16.
Given that there was no credible explanation for
Moore’s presence in the house, as well as the time
frame involved and Moore’s physical characteristics in
comparison with those described by the robbery victims,
it was rational for the jury to choose the government’s
theory of the case. Although this was a close circumstantial
case, there was enough evidence of Moore’s
guilt to support the verdict. The conviction must stand.
Count II
It is easier to dispense with Moore’s dispute with his
conviction on the firearm count. Moore argues that even
if the jury could find that he was Robber #2, there was
insufficient evidence for the jury to convict him of using
or carrying a firearm during the robbery in violation of
18 U.S.C. § 924(c). Section 924(c) punishes a person
who, “during or in relation to any crime of violence . . .
uses or carries a firearm, or who, in furtherance of any
such crime, possesses a firearm.” Even though Moore
did not personally carry a gun, the jury was given an
aiding and abetting instruction; Moore argues that there
was insufficient evidence offered to prove that he
aided and abetted the offense.
Proving that a defendant aided and abetted the use of
a firearm requires evidence that “(1) the defendant
knew, either before or during the crime, of the principal’s
weapon possession or use; and (2) the defendant intentionally
facilitated that weapon possession or use once
so informed.” United States v. Taylor, 226 F.3d 593, 596
(7th Cir. 2000). “Merely aiding the underlying crime
and knowing that a gun would be used or carried cannot
support a conviction under 18 U.S.C. § 924(c).” United
States v. Woods, 148 F.3d 843, 848 (7th Cir. 1998). But,
“[o]nce knowledge on the part of the aider and abetter
is established, it does not take much to satisfy the facilitation
element.” Id. (quotation omitted).
Here, if we review the facts in the light most favorable
to the government, we find that Warren ran into the
building with a gun. He ordered the bank employees to
let Moore into the teller area. Warren, carrying the
gun, and Moore went to the vault with the bank employees.
Warren left (to loot the teller drawers) and Moore
held a bag while the bank employees filled the bag
with money. Then, Warren and Moore left the bank,
joined by Lewis, who had been out on the bank floor.
Moore argues that a jury could only determine from
the evidence at trial that he knew of Warren’s firearm
possession when they entered the vault together but not
before. Moore argues that after this point, where his
knowledge was established, there was no evidence that
he facilitated the use of this firearm in the robbery.
Moore concedes that a division of labor between armed
and unarmed robbers during a robbery may be sufficient
to satisfy facilitation, Woods, 148 F.3d at 848, but argues
that such a division did not occur here.
It is undisputed that Warren used the gun to force
the tellers to assist Moore in looting the vault. Moore’s
work with the tellers reduced the time needed for the
crime, a fact that is sufficient to establish facilitation.
While Warren gathered cash from the teller drawers,
Moore was in the vault with a bag taking money from
the bank employees. The jury could certainly infer that
Moore’s gathering of the cash made both robbers able
to accomplish the robbery more quickly. This would
satisfy the facilitation prong of the aiding and abetting
inquiry. See Taylor, 226 F.3d at 597 (finding that the defendant’s
assistance to the armed co-defendant met the
facilitation element); Woods, 148 F.3d at 848 (“[T]he use
of the gun in the bank expedited [co-defendant’s] looting
of the teller’s cash drawer, reducing the amount of time
the robbery took.”).
Conclusion
Because the jury could rationally connect the dots from
Moore’s presence in the house to the description of
Robber #2, and because Moore’s work in the bank vault
aided and abetted Warren’s use of the firearm, there was
sufficient evidence to convict the defendant on both
counts. His conviction is AFFIRMED.
Chicago Criminal Lawyer - Robert J Callahan
January 23, 2007, three men robbed a branch of Tower
Bank in Fort Wayne, Indiana. During the robbery, at
1:49 p.m., police officers in the Northeast Indiana Federal
Bank Robbery Task Force received an automated text
message that the bank had been robbed and that a GPS
system embedded in the stolen money was transmitting
its location. The GPS was designed to begin transmitting
its location as soon as it left the bank drawer where it
was kept. Detective Robison, of the Task Force, used a
handheld tracker to follow the GPS to the 4200 block of
Darby Drive in Fort Wayne. He arrived there ten
minutes from the time he received the text indicating
the bank had been robbed and joined other law enforcement
units that were already in the area at the time. The
GPS indicated that it was transmitting within 50 feet
of what the GPS identified as 4229 Darby Drive (there
is no such address) when it stopped transmitting.
The GPS information, combined with fresh tire tracks
at the scene (it was a snowy day), led Robison to
believe that the bank robbers had entered the home at
4217 Darby Drive. The police staked out the location,
ensuring that nobody came or went, and sought a warrant
to enter the home. Fortuitously, Kenyatta Lewis, the
4217 homeowner, arrived home from work with his
wife about three hours into the stakeout. The police asked
him for permission to search the house, which he granted.
The police first entered the house through the garage,
where (because of the tire tracks) the police believed the
bank robbers entered. As the police prepared to enter
the main part of the house, Joseph Lewis1, Kenyatta’s
cousin, walked into the garage and was promptly arrested.
The police proceeded through the house to the second
floor, where they arrested the defendant, Dontrell Moore,
who was seated on the toilet in the bathroom, and Dawan
Warren, who appeared to be sleeping in one of the bedrooms.
In the room where Warren was found, the police
spotted an access panel to the attic, and in the attic they
found a variety of clothes that did not belong to the
Kenyatta Lewis household, including two masks, a hat, a
blue pair of nylon sweatpants with a white stripe, and a
football jersey. They also found the smashed GPS transmitter
taken from the bank, a black bag with an Ozark
Trail label, a gun, bait money and money straps from the
bank, and currency totaling $9,308. The police also found
latex gloves (matching gloves a teller described on the
robbers) in the car parked in the garage. The three men,
Joseph Lewis, Dawan Warren, and Dontrell Moore, were
indicted for bank robbery (count I) and using a firearm
during a robbery (count II) and tried separately. At
his trial, Moore was convicted of both counts.
He appeals, arguing that the evidence was insufficient
to convict him on either count.
Count I
“A defendant faces a nearly insurmountable hurdle
in challenging the sufficiency of the evidence to sustain a
conviction.” United States v. Woods, 556 F.3d 616, 621 (7th
Cir. 2009) (quotations and citation omitted). Moore must
convince us that even “after viewing the evidence in the
light most favorable to the prosecution, no rational trier
of fact could have found him guilty beyond a reasonable
doubt.” Id. “[W]e will overturn a conviction based on
insufficient evidence only if the record is devoid of evidence
from which a reasonable jury could find guilt
beyond a reasonable doubt.” United States v. Farris, 532
F.3d 615, 618 (7th Cir. 2008) (citation omitted).
Moore’s appeal requires us to articulate the somewhat
difficult-to-describe distinction between our role, on
review, to correct errors in the trial process and the
jury’s role, at trial, to act as the final arbiters of the facts
of any given case. Our deference to the jury’s role is
expressed most plainly in Jackson v. Virginia, 443 U.S.
307 (1979):
[T]he critical inquiry on review of the sufficiency of
the evidence to support a criminal conviction must
be not simply to determine whether the jury was
properly instructed, but to determine whether the
record evidence could reasonably support a finding
of guilt beyond a reasonable doubt. But this
inquiry does not require a court to ask itself
whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt.
Instead, the relevant question is 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.
Id. at 318-19 (1979) (quotations and citations omitted)
(emphasis in the original).
In other words, our task is not to determine whether or
not we think Moore was actually guilty of the bank robbery;
we must only ask whether a rational jury could have
believed he was, and believed so beyond a reasonable
doubt. A verdict may be rational even if it relies solely on
circumstantial evidence. United States v. Robinson, 177
F.3d 643, 647 (7th Cir. 1999). The question we must
answer is whether “each link in the chain of inferences”
the jury constructed is “sufficiently strong to avoid a
lapse into speculation.” United States v. Jones, 371 F.3d
363, 366 (7th Cir. 2004) (quoting United States v. Peters,
277 F.3d 963, 967 (7th Cir. 2002)). Complicating matters
is that in circumstantial cases “we face head-on the disturbing
truth that guilty verdicts rest on judgments
about probabilities and those judgments are usually
intuitive rather than scientific.” Stewart v. Coalter, 48
F.3d 610, 614 (1st Cir. 1995).
The task for this jury was to determine whether
Dontrell Moore was the man identified by the government
as Robber #2—the masked man who was photographed
holding a bag as bank employees filled it with
money from the bank’s vault. The government asked
the jury to infer that because law enforcement had
arrived at the Darby Drive address within ten minutes
of the robbery and found items in the house connected
with the robbery along with three men who matched the
descriptions given by the bank’s employees, the three
men robbed the bank. And because, of the three, Dontrell
Moore resembled most closely Robber #2, the government
contends that there was sufficient evidence for the
jury to convict Moore. Furthermore, the government
points out that the identification of the other two people
in the house, Warren and Lewis, is solid—Lewis, because
of his unusually heavy build, and Warren, because the
police took $20 of bait money off him when they booked
him into the Allen County Jail (both of these facts were
presented to the jury unchallenged).
But we must deal with Moore. His theory of the case
is that his description does not really match up with
Robber #2’s description and that because of the ill fit, the
government cannot put Moore in the bank. And, if the
government cannot put Moore in the bank, all the government
can prove is his presence in the house where
the other robbers were caught. “Mere presence,” he tells
us, is not enough to tag him with a bank robbery conviction.
Furthermore, a third of the money from the robbery
is missing.2 This, he argues, supports his theory that
even though the other two guys in the house robbed
the bank, they did it without him.
The evidence from the bank employees and bank security
system is about what you’d expect from a frantic event
like a bank robbery. The terrified witnesses often had
their eyes closed or avoided directly looking at the
robbers; the robbers were masked and generally appear
almost as blurs on the stills captured from the bank
security feed. It is undisputed that three African-American
men robbed the bank; it is also undisputed that at least
one of the men was shorter and very heavy, a description
that matches Joseph Lewis, the cousin of the Darby Drive
homeowner (Joseph Lewis is apparently 5’7”-5’8” tall and
weighs 280 pounds). Robber #1, Dawan Warren, was
identified as wearing a sweatshirt or flannel shirt over a
jersey with a Number 7 on it, and this matches up to
the jersey found in the attic at Darby Drive.
But Robber #2, who the jury found to be Dontrell Moore,
was not so clearly described. Evidence before the jury
included descriptions of Robber #2 that estimated his
height as anywhere from 5’7” to 6’1”. Dontrell Moore is
6’5”. Robber #2 was also described as being slender
(like Moore) and wearing a ski mask slightly askew so
that one of the bank employees could see facial hair
(which Moore wore). We can also see from the bank
surveillance photos that he appeared to be wearing bluishgreen
pants and white tennis shoes.4 The bank photos
also seem to confirm the witnesses’ description of his
attire as being “layered” (perhaps because he was
wearing multiple sets of clothing—and remember, a
variety of unaccounted-for clothing was found in the
Darby Drive home). One employee testified that she
saw someone leaving the bank and that he had long hair,
possibly in braids or cornrows. Dontrell Moore wore his
hair in braided cornrows that, according to his mug shot
from the day of the robbery, would possibly hang below
the base of a ski mask (although from the testimony it’s
unclear whether the man the employee saw was wearing
a ski mask; neither the defendant nor the government
clarified).
Moore points to other evidence, or the lack thereof, to
magnify the uncertainty of the identification.5 For one
thing, the missing money led to a second search of the
Darby Drive address the day after the robbery. No additional
money was found. Moore also alerts us to the
fact that the gang apparently ditched a stolen getaway
car less than a mile from the bank and switched to
Joseph Lewis’s car, the one found in the 4217 Darby Drive
garage.
Moore uses these facts, developed exclusively in the
government’s case, to construct the following scenario
presented both in his argument on appeal and to the
jury. Suppose that a man shorter than Moore (but still
taller than Lewis and Warren) robbed the bank with
Joseph Lewis and Dawan Warren. Lewis and Warren
split up with the man immediately after the robbery and
drove to 4217 Darby Drive together and entered the
house. Moore joined them there. But because police
positioned themselves around the house so shortly after
the robbery, we would have to assume that Moore either
entered the house to join Warren and Lewis less than ten
minutes from the time the bank was robbed or that he
arrived with the two before the robbery and remained
there while they robbed the bank. Moore argues that
either way, this scenario accounts for his presence in the
house and takes him out of the bank.
