At 77 years old, James Kincannon
makes for an unlikely methamphetamine dealer. But looks
can be deceiving. Kincannon was convicted of conspiring
to distribute and distributing methamphetamine after two
controlled buys nailed him as a dope dealer. Kincannon
was sentenced to 30 years in prison, and he now challenges
his conviction on the conspiracy count and his sentence.
Curiously, Kincannon mounts no direct challenge to his
conviction on the distribution charge for which he received
a concurrent 30-year sentence.
Kincannon’s demise began when a junkie, caught with a
small amount of drugs, fingered Kincannon as a dealer and
decided to cooperate with the police. The informant, who
testified at trial, agreed to wear an audio and video wire
while purchasing half an ounce of methamphetamine from
Kincannon. He went to Kincannon’s home for the buy, but,
at that time, Kincannon only had a quarter ounce to sell.
Kincannon asked the informant to stay put while he went
to get more drugs, but didn’t say where he was going.
Police officers (some of whom also testified at trial) then
followed Kincannon to the home of a woman named
Cheryl Dill. The officers watched as Kincannon entered
Dill’s home, stayed briefly, and then left. Kincannon then
returned to his home, where he consummated the drug
deal—half an ounce for $1,100.
Five days later the officers set up a second controlled
buy. Again, Kincannon didn’t have enough to meet the
informant’s half-ounce order, so he asked the informant to
wait while he fetched more drugs. This time, instead of
heading straight to Dill’s house, he stopped off at another
location where he met Scott Thorburg. The officers were
familiar with Thorburg, who had been arrested just eight
months earlier. Kincannon then got into Thorburg’s tow
truck (he owned a tow yard) and Thorburg drove both of
them to Dill’s house. Thorburg waited in the car while
Kincannon went inside to pick up the drugs. Thorburg
then dropped Kincannon off at his car and they parted
ways. Shortly thereafter, both men were arrested following
traffic stops. On Thorburg officers found two bags of
methamphetamine, and on Kincannon they found an
empty bag with methamphetamine residue, along with
some of the prerecorded bills used in the first controlled
buy. Kincannon was eventually indicted for distributing
methamphetamine and conspiring to distribute methamphetamine
with Dill, her supplier, and others “known and
unknown.” 21 U.S.C. §§ 841(a)(1), 846.
Thorburg, who testified at the trial, was no stranger to
the drug trade. Once an engineer for ABC Sports who
traveled across the country to film Monday Night Football,
NASCAR, and PGA tournaments, he fell on hard times
when he started using methamphetamine. As his use
escalated, his life fell further into shambles; he eventually
lost his job, divorced his wife, and took to selling drugs to
support his own habit. In fact, Thorburg had been
Kincannon’s dealer for five or six months, until he got
busted by the police. That arrest scared Thorburg enough
that he quit dealing, but he was addicted to methamphetamine
and needed a source for his personal fix. For that, he
turned to Kincannon. At first, Kincannon charged $800 for
half an ounce, but over time, the price rose to $1,000.
Eventually, Thorburg began chauffeuring Kincannon to
Dill’s house. Thorburg testified that he did so on at least six
occasions. Thorburg knew Dill by name, and Kincannon
shared that he suspected Dill got the drugs from a jockey
who lived in Kansas.
Dill also testified at the trial. She explained that she
started selling methamphetamine at the suggestion of her
ex-boyfriend (and later, supplier), who was a jockey in
Kansas. Her first sale was an eight-ball (3.5 grams) to a
childhood friend. She asked her friend to introduce her to
Kincannon because she needed someone who “got rid of
drugs.” The friend obliged, and Kincannon and Dill
embarked on what turned out to be a short-lived business
relationship. Over a six-week period Kincannon purchased
at least 12 ounces of methamphetamine from Dill—a half
an ounce to an ounce at a time on 15 different occasions.
The terms of the transactions were standardized; Dill
charged $900 for half an ounce and $1,800 for an ounce. She
emphasized that Kincannon was to come to her home
alone, saying “I told him I didn’t want him to bring
anybody to my house, that he was to come alone because
I knew he was doing something illegal and I was afraid
that—I didn’t want to meet his customers and I didn’t
want them to know me.” Dill did see someone in a tow
truck—Thorburg—outside her home a half a dozen or so
times. Kincannon explained that the man was his customer
and left it at that. Thorburg never came inside Dill’s home
and Dill could not even identify his race or age.
At the close of the government’s case (which also happened
to be the end of all the evidence since Kincannon
declined to present anything), Kincannon filed a motion for
a judgment of acquittal, which the district court denied.
The government’s closing argument came next, during
which the prosecutor made an analogy to an Academy-
Award-winning movie: The Godfather. Recounting a pivotal
scene where the director simultaneously presented assassinations
orchestrated by the protagonist, Michael Corleone,
the prosecutor explained that he, like the movie’s director,
would attempt to seamlessly tell the “story of what happened”
in this case. The prosecutor also recounted
Thorburg’s drug-fueled demise, noting that “it illustrates
the power of this stuff and why we’re on a serious purpose
today in considering the charges against Mr. Kincannon.”
Eventually, the jury found Kincannon guilty on both the
distribution and the conspiracy counts and rendered a
special verdict, finding that the conspiracy involved 500
grams or more of methamphetamine.
At sentencing Kincannon made no objections to the
proposed guidelines range of 360 months to life. Instead,
he asked for a below-guidelines sentence, noting that, at 77
years old, a long term of imprisonment amounted to a life
sentence. The district court rejected this request, pointing
to Kincannon’s propensity for criminal activity—he had a
slew of prison convictions, and as the court noted, he had
“done time in the State system, Illinois and Missouri, and
in the Federal System.” A 360-month sentence, the bottom
of the guidelines range, was imposed on both counts of
conviction.
Kincannon first argues on appeal that the district court
erroneously denied his motion for a judgment of acquittal,
claiming there was insufficient evidence to prove that he
and Dill conspired together to distribute drugs. He claims
that they only had a buyer-seller relationship. An agreement
to exchange drugs for money (or something else of
value)—the crux of the buyer-seller transaction—is insufficient
to prove a conspiracy. United States v. Colon, 549 F.3d
565, 567-68 (7th Cir. 2008). That’s because a conspiracy is
more than an agreement, it’s a knowing and intentional
agreement between two or more people to fulfill a particular
criminal objective. The pact to sell drugs is itself a
substantive crime with no separate criminal aim and,
therefore, alone can add no conspiracy liability to the mix.
United States v. Lechuga, 994 F.2d 346, 349 (7th Cir. 1993) (en
banc) (plurality). Some evidence of an accord to commit
another crime on top of the drug sale is required; in this
case, we ask whether there is some evidence that
Kincannon agreed with someone else to the further distribution
of methamphetamine?
Kincannon claims that he had no such agreement with
Dill, and he has a point. Kincannon and Dill had a relatively
brief business relationship. Kincannon purchased
drugs from Dill—always in cash, on the barrelhead—over
a six-week period, 15 times total. Dill knew that Kincannon
was reselling the drugs, but that’s not enough to prove a
conspiracy. That knowledge may or may not have made
Dill an aider and abettor to Kincannon’s illicit activities,
but it does not make the two coconspirators because they
had no agreement to resell the methamphetamine to
anyone. See Lechuga, 994 F.2d at 349. What’s more, Dill had
no personal investment in Kincannon’s drug distribution—
she had already been paid for the drugs. See United
States v. Rock, 370 F.3d 712, 715 (7th Cir. 2004) (affirming
conviction when defendant expected to be paid from the
resale of the drugs). In fact, she emphasized that she
wanted nothing to do with Kincannon’s business or his
customers. The terms of their sales were standardized—
Kincannon paid $900 for a half ounce and $1,800 for
an ounce—but that says nothing about whether Dill agreed
to help Kincannon’s distribution efforts. Regular purchases
on standard terms cannot transform a customer into a
coconspirator. United States v. Thomas, 150 F.3d 743, 745
(7th Cir. 1998) (crime of conspiracy cannot be equated with
repeated transactions).
So far, this case is on all fours with our recent opinion in
Colon. In Colon, the defendant was convicted of conspiring
with his drug suppliers to possess cocaine with intent to
sell. Colon, like Kincannon, repeatedly purchased drugs for
resale from his suppliers over, at most, a six-week period.
The terms, likewise, were standardized and the dealings
were in cash. In Colon, the government contended that the
prolonged, repeated, and standardized purchases of
distribution quantities of drugs was enough to support
the conviction. We disagreed. When stripped to its bare
bones, the government’s theory there, as it is here, “reduces
to an assertion that a wholesale customer of a
conspiracy is a co-conspirator per se,” a position we did
not embrace. Id. at 569.
Sensing the weight of Colon, the government attempts to
distinguish Kincannon’s case. It argues that Kincannon was
more than just a customer, but that he also recruited other
buyers—that is, Thorburg—for Dill, thereby throwing
himself into her drug distribution ring. But this argument
is not born out by the record. Throughout her testimony
Dill identified Thorburg as Kincannon’s customer, not her
own. Likewise, Thorburg testified repeatedly that he
bought drugs from Kincannon, not Dill. Dill never met
Thorburg (she could not even identify his race), let alone
establish the terms of the sales as she would have had to do
with any other buyer. Thorburg confirmed that he never
went inside Dill’s house. There is nothing in the record that
even hints that Dill sought Kincannon’s help in increasing
her customer base, a particularly telling omission since it
was just such a request to her first customer that led to her
relationship with Kincannon. Dill knew how to network to
get customers, and nothing suggests that she ever asked or
received such help from Kincannon. Thorburg’s purchases
from Kincannon did mean, ultimately, that Dill could sell
more drugs. But that minimal interest is no different for any
seller who off-loads goods to a distributor, and we have
already held that a wholesale customer and his suppliers
are not necessarily in cahoots. Colon, 549 F.3d at 569.
This analysis, however, does not mean that we must
reverse Kincannon’s conviction. The indictment did not
limit the conspiracy to Dill and Kincannon—the grand jury
included “others known and unknown”—and the evidence
does support the existence of a conspiracy between
Kincannon and Thorburg. The fact that the indictment did
not name Thorburg is irrelevant. United States v. Avila, 557
F.3d 809, 816 (7th Cir. 2009) (proving conspiracy does not
require the government to show that the defendant conspired
with the individuals named in the indictment);
Lechuga, 994 F.2d at 350, 352. “Others known and unknown”
could have certainly included Thorburg, and there
is no requirement that a conspiracy indictment identify
uncharged coconspirators.
At trial, the government honed in on the alleged conspiracy
between Dill and Kincannon, and Kincannon takes
issue with the government’s attention on appeal to his
relationship with Thorburg. Kincannon argues that we are
precluded from considering his dealing with Thorburg, but
cites no authority for this proposition. Cf. Lechuga, 994 F.3d
at 350 (considering defendant’s relationship with unnamed
coconspirator, even though that relationship was not the
focus of the trial or appeal). In any event, Thorburg
testified at length about his relationship with Kincannon,
and our job when evaluating the sufficiency of the evidence
is to focus on the facts put before the jury. We must “view
all the evidence and draw all reasonable inferences in the
light most favorable to the prosecution and uphold the
verdict if any rational trier of fact could have found
the essential elements of the crime beyond a reasonable
doubt.” United States v. Hicks, 368 F.3d 801, 804-05
(7th Cir. 2004) (emphasis added) (quotations and citations
omitted).
Kincannon’s relationship to Thorburg was markedly
different from his relationship with Dill. First, Thorburg
and Kincannon dealt with each other for about a year. For
months Kincannon was purchasing drugs from Thorburg.
After Thorburg’s initial arrest, he turned to Kincannon and
they had, as he testified, “reverse roles.” Kincannon began
supplying Thorburg with drugs even before he met Dill.
There was also a high level of trust between the two, which
became evident once Kincannon started buying drugs from
Dill. United States v. Hach, 162 F.3d 937, 943 (7th Cir. 1998)
(noting that a demonstrated level of mutual trust is circumstantial
evidence of a conspiracy). On at least six occasions,
Thorburg drove Kincannon to Dill’s house to pick up drugs.
United States v. Adkins, 274 F.3d 444, 450 (7th Cir. 2001)
(reasoning that traveling with coconspirator to purchase
drugs supported conspiracy conviction). Kincannon did not
trust just anybody to accompany him. The confidential
informant, on the two occasions he purchased drugs, was
asked to stay at Kincannon’s home while Kincannon went
to Dill’s to pick up the goods. What’s more, Kincannon
shared with Thorburg details about his business—revealing
Dill’s identity and address and explaining that he suspected
Dill’s supplier was a jockey from Kansas—a step he did not
take with the informant.
Most importantly, there was a quid pro quo between
Kincannon and Thorburg beyond the sale of the drugs.
Avila, 557 F.3d at 816 (“The government need only show an
agreement that goes beyond the individual sale between
buyer and seller.”). Because Thorburg drove to Dill’s
house, Kincannon got extra cover. Thorburg’s car, not his
own, would be seen by any officers who might be keeping
watch over Dill’s home. For taking on this risk, Thorburg
got to purchase his drugs at a discount price. Thorburg
testified that he paid anywhere from $800 to $1,000 for a
half ounce of methamphetamine. Kincannon—who paid
$900 for a half ounce—may have been charging Thorburg
below or at-cost rates. Even at $1,000, Thorburg was paying
$100 less than Kincannon’s other customers, like the
confidential informant. The jury could reasonably infer
from this evidence that Thorburg and Kincannon agreed to
more than just the individual drug purchases, but that they
were cooperating to facilitate Kincannon’s further drug
distribution efforts.
There is one more wrinkle that we must address. The
indictment accused Kincannon, and the jury, through a
special verdict, found that the conspiracy involved 500
grams or more of methamphetamine. These types of
indictments and special verdicts, of course, are standard
after Apprendi v. New Jersey, 530 U.S. 466 (2000), which
requires the jury to find beyond a reasonable doubt any
fact that raises the defendant’s statutory maximum sentence.
A defendant, like Kincannon, who has a prior felony
drug conviction (covered by an information under 21
U.S.C. § 851), faces a mandatory minimum of 10 years in
prison and up to a life sentence if at least 50 grams of a
mixture containing methamphetamine is involved. If there
is 500 grams or more involved, the statutory minimum is
upped to 20 years. 21 U.S.C. § 841(b)(1)(A)(viii);
(b)(1)(B)(viii). At trial, the government argued that the
conspiracy included over 500 grams by aggregating the
total amount of methamphetamine that Kincannon purchased
from Dill (340.2 grams) with methamphetamine
found at Dill’s house (186 grams). But a coconspirator is
only liable for transactions that were reasonably foreseeable
acts in furtherance of the entire conspiracy, United
States v. Easter, 553 F.3d 519, 523 (7th Cir. 2009), and since
Dill was not part of the conspiracy, the drugs found at her
place are arguably off limits.
But this possible Apprendi error is of little moment. The
amount of methamphetamine involved in the conspiracy
is not an element of the crime, so it has no effect on
Kincannon’s conviction. United States v. Kelly, 519 F.3d 355,
363 (7th Cir. 2008); United States v. Gomez-Rosario, 418 F.3d
90, 104 (1st Cir. 2005). The drug quantity amount is relevant
for sentencing, but not all errors require remand since
they are subject to harmless error analysis. Adkins, 274 F.3d
at 454. And so long as the judge imposes a sentence below
the statutory maximum, he may do so based on facts found
by a preponderance of the evidence. United States v.
Abdulahi, 523 F.3d 757, 760 (7th Cir. 2008) (reiterating that
Apprendi has no application to cases where the sentence is
below the statutory maximum). On this record, it’s clear,
beyond a reasonable doubt, that a properly instructed jury
would have found that Kincannon and Thorburg’s conspiracy
involved at least 50 grams of methamphetamine. That
mark is met by just adding up the amount of drugs that
Kincannon purchased when chauffeured by Thorburg.
Thorburg testified that he drove Kincannon at least six
times—a fact corroborated by Dill—and Dill added that
Kincannon purchased either a half an ounce or an ounce on
each trip (6 × .5 ounces = 85 grams). Kincannon was
sentenced to 30 years imprisonment, well below the
statutory maximum for conspiracies involving 50 grams or
more of methamphetamine.1
Kincannon makes one more attack on his conviction. He
argues, for the first time on appeal, that the prosecutor
inflamed the passions of the jury, rendering the trial unfair,
by referring in closing argument to The Godfather and
Thorburg’s precipitous decline once hooked on methamphetamine.
Because the argument was forfeited before the
district court, we review it only for plain error, and we
begin by evaluating whether the comments themselves
were improper. United States v. Bowman, 353 F.3d 546, 550
(7th Cir. 2003).
The prosecutor’s reference to The Godfather does not
approach impropriety. It would be one thing if the government
compared Kincannon to Michael Corleone, an
organized crime kingpin responsible for murders and a
whole host of other criminal activity. See Alvarez v.
McGinnis, 4 F.3d 531, 534 (7th Cir. 1993). Such an analogy
would be utterly unmoored from the record, which is
probably why the government made no such connection.
It was not Corleone’s criminality, but Francis Ford
Coppola’s direction that was at the heart of the prosecutor’s
closing remarks. The prosecutor alluded to the pivotal
point in the movie where Corleone attends his godchild’s
christening. Coppola cuts to various scenes of assassinations
orchestrated by Corleone as a priest dubbed him the
child’s godfather. The poetic implication is that the murders,
like the priest’s liturgy, made Michael the godfather
of the Corleone crime family. As the prosecutor said,
“[n]ow that is how you present events that occur simultaneously
in a movie so the viewer can understand it very
easily.” We agree, as did the Academy of Motion Picture
Arts and Sciences, who nominated Coppola for an Oscar
for best director.2 The prosecutor explained to the jury that
he would try to do orally what Coppola did in his
film—that is, tie together the events that occurred during
the two controlled buys into one seamless story. To do so
as eloquently as Coppola is a tall task, but there is certainly
nothing improper about the attempt.
Likewise, the prosecutor’s comments regarding
Thorburg’s life were not inappropriate. The description of
Thorburg’s drug-induced descent was rooted in his
uncontroverted testimony, and the prosecutor highlighted
it to “illustrate the power of this stuff and why we’re on a
serious purpose today in considering the charges against
Mr. Kincannon.” Impressing upon the jury the seriousness
of the charges and commenting on the gravity of the drug
problem in this country is permissible, Bowman, 353 F.3d at
551; United States v. Zanin, 831 F.2d 740, 743 (7th Cir. 1987),
and the prosecutor did nothing more here.
We can also quickly dismiss Kincannon’s last argument.
He maintains that his within-guidelines sentence is unreasonable
since, at 77 years old, 30 years of imprisonment
amounts to a life sentence. During sentencing, Kincannon
made a plea for a below-guidelines sentence based on his
age. The court considered Kincannon’s advanced age but
noted that it had not deterred or slowed his criminal
activity to date. Kincannon was in his fifties when his
criminal record started and days away from his 73rd
birthday when he was last released from prison after being
popped for distributing drugs. Emphasizing the need for
deterrence, the judge explained that Kincannon had “done
time in the State system, Illinois and Missouri, and in the
Federal system,” yet “continued to sell the stuff,” and
sentenced him to the bottom of the guideline range. That
makes for a presumptively reasonable sentence on appeal.
Rita v. United States, 551 U.S. 338 (2007); United States v.
Shannon, 518 F.3d 494, 496 (7th Cir. 2008). The court
adequately explained the sentence it imposed and addressed
Kincannon’s request for lenience. United States v.
Wurzinger, 467 F.3d 649, 654 (7th Cir. 2006) (affirming de
facto life sentence where defendant had an above-average
tendency to crime in his old age). Kincannon presents us
with nothing to disturb the rebuttable presumption of
reasonableness of his within-guidelines sentence.
Accordingly, the judgment of the district court is AFFIRMED.
Chicago Criminal Lawyer - Robert J Callahan
Tuesday, June 16, 2009
U.S. vs. Steven Lacey
Steven Lane Lacey pleaded
guilty to possessing child pornography in violation of
18 U.S.C. § 2252A(a)(5)(B). The district court sentenced
him to 108 months’ imprisonment. Lacey appeals, challenging
both his conviction and his sentence. We affirm.
I.
While investigating two Yahoo groups transmitting
images of child pornography over the internet, Federal
Bureau of Investigation agents traced one of the images to
47-year-old Stephen Lane Lacey, who posted the image of
a nude prepubescent female engaged in oral sex with an
adult male. When the agents interviewed Lacey at his
workplace, he admitted to trading child pornography over
the Internet since 1996. He also admitted that he used one
of his two home computers to share and view child
pornography. Agents seized a computer hard drive and
several CD-ROMs after Lacey consented to a search of
his home. The items seized contained several thousand
still images and approximately two dozen videos of
child pornography.
Lacey was indicted and pleaded guilty to one count of
possession of child pornography in violation of 18 U.S.C.
§ 2252A(a)(5)(B). At the change of plea hearing, the
district court asked Lacey, among other things, if the
government could prove beyond a reasonable doubt the
“jurisdictional element” of a § 2252A(a)(5)(B) violation—
that the child pornography “had been transported,
shipped or mailed in interstate or foreign commerce,
including by computer.” Lacey responded, “Yes, sir.”
Later, while reciting the factual basis for the plea, the
government’s attorney asserted that the “images have
traveled in interstate commerce to end up in . . . Illinois.”
The court asked Lacey if the government could prove that
averment beyond a reasonable doubt; Lacey again responded,
“Yes, sir.” Based on those affirmations, the
court accepted Lacey’s plea.
The PSR listed 25 video files as relevant conduct. However,
the district court, after examining the videos, culled that
number down to 12 after excluding the videos that were
either duplicates or did not clearly depict minors.
Prior to sentencing, Lacey advanced several objections
to the presentence report (“PSR”). Among those objections
was his claim that he was not subject to a five-level enhancement
under U.S.S.G. § 2G2.2(b)(7)(D) for possessing
over 600 images of child pornography. Instead of the 5,000-
plus images attributed to him in the PSR, Lacey insisted
he was only responsible for the four images listed in
the indictment and to which he pleaded guilty of possessing.
According to Lacey, any amount over the four
images was unreliable because the government had not
produced evidence that any of the other images depicted
actual minors as opposed to computer-generated “virtual”
children.
After a thorough review of the images, the district court
rejected Lacey’s objection and applied the enhancement.
It gave several reasons for doing so. First, the court discussed
twelve of the video images the PSR included as
relevant conduct.1 It found that the videos featured actual
children because, to the court’s knowledge, making a
movie with virtual actors who were indistinguishable
from real actors was impossible. Because the Guidelines
treat twelve videos of child pornography as equivalent
to over 600 still images, the court found the five-level
enhancement justified on that basis alone.
Next, the court turned to the still images recovered from
Lacey’s computer and the CD-ROMs in his possession.
The NCMEC 2 maintains a database of known victims of child
pornography, which can be used for purposes of comparison.
Discarding duplicate images, those of poor quality or
small size, and any image that did not clearly portray
minors, the district court narrowed the total number
listed in the PSR to around 2,000 images. The court stated
that it visually inspected those remaining images,
stopping its inspection only after it had determined that
there was “no question” that at least 1,000 of them involved
real children. The court noted its calculation was
consistent with the government’s report from the
National Center for Missing and Exploited Children
(“NCMEC”),2 which concluded that at least 1,222 of the
images from Lacey’s hard drive and his CD-ROMs involved
real children. On those bases, the district court
applied the enhancement.
In addition to the five-level enhancement under
§ 2G2.2(b)(7)(D), the district court added a four-level
enhancement under U.S.S.G. § 2G2.2(b)(4) for material
that portrayed sadistic and masochistic conduct. The
court identified two images and one video that justified
the enhancement: a photograph of a child being sexually
abused while blindfolded; another image of a child,
blindfolded with hands bound and a rope around the
neck, who was being sexually abused; and a video of a
young child screaming and crying as she was raped by
an older man. After applying that enhancement, the
court calculated Lacey’s offense level at 33 and his sentencing
range at 135 to 168 months’ imprisonment. The
statutory maximum for Lacey’s offense was ten years, and
the court imposed a sentence of 108 months’ imprisonment.
Lacey appeals.
II.
On appeal, Lacey first challenges the evidence establishing
the jurisdictional element of his § 2252A(a)(5)(B)
conviction.3 He argues that the government did not
produce any evidence that the images found on his hard
drive and CD-ROMs had been transported in interstate
commerce. Lacey acknowledges that he did not raise this
issue in the district court and that a guilty plea ordinarily
waives all objections to a conviction. See, e.g., United States
v. Harvey, 484 F.3d 453, 455 (7th Cir. 2007). However, Lacey
contends that a sufficiency challenge to the jurisdictional
element cannot be waived. In the alternative, he argues
that the district judge failed in his obligation under
Federal Rule of Criminal Procedure 11(b)(3) to satisfy
himself that there was a factual basis for the jurisdictional
element of Lacey’s conviction.
Section 2252A(a)(5)(B) proscribes knowing possession
of child pornography “that has been mailed, or shipped or
transported . . . in or affecting interstate or foreign commerce
by any means, including by computer.” That quoted
language is commonly referred to as the “jurisdictional
element” of the offense. See United States v. Anderson, 280
F.3d 1121, 1125 (7th Cir. 2002). Lacey claims that his
challenge to that element of the offense cannot be
waived by his guilty plea due to its jurisdictional nature.
Lacey correctly notes that a guilty plea does not waive
certain jurisdictional challenges to a conviction—challenges
that go “to the very power of the State to bring the
defendant into court to answer the charge brought
against him.” Blackledge v. Perry, 417 U.S. 21, 30 (1974);
see also United States v. Bell, 70 F.3d 495, 496-97 (7th Cir.
1995). However, contrary to Lacey’s contention, his
attack on the evidence supporting the jurisdictional
element of his § 2252A(a)(5)(B) conviction is not that type
of jurisdictional challenge. A “jurisdictional element” is
simply an element of a federal crime. It is jurisdictional
“only in the shorthand sense that without that [interstate
commerce] nexus, there can be no federal crime . . . . It is
not jurisdictional in the sense that it affects a court’s
subject matter jurisdiction, i.e., a court’s constitutional or
statutory power to adjudicate a case, here authorized by
18 U.S.C. § 3231.” United States v. Martin, 147 F.3d 529, 532
(7th Cir. 1998) (internal citation omitted). As an offense
element, it does not implicate the court’s power to hear a
case and can be waived by a guilty plea—as it was here.
See Milhem v. United States, 834 F.2d 118, 120 (7th Cir. 1987)
(noting that “a plea of guilty to an offense constitutes a
waiver of any claim of insufficiency of proof on any
element of that offense”). Because Lacey has not asked to
set aside his guilty plea, we will not entertain his challenge
to the sufficiency of the evidence supporting the jurisdictional
element of his § 2252A(a)(5)(B) conviction.
Lacey’s other claim—that the district court failed to
sufficiently apprise itself of the factual basis for Lacey’s
plea—is contradicted by the record. At the change of plea
hearing, Lacey admitted—twice—that such a factual
basis existed. First, when reciting the elements of the
crime, the district court specifically asked Lacey if he
agreed that the government could prove that the child
pornography was “transported, shipped or mailed in
interstate or foreign commerce . . . as charged,” to which
he replied, “Yes, sir.” Second, after the government set
forth the factual basis for the plea, which included that
the images of child pornography had “traveled in
interstate commerce,” the court asked Lacey if the government
could prove all it had recited beyond a reasonable
doubt, to which he again replied, “Yes, sir.” Those admissions
are sufficient to establish a factual basis for the
jurisdictional element of the § 2252A(a)(5)(B) offense. Cf.
United States v. Turner, 272 F.3d 380, 389-90 (6th Cir.
2001) (finding government’s contention that it was prepared
to prove conspirators “had purchased items that
moved in interstate commerce in preparation for the
crime” sufficient to establish the factual basis for the
jurisdictional element of the Hobbs Act offense). We
therefore reject Lacey’s challenge to his conviction.
In addition to challenging the jurisdictional element of
his conviction, Lacey argues that the district court committed
two errors at sentencing. First, Lacey contends
that the district court erred in finding that the offense
involved more than 600 images of child pornography, a
finding which increased his guidelines range five levels
under U.S.S.G. § 2G2.2(b)(7)(D). “We review a district
court’s application of the sentencing guidelines de novo,
but defer to the court’s finding of facts unless they are
clearly erroneous.” United States v. Irby, 240 F.3d 597, 599
(7th Cir. 2001).
Relying on United States v. Frabizio, 445 F. Supp. 2d 152
(D. Mass. 2006), Lacey claims that the district court’s
visual inspection of the images was insufficient to find
that they were images of actual minors as opposed to
virtual ones.4 In Frabizio, the district court concluded that
visual inspection alone was insufficient to differentiate
real children from virtual ones. 445 F. Supp. 2d at 155. The
district court therefore required further extrinsic
evidence beyond visual inspection—though what specifically
that would entail (other than an “expert with
greater knowledge of computers”), the court did not say.
Id. at 159. Lacey would have us go even farther than
Frabizio; he argues that “[w]ithout testimony of a person
who participated in the creation of a digital image, no
authenticity of the claimed images can be determined.”
Appellant br. at 13 (emphasis added).
Lacey’s reliance on Frabizio is misplaced. Not only is
Frabizio a district court case that is not precedential author\
ity, Matheny v. United States, 469 F.3d 1093, 1097 (7th Cir.
2006), but also it is no longer good law. After the district
court’s decision in Frabizio, the First Circuit definitively
held, contra Frabizio, that the government is not required
to present any further evidence of the reality of the children
depicted other than the pictures themselves. See
United States v. Rodriguez-Pacheco, 475 F.3d 434, 441-42
(1st Cir. 2007).5 In so holding, the First Circuit was simply
echoing what every other court of appeals confronting this
issue has concluded: expert evidence is not required to
prove the reality of children portrayed in pornographic
images. See United States v. Salcido, 506 F.3d 729, 733-34 (9th
Cir. 2007) (per curiam) (“We agree with every other circuit
that has ruled on the issue that expert testimony is not
required for the government to establish that the images
depicted an actual minor.”); United States v. Irving, 452
F.3d 110, 120-22 (2d Cir. 2006) (rejecting appellant’s
claim that the government must produce evidence
extrinsic to the pictures themselves); United States v.
Farrelly, 389 F.3d 649, 654 (6th Cir. 2004) (“The question
of whether the images are virtual or real is one of fact, to be
determined by evidence about which argument can be
made to the jury.”), abrogated on other grounds by United
States v. Williams, 411 F.3d 675, 677 n.1 (6th Cir. 2005);
United States v. Slanina, 359 F.3d 356, 357 (5th Cir. 2004) (per
curiam) (holding extrinsic evidence was not required to
prove reality of children in images); United States v.
Deaton, 328 F.3d 454, 456 (8th Cir. 2003) (per curiam)
(holding that the “pictures themselves support the
district court’s determination that the images were
plainly of children under age 12, and depicted actual
children”); United States v. Hall, 312 F.3d 1250, 1260 (11th
Cir. 2002) (reviewing for plain error and determining
from the pornographic pictures themselves that “no
reasonable jury could have found that the images were
virtual children created by computer technology as opposed
to actual children”).
Joining our sister circuits, we reject Lacey’s argument
that the government was required to present any expert
evidence, much less testimony from those who created
the pornographic images, to establish that the images
depicted real as opposed to virtual children. Because
Lacey has presented no evidence that would call into
question the reality of the children, we hold that the
district court’s visual inspection was sufficient to support
its finding that the images depicted actual children. See
Irving, 452 F.3d at 121. In addition, we note that the
district court, in its thorough oral discussion of this
issue, based its finding not just on its visual inspection
alone; it also compared its observations with the NCMEC
report to confirm that the images involved real children.
See United States v. Hoey, 508 F.3d 687, 691 (1st Cir. 2007)
(relying on similar NCMEC report).6
Lacey’s second challenge to his sentence is easily dispatched.
Lacey contends that the Sixth Amendment, as
interpreted in Blakely v. Washington, 542 U.S. 296 (2004),
and its progeny, required a jury and not the district
court to determine contested factual issues at sentencing,
such as how many images Lacey possessed, if each
image depicted an actual minor, and whether an image
depicted sadistic or masochistic conduct. That argument
has no merit. See United States v. White, 472 F.3d 458, 464
(7th Cir. 2006) (characterizing this line of argument as
“frivolous”). “In the aftermath of Booker, the sentencing
guidelines are construed as advisory, not mandatory. We
have repeatedly held . . . that sentencing enhancements
need not be found by a jury beyond a reasonable doubt
because they no longer alter the statutory maximum.” Id.
(internal citation omitted). Because Lacey was sentenced
12 No. 08-2515
below the statutory maximum of ten years for his
offense, his argument is unavailing.
III.
Lacey’s plea of guilty waived his challenge to the jurisdictional
element of his § 2252A(a)(5)(B) conviction.
Moreover, the district court, relying on Lacey’s admissions
during the change of plea hearing, sufficiently apprised
itself of the factual basis for the jurisdictional element.
Regarding Lacey’s sentence, the district court correctly
enhanced his sentence five levels under U.S.S.G.
§ 2G2.2(b)(7)(D) for possessing over 600 images of child
pornography based on the numerous images and videos
he possessed. Moreover, because the court sentenced
Lacey below the statutory maximum, no Sixth Amendment
violation occurred. We therefore AFFIRM Lacey’s
conviction and sentence.
Chicago Criminal Lawyer - Robert J Callahan
guilty to possessing child pornography in violation of
18 U.S.C. § 2252A(a)(5)(B). The district court sentenced
him to 108 months’ imprisonment. Lacey appeals, challenging
both his conviction and his sentence. We affirm.
I.
While investigating two Yahoo groups transmitting
images of child pornography over the internet, Federal
Bureau of Investigation agents traced one of the images to
47-year-old Stephen Lane Lacey, who posted the image of
a nude prepubescent female engaged in oral sex with an
adult male. When the agents interviewed Lacey at his
workplace, he admitted to trading child pornography over
the Internet since 1996. He also admitted that he used one
of his two home computers to share and view child
pornography. Agents seized a computer hard drive and
several CD-ROMs after Lacey consented to a search of
his home. The items seized contained several thousand
still images and approximately two dozen videos of
child pornography.
Lacey was indicted and pleaded guilty to one count of
possession of child pornography in violation of 18 U.S.C.
§ 2252A(a)(5)(B). At the change of plea hearing, the
district court asked Lacey, among other things, if the
government could prove beyond a reasonable doubt the
“jurisdictional element” of a § 2252A(a)(5)(B) violation—
that the child pornography “had been transported,
shipped or mailed in interstate or foreign commerce,
including by computer.” Lacey responded, “Yes, sir.”
Later, while reciting the factual basis for the plea, the
government’s attorney asserted that the “images have
traveled in interstate commerce to end up in . . . Illinois.”
The court asked Lacey if the government could prove that
averment beyond a reasonable doubt; Lacey again responded,
“Yes, sir.” Based on those affirmations, the
court accepted Lacey’s plea.
The PSR listed 25 video files as relevant conduct. However,
the district court, after examining the videos, culled that
number down to 12 after excluding the videos that were
either duplicates or did not clearly depict minors.
Prior to sentencing, Lacey advanced several objections
to the presentence report (“PSR”). Among those objections
was his claim that he was not subject to a five-level enhancement
under U.S.S.G. § 2G2.2(b)(7)(D) for possessing
over 600 images of child pornography. Instead of the 5,000-
plus images attributed to him in the PSR, Lacey insisted
he was only responsible for the four images listed in
the indictment and to which he pleaded guilty of possessing.
According to Lacey, any amount over the four
images was unreliable because the government had not
produced evidence that any of the other images depicted
actual minors as opposed to computer-generated “virtual”
children.
After a thorough review of the images, the district court
rejected Lacey’s objection and applied the enhancement.
It gave several reasons for doing so. First, the court discussed
twelve of the video images the PSR included as
relevant conduct.1 It found that the videos featured actual
children because, to the court’s knowledge, making a
movie with virtual actors who were indistinguishable
from real actors was impossible. Because the Guidelines
treat twelve videos of child pornography as equivalent
to over 600 still images, the court found the five-level
enhancement justified on that basis alone.