But his hypothesized version of events is implausible
at best. Moore did not know the owner of the home in
which he was arrested, and the homeowner testified at
trial that neither Moore nor the other two men in the
house (even the homeowner’s cousin) was authorized to
be there. The police had the house staked out ten
minutes after the robbery and, upon entering, they
found that the door from the garage to the home had
been busted, apparently recently. The time frame
implies that the men in the home did not arrive after
the GPS had entered the house and the busted door
(along with the homeowner’s testimony) tells us that the
men had no authorization to be there and that there
could be no innocent explanation for their presence. The
lack of innocent explanation is crucial because of the
money, clothes, gun, and GPS found in the attic of the
home—all of which tied at least one person in the house
to the robbery.
In fact, once we are forced to account for Moore’s unauthorized
presence in the house, we must agree with the
government that Moore was not convicted simply on
the basis of his presence in the house. Moore’s presence
in the house cannot be taken in isolation; he was present
in the house when police arrived ten minutes after a
bank robbery, he resembled a description of one of the
robbers, and he wasn’t supposed to be in the house.
Moore’s presence in the house reinforces the strength of
his similarity to the eyewitnesses’ description of Robber
#2. And, because his presence is so suspicious, it was
rational for the jury to consider this when deciding that
he was one of the robbers.
The defendant overstates the import of our “mere
presence” decisions to his case. We have held that “mere
presence while a crime is being committed is insufficient
to show that a defendant acted to further a conspiracy.”
Jones, 371 F.3d at 366 (quotation omitted). We have also
held that testimony placing a defendant at the scene of a
beating was not sufficient, “by itself,” to prove that he
took part in the beating. Piaskowski v. Bett, 256 F.3d 687,
692-93 (7th Cir. 2001). In other words, the “mere presence”
cases tell us that a defendant cannot be convicted
simply for being in a given place. Here, there was a
multitude of factors—the eyewitness descriptions of
Robber #2, the tracking done by the GPS, the short
window between the robbery and the police presence at
4217 Darby Drive, the unauthorized nature of the defendant’s
presence in the home, and the evidence from
the robbery in the attic panel—that allowed the jury to
link his presence in the home to the events at the bank.
And, his presence in the bank is not so far-fetched as
to force us to begin constructing elaborate theories to
explain away his presence in the house. A witness testified
that she saw a man with long hair—“I don’t know if it
was dreadlocks or braids or what it was”—exiting the
bank; this was not rebutted. There is enough testimony
for the jury to believe that Robber #2 was the taller one
in the bank. While there was a wide range of descriptions
regarding his height, all the witnesses indicated
Robber #2 was the tallest one. Height is notoriously
difficult to gauge and it was up to the jury to resolve the
differing descriptions of Robber #2. See United States v.
Crotteau, 218 F.3d 826, 834 (7th Cir. 2000); United States v.
Hall, 165 F.3d 1095, 1107-08 (7th Cir. 1999). We are not
going to overturn a conviction simply because the government’s
best witness misjudged Moore’s height by
4 inches.
So what we’re left with is the missing money. It lends
some support to the defendant’s thesis that there was
another, yet unidentified person, who participated in
the robbery, but we can think of a variety of other explanations
for its disappearance that conform with the
jury’s verdict. We could speculate that the money was
hidden elsewhere in the house and removed by a third
party after the three were taken into custody (note that
this conforms with the belief of the investigators who
searched Darby Drive again the day after the arrest. It
would also be no surprise if Kenyatta Lewis would consider
found money as reasonable compensation for the
busting of his door and the use of his home as a bank
robbers’ lair). We could guess that the money was lost
during the hurried switch in cars and was found and
pocketed by a not-so-good Samaritan passing by the
abandoned car or that a “getaway” driver arranged for
the theft of the vehicle later abandoned, drove the robbers
to Joseph Lewis’s car, and left with his or her share (or
more) of the loot. We could guess that the money was
discarded or destroyed by defendants who were worried
it was bait money. We could guess that a traumatized
bank employee took an unauthorized bonus, justifying it
as a form of hazard pay (or took the opportunity the
robbery presented to conceal earlier embezzlement). We
can’t know—but the fact of the missing money was
fully argued to and presumably considered by the jury,
and they resolved it in the government’s favor. The
chance that a different Robber #2 is on the loose is not
so great as to render a verdict against Moore irrational.
“[V]ariations in human experience suggest that one
should expect a considerable range of reasonable
estimates about what is likely or unlikely.” Stewart, 48
F.3d at 616. It seems to us that the problems with
Moore’s theory of events are more serious than the problem
with the missing money in the version inculpating
Moore, which the jury adopted. We cannot say that his
proffered scenario is impossible, but we simply note that
Moore’s unexplained presence in the house makes the
resolution of the other issues in the case easier.
“Guilt beyond a reasonable doubt cannot be premised on
pure conjecture. But a conjecture consistent with the
evidence becomes less and less a conjecture, and moves
gradually toward proof, as alternative innocent explanations
are discarded or made less likely.” Id. at 615-16.
Given that there was no credible explanation for
Moore’s presence in the house, as well as the time
frame involved and Moore’s physical characteristics in
comparison with those described by the robbery victims,
it was rational for the jury to choose the government’s
theory of the case. Although this was a close circumstantial
case, there was enough evidence of Moore’s
guilt to support the verdict. The conviction must stand.
Count II
It is easier to dispense with Moore’s dispute with his
conviction on the firearm count. Moore argues that even
if the jury could find that he was Robber #2, there was
insufficient evidence for the jury to convict him of using
or carrying a firearm during the robbery in violation of
18 U.S.C. § 924(c). Section 924(c) punishes a person
who, “during or in relation to any crime of violence . . .
uses or carries a firearm, or who, in furtherance of any
such crime, possesses a firearm.” Even though Moore
did not personally carry a gun, the jury was given an
aiding and abetting instruction; Moore argues that there
was insufficient evidence offered to prove that he
aided and abetted the offense.
Proving that a defendant aided and abetted the use of
a firearm requires evidence that “(1) the defendant
knew, either before or during the crime, of the principal’s
weapon possession or use; and (2) the defendant intentionally
facilitated that weapon possession or use once
so informed.” United States v. Taylor, 226 F.3d 593, 596
(7th Cir. 2000). “Merely aiding the underlying crime
and knowing that a gun would be used or carried cannot
support a conviction under 18 U.S.C. § 924(c).” United
States v. Woods, 148 F.3d 843, 848 (7th Cir. 1998). But,
“[o]nce knowledge on the part of the aider and abetter
is established, it does not take much to satisfy the facilitation
element.” Id. (quotation omitted).
Here, if we review the facts in the light most favorable
to the government, we find that Warren ran into the
building with a gun. He ordered the bank employees to
let Moore into the teller area. Warren, carrying the
gun, and Moore went to the vault with the bank employees.
Warren left (to loot the teller drawers) and Moore
held a bag while the bank employees filled the bag
with money. Then, Warren and Moore left the bank,
joined by Lewis, who had been out on the bank floor.
Moore argues that a jury could only determine from
the evidence at trial that he knew of Warren’s firearm
possession when they entered the vault together but not
before. Moore argues that after this point, where his
knowledge was established, there was no evidence that
he facilitated the use of this firearm in the robbery.
Moore concedes that a division of labor between armed
and unarmed robbers during a robbery may be sufficient
to satisfy facilitation, Woods, 148 F.3d at 848, but argues
that such a division did not occur here.
It is undisputed that Warren used the gun to force
the tellers to assist Moore in looting the vault. Moore’s
work with the tellers reduced the time needed for the
crime, a fact that is sufficient to establish facilitation.
While Warren gathered cash from the teller drawers,
Moore was in the vault with a bag taking money from
the bank employees. The jury could certainly infer that
Moore’s gathering of the cash made both robbers able
to accomplish the robbery more quickly. This would
satisfy the facilitation prong of the aiding and abetting
inquiry. See Taylor, 226 F.3d at 597 (finding that the defendant’s
assistance to the armed co-defendant met the
facilitation element); Woods, 148 F.3d at 848 (“[T]he use
of the gun in the bank expedited [co-defendant’s] looting
of the teller’s cash drawer, reducing the amount of time
the robbery took.”).
Conclusion
Because the jury could rationally connect the dots from
Moore’s presence in the house to the description of
Robber #2, and because Moore’s work in the bank vault
aided and abetted Warren’s use of the firearm, there was
sufficient evidence to convict the defendant on both
counts. His conviction is AFFIRMED.
Chicago Criminal Lawyer - Robert J Callahan
U.S. vs. James
Facing trial on two counts of
armed bank robbery and two counts of brandishing a
firearm during those robberies, Jarrett James moved to
suppress evidence obtained from a safe seized from
his mother’s home. The district court denied James’s
motion to suppress. Following a three-day trial, a jury
returned guilty verdicts against James on the four counts.
The district court sentenced James to 42 years in prison.
James has appealed the district court’s ruling on his
motion to suppress, and we now affirm.
I. Background
On March 16, 2006, a robbery occurred at the
Middleton, Wisconsin, branch of Bank Mutual. The
robber confronted all three tellers present and took
money from each of their drawers. He then asked about
an unmarked, closed door behind the teller counter, and
the tellers led him into the bank vault. The robber demanded,
and received, the cash from the vault. The
robber fled with $62,288.71.
The tellers described the robber as an African American
male who wore gloves and concealed most of his face
with a stocking cap and hood. They estimated he was in
his late twenties to early thirties, stood approximately
5’7” to 5’10”, and weighed approximately 180-200 pounds.
The tellers described the weapon used in the hold-up as
a small gun, with reddish or rusty discoloration. A
witness from a nearby apartment complex saw a large
black car, either a Crown Victoria or Grand Marquis, in
the vicinity around the time of the robbery. The vehicle
had distinctive, five-spoke rims. Police uncovered tire
tracks in the snow.
On April 14, 2006, another robbery took place at the
same Middleton branch of Bank Mutual. Without asking
for money from teller drawers, the robber immediately
ordered the tellers to unlock the unmarked, closed door
behind the counter. He entered the vault with two tellers
and obtained $58,700.00. Tellers recounted that the
robber wore dark clothing, a hooded sweatshirt, a scarf
which obscured his face, and pink fleece gloves. They
described him as an African American male, approximately
25-30 years old, standing approximately 5’7” to 5’9” tall,
and weighing 180-200 pounds. Tellers described the
gun used in the second robbery as a large, black,
semi-automatic weapon. Again, a witness saw a large,
black vehicle parked near the bank shortly before the
robbery. The vehicle had the same distinctive rims.
On April 16, 2006, two days after the second robbery,
police received a phone call reporting that an African
American male had pulled up to a dumpster in a black
Mercury and had thrown away a pink or red colored
item. Police retrieved a pink fleece glove.
On April 19, 2006, a police officer observed a black
1994 Mercury Grand Marquis with shiny rims matching
the witness descriptions obtained after the bank robberies.
The officer conducted a traffic stop of the vehicle for
failure to have a front license plate, a violation in Wisconsin.
He identified the driver of the vehicle as defendant
Jarrett James. Dane County jail records showed James’
date of birth as 7/31/79 and described him as an African
American male, 5’10” tall, and 180 pounds.
On October 24, 2006, with James suspected of both
robberies, detective Darrin Zimmerman of the Middleton
police department interviewed James’s mother, Linda
Martin. Martin told Zimmerman that James resided with
her at her home at 4009 Claire Street in Madison, Wisconsin,
in early 2006. James used 4009 Claire Street as his
address on important documents such as his car title.
Martin indicated that she had seen a gun in her
residence when James resided with her. She recounted
that when she found it, she told James to remove it from
the residence. Beginning in March 2006, James rented an
apartment at 803 North Thompson Drive in Madison
pursuant to a six-month lease. Martin informed
Zimmerman that James had been arrested in Nebraska
in May 2006 and was incarcerated there awaiting
trial. When James’s lease on the North Thompson Drive
apartment expired in September 2006, Martin retrieved
James’s belongings from the apartment and took them
back to her house. At the end of the October 24 interview,
Zimmerman left Martin his business card to enable
her to contact him if she had any questions or further
information.