Next, the court turned to the still images recovered from
Lacey’s computer and the CD-ROMs in his possession.
The NCMEC 2 maintains a database of known victims of child
pornography, which can be used for purposes of comparison.
Discarding duplicate images, those of poor quality or
small size, and any image that did not clearly portray
minors, the district court narrowed the total number
listed in the PSR to around 2,000 images. The court stated
that it visually inspected those remaining images,
stopping its inspection only after it had determined that
there was “no question” that at least 1,000 of them involved
real children. The court noted its calculation was
consistent with the government’s report from the
National Center for Missing and Exploited Children
(“NCMEC”),2 which concluded that at least 1,222 of the
images from Lacey’s hard drive and his CD-ROMs involved
real children. On those bases, the district court
applied the enhancement.
In addition to the five-level enhancement under
§ 2G2.2(b)(7)(D), the district court added a four-level
enhancement under U.S.S.G. § 2G2.2(b)(4) for material
that portrayed sadistic and masochistic conduct. The
court identified two images and one video that justified
the enhancement: a photograph of a child being sexually
abused while blindfolded; another image of a child,
blindfolded with hands bound and a rope around the
neck, who was being sexually abused; and a video of a
young child screaming and crying as she was raped by
an older man. After applying that enhancement, the
court calculated Lacey’s offense level at 33 and his sentencing
range at 135 to 168 months’ imprisonment. The
statutory maximum for Lacey’s offense was ten years, and
the court imposed a sentence of 108 months’ imprisonment.
Lacey appeals.
II.
On appeal, Lacey first challenges the evidence establishing
the jurisdictional element of his § 2252A(a)(5)(B)
conviction.3 He argues that the government did not
produce any evidence that the images found on his hard
drive and CD-ROMs had been transported in interstate
commerce. Lacey acknowledges that he did not raise this
issue in the district court and that a guilty plea ordinarily
waives all objections to a conviction. See, e.g., United States
v. Harvey, 484 F.3d 453, 455 (7th Cir. 2007). However, Lacey
contends that a sufficiency challenge to the jurisdictional
element cannot be waived. In the alternative, he argues
that the district judge failed in his obligation under
Federal Rule of Criminal Procedure 11(b)(3) to satisfy
himself that there was a factual basis for the jurisdictional
element of Lacey’s conviction.
Section 2252A(a)(5)(B) proscribes knowing possession
of child pornography “that has been mailed, or shipped or
transported . . . in or affecting interstate or foreign commerce
by any means, including by computer.” That quoted
language is commonly referred to as the “jurisdictional
element” of the offense. See United States v. Anderson, 280
F.3d 1121, 1125 (7th Cir. 2002). Lacey claims that his
challenge to that element of the offense cannot be
waived by his guilty plea due to its jurisdictional nature.
Lacey correctly notes that a guilty plea does not waive
certain jurisdictional challenges to a conviction—challenges
that go “to the very power of the State to bring the
defendant into court to answer the charge brought
against him.” Blackledge v. Perry, 417 U.S. 21, 30 (1974);
see also United States v. Bell, 70 F.3d 495, 496-97 (7th Cir.
1995). However, contrary to Lacey’s contention, his
attack on the evidence supporting the jurisdictional
element of his § 2252A(a)(5)(B) conviction is not that type
of jurisdictional challenge. A “jurisdictional element” is
simply an element of a federal crime. It is jurisdictional
“only in the shorthand sense that without that [interstate
commerce] nexus, there can be no federal crime . . . . It is
not jurisdictional in the sense that it affects a court’s
subject matter jurisdiction, i.e., a court’s constitutional or
statutory power to adjudicate a case, here authorized by
18 U.S.C. § 3231.” United States v. Martin, 147 F.3d 529, 532
(7th Cir. 1998) (internal citation omitted). As an offense
element, it does not implicate the court’s power to hear a
case and can be waived by a guilty plea—as it was here.
See Milhem v. United States, 834 F.2d 118, 120 (7th Cir. 1987)
(noting that “a plea of guilty to an offense constitutes a
waiver of any claim of insufficiency of proof on any
element of that offense”). Because Lacey has not asked to
set aside his guilty plea, we will not entertain his challenge
to the sufficiency of the evidence supporting the jurisdictional
element of his § 2252A(a)(5)(B) conviction.
Lacey’s other claim—that the district court failed to
sufficiently apprise itself of the factual basis for Lacey’s
plea—is contradicted by the record. At the change of plea
hearing, Lacey admitted—twice—that such a factual
basis existed. First, when reciting the elements of the
crime, the district court specifically asked Lacey if he
agreed that the government could prove that the child
pornography was “transported, shipped or mailed in
interstate or foreign commerce . . . as charged,” to which
he replied, “Yes, sir.” Second, after the government set
forth the factual basis for the plea, which included that
the images of child pornography had “traveled in
interstate commerce,” the court asked Lacey if the government
could prove all it had recited beyond a reasonable
doubt, to which he again replied, “Yes, sir.” Those admissions
are sufficient to establish a factual basis for the
jurisdictional element of the § 2252A(a)(5)(B) offense. Cf.
United States v. Turner, 272 F.3d 380, 389-90 (6th Cir.
2001) (finding government’s contention that it was prepared
to prove conspirators “had purchased items that
moved in interstate commerce in preparation for the
crime” sufficient to establish the factual basis for the
jurisdictional element of the Hobbs Act offense). We
therefore reject Lacey’s challenge to his conviction.
In addition to challenging the jurisdictional element of
his conviction, Lacey argues that the district court committed
two errors at sentencing. First, Lacey contends
that the district court erred in finding that the offense
involved more than 600 images of child pornography, a
finding which increased his guidelines range five levels
under U.S.S.G. § 2G2.2(b)(7)(D). “We review a district
court’s application of the sentencing guidelines de novo,
but defer to the court’s finding of facts unless they are
clearly erroneous.” United States v. Irby, 240 F.3d 597, 599
(7th Cir. 2001).
Relying on United States v. Frabizio, 445 F. Supp. 2d 152
(D. Mass. 2006), Lacey claims that the district court’s
visual inspection of the images was insufficient to find
that they were images of actual minors as opposed to
virtual ones.4 In Frabizio, the district court concluded that
visual inspection alone was insufficient to differentiate
real children from virtual ones. 445 F. Supp. 2d at 155. The
district court therefore required further extrinsic
evidence beyond visual inspection—though what specifically
that would entail (other than an “expert with
greater knowledge of computers”), the court did not say.
Id. at 159. Lacey would have us go even farther than
Frabizio; he argues that “[w]ithout testimony of a person
who participated in the creation of a digital image, no
authenticity of the claimed images can be determined.”
Appellant br. at 13 (emphasis added).
Lacey’s reliance on Frabizio is misplaced. Not only is
Frabizio a district court case that is not precedential author\
ity, Matheny v. United States, 469 F.3d 1093, 1097 (7th Cir.
2006), but also it is no longer good law. After the district
court’s decision in Frabizio, the First Circuit definitively
held, contra Frabizio, that the government is not required
to present any further evidence of the reality of the children
depicted other than the pictures themselves. See
United States v. Rodriguez-Pacheco, 475 F.3d 434, 441-42
(1st Cir. 2007).5 In so holding, the First Circuit was simply
echoing what every other court of appeals confronting this
issue has concluded: expert evidence is not required to
prove the reality of children portrayed in pornographic
images. See United States v. Salcido, 506 F.3d 729, 733-34 (9th
Cir. 2007) (per curiam) (“We agree with every other circuit
that has ruled on the issue that expert testimony is not
required for the government to establish that the images
depicted an actual minor.”); United States v. Irving, 452
F.3d 110, 120-22 (2d Cir. 2006) (rejecting appellant’s
claim that the government must produce evidence
extrinsic to the pictures themselves); United States v.
Farrelly, 389 F.3d 649, 654 (6th Cir. 2004) (“The question
of whether the images are virtual or real is one of fact, to be
determined by evidence about which argument can be
made to the jury.”), abrogated on other grounds by United
States v. Williams, 411 F.3d 675, 677 n.1 (6th Cir. 2005);
United States v. Slanina, 359 F.3d 356, 357 (5th Cir. 2004) (per
curiam) (holding extrinsic evidence was not required to
prove reality of children in images); United States v.
Deaton, 328 F.3d 454, 456 (8th Cir. 2003) (per curiam)
(holding that the “pictures themselves support the
district court’s determination that the images were
plainly of children under age 12, and depicted actual
children”); United States v. Hall, 312 F.3d 1250, 1260 (11th
Cir. 2002) (reviewing for plain error and determining
from the pornographic pictures themselves that “no
reasonable jury could have found that the images were
virtual children created by computer technology as opposed
to actual children”).
Joining our sister circuits, we reject Lacey’s argument
that the government was required to present any expert
evidence, much less testimony from those who created
the pornographic images, to establish that the images
depicted real as opposed to virtual children. Because
Lacey has presented no evidence that would call into
question the reality of the children, we hold that the
district court’s visual inspection was sufficient to support
its finding that the images depicted actual children. See
Irving, 452 F.3d at 121. In addition, we note that the
district court, in its thorough oral discussion of this
issue, based its finding not just on its visual inspection
alone; it also compared its observations with the NCMEC
report to confirm that the images involved real children.
See United States v. Hoey, 508 F.3d 687, 691 (1st Cir. 2007)
(relying on similar NCMEC report).6
Lacey’s second challenge to his sentence is easily dispatched.
Lacey contends that the Sixth Amendment, as
interpreted in Blakely v. Washington, 542 U.S. 296 (2004),
and its progeny, required a jury and not the district
court to determine contested factual issues at sentencing,
such as how many images Lacey possessed, if each
image depicted an actual minor, and whether an image
depicted sadistic or masochistic conduct. That argument
has no merit. See United States v. White, 472 F.3d 458, 464
(7th Cir. 2006) (characterizing this line of argument as
“frivolous”). “In the aftermath of Booker, the sentencing
guidelines are construed as advisory, not mandatory. We
have repeatedly held . . . that sentencing enhancements
need not be found by a jury beyond a reasonable doubt
because they no longer alter the statutory maximum.” Id.
(internal citation omitted). Because Lacey was sentenced
12 No. 08-2515
below the statutory maximum of ten years for his
offense, his argument is unavailing.
III.
Lacey’s plea of guilty waived his challenge to the jurisdictional
element of his § 2252A(a)(5)(B) conviction.
Moreover, the district court, relying on Lacey’s admissions
during the change of plea hearing, sufficiently apprised
itself of the factual basis for the jurisdictional element.
Regarding Lacey’s sentence, the district court correctly
enhanced his sentence five levels under U.S.S.G.
§ 2G2.2(b)(7)(D) for possessing over 600 images of child
pornography based on the numerous images and videos
he possessed. Moreover, because the court sentenced
Lacey below the statutory maximum, no Sixth Amendment
violation occurred. We therefore AFFIRM Lacey’s
conviction and sentence.
Chicago Criminal Lawyer - Robert J Callahan
U.S. vs. Doli Pulungan
Federal law prohibits the export of “defense articles” without a license. 22 U.S.C.
§2778. A “defense article” is any item on the United
States Munitions List, which §2778(a) authorizes the
President to promulgate. The President has delegated that
power to the State Department’s Directorate of Defense
Trade Controls. The Munitions List includes “[r]iflescopes
manufactured to military specifications.” 22 C.F.R. §121.1
Category 1(f). Designations are not subject to judicial
review. 22 U.S.C. §2778(h).
Doli Pulungan tried in 2007 to export 100 Leupold Mark
4 CQ/T riflescopes ® ® (made in Oregon by Leupold &
Stevens, Inc.). He planned to transship through Saudi
Arabia to Indonesia in order to conceal the destination,
because his clients told him that the United States had
an embargo on military exports to Indonesia. There had
been such an embargo between 1999 and 2005, but there
was none when Pulungan tried to acquire and export
the ‘scopes. He was charged with violation of §2778(c),
however, on the theory that the Leupold Mark 4 CQ/T
riflescope is “manufactured to military specifications.” A
jury found him guilty of attempting to export defense
articles without a license, and the judge sentenced him
to 48 months’ imprisonment.
Section 2778(c) makes it a crime to violate (or attempt
to violate) any part of §2778 “willfully”. The parties agree
that “willfully” means with knowledge that a license is
required. Pulungan concedes that he attempted to
acquire and export Leupold Mark 4 CQ/T riflescopes to
Indonesia without a license. But he contends that the
prosecution did not prove that these ‘scopes are “manufactured
to military specifications”—and that, even if
they are so manufactured, he did not know it and therefore
lacked the required mental state.
Pulungan contends that the prosecution must prove,
beyond a reasonable doubt, that the Leupold Mark 4 CQ/T
riflescope was “manufactured to military specifications”
—just as the prosecution must prove in a prosecution
for distributing cocaine that the substance is cocaine
rather than sugar. The prosecutor addressed this topic
through the testimony of Anthony Dearth, who testified
that the Directorate of Defense Trade Controls has concluded
that the Leupold Mark 4 CQ/T is “manufactured
to military specifications”—but he would not say what
those specifications are or why the Directorate believes
that the Mark 4 CQ/T is “manufactured to” them. The
decision itself was not produced.
After Dearth testified, the prosecutor asked the judge
to instruct the jury that, as a matter of law, the Leupold
Mark 4 CQ/T riflescope is “manufactured to military
specifications.” The judge gave the requested instruction,
taking the issue out of the jury’s hands. The judge
agreed with the prosecutor that §2778(h) prevents any
inquiry, by either judge or jury, into the propriety of an
item’s classification. The judge confirmed this ruling
after trial when denying Pulungan’s motion for acquittal.
561 F. Supp. 2d 1019 (W.D. Wis. 2008). Pulungan disputes
this understanding of §2778(h) and adds that, if the
prosecutor is right, then the defendant’s sixth amendment
right to trial by jury supersedes the statute. See
United States v. Gaudin, 515 U.S. 506 (1995) (in a prosecution
for fraud, the judge must allow the jury to decide
whether the false statements were material; the judge
may not treat materiality as a matter of law).
Section 2778(h) provides: “The designation by the
President (or by an official to whom the President’s
functions . . . have been duly delegated), in regulations
issued under this section, of items as defense articles or
defense services for purposes of this section shall not be
subject to judicial review.” (Emphasis added.) So if 22
C.F.R. §121.1 Category 1(f) read “any Leupold Mark 4
CQ/T riflescope”, that designation would be incontestable
(even though made by the Directorate rather than the
President), and the question for the jury would be whether
the item that Pulungan tried to export was indeed a
Leupold Mark 4 CQ/T riflescope. If Pulungan had conceded
that the Leupold Mark 4 CQ/T riflescope is “manufactured
to defense specifications”, he could not
avoid liability by arguing that the Munitions List should
not require licenses for these items. See United States v.
Martinez, 904 F.2d 601 (11th Cir. 1990). But he does not
concede that the Leupold Mark 4 CQ/T riflescope is
within the domain of 22 C.F.R. §121.1 Category 1(f).
The only regulation is that “[r]iflescopes manufactured
to military specifications” require export licenses. It is
easy to see why the regulation’s language deals with
attributes rather than names; an effort to enumerate
each item would be futile, not only because some are
bound to be overlooked (imagine a regulation that tried
to list all bicycles by manufacturer and model number)
but also because manufacturers change their designations.
The Mark 4 may be succeeded by a Mark 5, or the CQ/T
model may become the CQ/X. But while a narrative
description may be the most sensible way to proceed, it
also limits the effect of §2778(h). Only material “in regulations”
is covered by that statute. The Directorate’s
conclusion that the Leupold Mark 4 CQ/T riflescope is
“manufactured to military specifications” is not in a
regulation and so is unaffected by §2778(h).
The Directorate’s claim of authority to classify any
item as a “defense article,” without revealing the basis
of the decision and without allowing any inquiry by the
jury, would create serious constitutional problems. It
would allow the sort of secret law that Panama Refining
Co. v. Ryan, 293 U.S. 388 (1935), condemned. (That case
dealt with an unpublished regulation that remained “in
the hip pocket of the administrator,” a serious problem
apart from the nondelegation holding usually associated
with Panama Refining.) A regulation is published for all
to see. People can adjust their conduct to avoid liability.
A designation by an unnamed official, using unspecified
criteria, that is put in a desk drawer, taken out only for
use at a criminal trial, and immune from any evaluation
by the judiciary, is the sort of tactic usually associated
with totalitarian régimes. Government must operate
through public laws and regulations. See United States v.
Farinella, 558 F.3d 695 (7th Cir. 2009). Thus the United
States must prove, and not just assert, that the Leupold
Mark 4 CQ/T riflescope is “manufactured to military
specifications.”
It does not necessarily follow that proof must come
in open court. Congress has made some special provisions
for classified information—and both the manufacturing
details of the Leupold Mark 4 CQ/T riflescope and the
precise specifications for military ‘scopes may be
classified as state secrets; some details also may be trade
secrets. Until Congress enacted the Classified Information
Procedures Act, 18 U.S.C. App. 3 §§ 1–16, defendants
frequently engaged in “greymail”—they threatened to
expose secrets as the price of successful prosecution, which
induced the government to dismiss the indictments or
prosecute for less serious crime. The Classified Information
Procedures Act is designed to allow disputes involving
material legitimately kept secret to be resolved without
unnecessary public disclosures.
Pulungan’s lawyer said at oral argument that he
had not asked for a hearing under this statute. Nor did
the prosecutor offer one. Both took an all-or-nothing
approach: Pulungan demanded a public jury trial, and
the prosecutor total secrecy. We need not decide whether
either litigant has waived or forfeited its position by
disdaining the statutory middle ground—or whether any
error is harmless (Pulungan has never argued that the
Mark 4 CQ/T ‘scope is not actually a mil-spec product
and didn’t ask for an expert to explore that subject)—
because Pulungan is entitled to prevail even if the
criminal-justice system must proceed on the assumption
that the Mark 4 CQ/T riflescope is a “defense article.”
It is not enough for the Leupold Mark 4 CQ/T riflescope
to be a “defense article.” Pulungan cannot be convicted
unless he knew that it is one, and that licenses are necessary
to export them. The United States concedes that the
word “willfully” in §2778(c) requires it to prove that the
defendant knew not only the material facts but also the
legal rules. (We need not decide whether the concession
is correct. “Willfully” is a notoriously plastic word. See
Bryan v. United States, 524 U.S. 184 (1998).)
That the Directorate’s determination about the status of
the Leupold Mark 4 CQ/T riflescope was unknown to
the general public until Pulungan’s trial makes it hard to
show his knowledge. Some people in the business
knew the Directorate’s view. Leupold & Stevens itself
asked after bringing the ‘scope to market in 2002, and the
Directorate replied in 2003 that the Mark 4 CQ/T is covered
as a “defense article.” But Pulungan was not an industry
insider, nor were his potential customers (he says that
his clients were civilian police departments). The United
States does not contend that Pulungan knew what the
Directorate told Leupold & Stevens in 2003, or indeed
knew that the firm had even made an inquiry.
The United States offered three kinds of proof on the
subjects of knowledge and intent. It observed, first, that
Pulungan had in his possession printouts of web pages
at the site Telescopes.com that limit the countries available
for shipment. It showed, second, that Pulungan lied
to his business associates about how many riflescopes
he wanted and where they would be sent. The prosecutor
contends that these lies, coupled with a willingness to
pay above-market prices ($1,000 per Leupold ‘scope, when
retailers charge only $700), show that he knew that his
proposed transaction of 100 riflescopes to Indonesia was
unlawful. Third, Pulungan sent email messages and
made notes evincing a belief that munitions exports to
Indonesia were unlawful; the prosecutor submits that
Pulungan has effectively conceded intending to violate
the law.
Let us start with the first of these. Telescopes.com
advised its customers that “[w]e are allowed to ship
riflescopes, laser sights and riflescope accessories only to
certain countries.” And one of the web pages devoted to
the Leupold Mark 4 CQ/T riflescope contained this text,
in bold red type: “We cannot export this item outside
the U.S.” The prosecutor says that a jury could infer
from Pulungan’s possession of these statements that he
knew that a license was required to export the Leupold
Mark 4 CQ/T riflescope. The problem with this inference
is obvious: Telescopes.com did not say why the available
destinations are limited. Its web pages seemed to say
that the Leupold Mark 4 CQ/T riflescope cannot be exported
(at least not by Telescopes.com) even if the
buyer has a license.
And there may be a very good reason. Perhaps
Telescopes.com had a restricted territory. It is common
for a manufacturer to authorize a dealer to sell in one
country but not another. Leupold & Stevens may ship
directly to dealers in foreign nations (getting licenses if
necessary) and forbid any of its dealers to ship across
international borders. Such limits can be enforced
through trademark and patent laws, whether or not a
given nation’s contract or antitrust laws recognize
vertical restrictions on dealers’ sales territories. To see
the absence of a link between no-export notices and
military technology, look at almost any web page at
Amazon.com devoted to electronic equipment. The web
page for every USB flash-memory stick—a commodity
item that is manufactured outside this nation, and thus
unaffected by export-control laws—contains the statement:
“Currently, item can be shipped only within the
U.S.” That’s pretty much what Telescopes.com told
Pulungan about the Leupold Mark 4 CQ/T riflescope. The
same legend can be found on Amazon’s pages for
some movie DVDs and other copyrighted material. And
Amazon’s page for LaraBar Jocalat orange milk chocolate
says: “Currently, item can be shipped only within the
U.S.” The military may run on coffee and chocolate, but
that does not make either a “defense article.”
At the Telescopes.com web site, quite a few pages for
binoculars say: “Only ships in contiguous USA”.
Telescopes.com no longer sells riflescopes, but
OpticsPlanet.com, which does, does not display a USAonly
shipping restriction on its page for the Leupold
Mark 4 CQ/T riflescope. We conclude that no reasonable
jury could infer from the presence, or absence, of a USAonly
shipping legend on a commercial web site that a
would-be buyer knows that the item is, or is not, a
“defense article.”
The prosecutor’s second and third reasons may be
taken together. They show convincingly that Pulungan
believed that what he was doing was illegal. The problem
is that they evince a belief in a nonexistent rule (the
embargo that had been lifted two years earlier) rather
than a belief that an export license was necessary.
As the prosecutor sees things, an intent to violate one
law is as good as the intent to violate any other. The
United States’ appellate brief essentially invokes the
doctrine of transferred intent (though it does not use
that name or cite authority). If you set out to kill A by
poisoning his whiskey, and B drinks from the glass first
and dies, you are guilty of B’s premeditated murder: The
intent to kill A is “transferred” to B’s death. See Bradshaw
v. Richey, 546 U.S. 74 (2005); see also Wayne R. LaFave, 1
Substantive Criminal Law §5.2(c) (2d ed. 2003); Anthony M.
Dillof, Transferred Intent: An Inquiry into the Nature of
Criminal Culpability, 1 Buff. Crim. L. Rev. 501 (1998); Model
Penal Code §2.03 (1962). So far as we can tell, however,
transferring intent from one genus of offense to another
has never been permitted. Suppose Pulungan had
believed (wrongly) that the United States imposes an
excise tax on exports of optical gear and had tried to
avoid payment; an intent to evade a nonexistent tax
would not transfer to an intent to export riflescopes
without a license; the crimes are too different for one
intent to suffice for the other.
The crime that Pulungan set out to commit was
unrelated to unlicensed exports. An embargo on sales to
Indonesia would not have prevented a shipment to
Saudi Arabia; it is only the intent to transship in
Saudi Arabia that would have created a legal problem
(had there been an embargo). It would be a stretch to
treat “intent to transship lawfully exported riflescopes” as
equivalent to “intent to export riflescopes without a
required license.” Both crimes are malum prohibitum
rather than malum in se—that is, they are regulatory
offenses rather than acts evil in themselves under widely
held moral codes—and the “willfullness” element in a
regulatory offense such as §2778(c) is designed to
require knowledge of this rule, rather than of some other
actual or potential regulation. See Staples v. United States,
511 U.S. 600 (1994); Cheek v. United States, 498 U.S. 192
(1991).
No matter. Suppose that intent can be transferred from
a nonexistent embargo to a licensing requirement. Still, the
United States has conceded that §2778(c) requires proof
of knowledge of the law’s coverage, as well as intent to
violate the law. Pulungan acted willfully only if he
knew that Leupold Mark 4 CQ/T riflescopes are “manufactured
to military specifications.” It may be a fool’s errand
to try to list every riflescope that is made to military
specifications, but the Directorate could avoid problems
such as this by putting into the text of the regulation all
riflescopes that it has tested and found to be covered. An
“including but not limited to . . .” listing would take
advantage of §2778(h), give notice to affected persons,
yet not restrict the listing’s domain.
As things stand, though, the only basis for inferring
Pulungan’s knowledge is the legend on the web page. We
explained above why that is insufficient. If Indonesia
had not so recently been subject to an arms embargo, then
hugger-mugger alone might permit a jury to infer knowledge
that a license was required. Pulungan’s efforts to
work through intermediaries, and to acquire 100 ‘scopes
without placing one large order that might have set off
warning systems, do not point in that direction, however.
The prosecutor does not contend that Pulungan’s emails
and notes about the embargo were part of a ruse to
create a defense for someone who knew that the embargo
had been rescinded but that other laws might block
exports. So the evidence is insufficient to show, beyond
a reasonable doubt, that Pulungan knew that these
‘scopes were “defense articles” that required export
licenses, and the conviction is
REVERSED.
Chicago Criminal Lawyer - Robert J Callahan
§2778. A “defense article” is any item on the United
States Munitions List, which §2778(a) authorizes the
President to promulgate. The President has delegated that
power to the State Department’s Directorate of Defense
Trade Controls. The Munitions List includes “[r]iflescopes
manufactured to military specifications.” 22 C.F.R. §121.1
Category 1(f). Designations are not subject to judicial
review. 22 U.S.C. §2778(h).
Doli Pulungan tried in 2007 to export 100 Leupold Mark
4 CQ/T riflescopes ® ® (made in Oregon by Leupold &
Stevens, Inc.). He planned to transship through Saudi
Arabia to Indonesia in order to conceal the destination,
because his clients told him that the United States had
an embargo on military exports to Indonesia. There had
been such an embargo between 1999 and 2005, but there
was none when Pulungan tried to acquire and export
the ‘scopes. He was charged with violation of §2778(c),
however, on the theory that the Leupold Mark 4 CQ/T
riflescope is “manufactured to military specifications.” A
jury found him guilty of attempting to export defense
articles without a license, and the judge sentenced him
to 48 months’ imprisonment.
Section 2778(c) makes it a crime to violate (or attempt
to violate) any part of §2778 “willfully”. The parties agree
that “willfully” means with knowledge that a license is
required. Pulungan concedes that he attempted to
acquire and export Leupold Mark 4 CQ/T riflescopes to
Indonesia without a license. But he contends that the
prosecution did not prove that these ‘scopes are “manufactured
to military specifications”—and that, even if
they are so manufactured, he did not know it and therefore
lacked the required mental state.
Pulungan contends that the prosecution must prove,
beyond a reasonable doubt, that the Leupold Mark 4 CQ/T
riflescope was “manufactured to military specifications”
—just as the prosecution must prove in a prosecution
for distributing cocaine that the substance is cocaine
rather than sugar. The prosecutor addressed this topic
through the testimony of Anthony Dearth, who testified
that the Directorate of Defense Trade Controls has concluded
that the Leupold Mark 4 CQ/T is “manufactured
to military specifications”—but he would not say what
those specifications are or why the Directorate believes
that the Mark 4 CQ/T is “manufactured to” them. The
decision itself was not produced.
After Dearth testified, the prosecutor asked the judge
to instruct the jury that, as a matter of law, the Leupold
Mark 4 CQ/T riflescope is “manufactured to military
specifications.” The judge gave the requested instruction,
taking the issue out of the jury’s hands. The judge
agreed with the prosecutor that §2778(h) prevents any
inquiry, by either judge or jury, into the propriety of an
item’s classification. The judge confirmed this ruling
after trial when denying Pulungan’s motion for acquittal.
561 F. Supp. 2d 1019 (W.D. Wis. 2008). Pulungan disputes
this understanding of §2778(h) and adds that, if the
prosecutor is right, then the defendant’s sixth amendment
right to trial by jury supersedes the statute. See
United States v. Gaudin, 515 U.S. 506 (1995) (in a prosecution
for fraud, the judge must allow the jury to decide
whether the false statements were material; the judge
may not treat materiality as a matter of law).
Section 2778(h) provides: “The designation by the
President (or by an official to whom the President’s
functions . . . have been duly delegated), in regulations
issued under this section, of items as defense articles or
defense services for purposes of this section shall not be
subject to judicial review.” (Emphasis added.) So if 22
C.F.R. §121.1 Category 1(f) read “any Leupold Mark 4
CQ/T riflescope”, that designation would be incontestable
(even though made by the Directorate rather than the
President), and the question for the jury would be whether
the item that Pulungan tried to export was indeed a
Leupold Mark 4 CQ/T riflescope. If Pulungan had conceded
that the Leupold Mark 4 CQ/T riflescope is “manufactured
to defense specifications”, he could not
avoid liability by arguing that the Munitions List should
not require licenses for these items. See United States v.
Martinez, 904 F.2d 601 (11th Cir. 1990). But he does not
concede that the Leupold Mark 4 CQ/T riflescope is
within the domain of 22 C.F.R. §121.1 Category 1(f).
The only regulation is that “[r]iflescopes manufactured
to military specifications” require export licenses. It is
easy to see why the regulation’s language deals with
attributes rather than names; an effort to enumerate
each item would be futile, not only because some are
bound to be overlooked (imagine a regulation that tried
to list all bicycles by manufacturer and model number)
but also because manufacturers change their designations.
The Mark 4 may be succeeded by a Mark 5, or the CQ/T
model may become the CQ/X. But while a narrative
description may be the most sensible way to proceed, it
also limits the effect of §2778(h). Only material “in regulations”
is covered by that statute. The Directorate’s
conclusion that the Leupold Mark 4 CQ/T riflescope is
“manufactured to military specifications” is not in a
regulation and so is unaffected by §2778(h).
The Directorate’s claim of authority to classify any
item as a “defense article,” without revealing the basis
of the decision and without allowing any inquiry by the
jury, would create serious constitutional problems. It
would allow the sort of secret law that Panama Refining
Co. v. Ryan, 293 U.S. 388 (1935), condemned. (That case
dealt with an unpublished regulation that remained “in
the hip pocket of the administrator,” a serious problem
apart from the nondelegation holding usually associated
with Panama Refining.) A regulation is published for all
to see. People can adjust their conduct to avoid liability.
A designation by an unnamed official, using unspecified
criteria, that is put in a desk drawer, taken out only for
use at a criminal trial, and immune from any evaluation
by the judiciary, is the sort of tactic usually associated
with totalitarian régimes. Government must operate
through public laws and regulations. See United States v.
Farinella, 558 F.3d 695 (7th Cir. 2009). Thus the United
States must prove, and not just assert, that the Leupold
Mark 4 CQ/T riflescope is “manufactured to military
specifications.”
It does not necessarily follow that proof must come
in open court. Congress has made some special provisions
for classified information—and both the manufacturing
details of the Leupold Mark 4 CQ/T riflescope and the
precise specifications for military ‘scopes may be
classified as state secrets; some details also may be trade
secrets. Until Congress enacted the Classified Information
Procedures Act, 18 U.S.C. App. 3 §§ 1–16, defendants
frequently engaged in “greymail”—they threatened to
expose secrets as the price of successful prosecution, which
induced the government to dismiss the indictments or
prosecute for less serious crime. The Classified Information
Procedures Act is designed to allow disputes involving
material legitimately kept secret to be resolved without
unnecessary public disclosures.
Pulungan’s lawyer said at oral argument that he
had not asked for a hearing under this statute. Nor did
the prosecutor offer one. Both took an all-or-nothing
approach: Pulungan demanded a public jury trial, and
the prosecutor total secrecy. We need not decide whether
either litigant has waived or forfeited its position by
disdaining the statutory middle ground—or whether any
error is harmless (Pulungan has never argued that the
Mark 4 CQ/T ‘scope is not actually a mil-spec product
and didn’t ask for an expert to explore that subject)—
because Pulungan is entitled to prevail even if the
criminal-justice system must proceed on the assumption
that the Mark 4 CQ/T riflescope is a “defense article.”
It is not enough for the Leupold Mark 4 CQ/T riflescope
to be a “defense article.” Pulungan cannot be convicted
unless he knew that it is one, and that licenses are necessary
to export them. The United States concedes that the
word “willfully” in §2778(c) requires it to prove that the
defendant knew not only the material facts but also the
legal rules. (We need not decide whether the concession
is correct. “Willfully” is a notoriously plastic word. See
Bryan v. United States, 524 U.S. 184 (1998).)
That the Directorate’s determination about the status of
the Leupold Mark 4 CQ/T riflescope was unknown to
the general public until Pulungan’s trial makes it hard to
show his knowledge. Some people in the business
knew the Directorate’s view. Leupold & Stevens itself
asked after bringing the ‘scope to market in 2002, and the
Directorate replied in 2003 that the Mark 4 CQ/T is covered
as a “defense article.” But Pulungan was not an industry
insider, nor were his potential customers (he says that
his clients were civilian police departments). The United
States does not contend that Pulungan knew what the
Directorate told Leupold & Stevens in 2003, or indeed
knew that the firm had even made an inquiry.
The United States offered three kinds of proof on the
subjects of knowledge and intent. It observed, first, that
Pulungan had in his possession printouts of web pages
at the site Telescopes.com that limit the countries available
for shipment. It showed, second, that Pulungan lied
to his business associates about how many riflescopes
he wanted and where they would be sent. The prosecutor
contends that these lies, coupled with a willingness to
pay above-market prices ($1,000 per Leupold ‘scope, when
retailers charge only $700), show that he knew that his
proposed transaction of 100 riflescopes to Indonesia was
unlawful. Third, Pulungan sent email messages and
made notes evincing a belief that munitions exports to
Indonesia were unlawful; the prosecutor submits that
Pulungan has effectively conceded intending to violate
the law.
Let us start with the first of these. Telescopes.com
advised its customers that “[w]e are allowed to ship
riflescopes, laser sights and riflescope accessories only to
certain countries.” And one of the web pages devoted to
the Leupold Mark 4 CQ/T riflescope contained this text,
in bold red type: “We cannot export this item outside
the U.S.” The prosecutor says that a jury could infer
from Pulungan’s possession of these statements that he
knew that a license was required to export the Leupold
Mark 4 CQ/T riflescope. The problem with this inference
is obvious: Telescopes.com did not say why the available
destinations are limited. Its web pages seemed to say
that the Leupold Mark 4 CQ/T riflescope cannot be exported
(at least not by Telescopes.com) even if the
buyer has a license.
And there may be a very good reason. Perhaps
Telescopes.com had a restricted territory. It is common
for a manufacturer to authorize a dealer to sell in one
country but not another. Leupold & Stevens may ship
directly to dealers in foreign nations (getting licenses if
necessary) and forbid any of its dealers to ship across
international borders. Such limits can be enforced
through trademark and patent laws, whether or not a
given nation’s contract or antitrust laws recognize
vertical restrictions on dealers’ sales territories. To see
the absence of a link between no-export notices and
military technology, look at almost any web page at
Amazon.com devoted to electronic equipment. The web
page for every USB flash-memory stick—a commodity
item that is manufactured outside this nation, and thus
unaffected by export-control laws—contains the statement:
“Currently, item can be shipped only within the
U.S.” That’s pretty much what Telescopes.com told
Pulungan about the Leupold Mark 4 CQ/T riflescope. The
same legend can be found on Amazon’s pages for
some movie DVDs and other copyrighted material. And
Amazon’s page for LaraBar Jocalat orange milk chocolate
says: “Currently, item can be shipped only within the
U.S.” The military may run on coffee and chocolate, but
that does not make either a “defense article.”