Zimmerman then confirmed with the Omaha, Nebraska,
police department that on May 16, 2006, James and a
companion were arrested in Omaha after a traffic stop.
They were in a Lexus and James was the driver. In the
trunk of the car, police found a large black duffel bag
containing marijuana, a scale, and a gun. The firearm
was a Taurus semi-automatic with a silver slide and
black handle, and that gun matched the description of the
gun used in the second Middleton bank robbery.
On October 30, 2006, Martin left a voice message at
Zimmerman’s work phone number stating that she had
received a letter from James telling her there was a gun
inside her residence in a safe that belonged to James.
Martin stated in the message that she was not going
to open the safe before police came over to her residence.
Zimmerman responded to Martin’s message and told
her he would like to come to her residence and assist
her with turning the gun over to police. Martin did not
object to that plan.
On October 31, 2006, Attorney Terry Frederick left a
message for Zimmerman stating he had been retained by
Martin and wanted all further contact to come through
him. On November 1, Zimmerman returned Frederick’s
call. Zimmerman advised Frederick that he was
interested in evidence contained in Martin’s residence.
Frederick said that he was not aware of Martin having
any information regarding the bank robberies. Zimmerman
and Frederick agreed to meet at Martin’s residence concerning
the evidence.
On November 2, 2006, Zimmerman and another detective
met Martin and Frederick at Martin’s residence.
Martin opened a closet and pointed to a safe on the floor
of the closet. Martin said that the safe belonged to James
and that the gun she had referenced was inside.
Zimmerman told Frederick and Martin that he intended
to seize the safe so the evidence was not destroyed, and
he would then obtain a search warrant before opening
the safe. Zimmerman did not provide a formal consent
form. Neither Martin nor her attorney objected to
Zimmerman’s plan; they remained silent. Martin provided
Zimmerman with the keypad code for the safe.
The meeting ended cordially, and Zimmerman left with
the safe.
A state judge then issued a search warrant for the safe,
and police opened the safe after the warrant issued. They
recovered contraband, including a gun that matched
descriptions of the gun used during the first robbery.
They also recovered receipts and other evidence of large
cash purchases that James had made in the time period
immediately after the robberies. Based on that evidence,
Middleton police contacted the previous owner of the
Lexus that James had been driving in Nebraska. Police
learned that in late April 2006, James had purchased
the Lexus for $15,500.00. He paid in 155 sticky and crisp
$100 bills, and he made the payment without checking
out the used car or negotiating the price. Police also
located the Grand Marquis, which had been abandoned,
and matched the tire tracks found at the first bank robbery.
On December 5, 2007, a federal grand jury in the
Western District of Wisconsin returned a six-count indictment
charging James with two counts of armed bank
robbery, two counts of brandishing a firearm during
those bank robberies, one count of possessing cocaine
base with the intent to distribute (there was also cocaine
in the safe), and one count of possessing a firearm in
furtherance of that drug crime. At the government’s
request, the district court later dismissed the drug
charge and the drug-related firearm charge.
On May 1, 2008, James filed a motion to suppress
seeking to bar the government from introducing at trial
the safe, its contents, and any evidence derived from it.
On May 14, 2008, Magistrate Judge Stephen Crocker
conducted an evidentiary hearing on James’s motion to
suppress. Zimmerman and Frederick testified. Zimmerman
testified that after he seized the safe, he “didn’t open
it without a search warrant.” On May 30, 2008, the magistrate
judge recommended that the district court deny
James’s motion to suppress evidence. The magistrate’s
report stated that James was conflating his possessory
interest in the safe with his privacy interest in its contents.
The report added that it was not even clear that
removal of the safe from Martin’s home constituted
interference with James’s possessory interest. In any
event, the report concluded that Martin had the right to
allow police to enter the home, and police had probable
cause to secure the container before the state issued a
warrant to search its contents.
On June 3, 2008, James objected to the recommendation.
He argued that the magistrate erred in concluding
both that police could seize his property without a warrant,
and that James had no interest in the safe that was
infringed by removing the safe from Martin’s home
without his consent.
The district court adopted the magistrate’s recommendation
and denied James’s motion to suppress. The court
stated the “only question to be decided in determining the
constitutionality of the seizure of the safe [was] whether
the seizure violated any possessory interest of defendant,”
and it concluded that “[c]learly it did not.”
The case went to trial on June 16, 2008. The government
introduced evidence that: (1) James matched the
tellers’ physical descriptions of the robber from both
robberies; (2) he drove, at the time of the robberies, a
vehicle matching the description of a car seen parked
near the bank at both robberies, and tire marks left in
the snow outside the bank matched the tires on his car;
(3) the robber in the second robbery wore hot-pink fleece
gloves, and two days after that robbery a witness saw
someone matching James’s description and driving a
car matching the vehicle observed at the scene of the
robberies tossing what turned out to be a hot pink-colored
glove in a dumpster, and subsequent testing developed
James’s DNA inside the glove; (4) James confessed to
Nebraska inmate Lateeno Mills that he committed the
two Wisconsin robberies; (5) a gun that matched descriptions
of the gun used in the second robbery was
recovered from James at the time of his Nebraska arrest;
(6) the safe seized from Martin’s Madison residence
contained a gun that matched descriptions of the gun
used in the first bank robbery; and (7) James made large
cash purchases shortly after the second robbery. Based on
that evidence, on June 18, 2008, the jury returned guilty
verdicts against James on all charges. On September 4,
2008, the district court sentenced James to 42 years in
prison.
II. Analysis
James claims that we should vacate the district court’s
judgment and sentence because the court failed to
suppress the items found in the safe that authorities
removed from Martin’s home and, after obtaining a
search warrant, searched. The district court’s denial of
James’s suppression motion is subject to a dual standard
of review. We review legal conclusions de novo and
findings of fact for clear error. United States v. Whited,
539 F.3d 693, 697 (7th Cir. 2008).
The Fourth Amendment protects the “right of the
people to be secure in their persons, houses, papers and
effects, against unreasonable searches and seizures . . . .”
U.S. Const. amend. IV. In clarifying that the amendment
addresses property interests in addition to privacy concerns,
the Supreme Court defined the amendment’s use
of the term “seizure” as “some meaningful interference
with an individual’s possessory interests in [his] property.”
Soldal v. Cook County, 506 U.S. 56, 61 (1992) (citing
United States v. Jacobsen, 466 U.S. 109, 113 (1984)). Thus,
James holds two interests protected by the Fourth Amendment
that were implicated by the seizure of the safe and
the subsequent search: (1) his privacy interest in the
contents of the safe; and (2) his right to possess the safe.
See United States v. Ward, 144 F.3d 1024, 1031 (7th Cir.
1998). James’s privacy interest in the contents of the safe
is not at issue in this case. After law enforcement officers
removed the safe from James’s mother’s home, they
obtained a search warrant before opening and searching
the safe, and James does not challenge that search.
Only James’s interest in possessing his safe free from
government seizure is at issue. In the typical case, a
“seizure of personal property [will be] per se unreasonable
within the meaning of the Fourth Amendment
unless it is accomplished pursuant to a judicial warrant
issued upon probable cause and particularly describing
the items to be seized.” United States v. Place, 462 U.S. 696,
701 (1983). However, because the Fourth Amendment, at
bottom, prohibits only “unreasonable” seizures, the
Supreme Court has recognized that a balancing must
take place, and that there are instances where societal
interests outweigh the individual’s right to be free from
the government’s unauthorized exercise of dominion
over his private property. Id. at 701-03; Jacobsen, 466 U.S.
at 125. For instance, if “law enforcement authorities
have probable cause to believe that a container holds
contraband or evidence of a crime, but have not secured
a warrant,” seizure of the property is permitted
“pending issuance of a warrant to examine its contents, if
the exigencies of the circumstances demand it or some
other recognized exception to the warrant requirement
is present.” Place, 462 U.S. at 701.
Here, the government argues, a recognized exception
to the warrant requirement was present: third party
consent. Because a person may voluntarily waive his
Fourth Amendment rights, no warrant is required where
the defendant consents to a search. United States v. Matlock,
415 U.S. 164, 171 (1974). Based on the concept of assumption
of risk, that exception to the warrant requirement
extends to consent legitimately obtained from a third
party. Id.; United States v. Duran, 957 F.2d 499, 504 (7th Cir.
1992). Thus, where a defendant allows a third party to
exercise actual or apparent authority over the defendant’s
property, he is considered to have assumed the risk that
the third party might permit access to others, including
government agents. Matlock, 415 U.S. at 171 n.7; United
States v. Jensen, 169 F.3d 1044, 1048-49 (7th Cir. 1999). James
agrees that if Martin had actual or apparent authority to
consent to the seizure of James’s property, and if Martin
actually consented voluntarily, then no constitutional
violation occurred here.2 James argues, however, that
Martin had neither actual nor apparent authority to
consent. In addition, he argues that even if Martin did
have authority to consent, she did not actually do so
voluntarily.
We turn first to whether Martin had actual or apparent
authority to consent. The government has the burden of
proving authority to consent by a preponderance of the
evidence. United States v. Denberg, 212 F.3d 987, 991 (7th
Cir. 2000) (citing Illinois v. Rodriguez, 497 U.S. 177, 181
(1990)). Consent to a search or seizure may be obtained
from any person who has common authority over the
property (actual authority), Denberg, 212 F.3d 987, 991 (7th
Cir. 2000), or who would appear to a reasonable person,
given the information that law enforcement possessed, to
have common authority over the property (apparent
authority). United States v. Basinski, 226 F.3d 829, 834 (7th
Cir. 2000). In the search context, the Supreme Court has
expounded: “The authority which justifies the third-party
consent . . . rests rather on mutual use of the property
by persons generally having joint access or control for
most purposes.” Matlock, 415 U.S. at 171 n.7. Adopting the
Court’s guidance to an initial seizure, as opposed to a
subsequent search, we can conclude that Martin had
authority to consent if: (1) she had joint control of or
access to the safe itself (regardless of whether she had
access to the contents of the safe) (actual authority); or
(2) it was reasonable for police to believe she had joint
control of or access to the safe itself (apparent authority).
Below, the government submitted evidence that James
lived with Martin at 4009 Claire Street off and on, including
during the time of the bank robberies. In late
March 2006, James had also leased an apartment at 803
North Thompson Drive. When the lease expired, Martin
gathered James’s belongings from that apartment and
brought them to her residence at 4009 Claire Street, and
Martin had maintained possession of them since then.
The district court found that the safe was at Martin’s
house because James had left it with her when he took
off for Nebraska. That finding is supported by the
record, and it was not clearly erroneous. It is clear that
Martin possessed the safe for a significant period of time.
Even though the safe contained only James’s belongings,
Martin exercised control over the safe itself. There is no
evidence that James attempted to limit or restrict her
control over the safe. On these facts, we can conclude
that James assumed the risk that Martin would consent
to the safe’s seizure; Martin had actual authority to consent.
Even if James had not granted actual authority
to Martin, she had apparent authority because a reasonable
person, given the information that Detective
Zimmerman possessed, would believe that Martin had
joint control of the safe.
We next consider whether Martin actually and voluntarily
did consent to the seizure. The government bears
the burden of proving that a third party consented voluntarily.
United States v. Evans, 27 F.3d 1219, 1230 (7th Cir.
1994) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 222
(1973)). James argues that Martin’s silence as Zimmerman
seized the safe cannot constitute consent. However, we
recognize that consent may be manifested in a non-verbal
as well as a verbal manner. United States v. Walls, 225 F.3d
858, 863 (7th Cir. 2000). Consent can be expressed or
implied from the circumstances. United States v. Wesela,
223 F.3d 656, 661 (7th Cir. 2000). In Wesela, we determined
that a woman who had called 911 and requested
that police come to her home had “impliedly” consented
to a search of the premises. While there was no direct
verbal exchange between the woman and law enforcement
officers, we stated that the events indicated her
implicit consent and stated that “had she wished to do
so, she could have objected to [the] . . . search.” Id.
In this case, the government submitted evidence demonstrating
that Martin called Zimmerman on October 30,
2006, left a message for him about the gun, and told him
that she would not open the safe without police present.
In a return call, Zimmerman told Martin he would like
to assist her with turning the gun over to police. On
November 1, Zimmerman spoke with Martin’s attorney
and told him that police were interested in evidence
contained in the safe, and the two of them made arrangements
to meet at Martin’s residence. Martin’s attorney
had no objection to this process. On November 2,
Zimmerman met with Martin and her attorney at Martin’s
residence. Martin invited Zimmerman to come in, led
Zimmerman to the safe, and said that the gun was inside.
Zimmerman advised Martin and her attorney that he
would seize the safe to protect the evidence, but that he
would obtain a search warrant before searching inside
the safe. Martin and her attorney could have voiced their
objections to Zimmerman’s plan, but neither objected. The
government submitted sufficient evidence for us to conclude
that Martin voluntarily consented, through her
words and actions, as a matter of law.
Finally, even if there had been error in the district
court’s failure to suppress the evidence seized from the
safe, any such error would have been harmless. If the
government had never uncovered evidence from the
safe, at the least it still would have presented: (1) the
testimony of the victim tellers whose descriptions of the
robber during both robberies matched the defendant’s
physical characteristics; (2) evidence describing the
vehicle seen near the bank at the approximate times of
both bank robberies, and the evidence that the defendant
was stopped driving a vehicle that exactly matched
that description; (3) the pink fleece glove, which
matched the description of the gloves worn by the
robber during the April 14 robbery, and which contained
James’s DNA as the major component of the DNA identified
inside the glove; (4) evidence that James was
positively identified driving his vehicle two days after
the second robbery, and was seen tossing a pink glove in a
dumpster; (5) evidence that the handgun used in the
April 14 robbery was recovered during the Nebraska
arrest; and (6) evidence of James’s detailed admissions to
both robberies made to an inmate in the Nebraska jail. We
believe that the jury would have convicted James of the
two counts of armed bank robbery and the two counts
of brandishing a firearm during those bank robberies
even without evidence from the safe.
III. Conclusion
We AFFIRM the judgment and conviction order of the
district court.
Chicago Criminal Lawyer - Robert J Callahan
armed bank robbery and two counts of brandishing a
firearm during those robberies, Jarrett James moved to
suppress evidence obtained from a safe seized from
his mother’s home. The district court denied James’s
motion to suppress. Following a three-day trial, a jury
returned guilty verdicts against James on the four counts.
The district court sentenced James to 42 years in prison.
James has appealed the district court’s ruling on his
motion to suppress, and we now affirm.
I. Background
On March 16, 2006, a robbery occurred at the
Middleton, Wisconsin, branch of Bank Mutual. The
robber confronted all three tellers present and took
money from each of their drawers. He then asked about
an unmarked, closed door behind the teller counter, and
the tellers led him into the bank vault. The robber demanded,
and received, the cash from the vault. The
robber fled with $62,288.71.
The tellers described the robber as an African American
male who wore gloves and concealed most of his face
with a stocking cap and hood. They estimated he was in
his late twenties to early thirties, stood approximately
5’7” to 5’10”, and weighed approximately 180-200 pounds.
The tellers described the weapon used in the hold-up as
a small gun, with reddish or rusty discoloration. A
witness from a nearby apartment complex saw a large
black car, either a Crown Victoria or Grand Marquis, in
the vicinity around the time of the robbery. The vehicle
had distinctive, five-spoke rims. Police uncovered tire
tracks in the snow.
On April 14, 2006, another robbery took place at the
same Middleton branch of Bank Mutual. Without asking
for money from teller drawers, the robber immediately
ordered the tellers to unlock the unmarked, closed door
behind the counter. He entered the vault with two tellers
and obtained $58,700.00. Tellers recounted that the
robber wore dark clothing, a hooded sweatshirt, a scarf
which obscured his face, and pink fleece gloves. They
described him as an African American male, approximately
25-30 years old, standing approximately 5’7” to 5’9” tall,
and weighing 180-200 pounds. Tellers described the
gun used in the second robbery as a large, black,
semi-automatic weapon. Again, a witness saw a large,
black vehicle parked near the bank shortly before the
robbery. The vehicle had the same distinctive rims.
On April 16, 2006, two days after the second robbery,
police received a phone call reporting that an African
American male had pulled up to a dumpster in a black
Mercury and had thrown away a pink or red colored
item. Police retrieved a pink fleece glove.
On April 19, 2006, a police officer observed a black
1994 Mercury Grand Marquis with shiny rims matching
the witness descriptions obtained after the bank robberies.
The officer conducted a traffic stop of the vehicle for
failure to have a front license plate, a violation in Wisconsin.
He identified the driver of the vehicle as defendant
Jarrett James. Dane County jail records showed James’
date of birth as 7/31/79 and described him as an African
American male, 5’10” tall, and 180 pounds.
On October 24, 2006, with James suspected of both
robberies, detective Darrin Zimmerman of the Middleton
police department interviewed James’s mother, Linda
Martin. Martin told Zimmerman that James resided with
her at her home at 4009 Claire Street in Madison, Wisconsin,
in early 2006. James used 4009 Claire Street as his
address on important documents such as his car title.
Martin indicated that she had seen a gun in her
residence when James resided with her. She recounted
that when she found it, she told James to remove it from
the residence. Beginning in March 2006, James rented an
apartment at 803 North Thompson Drive in Madison
pursuant to a six-month lease. Martin informed
Zimmerman that James had been arrested in Nebraska
in May 2006 and was incarcerated there awaiting
trial. When James’s lease on the North Thompson Drive
apartment expired in September 2006, Martin retrieved
James’s belongings from the apartment and took them
back to her house. At the end of the October 24 interview,
Zimmerman left Martin his business card to enable
her to contact him if she had any questions or further
information.
Zimmerman then confirmed with the Omaha, Nebraska,
police department that on May 16, 2006, James and a
companion were arrested in Omaha after a traffic stop.
They were in a Lexus and James was the driver. In the
trunk of the car, police found a large black duffel bag
containing marijuana, a scale, and a gun. The firearm
was a Taurus semi-automatic with a silver slide and
black handle, and that gun matched the description of the
gun used in the second Middleton bank robbery.
On October 30, 2006, Martin left a voice message at
Zimmerman’s work phone number stating that she had
received a letter from James telling her there was a gun
inside her residence in a safe that belonged to James.
Martin stated in the message that she was not going
to open the safe before police came over to her residence.
Zimmerman responded to Martin’s message and told
her he would like to come to her residence and assist
her with turning the gun over to police. Martin did not
object to that plan.
On October 31, 2006, Attorney Terry Frederick left a
message for Zimmerman stating he had been retained by
Martin and wanted all further contact to come through
him. On November 1, Zimmerman returned Frederick’s
call. Zimmerman advised Frederick that he was
interested in evidence contained in Martin’s residence.
Frederick said that he was not aware of Martin having
any information regarding the bank robberies. Zimmerman
and Frederick agreed to meet at Martin’s residence concerning
the evidence.
On November 2, 2006, Zimmerman and another detective
met Martin and Frederick at Martin’s residence.
Martin opened a closet and pointed to a safe on the floor
of the closet. Martin said that the safe belonged to James
and that the gun she had referenced was inside.
Zimmerman told Frederick and Martin that he intended
to seize the safe so the evidence was not destroyed, and
he would then obtain a search warrant before opening
the safe. Zimmerman did not provide a formal consent
form. Neither Martin nor her attorney objected to
Zimmerman’s plan; they remained silent. Martin provided
Zimmerman with the keypad code for the safe.
The meeting ended cordially, and Zimmerman left with
the safe.
A state judge then issued a search warrant for the safe,
and police opened the safe after the warrant issued. They
recovered contraband, including a gun that matched
descriptions of the gun used during the first robbery.
They also recovered receipts and other evidence of large
cash purchases that James had made in the time period
immediately after the robberies. Based on that evidence,
Middleton police contacted the previous owner of the
Lexus that James had been driving in Nebraska. Police
learned that in late April 2006, James had purchased
the Lexus for $15,500.00. He paid in 155 sticky and crisp
$100 bills, and he made the payment without checking
out the used car or negotiating the price. Police also
located the Grand Marquis, which had been abandoned,
and matched the tire tracks found at the first bank robbery.
On December 5, 2007, a federal grand jury in the
Western District of Wisconsin returned a six-count indictment
charging James with two counts of armed bank
robbery, two counts of brandishing a firearm during
those bank robberies, one count of possessing cocaine
base with the intent to distribute (there was also cocaine
in the safe), and one count of possessing a firearm in
furtherance of that drug crime. At the government’s
request, the district court later dismissed the drug
charge and the drug-related firearm charge.
On May 1, 2008, James filed a motion to suppress
seeking to bar the government from introducing at trial
the safe, its contents, and any evidence derived from it.
On May 14, 2008, Magistrate Judge Stephen Crocker
conducted an evidentiary hearing on James’s motion to
suppress. Zimmerman and Frederick testified. Zimmerman
testified that after he seized the safe, he “didn’t open
it without a search warrant.” On May 30, 2008, the magistrate
judge recommended that the district court deny
James’s motion to suppress evidence. The magistrate’s
report stated that James was conflating his possessory
interest in the safe with his privacy interest in its contents.
The report added that it was not even clear that
removal of the safe from Martin’s home constituted
interference with James’s possessory interest. In any
event, the report concluded that Martin had the right to
allow police to enter the home, and police had probable
cause to secure the container before the state issued a
warrant to search its contents.
On June 3, 2008, James objected to the recommendation.
He argued that the magistrate erred in concluding
both that police could seize his property without a warrant,
and that James had no interest in the safe that was
infringed by removing the safe from Martin’s home
without his consent.
The district court adopted the magistrate’s recommendation
and denied James’s motion to suppress. The court
stated the “only question to be decided in determining the
constitutionality of the seizure of the safe [was] whether
the seizure violated any possessory interest of defendant,”
and it concluded that “[c]learly it did not.”
The case went to trial on June 16, 2008. The government
introduced evidence that: (1) James matched the
tellers’ physical descriptions of the robber from both
robberies; (2) he drove, at the time of the robberies, a
vehicle matching the description of a car seen parked
near the bank at both robberies, and tire marks left in
the snow outside the bank matched the tires on his car;
(3) the robber in the second robbery wore hot-pink fleece
gloves, and two days after that robbery a witness saw
someone matching James’s description and driving a
car matching the vehicle observed at the scene of the
robberies tossing what turned out to be a hot pink-colored
glove in a dumpster, and subsequent testing developed
James’s DNA inside the glove; (4) James confessed to
Nebraska inmate Lateeno Mills that he committed the
two Wisconsin robberies; (5) a gun that matched descriptions
of the gun used in the second robbery was
recovered from James at the time of his Nebraska arrest;
(6) the safe seized from Martin’s Madison residence
contained a gun that matched descriptions of the gun
used in the first bank robbery; and (7) James made large
cash purchases shortly after the second robbery. Based on
that evidence, on June 18, 2008, the jury returned guilty
verdicts against James on all charges. On September 4,
2008, the district court sentenced James to 42 years in
prison.
II. Analysis
James claims that we should vacate the district court’s
judgment and sentence because the court failed to
suppress the items found in the safe that authorities
removed from Martin’s home and, after obtaining a
search warrant, searched. The district court’s denial of
James’s suppression motion is subject to a dual standard
of review. We review legal conclusions de novo and
findings of fact for clear error. United States v. Whited,
539 F.3d 693, 697 (7th Cir. 2008).
The Fourth Amendment protects the “right of the
people to be secure in their persons, houses, papers and
effects, against unreasonable searches and seizures . . . .”
U.S. Const. amend. IV. In clarifying that the amendment
addresses property interests in addition to privacy concerns,
the Supreme Court defined the amendment’s use
of the term “seizure” as “some meaningful interference
with an individual’s possessory interests in [his] property.”
Soldal v. Cook County, 506 U.S. 56, 61 (1992) (citing
United States v. Jacobsen, 466 U.S. 109, 113 (1984)). Thus,
James holds two interests protected by the Fourth Amendment
that were implicated by the seizure of the safe and
the subsequent search: (1) his privacy interest in the
contents of the safe; and (2) his right to possess the safe.
See United States v. Ward, 144 F.3d 1024, 1031 (7th Cir.