At the Telescopes.com web site, quite a few pages for
binoculars say: “Only ships in contiguous USA”.
Telescopes.com no longer sells riflescopes, but
OpticsPlanet.com, which does, does not display a USAonly
shipping restriction on its page for the Leupold
Mark 4 CQ/T riflescope. We conclude that no reasonable
jury could infer from the presence, or absence, of a USAonly
shipping legend on a commercial web site that a
would-be buyer knows that the item is, or is not, a
“defense article.”
The prosecutor’s second and third reasons may be
taken together. They show convincingly that Pulungan
believed that what he was doing was illegal. The problem
is that they evince a belief in a nonexistent rule (the
embargo that had been lifted two years earlier) rather
than a belief that an export license was necessary.
As the prosecutor sees things, an intent to violate one
law is as good as the intent to violate any other. The
United States’ appellate brief essentially invokes the
doctrine of transferred intent (though it does not use
that name or cite authority). If you set out to kill A by
poisoning his whiskey, and B drinks from the glass first
and dies, you are guilty of B’s premeditated murder: The
intent to kill A is “transferred” to B’s death. See Bradshaw
v. Richey, 546 U.S. 74 (2005); see also Wayne R. LaFave, 1
Substantive Criminal Law §5.2(c) (2d ed. 2003); Anthony M.
Dillof, Transferred Intent: An Inquiry into the Nature of
Criminal Culpability, 1 Buff. Crim. L. Rev. 501 (1998); Model
Penal Code §2.03 (1962). So far as we can tell, however,
transferring intent from one genus of offense to another
has never been permitted. Suppose Pulungan had
believed (wrongly) that the United States imposes an
excise tax on exports of optical gear and had tried to
avoid payment; an intent to evade a nonexistent tax
would not transfer to an intent to export riflescopes
without a license; the crimes are too different for one
intent to suffice for the other.
The crime that Pulungan set out to commit was
unrelated to unlicensed exports. An embargo on sales to
Indonesia would not have prevented a shipment to
Saudi Arabia; it is only the intent to transship in
Saudi Arabia that would have created a legal problem
(had there been an embargo). It would be a stretch to
treat “intent to transship lawfully exported riflescopes” as
equivalent to “intent to export riflescopes without a
required license.” Both crimes are malum prohibitum
rather than malum in se—that is, they are regulatory
offenses rather than acts evil in themselves under widely
held moral codes—and the “willfullness” element in a
regulatory offense such as §2778(c) is designed to
require knowledge of this rule, rather than of some other
actual or potential regulation. See Staples v. United States,
511 U.S. 600 (1994); Cheek v. United States, 498 U.S. 192
(1991).
No matter. Suppose that intent can be transferred from
a nonexistent embargo to a licensing requirement. Still, the
United States has conceded that §2778(c) requires proof
of knowledge of the law’s coverage, as well as intent to
violate the law. Pulungan acted willfully only if he
knew that Leupold Mark 4 CQ/T riflescopes are “manufactured
to military specifications.” It may be a fool’s errand
to try to list every riflescope that is made to military
specifications, but the Directorate could avoid problems
such as this by putting into the text of the regulation all
riflescopes that it has tested and found to be covered. An
“including but not limited to . . .” listing would take
advantage of §2778(h), give notice to affected persons,
yet not restrict the listing’s domain.
As things stand, though, the only basis for inferring
Pulungan’s knowledge is the legend on the web page. We
explained above why that is insufficient. If Indonesia
had not so recently been subject to an arms embargo, then
hugger-mugger alone might permit a jury to infer knowledge
that a license was required. Pulungan’s efforts to
work through intermediaries, and to acquire 100 ‘scopes
without placing one large order that might have set off
warning systems, do not point in that direction, however.
The prosecutor does not contend that Pulungan’s emails
and notes about the embargo were part of a ruse to
create a defense for someone who knew that the embargo
had been rescinded but that other laws might block
exports. So the evidence is insufficient to show, beyond
a reasonable doubt, that Pulungan knew that these
‘scopes were “defense articles” that required export
licenses, and the conviction is
REVERSED.
Chicago Criminal Lawyer - Robert J Callahan
Tuesday, May 26, 2009
U.S. vs. Jerry Strahan
Jerry Strahan was convicted by a
jury of conspiracy to distribute cocaine base and distribution
of cocaine base and was sentenced to life in prison,
the mandatory sentence based on his two prior felony
drug convictions. See 21 U.S.C. § 841(b). Strahan appeals
his convictions and sentence, arguing that the district
court should have instructed the jury on his publicauthority
defense. He also challenges the sufficiency of
the evidence against him and the constitutionality of the
mandatory life term under the Sixth and Eighth Amendments.
We affirm. The evidence was insufficient to support a
public-authority defense and easily sufficient to support
the jury’s verdict of guilty on both counts. Strahan’s
constitutional challenges to his sentence run contrary to
Supreme Court caselaw. A mandatory-minimum sentence
based on judge-found facts regarding prior felony
drug convictions does not violate the Sixth Amendment,
and a life term based on recidivism is not cruel and
unusual punishment in violation of the Eighth Amendment.
I. Background
Jerry Strahan delivered drugs for Johnny McCray Jr.,
who ran a drug-distribution operation out of a house on
College Street in East St. Louis, Illinois. McCray Jr. sold
mainly heroin and crack cocaine, and employed at least
three others to help serve his customers: his father, Johnny
McCray Sr.; Mitchell Brown; and Strahan. All three were
drug users, and McCray Jr. paid them for their work in
both drugs and money.
Strahan had been involved with this group as far back
as 1996, when he was caught trying to buy drugs from a
drug house run by the McCrays and Eugene Falls, a
coconspirator. He was making drug deliveries for the
group in 1999 when he was arrested again. This time
he cooperated with the government. It was this prior
association that led Deputy U.S. Marshal Tom Woods to
ask Strahan in 2003 if he knew the whereabouts of McCray
Sr. or Cortez McCray (Johnny McCray Sr.’s other son). Both
were wanted on arrest warrants. Strahan later contacted
Deputy Woods with information that led to the arrest of
both McCrays, and he was put on Woods’s payroll as a
confidential informant.
The activity at the College Street residence soon drew
the attention of other law-enforcement officials. Officer
Brian Gimpel of the O’Fallon Police Department, who
was deputized to the FBI, was approached by Richard
Baker, a confidential informant, with information about
the McCray drug operation on College Street. Officer
Gimpel specialized in controlled purchases of narcotics
and arranged for Baker to buy crack cocaine from Falls
at the College Street house. Gimpel also used Joe
Mitchell, another informant, to make multiple controlled
drug buys at the College Street house. Each transaction
was recorded using a device worn by Baker or
Mitchell. On the strength of these recordings, Officer
Gimpel obtained a search warrant for the McCray drug
house.
Based on the evidence collected in the search, a grand
jury returned an indictment charging both McCrays,
Brown, Falls, and Strahan with conspiracy to distribute
crack cocaine and heroin in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), and 846. Strahan was also
charged with violating 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B) by distributing cocaine base on September 29,
2004. Because Strahan had two prior state convictions for
delivery of controlled substances, the government filed
notice pursuant to 21 U.S.C. § 851 that it would seek
enhanced punishment under 21 U.S.C. § 841(b). All of the
coconspirators, save Strahan, pleaded guilty to the
charges, and the coconspirators agreed to testify against
Strahan.
In advance of trial, Strahan gave notice pursuant to
Rule 12.3 of the Federal Rules of Criminal Procedure that he
intended to offer a “public authority” defense based on
his interactions with Deputy Woods. In response the
government denied that Strahan was acting pursuant to
public authority when he committed the charged acts
and notified Strahan and the district court that it would
call Deputy Woods to testify in opposition to Strahan’s
public-authority defense.
At trial Deputy Woods testified that he “does not do
controlled [drug] buys” and that his contact with Strahan
was limited to obtaining information about the whereabouts
of persons for whom there were active arrest
warrants. Strahan took the stand and testified in his
own defense; he admitted being a drug user but denied
any involvement in the McCray drug conspiracy operated
out of the College Street house. He said he knew
Deputy Woods but denied giving him information
about drug dealing at the College Street house. In
response to a question about whether he thought he
had authority to engage in the drug-trafficking activity
alleged against him because Woods told him so, Strahan
responded, “No, that’s not correct, I wasn’t doing what
is alleged in this case.”
At the close of evidence, Strahan asked the district court
to issue a public-authority instruction to the jury, arguing
that he believed he was authorized by Deputy Woods to
sell narcotics. The court refused to do so. The judge
noted Strahan’s own testimony flatly denying any involvement
in drug dealing and the complete lack of
evidence that Woods ever led Strahan to believe he
could distribute drugs as part of his role gathering information
on the whereabouts of fugitives. The jury
found Strahan guilty of both counts.
Because of Strahan’s previous drug convictions, he
was classified as a career offender under the sentencing
guidelines, pushing his offense level to 37 and his
criminal history category to VI. That yielded an advisory
guidelines range of 360 months to life in prison for both
counts. But because of Strahan’s two previous convictions
for state drug felonies, the statutory minimum for
the conspiracy count was life in prison. 21 U.S.C. § 841(b).
The court imposed a sentence of life on the conspiracy
count and a concurrent 360 months on the crack-distribution
count. Strahan appealed, challenging both his convictions
and sentence.
II. Discussion
A. Public-Authority Defense
At the close of the evidence, Strahan requested a jury
instruction on the public-authority defense, arguing that
if the jurors disbelieved his testimony that he did not
take part in the conspiracy, he was entitled to defend on
the basis that his actions were the result of a reasonable
belief that he was authorized by Deputy Woods to sell
narcotics in connection with his work as a confidential
informant. The district court declined to give the
requested instruction, finding that the public-authority
defense was not supported by the evidence.
Our review of a district court’s refusal to give a theoryof-
defense jury instruction is de novo. United States v. Van
Allen, 524 F.3d 814, 832 (7th Cir. 2008). A criminal defendant
is entitled to such an instruction only if there is
evidentiary support for it. Id.; see also United States v.
Millet, 510 F.3d 668, 675 (7th Cir. 2007).
The public-authority defense is closely related to
another affirmative defense, entrapment by estoppel.
United States v. Baker, 438 F.3d 749, 753 (7th Cir. 2006)
(noting that “[t]he elements that comprise the two
defenses are quite similar”); see also United States v. Neville,
82 F.3d 750, 761 (7th Cir. 1996) (noting that “ ‘public authority’
[is] sometimes called ‘entrapment by estoppel’ ”). We
have recently clarified the distinction between the two
defenses: “[I]n the case of the public authority defense,
the defendant engages in conduct at the request of a
government official that the defendant knows to be
otherwise illegal, while in the case of entrapment by
estoppel, because of the statements of an official, the
defendant believes that his conduct constitutes no offense.”
United States v. Jumah, 493 F.3d 868, 874 n.4 (7th
Cir. 2007) (citing 53 AM. JUR. PROOF OF FACTS 3D 249 Proof
of Defense of Entrapment by Estoppel § 20 (1999)). In other
words, the public-authority defense requires reasonable
reliance by a defendant on a public official’s directive to
engage in behavior that the defendant knows to be
illegal. Id.; see also United States v. Cao, 471 F.3d 1, 4 (1st
Cir. 2006). In contrast, a defendant who believed his
conduct legal because of an official’s statement of the
law may assert an entrapment-by-estoppel defense. Jumah,
493 F.3d at 874 n.4; see also United States v. Apperson, 441
F.3d 1162, 1204 (10th Cir. 2006). Strahan’s situation is
the former; he maintains that he was entitled to argue
that he engaged in illegal drug trafficking at the behest
of Deputy Woods, not that he relied on Woods’s statement
that such conduct was actually lawful.
Here, the district court’s refusal to instruct the jury
on the public-authority defense was manifestly correct.
No witness—not even Strahan—testified that Deputy
Woods ever instructed or authorized Strahan to
distribute crack cocaine. It is true that Woods used
Strahan as a confidential informant, but their interaction
was limited to Strahan helping Woods find fugitives.
Indeed, Deputy Woods testified that he “didn’t do controlled
buys.” Strahan’s own testimony eliminated any
possibility of a public-authority defense. When asked
by the prosecutor if Deputy Woods had ever authorized
him to sell drugs as part of his interaction with Woods
as an informant, Strahan responded, “He never said I
could sell drugs, no.” He later added that he had never
asked Woods for permission to do so either. Strahan was
plainly not entitled to a public-authority instruction;
the defense was utterly unsupported by the evidence.
B. Sufficiency of the Evidence
Strahan also argues that the evidence was insufficient to
convict him on either count. We will overturn the verdict
on this basis only if, viewing the evidence in the light
most favorable to the government, there is “ ‘no evidence,
no matter how the evidence is weighed, from which the
jury could have found guilt beyond a reasonable doubt.’ ”
United States v. Burke, 425 F.3d 400, 415 (7th Cir. 2005)
(quoting United States v. Albarran, 233 F.3d 972, 975 (7th
Cir. 2000)).
The record is overflowing with evidence of Strahan’s
guilt. Johnny McCray Jr. testified that Strahan helped him
sell drugs from the College Street house in late 2003 and
through most of 2004. According to McCray Jr., Strahan
was responsible for answering a prepaid cell phone used
to take drug orders and would also deliver drugs when
necessary. He also testified about a letter sent to him
from jail by his father, Johnny McCray Sr., in December
2004. In the letter McCray Sr. asked if Strahan had been
using some of the drugs he was supposed to sell. (The
answer was “yes.”)
Johnny McCray Sr. testified that Strahan lived with the
McCrays and sold drugs for the McCray Jr. crack cocaine
and heroin distribution group, initially in Granite City,
Illinois, and later from the College Street house in East
St. Louis. Coconspirators Falls and Brown also testified
that Strahan lived at McCray Jr.’s College Street house
and participated in the drug-distribution operation conducted
there by (among other things) taking phone
orders and delivering drugs. This evidence is more than
sufficient for the jury to convict Strahan on the conspiracy
count. See United States v. Sachsenmaier, 491 F.3d 680, 684
(7th Cir. 2007) (finding a conspiracy where the defendant
“took drug orders, arranged sales, collected drug money,
No. 07-1494 9
and acted as an intermediary” between the seller and
his customers).
Similarly, the testimony at trial gave the jury sufficient
evidence to find Strahan guilty of distributing crack
cocaine to informant Joe Mitchell on September 29, 2004.
The transaction was recorded, and although Strahan
disputed the accuracy of the audio recording, he
admitted being present when Mitchell received the
drugs at the College Street address on that day. McCray
Jr. testified that one of the voices on the recording was
Strahan’s and that Strahan gave Mitchell the drugs,
collected payment, and brought the money to him for
change. Mitchell testified and confirmed the details of the
September 29 controlled buy and Strahan’s role in the
transaction. Notwithstanding the poor quality of the
audio recording, McCray and Mitchell were able to
identify Strahan’s voice, and both testified in detail to
Strahan’s participation. This evidence amply supports
the guilty verdict on the crack-distribution count.
C. Sentencing Claims
Strahan raises two constitutional challenges to his
sentence. First, he argues that the mandatory-minimum
sentence of life imprisonment runs afoul of the Sixth
Amendment by allowing facts not proven to a jury
beyond a reasonable doubt—in this case, his two prior
convictions for drug felonies—to affect the severity of
his punishment. See 21 U.S.C. § 841(b)(1)(A). But this
argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998), and Harris v. United States, 536
U.S. 545 (2002). Strahan acknowledges that we have
repeatedly rejected the argument that United States v.
Booker, 543 U.S. 220 (2005), has called into question either
Almendarez-Torres or Harris. See, e.g., Sachsenmaier, 491
F.3d at 685 (noting “this court’s many decisions holding
that Almendarez-Torres is still good law after Booker”);
United States v. Jones, 418 F.3d 726, 732 (7th Cir. 2005)
(finding that “[t]he distinction drawn by the Court in
Harris appears to have survived” Booker). He seeks only
to preserve these issues for review in the Supreme Court,
and we confirm that he has done so. Sachsenmaier, 491
F.3d at 685.
Next, Strahan contends that the mandatory-minimum
sentence of life in prison violates the Eighth Amendment’s
prohibition on cruel and unusual punishment because
the sentence is grossly disproportionate. But the
Supreme Court has rejected Eighth Amendment challenges
to statutorily mandated life sentences for defendants
with two prior felony convictions, see Ewing v.
California, 538 U.S. 11, 25 (2003) (upholding California’s
“three-strikes” law); Lockyer v. Andrade, 538 U.S. 63 (2003),
and we have followed suit, see United States v. Cannon, 429
F.3d 1158, 1161 (7th Cir. 2005). Accordingly, Strahan’s life
sentence does not violate the Eighth Amendment.
Strahan makes a host of other sentencing arguments—
most notably, that the district court should not
have applied a guidelines enhancement for obstruction of
justice, U.S.S.G. § 3C1.1 & cmt. n.4(b), based on his trial
testimony—but we need not address them. Based on his
two prior convictions for felony drug offenses, Strahan
was subject to the statutory-minimum sentence of life in
prison on the conspiracy count, and that sentence
trumped any guidelines calculation. Id. § 5G1.1(b). His
concurrent sentence of 360 months on the crack-distribution
count was also unaffected by any of his other claims
of error. Strahan was deemed a career offender under
the guidelines because of two prior state convictions,
pushing his base offense level to a minimum of 37
and rendering other enhancements meaningless. Id.
§ 4B1.1(a)-(b).
Strahan submitted a pro se brief after his counsel filed
his opening brief. We agreed to accept the supplemental
brief only after Strahan specified the arguments he intended
to advance. We therefore confine our review to the
arguments raised in his motion. These are: (1) that he
did not act in furtherance of the alleged conspiracy; and
(2) one of the two convictions listed in the § 851 notice
was disregarded by the district court for purposes of the
guidelines calculation. The first argument fails along
with the sufficiency-of-the-evidence argument, which
we have rejected for the reasons noted above. Strahan
appears to contend that his actions were aimed at thwarting
what he sees as two separate conspiracies—one
involving Falls and Baker, the other involving the
McCrays—but the testimony at trial was to the contrary,
and that evidence was easily sufficient to sustain his
convictions.