1998). James’s privacy interest in the contents of the safe
is not at issue in this case. After law enforcement officers
removed the safe from James’s mother’s home, they
obtained a search warrant before opening and searching
the safe, and James does not challenge that search.
Only James’s interest in possessing his safe free from
government seizure is at issue. In the typical case, a
“seizure of personal property [will be] per se unreasonable
within the meaning of the Fourth Amendment
unless it is accomplished pursuant to a judicial warrant
issued upon probable cause and particularly describing
the items to be seized.” United States v. Place, 462 U.S. 696,
701 (1983). However, because the Fourth Amendment, at
bottom, prohibits only “unreasonable” seizures, the
Supreme Court has recognized that a balancing must
take place, and that there are instances where societal
interests outweigh the individual’s right to be free from
the government’s unauthorized exercise of dominion
over his private property. Id. at 701-03; Jacobsen, 466 U.S.
at 125. For instance, if “law enforcement authorities
have probable cause to believe that a container holds
contraband or evidence of a crime, but have not secured
a warrant,” seizure of the property is permitted
“pending issuance of a warrant to examine its contents, if
the exigencies of the circumstances demand it or some
other recognized exception to the warrant requirement
is present.” Place, 462 U.S. at 701.
Here, the government argues, a recognized exception
to the warrant requirement was present: third party
consent. Because a person may voluntarily waive his
Fourth Amendment rights, no warrant is required where
the defendant consents to a search. United States v. Matlock,
415 U.S. 164, 171 (1974). Based on the concept of assumption
of risk, that exception to the warrant requirement
extends to consent legitimately obtained from a third
party. Id.; United States v. Duran, 957 F.2d 499, 504 (7th Cir.
1992). Thus, where a defendant allows a third party to
exercise actual or apparent authority over the defendant’s
property, he is considered to have assumed the risk that
the third party might permit access to others, including
government agents. Matlock, 415 U.S. at 171 n.7; United
States v. Jensen, 169 F.3d 1044, 1048-49 (7th Cir. 1999). James
agrees that if Martin had actual or apparent authority to
consent to the seizure of James’s property, and if Martin
actually consented voluntarily, then no constitutional
violation occurred here.2 James argues, however, that
Martin had neither actual nor apparent authority to
consent. In addition, he argues that even if Martin did
have authority to consent, she did not actually do so
voluntarily.
We turn first to whether Martin had actual or apparent
authority to consent. The government has the burden of
proving authority to consent by a preponderance of the
evidence. United States v. Denberg, 212 F.3d 987, 991 (7th
Cir. 2000) (citing Illinois v. Rodriguez, 497 U.S. 177, 181
(1990)). Consent to a search or seizure may be obtained
from any person who has common authority over the
property (actual authority), Denberg, 212 F.3d 987, 991 (7th
Cir. 2000), or who would appear to a reasonable person,
given the information that law enforcement possessed, to
have common authority over the property (apparent
authority). United States v. Basinski, 226 F.3d 829, 834 (7th
Cir. 2000). In the search context, the Supreme Court has
expounded: “The authority which justifies the third-party
consent . . . rests rather on mutual use of the property
by persons generally having joint access or control for
most purposes.” Matlock, 415 U.S. at 171 n.7. Adopting the
Court’s guidance to an initial seizure, as opposed to a
subsequent search, we can conclude that Martin had
authority to consent if: (1) she had joint control of or
access to the safe itself (regardless of whether she had
access to the contents of the safe) (actual authority); or
(2) it was reasonable for police to believe she had joint
control of or access to the safe itself (apparent authority).
Below, the government submitted evidence that James
lived with Martin at 4009 Claire Street off and on, including
during the time of the bank robberies. In late
March 2006, James had also leased an apartment at 803
North Thompson Drive. When the lease expired, Martin
gathered James’s belongings from that apartment and
brought them to her residence at 4009 Claire Street, and
Martin had maintained possession of them since then.
The district court found that the safe was at Martin’s
house because James had left it with her when he took
off for Nebraska. That finding is supported by the
record, and it was not clearly erroneous. It is clear that
Martin possessed the safe for a significant period of time.
Even though the safe contained only James’s belongings,
Martin exercised control over the safe itself. There is no
evidence that James attempted to limit or restrict her
control over the safe. On these facts, we can conclude
that James assumed the risk that Martin would consent
to the safe’s seizure; Martin had actual authority to consent.
Even if James had not granted actual authority
to Martin, she had apparent authority because a reasonable
person, given the information that Detective
Zimmerman possessed, would believe that Martin had
joint control of the safe.
We next consider whether Martin actually and voluntarily
did consent to the seizure. The government bears
the burden of proving that a third party consented voluntarily.
United States v. Evans, 27 F.3d 1219, 1230 (7th Cir.
1994) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 222
(1973)). James argues that Martin’s silence as Zimmerman
seized the safe cannot constitute consent. However, we
recognize that consent may be manifested in a non-verbal
as well as a verbal manner. United States v. Walls, 225 F.3d
858, 863 (7th Cir. 2000). Consent can be expressed or
implied from the circumstances. United States v. Wesela,
223 F.3d 656, 661 (7th Cir. 2000). In Wesela, we determined
that a woman who had called 911 and requested
that police come to her home had “impliedly” consented
to a search of the premises. While there was no direct
verbal exchange between the woman and law enforcement
officers, we stated that the events indicated her
implicit consent and stated that “had she wished to do
so, she could have objected to [the] . . . search.” Id.
In this case, the government submitted evidence demonstrating
that Martin called Zimmerman on October 30,
2006, left a message for him about the gun, and told him
that she would not open the safe without police present.
In a return call, Zimmerman told Martin he would like
to assist her with turning the gun over to police. On
November 1, Zimmerman spoke with Martin’s attorney
and told him that police were interested in evidence
contained in the safe, and the two of them made arrangements
to meet at Martin’s residence. Martin’s attorney
had no objection to this process. On November 2,
Zimmerman met with Martin and her attorney at Martin’s
residence. Martin invited Zimmerman to come in, led
Zimmerman to the safe, and said that the gun was inside.
Zimmerman advised Martin and her attorney that he
would seize the safe to protect the evidence, but that he
would obtain a search warrant before searching inside
the safe. Martin and her attorney could have voiced their
objections to Zimmerman’s plan, but neither objected. The
government submitted sufficient evidence for us to conclude
that Martin voluntarily consented, through her
words and actions, as a matter of law.
Finally, even if there had been error in the district
court’s failure to suppress the evidence seized from the
safe, any such error would have been harmless. If the
government had never uncovered evidence from the
safe, at the least it still would have presented: (1) the
testimony of the victim tellers whose descriptions of the
robber during both robberies matched the defendant’s
physical characteristics; (2) evidence describing the
vehicle seen near the bank at the approximate times of
both bank robberies, and the evidence that the defendant
was stopped driving a vehicle that exactly matched
that description; (3) the pink fleece glove, which
matched the description of the gloves worn by the
robber during the April 14 robbery, and which contained
James’s DNA as the major component of the DNA identified
inside the glove; (4) evidence that James was
positively identified driving his vehicle two days after
the second robbery, and was seen tossing a pink glove in a
dumpster; (5) evidence that the handgun used in the
April 14 robbery was recovered during the Nebraska
arrest; and (6) evidence of James’s detailed admissions to
both robberies made to an inmate in the Nebraska jail. We
believe that the jury would have convicted James of the
two counts of armed bank robbery and the two counts
of brandishing a firearm during those bank robberies
even without evidence from the safe.
III. Conclusion
We AFFIRM the judgment and conviction order of the
district court.
Chicago Criminal Lawyer - Robert J Callahan
Monday, July 6, 2009
U.S. vs. Cole
Parrish Cole entered into a
written plea agreement with the government in which
he acknowledged distributing less than 400 grams of
heroin and less than a kilogram of marijuana. The
district court accepted the plea agreement but found,
based on information in the presentence report, that
Cole should be held responsible for a greater quantity of
drugs than the amounts he had admitted in the agreement.
The court increased Cole’s guidelines range accordingly
and sentenced Cole to 97 months in prison, which
was nearly double the sentence Cole expected if the
court had followed the recommendations in the plea
agreement. Cole challenges his sentence; although in his
plea agreement he waived his right to appeal, he argues
that the appeal waiver is unenforceable because the
district court’s independent calculation of the drug quantities
effectively nullified the agreement.
We disagree. The enforceability of Cole’s appeal waiver
hinges on whether the drug quantities in Cole’s plea
agreement were binding on the district court for sentencing
purposes. Rule 11(c)(1)(C) of the Federal Rules
of Criminal Procedure provides that if the district court
accepts a plea containing an agreement between the
government and the defendant about a specific sentence,
sentencing range, or the applicability of a specific guidelines
provision, policy statement, or sentencing factor,
the court is bound by the parties’ agreement for purposes
of sentencing. Cole’s drug-quantity admissions in
the plea agreement do not fall into any of these
categories but are instead factual stipulations that fall
outside Rule 11(c)(1)(C)’s scope and thus do not bind
the district court. See U.S.S.G. § 6B1.4(d). Accordingly,
when the district court independently quantified the
amount of drugs attributable to Cole based on information
in the presentence report, it did not nullify the plea
agreement. The appeal waiver in Cole’s agreement is
enforceable, and we dismiss his appeal.
I. Background
Parrish Cole pleaded guilty to one count of distributing
heroin in violation of 21 U.S.C. § 841(a)(1). As part of
his written plea agreement with the government, Cole
agreed that he had distributed between 100 and 400 grams
of heroin and between 250 and 1,000 grams of marijuana.
Cole also agreed to forfeit (among other things) $84,150
in cash, which he acknowledged he earned through his
drug trade. In addition to dropping eight other narcoticsrelated
charges, the government agreed to recommend
a reduction in Cole’s offense level for acceptance of responsibility
and a sentence equal to the low end of his applicable
guidelines range. Cole’s plea agreement also
included a waiver of his right to appeal his sentence.
The district judge waited until after he had received
and reviewed the presentence report before accepting the
plea agreement’s recommendations. That report recommended
converting the cash Cole agreed to forfeit into a
drug quantity for sentencing purposes, see United States v.
Rivera, 6 F.3d 431, 446-47 (7th Cir. 1993), something that
neither the government nor Cole had considered during
plea negotiations. At sentencing the government asked the
district court to adhere to the drug quantities Cole had
admitted in his plea agreement in determining Cole’s
sentence, but the district court declined to do so; the judge
concluded that U.S.S.G. § 6B1.4(d) permitted him to reject
factual stipulations in the plea agreement. Adopting the
information in the presentence report, the court treated
the cash as the equivalent of 832 grams of heroin, which
raised Cole’s offense level by six levels and nearly doubled
his applicable guidelines range. The district court sentenced
Cole to 97 months’ imprisonment, at the bottom
of the advisory guidelines range. Cole appealed his
sentence, arguing that the district court erred by rejecting
the drug quantities in his plea agreement.
II. Discussion
The government asks us to dismiss this appeal because
Cole waived his right to appeal his sentence in his plea
agreement. As a general rule, a defendant may waive the
right to appeal his conviction and sentence, FED. R. CRIM.
P. 11(b)(1)(N), and appeal waivers are generally valid if
they are made knowingly and voluntarily. See United
States v. Franklin, 547 F.3d 726, 731-32 (7th Cir. 2008).
However, a knowing and voluntary waiver might not be
enforceable if the plea was not taken in compliance
with Rule 11 of the Federal Rules of Criminal Procedure.
United States v. Wenger, 58 F.3d 280, 282 (7th Cir. 1995) (“If
the agreement is voluntary, and taken in compliance
with Rule 11, then the waiver of appeal must be honored. If
the agreement is involuntary or otherwise unenforceable,
then the defendant is entitled to appeal.”); see also United
States v. Lockwood, 416 F.3d 604, 608 (7th Cir. 2005) (observing
that waivers are unenforceable if the defendant has
been sentenced based on constitutionally impermissible
criteria, the sentence exceeds the statutory maximum, or
the defendant received ineffective assistance of counsel
during plea negotiations and sentencing proceedings).
Cole contends that the district court’s sentencing decision
did not comport with the requirements of Rule 11
and therefore the plea agreement was effectively nullified
and the appeal waiver is unenforceable. See, e.g., United
States v. Hare, 269 F.3d 859, 860 (7th Cir. 2001) (“A waiver
of appeal is valid, and must be enforced, unless the agreement
in which it is contained is annulled . . . .”). The merits
of Cole’s Rule 11 claim are intertwined with the
enforceability of his appeal waiver; if Rule 11 did not
require the district court to use the drug-quantity
amounts in Cole’s plea agreement for sentencing purposes,
then the plea is valid and Cole’s appeal waiver
is enforceable. Thus, “the plea and the waiver stand or
fall together.” Latham v. United States, 527 F.3d 651, 653
(7th Cir. 2008).
Plea agreements are governed by Rule 11(c), which
makes some types of agreements between the government
and a defendant binding upon the district court
and others not. For example, if the parties “agree that a
specific sentence or sentencing range is the appropriate
disposition of the case, or that a particular provision of
the Sentencing Guidelines, or policy statement, or sentencing
factor does or does not apply,” FED. R. CRIM. P.
11(c)(1)(C), the district court is bound by the parties’
agreement if the court chooses to accept the plea, id.
11(c)(4). See United States v. O’Neill, 437 F.3d 654, 655-57
(7th Cir. 2006) (describing the operation of a “lock-in”
plea agreement under Rule 11(c)(1)(C)). Cole contends
that once the district court accepted his plea, Rule
11(c)(1)(C) required the district court to use the drugquantity
amounts in the plea agreement in its sentencing
analysis; the court could not accept the plea, Cole argues,
without also accepting the factual stipulations in the
agreement. Cf. United States v. Martin, 287 F.3d 609, 622
(7th Cir. 2002) (“A plea agreement is a unified document,
and even if the district court wanted to it could not
accept part and reject part.”).
Not all particularized provisions in a plea agreement
operate to make a plea agreement binding on the district
court. See FED. R. CRIM. P. 11(c)(1)(B) (providing that the
district court is not bound by the parties’ agreement
that the government will “recommend, or agree not to
oppose the defendant’s request, that a particular sentence
or sentencing range is appropriate or that a particular
provision of the Sentencing Guidelines, or policy
statement, or sentencing factor does not apply”). Cole’s
plea agreement contained many provisions explicitly
preserving the nonbinding character of the agreement.
For example, the agreement specifically stated that the
district court “will determine the applicable guidelines
range” and “will determine all matters, whether factual or
legal, relevant to the application” of the guidelines, and
that “the specific sentence to be imposed . . . will be
determined by the judge.” Cole claims nonetheless
that other parts of the agreement—specifically his drugquantity
admissions—were binding and that these
brought his agreement within the terms of
Rule 11(c)(1)(C).1
Rule 11(c)(1)(C) only applies to agreements regarding
sentences, sentencing ranges, or sentencing factors; it
does not apply to factual stipulations. Typically, Rule
11(c)(1)(C) agreements explicitly contain an agreed-upon
sentence, e.g., United States v. Weathington, 507 F.3d 1068,
1070 (7th Cir. 2007), or an agreed-upon sentencing range,
e.g., United States v. Blinn, 490 F.3d 586, 587 (7th Cir. 2007).
Rule 11(c)(1)(C) agreements may also explain how an
agreed-upon sentence will be affected by a court’s resolution
of disputed issues. See, e.g., United States v. Linder, 530
F.3d 556, 559 (7th Cir. 2008) (parties agreed defendant
would be sentenced to 50% of the low end of the applicable
guidelines range).
Cole’s plea agreement contains none of these indicia.
The paragraph in Cole’s plea agreement addressing the
amount of drugs he distributed does not contain an
agreement on “a specific sentence or sentencing range” or
an agreement regarding the applicability of any “particular
provision of the guidelines, a policy statement, or a sentencing
factor.” FED. R. CRIM. P. 11(c)(1)(C). To the contrary,
as we have noted, other portions of the agreement
specifically state that the district court “will determine
the applicable guideline range” and “will determine
all matters, whether factual or legal, relevant to the application”
of the guidelines. The agreement also provides
that “the specific sentence to be imposed . . . will be
determined by the judge.” Nothing in the paragraph
containing Cole’s admissions as to drug quantities
altered these general provisions.
Instead, Cole’s admissions regarding drug quantities
are the equivalent of a stipulation of facts that falls
outside Rule 11’s scope. The district court is not bound by
the parties’ stipulations, a point confirmed by the guidelines.
See U.S.S.G. § 6B1.4 (“A plea agreement may be
accompanied by a written stipulation of facts relevant to
sentencing. . . . The court is not bound by the stipulation,
but may with the aid of the presentence report,
determine the facts relevant to sentencing.”) The commentary
accompanying § 6B1.4 emphasizes this point:
Section 6B1.4(d) makes clear that the court is not
obliged to accept the stipulation of the parties. Even
though stipulations are expected to be accurate and
complete, the court cannot rely exclusively upon
stipulations in ascertaining the factors relevant to
the determination of the sentence. Rather, in determining
the factual basis for the sentence, the court
will consider the stipulation, together with the results
of the presentence investigation, and any other relevant
information.
(Emphasis added.) Simply mentioning a particular guideline
provision (as Cole’s plea agreement does) is not
enough to convert a factual stipulation into a binding
Rule 11(c)(1)(C) agreement. If the parties meant to bind
the district court at sentencing, then the agreement
would have contained specific language to that effect. As
it was, the agreement explicitly left all aspects of the
guidelines calculation and the ultimate sentence up to
the court. As such, the court was free to accept the plea
yet rely on the presentence report to reach its own drugquantity
findings notwithstanding the parties’ stipulation
about the drug quantities. During the Rule 11 plea
colloquy, Cole himself acknowledged that the drugquantity
amounts were not binding; when the judge
advised him that the court was free to disregard the
recommendations in the plea agreement and that Cole
could face up to 20 years’ imprisonment, he said he
understood.
Cole’s argument is similar to the one made by the
defendant in United States v. Bennett, 990 F.2d 998 (7th Cir.
1993). In Bennett the defendant had stipulated that he
was not a career offender, but he had concealed a
prior violent felony that the probation officer uncovered
while preparing the presentence report. 990 F.2d at 1000-
01. Although the government had asked the district
court to abide by the parties’ stipulation, we concluded
that the parties’ agreement as to the defendant’s
career-offender status did not bind the court because it
did not fall within the category of agreements that
Rule 11 makes binding in sentencing proceedings. Id. at
1002-04. True, the types of agreements that may bind a
district court under Rule 11 have been expanded since
Bennett, compare id. at 1001 (quoting a prior version of
Rule 11(c)(1)(C) that provided that the parties might
agree that “a specific sentence is the appropriate disposition
of the case”), with FED. R. CRIM. P. 11(c)(1)(C) (providing
that a district court may be bound by the parties’
agreement regarding specific sentences, sentencing
ranges, or the application of other guidelines provisions,
policy statements, or sentencing factors), but its reasoning
is still sound. Rule 11(c)(1)(C) does not apply to
stipulated facts, and so the drug-quantity amounts in
Cole’s agreement did not constrain the district court’s
sentencing decision. Cole acknowledged as much in the
agreement itself and at his plea hearing when he said
he understood that the court retained complete freedom
to calculate the applicable sentencing guidelines range
and determine the appropriate sentence. Accordingly,
the district court did not nullify Cole’s plea by rejecting
the drug-quantity stipulations in the plea agreement, and
the appeal waiver in Cole’s plea agreement is enforceable.
The appeal is DISMISSED.
Chicago Criminal Lawyer - Robert J Callahan
written plea agreement with the government in which
he acknowledged distributing less than 400 grams of
heroin and less than a kilogram of marijuana. The
district court accepted the plea agreement but found,
based on information in the presentence report, that
Cole should be held responsible for a greater quantity of
drugs than the amounts he had admitted in the agreement.
The court increased Cole’s guidelines range accordingly
and sentenced Cole to 97 months in prison, which
was nearly double the sentence Cole expected if the
court had followed the recommendations in the plea
agreement. Cole challenges his sentence; although in his
plea agreement he waived his right to appeal, he argues
that the appeal waiver is unenforceable because the
district court’s independent calculation of the drug quantities
effectively nullified the agreement.
We disagree. The enforceability of Cole’s appeal waiver
hinges on whether the drug quantities in Cole’s plea
agreement were binding on the district court for sentencing
purposes. Rule 11(c)(1)(C) of the Federal Rules
of Criminal Procedure provides that if the district court
accepts a plea containing an agreement between the
government and the defendant about a specific sentence,
sentencing range, or the applicability of a specific guidelines
provision, policy statement, or sentencing factor,
the court is bound by the parties’ agreement for purposes
of sentencing. Cole’s drug-quantity admissions in
the plea agreement do not fall into any of these
categories but are instead factual stipulations that fall
outside Rule 11(c)(1)(C)’s scope and thus do not bind
the district court. See U.S.S.G. § 6B1.4(d). Accordingly,
when the district court independently quantified the
amount of drugs attributable to Cole based on information
in the presentence report, it did not nullify the plea
agreement. The appeal waiver in Cole’s agreement is
enforceable, and we dismiss his appeal.
I. Background
Parrish Cole pleaded guilty to one count of distributing
heroin in violation of 21 U.S.C. § 841(a)(1). As part of
his written plea agreement with the government, Cole
agreed that he had distributed between 100 and 400 grams
of heroin and between 250 and 1,000 grams of marijuana.
Cole also agreed to forfeit (among other things) $84,150
in cash, which he acknowledged he earned through his
drug trade. In addition to dropping eight other narcoticsrelated
charges, the government agreed to recommend
a reduction in Cole’s offense level for acceptance of responsibility
and a sentence equal to the low end of his applicable
guidelines range. Cole’s plea agreement also
included a waiver of his right to appeal his sentence.
The district judge waited until after he had received
and reviewed the presentence report before accepting the
plea agreement’s recommendations. That report recommended
converting the cash Cole agreed to forfeit into a
drug quantity for sentencing purposes, see United States v.
Rivera, 6 F.3d 431, 446-47 (7th Cir. 1993), something that
neither the government nor Cole had considered during
plea negotiations. At sentencing the government asked the
district court to adhere to the drug quantities Cole had
admitted in his plea agreement in determining Cole’s
sentence, but the district court declined to do so; the judge
concluded that U.S.S.G. § 6B1.4(d) permitted him to reject
factual stipulations in the plea agreement. Adopting the
information in the presentence report, the court treated
the cash as the equivalent of 832 grams of heroin, which
raised Cole’s offense level by six levels and nearly doubled
his applicable guidelines range. The district court sentenced
Cole to 97 months’ imprisonment, at the bottom
of the advisory guidelines range. Cole appealed his
sentence, arguing that the district court erred by rejecting
the drug quantities in his plea agreement.
II. Discussion
The government asks us to dismiss this appeal because
Cole waived his right to appeal his sentence in his plea
agreement. As a general rule, a defendant may waive the
right to appeal his conviction and sentence, FED. R. CRIM.
P. 11(b)(1)(N), and appeal waivers are generally valid if
they are made knowingly and voluntarily. See United
States v. Franklin, 547 F.3d 726, 731-32 (7th Cir. 2008).
However, a knowing and voluntary waiver might not be
enforceable if the plea was not taken in compliance
with Rule 11 of the Federal Rules of Criminal Procedure.
United States v. Wenger, 58 F.3d 280, 282 (7th Cir. 1995) (“If
the agreement is voluntary, and taken in compliance
with Rule 11, then the waiver of appeal must be honored. If
the agreement is involuntary or otherwise unenforceable,
then the defendant is entitled to appeal.”); see also United
States v. Lockwood, 416 F.3d 604, 608 (7th Cir. 2005) (observing
that waivers are unenforceable if the defendant has
been sentenced based on constitutionally impermissible
criteria, the sentence exceeds the statutory maximum, or
the defendant received ineffective assistance of counsel
during plea negotiations and sentencing proceedings).