Finally, Strahan notes that the district court disregarded
one of his prior drug convictions listed in the § 851 notice
because it was not clear from the charging document
whether it would have counted as a “controlled substance
offense” for purposes of U.S.S.G. § 4B1.1(a)(2) and
.2(b). He contends that this invalidates his life sentence.
But Strahan conflates two separate standards. Damerville
v. United States, 197 F.3d 287 (7th Cir. 1999). The district
court did not disregard this conviction for purposes of the
§ 851 notice, required for application of the statutoryminimum
life sentence. Instead, the court declined to
rely on the record of conviction for one of Strahan’s prior
drug convictions in calculating his guidelines sentence
because the record was unclear whether it met the guidelines
definition of a “controlled substance offense.” In
contrast, the mandatory life sentence applies when a
defendant convicted under § 841(a) has two or more
prior “felony drug offense[s].” 21 U.S.C. § 841(b)(1)(A).
There is no dispute that the two state narcotics convictions
identified in the government’s § 851 notice met this
standard.
AFFIRMED.
Chicago Criminal Lawyer - Robert J Callahan
jury of conspiracy to distribute cocaine base and distribution
of cocaine base and was sentenced to life in prison,
the mandatory sentence based on his two prior felony
drug convictions. See 21 U.S.C. § 841(b). Strahan appeals
his convictions and sentence, arguing that the district
court should have instructed the jury on his publicauthority
defense. He also challenges the sufficiency of
the evidence against him and the constitutionality of the
mandatory life term under the Sixth and Eighth Amendments.
We affirm. The evidence was insufficient to support a
public-authority defense and easily sufficient to support
the jury’s verdict of guilty on both counts. Strahan’s
constitutional challenges to his sentence run contrary to
Supreme Court caselaw. A mandatory-minimum sentence
based on judge-found facts regarding prior felony
drug convictions does not violate the Sixth Amendment,
and a life term based on recidivism is not cruel and
unusual punishment in violation of the Eighth Amendment.
I. Background
Jerry Strahan delivered drugs for Johnny McCray Jr.,
who ran a drug-distribution operation out of a house on
College Street in East St. Louis, Illinois. McCray Jr. sold
mainly heroin and crack cocaine, and employed at least
three others to help serve his customers: his father, Johnny
McCray Sr.; Mitchell Brown; and Strahan. All three were
drug users, and McCray Jr. paid them for their work in
both drugs and money.
Strahan had been involved with this group as far back
as 1996, when he was caught trying to buy drugs from a
drug house run by the McCrays and Eugene Falls, a
coconspirator. He was making drug deliveries for the
group in 1999 when he was arrested again. This time
he cooperated with the government. It was this prior
association that led Deputy U.S. Marshal Tom Woods to
ask Strahan in 2003 if he knew the whereabouts of McCray
Sr. or Cortez McCray (Johnny McCray Sr.’s other son). Both
were wanted on arrest warrants. Strahan later contacted
Deputy Woods with information that led to the arrest of
both McCrays, and he was put on Woods’s payroll as a
confidential informant.
The activity at the College Street residence soon drew
the attention of other law-enforcement officials. Officer
Brian Gimpel of the O’Fallon Police Department, who
was deputized to the FBI, was approached by Richard
Baker, a confidential informant, with information about
the McCray drug operation on College Street. Officer
Gimpel specialized in controlled purchases of narcotics
and arranged for Baker to buy crack cocaine from Falls
at the College Street house. Gimpel also used Joe
Mitchell, another informant, to make multiple controlled
drug buys at the College Street house. Each transaction
was recorded using a device worn by Baker or
Mitchell. On the strength of these recordings, Officer
Gimpel obtained a search warrant for the McCray drug
house.
Based on the evidence collected in the search, a grand
jury returned an indictment charging both McCrays,
Brown, Falls, and Strahan with conspiracy to distribute
crack cocaine and heroin in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), and 846. Strahan was also
charged with violating 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B) by distributing cocaine base on September 29,
2004. Because Strahan had two prior state convictions for
delivery of controlled substances, the government filed
notice pursuant to 21 U.S.C. § 851 that it would seek
enhanced punishment under 21 U.S.C. § 841(b). All of the
coconspirators, save Strahan, pleaded guilty to the
charges, and the coconspirators agreed to testify against
Strahan.
In advance of trial, Strahan gave notice pursuant to
Rule 12.3 of the Federal Rules of Criminal Procedure that he
intended to offer a “public authority” defense based on
his interactions with Deputy Woods. In response the
government denied that Strahan was acting pursuant to
public authority when he committed the charged acts
and notified Strahan and the district court that it would
call Deputy Woods to testify in opposition to Strahan’s
public-authority defense.
At trial Deputy Woods testified that he “does not do
controlled [drug] buys” and that his contact with Strahan
was limited to obtaining information about the whereabouts
of persons for whom there were active arrest
warrants. Strahan took the stand and testified in his
own defense; he admitted being a drug user but denied
any involvement in the McCray drug conspiracy operated
out of the College Street house. He said he knew
Deputy Woods but denied giving him information
about drug dealing at the College Street house. In
response to a question about whether he thought he
had authority to engage in the drug-trafficking activity
alleged against him because Woods told him so, Strahan
responded, “No, that’s not correct, I wasn’t doing what
is alleged in this case.”
At the close of evidence, Strahan asked the district court
to issue a public-authority instruction to the jury, arguing
that he believed he was authorized by Deputy Woods to
sell narcotics. The court refused to do so. The judge
noted Strahan’s own testimony flatly denying any involvement
in drug dealing and the complete lack of
evidence that Woods ever led Strahan to believe he
could distribute drugs as part of his role gathering information
on the whereabouts of fugitives. The jury
found Strahan guilty of both counts.
Because of Strahan’s previous drug convictions, he
was classified as a career offender under the sentencing
guidelines, pushing his offense level to 37 and his
criminal history category to VI. That yielded an advisory
guidelines range of 360 months to life in prison for both
counts. But because of Strahan’s two previous convictions
for state drug felonies, the statutory minimum for
the conspiracy count was life in prison. 21 U.S.C. § 841(b).
The court imposed a sentence of life on the conspiracy
count and a concurrent 360 months on the crack-distribution
count. Strahan appealed, challenging both his convictions
and sentence.
II. Discussion
A. Public-Authority Defense
At the close of the evidence, Strahan requested a jury
instruction on the public-authority defense, arguing that
if the jurors disbelieved his testimony that he did not
take part in the conspiracy, he was entitled to defend on
the basis that his actions were the result of a reasonable
belief that he was authorized by Deputy Woods to sell
narcotics in connection with his work as a confidential
informant. The district court declined to give the
requested instruction, finding that the public-authority
defense was not supported by the evidence.
Our review of a district court’s refusal to give a theoryof-
defense jury instruction is de novo. United States v. Van
Allen, 524 F.3d 814, 832 (7th Cir. 2008). A criminal defendant
is entitled to such an instruction only if there is
evidentiary support for it. Id.; see also United States v.
Millet, 510 F.3d 668, 675 (7th Cir. 2007).
The public-authority defense is closely related to
another affirmative defense, entrapment by estoppel.
United States v. Baker, 438 F.3d 749, 753 (7th Cir. 2006)
(noting that “[t]he elements that comprise the two
defenses are quite similar”); see also United States v. Neville,
82 F.3d 750, 761 (7th Cir. 1996) (noting that “ ‘public authority’
[is] sometimes called ‘entrapment by estoppel’ ”). We
have recently clarified the distinction between the two
defenses: “[I]n the case of the public authority defense,
the defendant engages in conduct at the request of a
government official that the defendant knows to be
otherwise illegal, while in the case of entrapment by
estoppel, because of the statements of an official, the
defendant believes that his conduct constitutes no offense.”
United States v. Jumah, 493 F.3d 868, 874 n.4 (7th
Cir. 2007) (citing 53 AM. JUR. PROOF OF FACTS 3D 249 Proof
of Defense of Entrapment by Estoppel § 20 (1999)). In other
words, the public-authority defense requires reasonable
reliance by a defendant on a public official’s directive to
engage in behavior that the defendant knows to be
illegal. Id.; see also United States v. Cao, 471 F.3d 1, 4 (1st
Cir. 2006). In contrast, a defendant who believed his
conduct legal because of an official’s statement of the
law may assert an entrapment-by-estoppel defense. Jumah,
493 F.3d at 874 n.4; see also United States v. Apperson, 441
F.3d 1162, 1204 (10th Cir. 2006). Strahan’s situation is
the former; he maintains that he was entitled to argue
that he engaged in illegal drug trafficking at the behest
of Deputy Woods, not that he relied on Woods’s statement
that such conduct was actually lawful.
Here, the district court’s refusal to instruct the jury
on the public-authority defense was manifestly correct.
No witness—not even Strahan—testified that Deputy
Woods ever instructed or authorized Strahan to
distribute crack cocaine. It is true that Woods used
Strahan as a confidential informant, but their interaction
was limited to Strahan helping Woods find fugitives.
Indeed, Deputy Woods testified that he “didn’t do controlled
buys.” Strahan’s own testimony eliminated any
possibility of a public-authority defense. When asked
by the prosecutor if Deputy Woods had ever authorized
him to sell drugs as part of his interaction with Woods
as an informant, Strahan responded, “He never said I
could sell drugs, no.” He later added that he had never
asked Woods for permission to do so either. Strahan was
plainly not entitled to a public-authority instruction;
the defense was utterly unsupported by the evidence.
B. Sufficiency of the Evidence
Strahan also argues that the evidence was insufficient to
convict him on either count. We will overturn the verdict
on this basis only if, viewing the evidence in the light
most favorable to the government, there is “ ‘no evidence,
no matter how the evidence is weighed, from which the
jury could have found guilt beyond a reasonable doubt.’ ”
United States v. Burke, 425 F.3d 400, 415 (7th Cir. 2005)
(quoting United States v. Albarran, 233 F.3d 972, 975 (7th
Cir. 2000)).
The record is overflowing with evidence of Strahan’s
guilt. Johnny McCray Jr. testified that Strahan helped him
sell drugs from the College Street house in late 2003 and
through most of 2004. According to McCray Jr., Strahan
was responsible for answering a prepaid cell phone used
to take drug orders and would also deliver drugs when
necessary. He also testified about a letter sent to him
from jail by his father, Johnny McCray Sr., in December
2004. In the letter McCray Sr. asked if Strahan had been
using some of the drugs he was supposed to sell. (The
answer was “yes.”)
Johnny McCray Sr. testified that Strahan lived with the
McCrays and sold drugs for the McCray Jr. crack cocaine
and heroin distribution group, initially in Granite City,
Illinois, and later from the College Street house in East
St. Louis. Coconspirators Falls and Brown also testified
that Strahan lived at McCray Jr.’s College Street house
and participated in the drug-distribution operation conducted
there by (among other things) taking phone
orders and delivering drugs. This evidence is more than
sufficient for the jury to convict Strahan on the conspiracy
count. See United States v. Sachsenmaier, 491 F.3d 680, 684
(7th Cir. 2007) (finding a conspiracy where the defendant
“took drug orders, arranged sales, collected drug money,
No. 07-1494 9
and acted as an intermediary” between the seller and
his customers).
Similarly, the testimony at trial gave the jury sufficient
evidence to find Strahan guilty of distributing crack
cocaine to informant Joe Mitchell on September 29, 2004.
The transaction was recorded, and although Strahan
disputed the accuracy of the audio recording, he
admitted being present when Mitchell received the
drugs at the College Street address on that day. McCray
Jr. testified that one of the voices on the recording was
Strahan’s and that Strahan gave Mitchell the drugs,
collected payment, and brought the money to him for
change. Mitchell testified and confirmed the details of the
September 29 controlled buy and Strahan’s role in the
transaction. Notwithstanding the poor quality of the
audio recording, McCray and Mitchell were able to
identify Strahan’s voice, and both testified in detail to
Strahan’s participation. This evidence amply supports
the guilty verdict on the crack-distribution count.
C. Sentencing Claims
Strahan raises two constitutional challenges to his
sentence. First, he argues that the mandatory-minimum
sentence of life imprisonment runs afoul of the Sixth
Amendment by allowing facts not proven to a jury
beyond a reasonable doubt—in this case, his two prior
convictions for drug felonies—to affect the severity of
his punishment. See 21 U.S.C. § 841(b)(1)(A). But this
argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998), and Harris v. United States, 536
U.S. 545 (2002). Strahan acknowledges that we have
repeatedly rejected the argument that United States v.
Booker, 543 U.S. 220 (2005), has called into question either
Almendarez-Torres or Harris. See, e.g., Sachsenmaier, 491
F.3d at 685 (noting “this court’s many decisions holding
that Almendarez-Torres is still good law after Booker”);
United States v. Jones, 418 F.3d 726, 732 (7th Cir. 2005)
(finding that “[t]he distinction drawn by the Court in
Harris appears to have survived” Booker). He seeks only
to preserve these issues for review in the Supreme Court,
and we confirm that he has done so. Sachsenmaier, 491
F.3d at 685.
Next, Strahan contends that the mandatory-minimum
sentence of life in prison violates the Eighth Amendment’s
prohibition on cruel and unusual punishment because
the sentence is grossly disproportionate. But the
Supreme Court has rejected Eighth Amendment challenges
to statutorily mandated life sentences for defendants
with two prior felony convictions, see Ewing v.
California, 538 U.S. 11, 25 (2003) (upholding California’s
“three-strikes” law); Lockyer v. Andrade, 538 U.S. 63 (2003),
and we have followed suit, see United States v. Cannon, 429
F.3d 1158, 1161 (7th Cir. 2005). Accordingly, Strahan’s life
sentence does not violate the Eighth Amendment.
Strahan makes a host of other sentencing arguments—
most notably, that the district court should not
have applied a guidelines enhancement for obstruction of
justice, U.S.S.G. § 3C1.1 & cmt. n.4(b), based on his trial
testimony—but we need not address them. Based on his
two prior convictions for felony drug offenses, Strahan
was subject to the statutory-minimum sentence of life in
prison on the conspiracy count, and that sentence
trumped any guidelines calculation. Id. § 5G1.1(b). His
concurrent sentence of 360 months on the crack-distribution
count was also unaffected by any of his other claims
of error. Strahan was deemed a career offender under
the guidelines because of two prior state convictions,
pushing his base offense level to a minimum of 37
and rendering other enhancements meaningless. Id.
§ 4B1.1(a)-(b).
Strahan submitted a pro se brief after his counsel filed
his opening brief. We agreed to accept the supplemental
brief only after Strahan specified the arguments he intended
to advance. We therefore confine our review to the
arguments raised in his motion. These are: (1) that he
did not act in furtherance of the alleged conspiracy; and
(2) one of the two convictions listed in the § 851 notice
was disregarded by the district court for purposes of the
guidelines calculation. The first argument fails along
with the sufficiency-of-the-evidence argument, which
we have rejected for the reasons noted above. Strahan
appears to contend that his actions were aimed at thwarting
what he sees as two separate conspiracies—one
involving Falls and Baker, the other involving the
McCrays—but the testimony at trial was to the contrary,
and that evidence was easily sufficient to sustain his
convictions.
Finally, Strahan notes that the district court disregarded
one of his prior drug convictions listed in the § 851 notice
because it was not clear from the charging document
whether it would have counted as a “controlled substance
offense” for purposes of U.S.S.G. § 4B1.1(a)(2) and
.2(b). He contends that this invalidates his life sentence.
But Strahan conflates two separate standards. Damerville
v. United States, 197 F.3d 287 (7th Cir. 1999). The district
court did not disregard this conviction for purposes of the
§ 851 notice, required for application of the statutoryminimum
life sentence. Instead, the court declined to
rely on the record of conviction for one of Strahan’s prior
drug convictions in calculating his guidelines sentence
because the record was unclear whether it met the guidelines
definition of a “controlled substance offense.” In
contrast, the mandatory life sentence applies when a
defendant convicted under § 841(a) has two or more
prior “felony drug offense[s].” 21 U.S.C. § 841(b)(1)(A).
There is no dispute that the two state narcotics convictions
identified in the government’s § 851 notice met this
standard.
AFFIRMED.
Chicago Criminal Lawyer - Robert J Callahan
U.S. vs. Rahul Mannava
Rahul Mannava was convicted
by a jury of violating 18 U.S.C. § 2422(b), which makes it
a crime to persuade, induce, entice, or coerce a minor
“to engage in prostitution or any sexual activity for
which any person can be charged with a criminal offense,
or [to attempt] to do so.” The judge sentenced Mannava
to 10 years in prison.
A detective posing as a 13-year-old girl named “Gracie”
had engaged in email conversations with Mannava
during which Mannava had sought to persuade “her” to
have sex with him (also to fondle herself in a sexual
manner) and they had arranged to meet at an ice cream
parlor. The indictment charged him with having engaged
in sexual activity chargeable as criminal offenses under
Indiana law. In response to his motion for a bill of particulars,
the government identified two Indiana statutes.
One, the “vicarious sexual gratification” law, makes it a
felony for an adult knowingly to induce a child under 16
“to touch or fondle” herself “with intent to arouse or
satisfy” the child or the adult. Ind. Code § 35-42-4-5(a). The
other, the “child solicitation” law, forbids an adult knowingly
to solicit a child who is, or who the adult believes is,
under 14 to engage in sexual activity. Ind. Code § 35-42-4-
6(b). The jury rendered a general verdict; it was not
asked to specify the Indiana offense that the defendant
had committed.
Mannava challenges his conviction on four grounds.
Only one requires reversal. But since the case must go
back to the district court for further proceedings, we
shall address the others as well.
The ground that requires reversal is the prosecutor’s
incessant harping at the trial on the theme that Mannava
had been intending to “rape” a 13-year-old. Mannava
testified, with some support in the text of the email conversations
with the detective, that he thought “Gracie” was
an adult pretending to be a young girl. It was not a ridiculous
defense. “Gracie” was an adult pretending to be a
child, and maybe the pretense was discernible. The prosecutor
may have feared that the jury would be persuaded.