Cole contends that the district court’s sentencing decision
did not comport with the requirements of Rule 11
and therefore the plea agreement was effectively nullified
and the appeal waiver is unenforceable. See, e.g., United
States v. Hare, 269 F.3d 859, 860 (7th Cir. 2001) (“A waiver
of appeal is valid, and must be enforced, unless the agreement
in which it is contained is annulled . . . .”). The merits
of Cole’s Rule 11 claim are intertwined with the
enforceability of his appeal waiver; if Rule 11 did not
require the district court to use the drug-quantity
amounts in Cole’s plea agreement for sentencing purposes,
then the plea is valid and Cole’s appeal waiver
is enforceable. Thus, “the plea and the waiver stand or
fall together.” Latham v. United States, 527 F.3d 651, 653
(7th Cir. 2008).
Plea agreements are governed by Rule 11(c), which
makes some types of agreements between the government
and a defendant binding upon the district court
and others not. For example, if the parties “agree that a
specific sentence or sentencing range is the appropriate
disposition of the case, or that a particular provision of
the Sentencing Guidelines, or policy statement, or sentencing
factor does or does not apply,” FED. R. CRIM. P.
11(c)(1)(C), the district court is bound by the parties’
agreement if the court chooses to accept the plea, id.
11(c)(4). See United States v. O’Neill, 437 F.3d 654, 655-57
(7th Cir. 2006) (describing the operation of a “lock-in”
plea agreement under Rule 11(c)(1)(C)). Cole contends
that once the district court accepted his plea, Rule
11(c)(1)(C) required the district court to use the drugquantity
amounts in the plea agreement in its sentencing
analysis; the court could not accept the plea, Cole argues,
without also accepting the factual stipulations in the
agreement. Cf. United States v. Martin, 287 F.3d 609, 622
(7th Cir. 2002) (“A plea agreement is a unified document,
and even if the district court wanted to it could not
accept part and reject part.”).
Not all particularized provisions in a plea agreement
operate to make a plea agreement binding on the district
court. See FED. R. CRIM. P. 11(c)(1)(B) (providing that the
district court is not bound by the parties’ agreement
that the government will “recommend, or agree not to
oppose the defendant’s request, that a particular sentence
or sentencing range is appropriate or that a particular
provision of the Sentencing Guidelines, or policy
statement, or sentencing factor does not apply”). Cole’s
plea agreement contained many provisions explicitly
preserving the nonbinding character of the agreement.
For example, the agreement specifically stated that the
district court “will determine the applicable guidelines
range” and “will determine all matters, whether factual or
legal, relevant to the application” of the guidelines, and
that “the specific sentence to be imposed . . . will be
determined by the judge.” Cole claims nonetheless
that other parts of the agreement—specifically his drugquantity
admissions—were binding and that these
brought his agreement within the terms of
Rule 11(c)(1)(C).1
Rule 11(c)(1)(C) only applies to agreements regarding
sentences, sentencing ranges, or sentencing factors; it
does not apply to factual stipulations. Typically, Rule
11(c)(1)(C) agreements explicitly contain an agreed-upon
sentence, e.g., United States v. Weathington, 507 F.3d 1068,
1070 (7th Cir. 2007), or an agreed-upon sentencing range,
e.g., United States v. Blinn, 490 F.3d 586, 587 (7th Cir. 2007).
Rule 11(c)(1)(C) agreements may also explain how an
agreed-upon sentence will be affected by a court’s resolution
of disputed issues. See, e.g., United States v. Linder, 530
F.3d 556, 559 (7th Cir. 2008) (parties agreed defendant
would be sentenced to 50% of the low end of the applicable
guidelines range).
Cole’s plea agreement contains none of these indicia.
The paragraph in Cole’s plea agreement addressing the
amount of drugs he distributed does not contain an
agreement on “a specific sentence or sentencing range” or
an agreement regarding the applicability of any “particular
provision of the guidelines, a policy statement, or a sentencing
factor.” FED. R. CRIM. P. 11(c)(1)(C). To the contrary,
as we have noted, other portions of the agreement
specifically state that the district court “will determine
the applicable guideline range” and “will determine
all matters, whether factual or legal, relevant to the application”
of the guidelines. The agreement also provides
that “the specific sentence to be imposed . . . will be
determined by the judge.” Nothing in the paragraph
containing Cole’s admissions as to drug quantities
altered these general provisions.
Instead, Cole’s admissions regarding drug quantities
are the equivalent of a stipulation of facts that falls
outside Rule 11’s scope. The district court is not bound by
the parties’ stipulations, a point confirmed by the guidelines.
See U.S.S.G. § 6B1.4 (“A plea agreement may be
accompanied by a written stipulation of facts relevant to
sentencing. . . . The court is not bound by the stipulation,
but may with the aid of the presentence report,
determine the facts relevant to sentencing.”) The commentary
accompanying § 6B1.4 emphasizes this point:
Section 6B1.4(d) makes clear that the court is not
obliged to accept the stipulation of the parties. Even
though stipulations are expected to be accurate and
complete, the court cannot rely exclusively upon
stipulations in ascertaining the factors relevant to
the determination of the sentence. Rather, in determining
the factual basis for the sentence, the court
will consider the stipulation, together with the results
of the presentence investigation, and any other relevant
information.
(Emphasis added.) Simply mentioning a particular guideline
provision (as Cole’s plea agreement does) is not
enough to convert a factual stipulation into a binding
Rule 11(c)(1)(C) agreement. If the parties meant to bind
the district court at sentencing, then the agreement
would have contained specific language to that effect. As
it was, the agreement explicitly left all aspects of the
guidelines calculation and the ultimate sentence up to
the court. As such, the court was free to accept the plea
yet rely on the presentence report to reach its own drugquantity
findings notwithstanding the parties’ stipulation
about the drug quantities. During the Rule 11 plea
colloquy, Cole himself acknowledged that the drugquantity
amounts were not binding; when the judge
advised him that the court was free to disregard the
recommendations in the plea agreement and that Cole
could face up to 20 years’ imprisonment, he said he
understood.
Cole’s argument is similar to the one made by the
defendant in United States v. Bennett, 990 F.2d 998 (7th Cir.
1993). In Bennett the defendant had stipulated that he
was not a career offender, but he had concealed a
prior violent felony that the probation officer uncovered
while preparing the presentence report. 990 F.2d at 1000-
01. Although the government had asked the district
court to abide by the parties’ stipulation, we concluded
that the parties’ agreement as to the defendant’s
career-offender status did not bind the court because it
did not fall within the category of agreements that
Rule 11 makes binding in sentencing proceedings. Id. at
1002-04. True, the types of agreements that may bind a
district court under Rule 11 have been expanded since
Bennett, compare id. at 1001 (quoting a prior version of
Rule 11(c)(1)(C) that provided that the parties might
agree that “a specific sentence is the appropriate disposition
of the case”), with FED. R. CRIM. P. 11(c)(1)(C) (providing
that a district court may be bound by the parties’
agreement regarding specific sentences, sentencing
ranges, or the application of other guidelines provisions,
policy statements, or sentencing factors), but its reasoning
is still sound. Rule 11(c)(1)(C) does not apply to
stipulated facts, and so the drug-quantity amounts in
Cole’s agreement did not constrain the district court’s
sentencing decision. Cole acknowledged as much in the
agreement itself and at his plea hearing when he said
he understood that the court retained complete freedom
to calculate the applicable sentencing guidelines range
and determine the appropriate sentence. Accordingly,
the district court did not nullify Cole’s plea by rejecting
the drug-quantity stipulations in the plea agreement, and
the appeal waiver in Cole’s plea agreement is enforceable.
The appeal is DISMISSED.
Chicago Criminal Lawyer - Robert J Callahan
U.S. vs. Huffstatler
Mark Huffstatler pleaded guilty to producing
child pornography, see 18 U.S.C. § 2251(a), and the
district judge imposed an above-guidelines sentence.
Huffstatler seeks a remand for resentencing, contending
that his sentence is unreasonable because the child-pornography
sentencing guidelines are not the product of empirical
research. We affirm.
BACKGROUND
Huffstatler hired a 14-year-old boy, T.P., to help with
some household chores, but things turned unsavory
when Huffstatler asked T.P. to take off his shirt and
loosen his shorts for pictures that Huffstatler planned to
sell on the internet. T.P. initially agreed, but after a few
photos he asked to leave. Huffstatler refused. Removing
T.P.’s pants, Huffstatler manipulated the boy’s penis
until it was erect and took 16 photographs of him.
Huffstatler pleaded guilty to producing child pornography,
see 18 U.S.C. § 2251(a), and the district judge calculated
his sentencing-guidelines range. The base offense
level was 32, see U.S.S.G. § 2G2.1, which the court
increased to 38 because T.P. was between the ages of
12 and 16 years, see U.S.S.G. § 2G2.1(b)(1)(B), Huffstatler
had sexual contact with T.P., see U.S.S.G. § 2G2.1(b)(2)(A),
and Huffstatler intended to distribute the pictures, see
U.S.S.G. § 2G2.1(b)(2)(A). The judge ultimately reduced
Huffstatler’s offense level to 35 because he quickly
pleaded guilty. See U.S.S.G. § 3E1.1(a) & (b).
Turning to criminal history, the district court observed
that Huffstatler had victimized many others. First, there
were his violent felonies: he served four years in prison
after pleading guilty to sexually assaulting his 13-year-old
adopted son (in exchange the state prosecutor dismissed
charges that Huffstatler had raped his stepsons, who were
then six and eight years old), and he was convicted of
unlawful restraint for locking an 18-year-old man in the
trunk of his car. There were also repeated attempts at
sexual contact with teenage boys: in 1999 a 13-year-old
told the police that Huffstatler had propositioned him
and, mere months before the incident with T.P., a 14-yearold
reported that Huffstatler tackled and groped him as
he fled Huffstatler’s home. Huffstatler’s previous violent
felonies qualified him as a career offender with a Category
VI criminal history, see U.S.S.G. § 4B1.1, and his sexualassault
conviction also triggered a 25-year statutory
minimum sentence, see 18 U.S.C. § 2251(e). Thus, although
Huffstatler’s offense level and criminal history category
intersected at 292 to 365 months’ imprisonment, the
district court correctly noted that the effective guidelines
range was 300 to 365 months.
Huffstatler urged the district court to sentence him to
the statutory minimum prison term, 25 years. After
evaluating the factors laid out in 18 U.S.C. § 3553(a), the
sentencing judge instead concluded that an above-guidelines
sentence was necessary for four reasons: to deter
Huffstatler (as his prior short sentences had not) and
other would-be predators; to protect society from
Huffstatler’s incorrigible recidivism; to reflect the seriousness
of his offense and its effect on his victim; and to
allow time for Huffstatler to seek treatment. The court
sentenced Huffstatler to 450 months’ imprisonment.
ANALYSIS
Relying on a 2008 paper by federal defender Troy
Stabenow, Deconstructing the Myth of Careful Study: A
Primer on the Flawed Progression of the Child Pornography
Guidelines 27-32 (July 3, 2008), http://www.fd.org/pdf_lib/
child%20porn%20july%20revision.pdf, Huffstatler argues
that the guidelines for crimes involving sexual exploitation
of a minor, U.S.S.G. §§ 2G2.1-.2, were crafted without the
benefit of the Sentencing Commission’s usual empirical
study and are invalid. He concludes that the district
judge was obligated to sentence him below the guidelines
range and that his sentence is, consequently, unreasonable.
Because Huffstatler did not raise this argument
at sentencing, we review for plain error and may, in our
discretion, vacate the district court’s sentence only if
there was an error that is plain and that affects
Huffstatler’s substantial rights. See United States v. Pree,
408 F.3d 855, 868-69 (7th Cir. 2005). We would exercise
that discretion only if the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.
See United States v. James, 464 F.3d 699, 709 (7th Cir. 2006).
Stabenow’s article has been gaining traction in the
district courts and has been cited numerous times for
the proposition that a judge who disagrees generally with
the harshness of the child-pornography guidelines may
impose a sentence well below the guidelines range for
that reason alone. E.g., United States v. Shipley, 560
F. Supp. 2d 739,744-46 (S.D. Iowa 2008) (explaining that
the guidelines’ “advice in this [child-exploitation] case is
less reliable than in other cases where the guidelines
are based on study and empirical data,” and, thus,
90 months’ imprisonment was more appropriate than
guidelines range of 210 to 240 months); United States
v. Hanson, 561 F. Supp. 2d 1004, 1008-12 (E.D. Wis. 2008)
(sentencing defendant whose effective guidelines range
was 210-240 months’ imprisonment to 72 months);
United States v. Grober, 595 F. Supp.2d 382, 390-412 (D.N.J.