Sex with a minor is commonly referred to as statutory
rape; but the term in the Indiana statute book is “child
molestation,” Ind. Code § 35-42-4-3; and saying that
someone intends to rape a person implies that he intends
to use force, and there is no evidence of that in this case.
The government concedes, moreover, that under Indiana
law, youth is not one of the “mental deficien[cies]” that
precludes meaningful consent to sexual intercourse
under Ind. Code 35-42-4-1(a). Douglas v. State, 484 N.E.2d
610, 612-13 (Ind. App. 1985); Smith v. State, 497 N.E.2d 601,
606-07 (Ind. App. 1986); Warrick v. State, 538 N.E.2d 952,
954-55 (Ind. App. 1989). By repeatedly accusing
Mannava of intending rape, the prosecutor was undoubtedly
trying to inflame the jury. The case was sufficiently
close to make the trial judge’s permitting such improper
advocacy a reversible error.
Mannava further argues that the jury should have
been required to specify which of the Indiana offenses
it thought he had committed. The argument was not
made in the district court, so our review is for plain
error. An error is plain if it is clearly an error and could
with some nontrivial probability have changed the outcome
of the case. United States v. Olano, 507 U.S. 725, 732-35
(1993); United States v. White, 903 F.2d 457, 466-67 (7th Cir.
1990); United States v. Newman, 965 F.2d 206, 213 (7th Cir.
1992) (citations omitted) (“a plain error is not only a
clear error but an error likely to have made a difference
in the judgment, so that failure to correct it could result
in a miscarriage of justice, that is, in the conviction of an
innocent person or the imposition of an erroneous sentence”).
The second criterion is not satisfied. Had the
jury (unswayed by improper advocacy by the prosecution)
believed Mannava, it would have acquitted him of
both offenses, and if it disbelieved him it would have
convicted him of both. True, the “vicarious sexual gratification”
law, unlike the “child solicitation” law, says
nothing about belief, which has led one Indiana court to
rule that if the victim is indeed not a child (as in the
present case), there is no violation. Indiana v. Kemp, 753
N.E.2d 47, 52 (Ind. App. 2001). (The statute was later
amended to reject that interpretation, see LaRose v. State,
820 N.E.2d 727, 731-32 (Ind. App. 2005), but Mannava
had been charged under the original version.) Recall,
however, that 18 U.S.C. § 2422(b), the federal statute
under which the defendant was charged, includes attempting
to violate a statute that the federal statute incorporates
by reference, such as Indiana’s vicarious
sexual gratification law.
Nevertheless it was an error to allow the jury to
convict without a unanimous determination that the
defendant had violated one or both of the Indiana
statutes, and the error should be corrected in any retrial.
Denying that there was an error, the government argues
that if half (or some other fraction) of the jurors had
agreed among themselves that Mannava had violated
just one of the Indiana statutes and the rest of the jurors
had agreed among themselves that he had violated just
the other statute, the conviction would be valid because
the offense of which he was convicted was the federal
offense of committing an offense or offenses chargeable
under state law, and the jury was unanimous that he
had committed that offense. This reasoning leads to the
absurd conclusion, which the government’s lawyer embraced
at argument while acknowledging its absurdity,
that the government could charge a defendant with
violating the federal statute by violating 12 state statutes
and that he could be properly convicted even though
with respect to each of the 12 state offenses 11 jurors
thought him innocent and only one thought him guilty. If
a further reductio ad absurdum is desired, imagine a
federal statute that made it a crime to commit a chargeable
offense on any federal property, and a prosecution in
which the government charged that the defendant had
committed 25 such offenses and the jury rendered a
general verdict of guilty.
These examples bring out the reasoning behind the
rule that the jury must, to convict, be unanimous with
respect to all the elements of the charged offense. Richardson
v. United States, 526 U.S. 813, 817 (1999). Without the
rule, the requirement of unanimity would be without
force in a case like this. The liability created by 18 U.S.C.
§ 2422(b) depends on the defendant’s having violated
another statute, and the elements of the offense under
that other statute must therefore be elements of the federal
offense in order to preserve the requirement of jury
unanimity. This is most easily seen in a case in which
only one other statute besides section 2422(b) is involved.
Suppose a defendant had been charged just with
vicarious sexual gratification. The jury would have to be
unanimous that he had committed that offense before
it could return a verdict of guilty of violating section
2422(b). If so, then in a case in which the defendant is
accused of having violated several statutes incorporated
by reference, the jury has to be unanimous with regard to
the violation of at least one of them. Richardson v. United
States, supra, 526 U.S. at 818-20; United States v. Carr,
424 F.3d 213, 224 (2d Cir. 2005).
The government relies on cases in which jurors disagree
over details of the defendant’s conduct. Suppose it were
uncertain whether the defendant had committed the
offense on January 1 or January 2, and some jurors thought
it was the first and others that it was the second. Since
nothing would turn on the disagreement, it would not
invalidate the verdict. United States v. Gibson, 530 F.3d
606, 611-12 (7th Cir. 2008); United States v. Jackson, 479
F.3d 485, 490-92 (7th Cir. 2007); United States v. Johnson, 495
F.3d 951, 974-75 (8th Cir. 2007). That is different from
disagreement over which offense the defendant committed.
But from what we said earlier it should be apparent that
Mannava’s further argument that because the “vicarious
sexual gratification” statute, unlike the “child solicitation”
statute, does not prohibit conduct by a person who mistakenly
believes that he is enticing a child, he cannot be
convicted. The argument ignores not only the federal
statute under which Mannava was convicted, 18 U.S.C.
§ 2422(b), which criminalizes an attempt to violate an
incorporated statute, but also Indiana’s general attempt
statute, Ind. Code § 35-41-5-1. Subsection (b) of that
statute states that “it is no defense that, because of a
misapprehension of the circumstances, it would have
been impossible for the accused person to commit the
crime attempted.”
Against this Mannava cites Aplin v. State, 889 N.E.2d 882,
884 (Ind. App. 2008), in which the charge was an “attempt
to perform or engage in deviate sexual conduct with
Dan Claasen, a person he believed to be” under 16. Claasen
was a detective impersonating a 15-year-old, and the
court ruled that “if proven, this did not constitute the
offense of attempted Sexual Misconduct with a Minor,
because Detective Claasen is an adult . . . . The State
alleged that Aplin attempted to engage in sexual
conduct with a specified adult, not that Aplin attempted
to engage in sexual misconduct with a child but it was
impossible to do so because of his misapprehension of
the circumstances. It is no defense that, because of misapprehension
of the circumstances, it would have been
impossible for the accused to commit the crime attempted.”
Id. at 884 and n. 4 (citing the Indiana general
attempt statute). Mannava’s belief that Gracie was an
adult (if he did believe that) would negate the offense,
because belief that one is dealing with a child is an element
of the offense. But whether one is actually dealing
with a child or an adult is irrelevant to attempt, given
that impossibility is not a defense to the attempt.
Mannava further argues that by stating that anyone who
in enticing, etc., a minor “can be charged with a criminal
offense,” section 2422(b) denies a defendant due process
of law by allowing him to be convicted on less than proof
beyond a reasonable doubt. Indeed, read literally, the
quoted language would make it a federal offense to
engage in conduct that created only probable cause to
think that one had committed a criminal offense, since
probable cause is all that is required to charge someone
with an offense. That would be a good example of an
interpretation that, though literally correct—though
dictated by “plain meaning”—was absurd, and therefore
erroneous. Burns v. United States, 501 U.S. 129, 137 (1991);
United States v. American Trucking Associations, 310 U.S. 534,
543 (1940); Armstrong Paint & Varnish Works v. Nu-Enamel
Corp., 305 U.S. 315, 332-33 (1938); Green v. Bock Laundry
Machinery Co., 490 U.S. 504, 527-28 (1989) (Scalia, J., concurring);
Sompo Japan Ins. Inc. v. Nippon Cargo Airlines Co., Ltd.,
522 F.3d 776, 787 (7th Cir. 2008); United States v. Vallery, 437
F.3d 626, 630 (7th Cir. 2006). Literal interpretations that
produce absurd results are not only unacceptable grounds
for legal rulings that affect rights and interests; they
misunderstand “interpretation.” Language is a reliable
means of communication only because (and when) speaker
and listener or reader share implicit contextual understandings
rich enough to bridge the inevitable gaps in
explicit communicating that economize on communication.
If you order a cup of coffee in a restaurant, the waiter
does not bring you a cup full of coffee beans, or a cup
containing only two drops of (liquid) coffee. One doesn’t
need an “anti-absurdity canon of construction” to disambiguate
your order, or to understand the sense in which
18 U.S.C. § 2422(b) uses “charged with a criminal offense.”
The judge did not commit the fallacy of acontextual
interpretation. He told the jury that it had to find that the
defendant had violated a state statute and that the government
had to prove a violation beyond a reasonable
doubt. The judge could have been clearer, however, and
in instructing the jury on retrial he should tell it that
although the statute uses the term “can be charged with
a criminal offense,” the meaning is (with a qualification
about to be noted) “committed a criminal offense.”
This is not to say that a defendant must always violate
the underlying state statute in order to be convicted under
section 2422(b). If state law criminalizes only the completed
sexual act, section 2422(b) would still impose
liability for attempting to induce or persuade a minor to
engage in the act, because an attempt “to engage in . . . any
sexual activity for which any person can be charged with
a criminal offense” is explicitly criminalized by that
section. But that is not an issue here, because the state
law offenses are offenses of solicitation and hence
do not require a completed sexual act.
REVERSED AND REMANDED.
Chicago Criminal Lawyer - Robert J Callahan
by a jury of violating 18 U.S.C. § 2422(b), which makes it
a crime to persuade, induce, entice, or coerce a minor
“to engage in prostitution or any sexual activity for
which any person can be charged with a criminal offense,
or [to attempt] to do so.” The judge sentenced Mannava
to 10 years in prison.
A detective posing as a 13-year-old girl named “Gracie”
had engaged in email conversations with Mannava
during which Mannava had sought to persuade “her” to
have sex with him (also to fondle herself in a sexual
manner) and they had arranged to meet at an ice cream
parlor. The indictment charged him with having engaged
in sexual activity chargeable as criminal offenses under
Indiana law. In response to his motion for a bill of particulars,
the government identified two Indiana statutes.
One, the “vicarious sexual gratification” law, makes it a
felony for an adult knowingly to induce a child under 16
“to touch or fondle” herself “with intent to arouse or
satisfy” the child or the adult. Ind. Code § 35-42-4-5(a). The
other, the “child solicitation” law, forbids an adult knowingly
to solicit a child who is, or who the adult believes is,
under 14 to engage in sexual activity. Ind. Code § 35-42-4-
6(b). The jury rendered a general verdict; it was not
asked to specify the Indiana offense that the defendant
had committed.
Mannava challenges his conviction on four grounds.
Only one requires reversal. But since the case must go
back to the district court for further proceedings, we
shall address the others as well.
The ground that requires reversal is the prosecutor’s
incessant harping at the trial on the theme that Mannava
had been intending to “rape” a 13-year-old. Mannava
testified, with some support in the text of the email conversations
with the detective, that he thought “Gracie” was
an adult pretending to be a young girl. It was not a ridiculous
defense. “Gracie” was an adult pretending to be a
child, and maybe the pretense was discernible. The prosecutor
may have feared that the jury would be persuaded.
Sex with a minor is commonly referred to as statutory
rape; but the term in the Indiana statute book is “child
molestation,” Ind. Code § 35-42-4-3; and saying that
someone intends to rape a person implies that he intends
to use force, and there is no evidence of that in this case.
The government concedes, moreover, that under Indiana
law, youth is not one of the “mental deficien[cies]” that
precludes meaningful consent to sexual intercourse
under Ind. Code 35-42-4-1(a). Douglas v. State, 484 N.E.2d
610, 612-13 (Ind. App. 1985); Smith v. State, 497 N.E.2d 601,
606-07 (Ind. App. 1986); Warrick v. State, 538 N.E.2d 952,
954-55 (Ind. App. 1989). By repeatedly accusing
Mannava of intending rape, the prosecutor was undoubtedly
trying to inflame the jury. The case was sufficiently
close to make the trial judge’s permitting such improper
advocacy a reversible error.
Mannava further argues that the jury should have
been required to specify which of the Indiana offenses
it thought he had committed. The argument was not
made in the district court, so our review is for plain
error. An error is plain if it is clearly an error and could
with some nontrivial probability have changed the outcome
of the case. United States v. Olano, 507 U.S. 725, 732-35
(1993); United States v. White, 903 F.2d 457, 466-67 (7th Cir.
1990); United States v. Newman, 965 F.2d 206, 213 (7th Cir.
1992) (citations omitted) (“a plain error is not only a
clear error but an error likely to have made a difference
in the judgment, so that failure to correct it could result
in a miscarriage of justice, that is, in the conviction of an
innocent person or the imposition of an erroneous sentence”).
The second criterion is not satisfied. Had the
jury (unswayed by improper advocacy by the prosecution)
believed Mannava, it would have acquitted him of
both offenses, and if it disbelieved him it would have
convicted him of both. True, the “vicarious sexual gratification”
law, unlike the “child solicitation” law, says
nothing about belief, which has led one Indiana court to
rule that if the victim is indeed not a child (as in the
present case), there is no violation. Indiana v. Kemp, 753
N.E.2d 47, 52 (Ind. App. 2001). (The statute was later
amended to reject that interpretation, see LaRose v. State,
820 N.E.2d 727, 731-32 (Ind. App. 2005), but Mannava
had been charged under the original version.) Recall,
however, that 18 U.S.C. § 2422(b), the federal statute
under which the defendant was charged, includes attempting
to violate a statute that the federal statute incorporates
by reference, such as Indiana’s vicarious
sexual gratification law.
Nevertheless it was an error to allow the jury to
convict without a unanimous determination that the
defendant had violated one or both of the Indiana
statutes, and the error should be corrected in any retrial.
Denying that there was an error, the government argues
that if half (or some other fraction) of the jurors had
agreed among themselves that Mannava had violated
just one of the Indiana statutes and the rest of the jurors
had agreed among themselves that he had violated just
the other statute, the conviction would be valid because
the offense of which he was convicted was the federal
offense of committing an offense or offenses chargeable
under state law, and the jury was unanimous that he
had committed that offense. This reasoning leads to the
absurd conclusion, which the government’s lawyer embraced
at argument while acknowledging its absurdity,
that the government could charge a defendant with
violating the federal statute by violating 12 state statutes
and that he could be properly convicted even though
with respect to each of the 12 state offenses 11 jurors
thought him innocent and only one thought him guilty. If
a further reductio ad absurdum is desired, imagine a
federal statute that made it a crime to commit a chargeable
offense on any federal property, and a prosecution in
which the government charged that the defendant had
committed 25 such offenses and the jury rendered a
general verdict of guilty.
These examples bring out the reasoning behind the
rule that the jury must, to convict, be unanimous with
respect to all the elements of the charged offense. Richardson
v. United States, 526 U.S. 813, 817 (1999). Without the
rule, the requirement of unanimity would be without
force in a case like this. The liability created by 18 U.S.C.
§ 2422(b) depends on the defendant’s having violated
another statute, and the elements of the offense under
that other statute must therefore be elements of the federal
offense in order to preserve the requirement of jury
unanimity. This is most easily seen in a case in which
only one other statute besides section 2422(b) is involved.
Suppose a defendant had been charged just with
vicarious sexual gratification. The jury would have to be
unanimous that he had committed that offense before
it could return a verdict of guilty of violating section
2422(b). If so, then in a case in which the defendant is
accused of having violated several statutes incorporated
by reference, the jury has to be unanimous with regard to
the violation of at least one of them. Richardson v. United
States, supra, 526 U.S. at 818-20; United States v. Carr,
424 F.3d 213, 224 (2d Cir. 2005).
The government relies on cases in which jurors disagree
over details of the defendant’s conduct. Suppose it were
uncertain whether the defendant had committed the
offense on January 1 or January 2, and some jurors thought
it was the first and others that it was the second. Since
nothing would turn on the disagreement, it would not
invalidate the verdict. United States v. Gibson, 530 F.3d
606, 611-12 (7th Cir. 2008); United States v. Jackson, 479
F.3d 485, 490-92 (7th Cir. 2007); United States v. Johnson, 495
F.3d 951, 974-75 (8th Cir. 2007). That is different from
disagreement over which offense the defendant committed.
But from what we said earlier it should be apparent that
Mannava’s further argument that because the “vicarious
sexual gratification” statute, unlike the “child solicitation”
statute, does not prohibit conduct by a person who mistakenly
believes that he is enticing a child, he cannot be
convicted. The argument ignores not only the federal
statute under which Mannava was convicted, 18 U.S.C.
§ 2422(b), which criminalizes an attempt to violate an
incorporated statute, but also Indiana’s general attempt
statute, Ind. Code § 35-41-5-1. Subsection (b) of that
statute states that “it is no defense that, because of a
misapprehension of the circumstances, it would have
been impossible for the accused person to commit the
crime attempted.”
Against this Mannava cites Aplin v. State, 889 N.E.2d 882,
884 (Ind. App. 2008), in which the charge was an “attempt
to perform or engage in deviate sexual conduct with
Dan Claasen, a person he believed to be” under 16. Claasen
was a detective impersonating a 15-year-old, and the
court ruled that “if proven, this did not constitute the
offense of attempted Sexual Misconduct with a Minor,
because Detective Claasen is an adult . . . . The State
alleged that Aplin attempted to engage in sexual
conduct with a specified adult, not that Aplin attempted
to engage in sexual misconduct with a child but it was
impossible to do so because of his misapprehension of
the circumstances. It is no defense that, because of misapprehension
of the circumstances, it would have been
impossible for the accused to commit the crime attempted.”
Id. at 884 and n. 4 (citing the Indiana general
attempt statute). Mannava’s belief that Gracie was an
adult (if he did believe that) would negate the offense,
because belief that one is dealing with a child is an element
of the offense. But whether one is actually dealing
with a child or an adult is irrelevant to attempt, given
that impossibility is not a defense to the attempt.