Dec. 22, 2008) (sentencing defendant to 60 months’ imprisonment,
though guidelines range was 235 to 293 months);
United States v. Baird, 580 F. Supp. 2d 889, 894-96 (D.
Neb. 2008) (imposing sentence of 24 months, although
guidelines range was 46 to 57 months). Stabenow presents
the following syllogism: Kimbrough v. United States, 128
S. Ct. 558 (2007), allows district courts to disagree on
policy grounds with sentencing guidelines that exhibit
methodological flaws; the same methodological flaws
that characterize the crack guidelines—lack of empirical
support—also undermine the child-pornography guidelines;
therefore, district courts may sentence child-pornography
offenders below the guidelines range based on
disagreement with the policy embodied in the guidelines.
Stabenow, supra, at 27-32.
Huffstatler parroted this construction, up to a point, and
the government’s brief provided no reason to doubt
Stabenow’s conclusion. The government conceded that
“Kimbrough v. United States, 128 S.Ct. 558, 575 (2007), does
afford a sentencing court discretion to vary from the
guidelines when they do not reflect ‘empirical data and
national experience.’ ” And, perhaps for good reason,
the government did not take issue with Huffstatler’s
premise that the child-exploitation guidelines lack an
empirical basis. As the Sentencing Commission itself
has stated, “[m]uch like policymaking in the area of drug
trafficking, Congress has used a mix of mandatory minimum
penalty increases and directives to the Commission
to change sentencing policy for sex offenses.” U.S. Sentencing
Comm’n, Fifteen Years of Guidelines Sentencing:
An Assessment of How Well the Federal Criminal Justice
System is Achieving the Goals of Sentencing Reform 72-73
(November 2004), available at http://www.ussc.gov/15_year/
15_year_study_full.pdf.1
But we need not ultimately decide whether Kimbrough
gives district courts the discretion to disagree with the
child-pornography guidelines on policy grounds,
because Huffstatler does not contend that the district
court abused its discretion. See United States v. Taylor,
520 F.3d 746, 747-48 (7th Cir. 2008). He argues instead
that the methodological flaws that supposedly run
through the child-pornography guidelines invalidate
them entirely. Thus, he submits, not only may a district
court sentence below the child-exploitation guidelines
based on policy disagreements with them, it must.
Huffstatler’s stance is untenable. His argument is based
on analogy to the crack guidelines, yet those guidelines
remain valid, even after Kimbrough. See United States
v. Roberson, 517 F.3d 990, 995 (8th Cir. 2008). Judges are not
required to disagree with them; a within-guidelines
sentence for a crack offense may be reasonable. Id.; see also
United States v. Lopez, 545 F.3d 515, 516-17 (7th Cir. 2008)
(affirming a within-guidelines sentence for possession
with intent to distribute crack). The child-exploitation
guidelines are no different: while district courts
perhaps have the freedom to sentence below the childpornography
guidelines based on disagreement with the
guidelines, as with the crack guidelines, they are
certainly not required to do so. Because the district
court was not obligated to sentence Huffstatler below the
range recommended by valid sentencing guidelines,
Huffstatler cannot establish error, let alone plain error.
Finally, Huffstatler’s sentence, though above the guidelines
range, was reasonable. The sentencing judge correctly
calculated the guidelines range and then reviewed
the § 3553(a) factors—including recidivism, deterrence,
seriousness of the crime, and time for treatment—in some
detail before announcing that a longer sentence was
justified. We require nothing more. See United States
v. McIntyre, 531 F.3d 481, 483-84 (7th Cir. 2008).
Accordingly, we AFFIRM Huffstatler’s sentence.
Chicago Criminal Lawyer - Robert J Callahan
child pornography, see 18 U.S.C. § 2251(a), and the
district judge imposed an above-guidelines sentence.
Huffstatler seeks a remand for resentencing, contending
that his sentence is unreasonable because the child-pornography
sentencing guidelines are not the product of empirical
research. We affirm.
BACKGROUND
Huffstatler hired a 14-year-old boy, T.P., to help with
some household chores, but things turned unsavory
when Huffstatler asked T.P. to take off his shirt and
loosen his shorts for pictures that Huffstatler planned to
sell on the internet. T.P. initially agreed, but after a few
photos he asked to leave. Huffstatler refused. Removing
T.P.’s pants, Huffstatler manipulated the boy’s penis
until it was erect and took 16 photographs of him.
Huffstatler pleaded guilty to producing child pornography,
see 18 U.S.C. § 2251(a), and the district judge calculated
his sentencing-guidelines range. The base offense
level was 32, see U.S.S.G. § 2G2.1, which the court
increased to 38 because T.P. was between the ages of
12 and 16 years, see U.S.S.G. § 2G2.1(b)(1)(B), Huffstatler
had sexual contact with T.P., see U.S.S.G. § 2G2.1(b)(2)(A),
and Huffstatler intended to distribute the pictures, see
U.S.S.G. § 2G2.1(b)(2)(A). The judge ultimately reduced
Huffstatler’s offense level to 35 because he quickly
pleaded guilty. See U.S.S.G. § 3E1.1(a) & (b).
Turning to criminal history, the district court observed
that Huffstatler had victimized many others. First, there
were his violent felonies: he served four years in prison
after pleading guilty to sexually assaulting his 13-year-old
adopted son (in exchange the state prosecutor dismissed
charges that Huffstatler had raped his stepsons, who were
then six and eight years old), and he was convicted of
unlawful restraint for locking an 18-year-old man in the
trunk of his car. There were also repeated attempts at
sexual contact with teenage boys: in 1999 a 13-year-old
told the police that Huffstatler had propositioned him
and, mere months before the incident with T.P., a 14-yearold
reported that Huffstatler tackled and groped him as
he fled Huffstatler’s home. Huffstatler’s previous violent
felonies qualified him as a career offender with a Category
VI criminal history, see U.S.S.G. § 4B1.1, and his sexualassault
conviction also triggered a 25-year statutory
minimum sentence, see 18 U.S.C. § 2251(e). Thus, although
Huffstatler’s offense level and criminal history category
intersected at 292 to 365 months’ imprisonment, the
district court correctly noted that the effective guidelines
range was 300 to 365 months.
Huffstatler urged the district court to sentence him to
the statutory minimum prison term, 25 years. After
evaluating the factors laid out in 18 U.S.C. § 3553(a), the
sentencing judge instead concluded that an above-guidelines
sentence was necessary for four reasons: to deter
Huffstatler (as his prior short sentences had not) and
other would-be predators; to protect society from
Huffstatler’s incorrigible recidivism; to reflect the seriousness
of his offense and its effect on his victim; and to
allow time for Huffstatler to seek treatment. The court
sentenced Huffstatler to 450 months’ imprisonment.
ANALYSIS
Relying on a 2008 paper by federal defender Troy
Stabenow, Deconstructing the Myth of Careful Study: A
Primer on the Flawed Progression of the Child Pornography
Guidelines 27-32 (July 3, 2008), http://www.fd.org/pdf_lib/
child%20porn%20july%20revision.pdf, Huffstatler argues
that the guidelines for crimes involving sexual exploitation
of a minor, U.S.S.G. §§ 2G2.1-.2, were crafted without the
benefit of the Sentencing Commission’s usual empirical
study and are invalid. He concludes that the district
judge was obligated to sentence him below the guidelines
range and that his sentence is, consequently, unreasonable.
Because Huffstatler did not raise this argument
at sentencing, we review for plain error and may, in our
discretion, vacate the district court’s sentence only if
there was an error that is plain and that affects
Huffstatler’s substantial rights. See United States v. Pree,
408 F.3d 855, 868-69 (7th Cir. 2005). We would exercise
that discretion only if the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.
See United States v. James, 464 F.3d 699, 709 (7th Cir. 2006).
Stabenow’s article has been gaining traction in the
district courts and has been cited numerous times for
the proposition that a judge who disagrees generally with
the harshness of the child-pornography guidelines may
impose a sentence well below the guidelines range for
that reason alone. E.g., United States v. Shipley, 560
F. Supp. 2d 739,744-46 (S.D. Iowa 2008) (explaining that
the guidelines’ “advice in this [child-exploitation] case is
less reliable than in other cases where the guidelines
are based on study and empirical data,” and, thus,
90 months’ imprisonment was more appropriate than
guidelines range of 210 to 240 months); United States
v. Hanson, 561 F. Supp. 2d 1004, 1008-12 (E.D. Wis. 2008)
(sentencing defendant whose effective guidelines range
was 210-240 months’ imprisonment to 72 months);
United States v. Grober, 595 F. Supp.2d 382, 390-412 (D.N.J.
Dec. 22, 2008) (sentencing defendant to 60 months’ imprisonment,
though guidelines range was 235 to 293 months);
United States v. Baird, 580 F. Supp. 2d 889, 894-96 (D.
Neb. 2008) (imposing sentence of 24 months, although
guidelines range was 46 to 57 months). Stabenow presents
the following syllogism: Kimbrough v. United States, 128
S. Ct. 558 (2007), allows district courts to disagree on
policy grounds with sentencing guidelines that exhibit
methodological flaws; the same methodological flaws
that characterize the crack guidelines—lack of empirical
support—also undermine the child-pornography guidelines;
therefore, district courts may sentence child-pornography
offenders below the guidelines range based on
disagreement with the policy embodied in the guidelines.
Stabenow, supra, at 27-32.
Huffstatler parroted this construction, up to a point, and
the government’s brief provided no reason to doubt
Stabenow’s conclusion. The government conceded that
“Kimbrough v. United States, 128 S.Ct. 558, 575 (2007), does
afford a sentencing court discretion to vary from the
guidelines when they do not reflect ‘empirical data and
national experience.’ ” And, perhaps for good reason,
the government did not take issue with Huffstatler’s
premise that the child-exploitation guidelines lack an
empirical basis. As the Sentencing Commission itself
has stated, “[m]uch like policymaking in the area of drug
trafficking, Congress has used a mix of mandatory minimum
penalty increases and directives to the Commission
to change sentencing policy for sex offenses.” U.S. Sentencing
Comm’n, Fifteen Years of Guidelines Sentencing:
An Assessment of How Well the Federal Criminal Justice
System is Achieving the Goals of Sentencing Reform 72-73
(November 2004), available at http://www.ussc.gov/15_year/
15_year_study_full.pdf.1
But we need not ultimately decide whether Kimbrough
gives district courts the discretion to disagree with the
child-pornography guidelines on policy grounds,
because Huffstatler does not contend that the district
court abused its discretion. See United States v. Taylor,
520 F.3d 746, 747-48 (7th Cir. 2008). He argues instead
that the methodological flaws that supposedly run
through the child-pornography guidelines invalidate
them entirely. Thus, he submits, not only may a district
court sentence below the child-exploitation guidelines
based on policy disagreements with them, it must.
Huffstatler’s stance is untenable. His argument is based
on analogy to the crack guidelines, yet those guidelines
remain valid, even after Kimbrough. See United States
v. Roberson, 517 F.3d 990, 995 (8th Cir. 2008). Judges are not
required to disagree with them; a within-guidelines
sentence for a crack offense may be reasonable. Id.; see also
United States v. Lopez, 545 F.3d 515, 516-17 (7th Cir. 2008)
(affirming a within-guidelines sentence for possession
with intent to distribute crack). The child-exploitation
guidelines are no different: while district courts
perhaps have the freedom to sentence below the childpornography
guidelines based on disagreement with the
guidelines, as with the crack guidelines, they are
certainly not required to do so. Because the district
court was not obligated to sentence Huffstatler below the
range recommended by valid sentencing guidelines,
Huffstatler cannot establish error, let alone plain error.
Finally, Huffstatler’s sentence, though above the guidelines
range, was reasonable. The sentencing judge correctly
calculated the guidelines range and then reviewed
the § 3553(a) factors—including recidivism, deterrence,
seriousness of the crime, and time for treatment—in some
detail before announcing that a longer sentence was
justified. We require nothing more. See United States
v. McIntyre, 531 F.3d 481, 483-84 (7th Cir. 2008).
Accordingly, we AFFIRM Huffstatler’s sentence.
Chicago Criminal Lawyer - Robert J Callahan
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