Mannava further argues that by stating that anyone who
in enticing, etc., a minor “can be charged with a criminal
offense,” section 2422(b) denies a defendant due process
of law by allowing him to be convicted on less than proof
beyond a reasonable doubt. Indeed, read literally, the
quoted language would make it a federal offense to
engage in conduct that created only probable cause to
think that one had committed a criminal offense, since
probable cause is all that is required to charge someone
with an offense. That would be a good example of an
interpretation that, though literally correct—though
dictated by “plain meaning”—was absurd, and therefore
erroneous. Burns v. United States, 501 U.S. 129, 137 (1991);
United States v. American Trucking Associations, 310 U.S. 534,
543 (1940); Armstrong Paint & Varnish Works v. Nu-Enamel
Corp., 305 U.S. 315, 332-33 (1938); Green v. Bock Laundry
Machinery Co., 490 U.S. 504, 527-28 (1989) (Scalia, J., concurring);
Sompo Japan Ins. Inc. v. Nippon Cargo Airlines Co., Ltd.,
522 F.3d 776, 787 (7th Cir. 2008); United States v. Vallery, 437
F.3d 626, 630 (7th Cir. 2006). Literal interpretations that
produce absurd results are not only unacceptable grounds
for legal rulings that affect rights and interests; they
misunderstand “interpretation.” Language is a reliable
means of communication only because (and when) speaker
and listener or reader share implicit contextual understandings
rich enough to bridge the inevitable gaps in
explicit communicating that economize on communication.
If you order a cup of coffee in a restaurant, the waiter
does not bring you a cup full of coffee beans, or a cup
containing only two drops of (liquid) coffee. One doesn’t
need an “anti-absurdity canon of construction” to disambiguate
your order, or to understand the sense in which
18 U.S.C. § 2422(b) uses “charged with a criminal offense.”
The judge did not commit the fallacy of acontextual
interpretation. He told the jury that it had to find that the
defendant had violated a state statute and that the government
had to prove a violation beyond a reasonable
doubt. The judge could have been clearer, however, and
in instructing the jury on retrial he should tell it that
although the statute uses the term “can be charged with
a criminal offense,” the meaning is (with a qualification
about to be noted) “committed a criminal offense.”
This is not to say that a defendant must always violate
the underlying state statute in order to be convicted under
section 2422(b). If state law criminalizes only the completed
sexual act, section 2422(b) would still impose
liability for attempting to induce or persuade a minor to
engage in the act, because an attempt “to engage in . . . any
sexual activity for which any person can be charged with
a criminal offense” is explicitly criminalized by that
section. But that is not an issue here, because the state
law offenses are offenses of solicitation and hence
do not require a completed sexual act.
REVERSED AND REMANDED.
Chicago Criminal Lawyer - Robert J Callahan
U.S. vs. Jose J. Loera, Jr.
Jose Loera, Jr. was riding as a
passenger in an SUV when Indiana state police pulled it
over for a pair of traffic violations. This case, of course,
isn’t here because of traffic violations: the rig was packed
with cocaine, and the stop was just an excuse to make
a drug bust. Despite the precedent authorizing this
tactic, Whren v. United States, 517 U.S. 806 (1996), Loera
contends that the district court should have suppressed
the drug evidence. He also asks us to overturn his conviction
for want of a speedy trial and, in the alternative, to
vacate his sentence for what he claims is a violation of
the rule announced in Apprendi v. New Jersey, 530 U.S.
466 (2000).
A road trip from Atlanta, Georgia, to Valparaiso, Indiana,
requires driving some 685 miles. That’s not too bad if
you have some company and a good radio. But it’s downright
frightening if your “company” includes 21 kilos of
cocaine. That’s the position in which Loera found himself
when he sat down in the passenger seat of a Ford Explorer
on the night of December 13, 2004. The driver, a woman
named Angela Bennett, no doubt shared Loera’s fears.
But money is a pretty good anti-anxiety medication, so,
with the promise of a big payday upon delivery, they
hit the road.
Everything looked good for a while, but unbeknownst
to Bennett and Loera, the DEA had the case scooped.
With an undercover agent posing as the ultimate buyer
and an informant in on the planning, the DEA knew just
about everything, including the identity of the vehicle.
For whatever reason, though, the DEA wasn’t in a position
to intercept the rig on its own—which is where the
Indiana State Police came in. A DEA agent phoned Trooper
Jason Carmin on December 13 asking him if he could be
in the Lafayette area the next day for a “possible vehicle
stop.” The agent didn’t tell Carmin why he wanted the car
stopped—though a call from the DEA usually means
drugs—but he described the vehicle and its driver, and
Carmin agreed to be on the lookout.
Carmin spotted the Explorer the next morning on I-65.
Another officer, Trooper Mark Bloom, was patrolling the
area with Carmin but had gone down the road a short
distance in his cruiser to stop a speeding car. As Bloom
was stopping the other vehicle, Carmin saw the Explorer
swerve into an exit lane and then quickly swerve back
into the main flow of traffic, all without using a turn
signal. Carmin immediately gave chase, but as the
Explorer passed by Bloom’s patrol car (now stopped on
the shoulder of the road) it failed to yield to Bloom’s
vehicle by switching to the left lane—traffic violation
number two. Carmin flipped on his lights, and the
Explorer came to heel.
The first thing Carmin noticed when he approached
the Explorer was Bennett’s extreme nervousness. Her
hands were shaking so badly that Carmin wondered
whether she would even be able to retrieve her license
from her wallet. Carmin asked Bennett to step out of the
vehicle, and she complied. Alone with Bennett behind the
Explorer, Carmin explained why he pulled her over and
asked where she was driving. Bennett—still visibly nervous—
stated that she was driving back to Chicago from
Atlanta with her boyfriend (Loera). She said they drove
together to Atlanta to visit Loera’s sick father for a
couple of days. When Carmin left Bennett to question
Loera, however, he received a different story. Loera said
he was in Atlanta by himself for two weeks—not two
days—and that Bennett drove alone from Chicago to
pick him up. Though Carmin detected the inconsistencies,
he didn’t press Loera. Instead, he returned to Bennett,
told her she could wait in the Explorer, and walked back
to his cruiser. Given the totality of the circumstances—
including the DEA call—Carmin radioed
Bloom and asked him to bring along his drug dog. In
the meantime, Carmin walked back to the Explorer
and handed Bennett a written warning for the minor
traffic violations. But if Bennett and Loera thought
they were off the hook, they were mistaken.
After taking three steps towards his cruiser, Carmin
turned on his heels, freezing Bennett in position as she
was reaching to put the truck in gear. Playing Columbo
to perfection, Carmin had “just one more thing.” Nothing
major, only a small matter of drugs—were they carrying
any? Bennett responded that they were not and agreed
to a search of the vehicle. That was the nail in the coffin.
Bloom showed up with his drug dog, which alerted to
Some of the packages had 2 stickers warning “No Fumar,”
Spanish for “No Smoking.” That’s curious—powder cocaine is
normally snorted, not smoked—but perhaps this was some
kind of marketing strategy. Cocaine peddlers often brand
their products with logos (authorities have seen everything
from Nike “swooshes” to Teletubbies). If that’s what these
dealers had in mind, it gives no meaning to the expression
“mere puffery.”
the presence of cocaine in a hidden compartment built
into the floor of the rear cargo area. Carmin lifted the
trap door to reveal several packages, wrapped in black
duct tape, emanating an “overwhelmingly strong odor
of raw cocaine.” Loera and Bennett were immediately
placed in handcuffs.
If the arrest was swift, however, it was offset by the
delay leading up to trial. Nearly two-and-a-half years
passed from the date Loera was apprehended (December
14, 2004) to the date his trial began (April 23, 2007).
(We bid adieu to Bennett at this point. Though she was
tried with Loera—and convicted—she has not appealed.)
There was little holdup in the beginning: Loera was
indicted in early May 2005, and the court scheduled trial
for September. Then the continuances—granted at the
request of both parties—started piling up. Coupled with
a slew of pretrial motions, the trial date was gradually
pushed further and further into the distance. Finally, on
December 4, 2006, the court dismissed the indictment
for a violation of the Speedy Trial Act, finding that it
had improperly excluded a five-month delay from the
calculation under 18 U.S.C. § 3161. But the dismissal was
without prejudice (over Loera’s objection), so a fresh
indictment was handed up on February 7, 2007. Things
went much quicker this time. The trial started just twoand-
a-half months later, well within the period set forth
in the Speedy Trial Act, 18 U.S.C. § 3161(c)(1). Still,
Loera says the overall delay was excessive.
Before trial, the parties clashed over the admissibility
of the drug evidence. Then, as now, Loera maintained that
the evidence should be suppressed for violation of the
Fourth Amendment. The court rejected this argument,
concluding that there was probable cause to effect the
stop; the officers’ subjective motivations were
irrelevant; the questioning unrelated to the traffic violations
did not unreasonably prolong the stop; and Bennett’s
consent to the search was valid (albeit unnecessary since
a dog sniff is not a “search” within the meaning of the
Fourth Amendment, United States v. Place, 462 U.S. 696,
706-07 (1983), and the canine’s alert provided probable
cause to search the SUV thereafter). With the drug and
other evidence in place, the jury found Loera guilty as
charged—guilty of conspiring to distribute cocaine and
of possessing five kilograms or more of cocaine with
the intent to distribute it, all in violation of 21 U.S.C.
§ 841(a)(1).
At sentencing, the court found that Loera had been
convicted of a felony drug offense in Illinois state court
in 2002, mandating a 20-year minimum custodial sentence
under 21 U.S.C. § 841(b). Loera argued that the prior
conviction should not be counted because the surrounding
facts (including whether he was represented
by counsel) were not submitted to the jury and proven
beyond a reasonable doubt. The court overruled
Loera’s objection and sentenced him to the enhanced
mandatory minimum of 20 years.
Loera renews on appeal the arguments he made in the
district court: The evidence should have been suppressed;
the court should have dismissed the first indictment
with prejudice and, at any rate, the overall delay
ran afoul of his constitutional right to a speedy trial; and
finally the court erred in enhancing his sentence for a
prior felony drug offense. We take these issues in order.
With its decision in Whren, the Supreme Court
“foreclose[d] any argument that the constitutional reasonableness
of traffic stops depends on the actual motivations
of the individual officers involved.” 517 U.S. at 813;
see also United States v. Stribling, 94 F.3d 321, 323 (7th Cir.
1996). Nevertheless, Loera tries to distinguish Whren on
the grounds that in this case, unlike Whren, there was no
need for a pretext. Armed with the information it had
from its undercover agent and informant, the DEA could
have detained the vehicle itself. There was no need to
involve the state police who, lacking the DEA’s information,
first had to witness a traffic violation to effect the
stop. This supposed distinction is not only tortured, it
bears no meaning. If it is permissible to stop a vehicle for
a traffic violation where the ulterior motive of looking
for drugs is prompted by the occupants’ youth and presence
in a “high drug area,” Whren, 517 U.S. at 808, certainly
it is permissible to do so when the impetus is a request
from a DEA agent of all people. For all intents and purposes,
Loera asks us to ignore Whren, not because it isn’t
on point, but because he disagrees with it. As well he
should; Whren dooms his argument, and we cannot
pretend otherwise. There was no violation of the
Fourth Amendment.3
Which brings us to the second issue—pretrial delay.
Here, Loera presents two related arguments: one
under the Speedy Trial Act and the other under the
Sixth Amendment. In both cases, we review legal conclusions
de novo and factual findings for clear error.
United States v. Arceo, 535 F.3d 679, 684 (7th Cir. 2008);
United States v. King, 338 F.3d 794, 797 (7th Cir. 2003).
Loera first claims that the district court didn’t go far
enough in its dismissal of the original indictment under
the Speedy Trial Act. The court was in the right to
throw out the charges, yes, but it should have done so
with prejudice. However, when a violation of the Speedy
Trial Act has occurred—and neither party in this case
asks us to revisit the court’s finding on this score—the
district court has discretion to determine whether to
dismiss the indictment with or without prejudice. United
States v. Killingsworth, 507 F.3d 1087, 1090 (7th Cir. 2007);
United States v. Fountain, 840 F.2d 509, 512 (7th Cir. 1988).
In making this election, the court must consider “the
seriousness of the offense; the facts and circumstances
of the case which led to the dismissal; and the impact of
a reprosecution on the administration of this chapter
and on the administration of justice.” 18 U.S.C. § 3162(a)(2).
Loera concedes that the offense here was serious,
weighing in favor of dismissal without prejudice, but
he says the court failed to assess properly the parties’
relative fault and the burden dismissal would cause
him. We disagree. The district court accurately noted
that both parties requested continuances; Loera suffered
no significant prejudice; and there was nothing to
indicate bad faith on the part of the government. As
we explained in Killingsworth, 507 F.3d at 1091 (citing
United States v. Taylor, 487 U.S. 326, 342 (1988)), dismissal
without prejudice is appropriate in these circumstances.
It is a response commensurate with the magnitude of
the violation and facts of the case.
The analysis is somewhat different under the Sixth
Amendment. See United States v. White, 443 F.3d 582, 588
(7th Cir. 2006) (explaining that the constitutional and
statutory speedy trial rights “are related but distinct, so
that a violation of one may be found without a violation
of the other”). The constitutional right to a speedy trial
is “triggered by an arrest, indictment, or some other
official accusation.” Arceo, 535 F.3d at 684. Once the
right is triggered, a claimed violation is assessed by
considering “whether delay before trial was uncommonly
long, whether the government or the criminal
defendant is more to blame for that delay, whether, in
due course, the defendant asserted his right to a speedy
trial, and whether he suffered prejudice as the delay’s
result.” Doggett v. United States, 505 U.S. 647, 651 (1992).
The first factor—the length of the delay—is not so much
a factor as it is a threshold requirement: “without a
delay that is presumptively prejudicial, we need not
examine the other factors.” White, 443 F.3d at 589. Delay
approaching one year is presumptively prejudicial. Id.
For Loera, this first hurdle is insurmountable. He
admits that the delay between the second indictment
and trial—a mere two-and-a-half months—falls far short.
Yet, he says we should also consider the delay
associated with the first indictment. We cannot do that.
“The Speedy Trial Clause applies only to an accused,”
United States v. Samples, 713 F.2d 298, 301 (7th Cir. 1983), so
when the first indictment was dismissed, Loera was
“legally and constitutionally in the same posture as
though no charges had been made,” United States v.
MacDonald, 456 U.S. 1, 10 (1982). The delay following the
second indictment must be measured independently, and
from that perspective it fails. And to the extent Loera
would have us find a constitutional violation on the
delay after the first indictment alone, the time to make
that argument was then, not now. As the district court
noted, even though Loera mentioned the Sixth Amend
ment in his motion to dismiss, his argument revolved
entirely around the Speedy Trial Act. In his eight-page
supporting memorandum, Loera never uttered a word
about the Constitution. By failing to develop the constitutional
issue in the context of the earlier case, Loera
waived it. United States v. Kumpf, 438 F.3d 785, 791 (7th
Cir. 2006).
Loera’s final argument—that his rights under Apprendi
were violated because the fact of his prior conviction was
not presented to the jury and proved beyond a reasonable
doubt—is a nonstarter. Because we are powerless to
overrule Almendarez-Torres v. United States, 523 U.S. 224
(1998), a decision left intact by Apprendi, we must reject
Loera’s argument on this point.
The judgment of the district court is AFFIRMED.
Chicago Criminal Lawyer - Robert J Callahan
passenger in an SUV when Indiana state police pulled it
over for a pair of traffic violations. This case, of course,
isn’t here because of traffic violations: the rig was packed
with cocaine, and the stop was just an excuse to make
a drug bust. Despite the precedent authorizing this
tactic, Whren v. United States, 517 U.S. 806 (1996), Loera
contends that the district court should have suppressed
the drug evidence. He also asks us to overturn his conviction
for want of a speedy trial and, in the alternative, to
vacate his sentence for what he claims is a violation of
the rule announced in Apprendi v. New Jersey, 530 U.S.
466 (2000).
A road trip from Atlanta, Georgia, to Valparaiso, Indiana,
requires driving some 685 miles. That’s not too bad if
you have some company and a good radio. But it’s downright
frightening if your “company” includes 21 kilos of
cocaine. That’s the position in which Loera found himself
when he sat down in the passenger seat of a Ford Explorer
on the night of December 13, 2004. The driver, a woman
named Angela Bennett, no doubt shared Loera’s fears.
But money is a pretty good anti-anxiety medication, so,
with the promise of a big payday upon delivery, they
hit the road.
Everything looked good for a while, but unbeknownst
to Bennett and Loera, the DEA had the case scooped.
With an undercover agent posing as the ultimate buyer
and an informant in on the planning, the DEA knew just
about everything, including the identity of the vehicle.
For whatever reason, though, the DEA wasn’t in a position
to intercept the rig on its own—which is where the
Indiana State Police came in. A DEA agent phoned Trooper
Jason Carmin on December 13 asking him if he could be
in the Lafayette area the next day for a “possible vehicle
stop.” The agent didn’t tell Carmin why he wanted the car
stopped—though a call from the DEA usually means
drugs—but he described the vehicle and its driver, and
Carmin agreed to be on the lookout.
Carmin spotted the Explorer the next morning on I-65.
Another officer, Trooper Mark Bloom, was patrolling the
area with Carmin but had gone down the road a short
distance in his cruiser to stop a speeding car. As Bloom
was stopping the other vehicle, Carmin saw the Explorer
swerve into an exit lane and then quickly swerve back
into the main flow of traffic, all without using a turn
signal. Carmin immediately gave chase, but as the
Explorer passed by Bloom’s patrol car (now stopped on
the shoulder of the road) it failed to yield to Bloom’s
vehicle by switching to the left lane—traffic violation
number two. Carmin flipped on his lights, and the
Explorer came to heel.
The first thing Carmin noticed when he approached
the Explorer was Bennett’s extreme nervousness. Her
hands were shaking so badly that Carmin wondered
whether she would even be able to retrieve her license
from her wallet. Carmin asked Bennett to step out of the
vehicle, and she complied. Alone with Bennett behind the
Explorer, Carmin explained why he pulled her over and
asked where she was driving. Bennett—still visibly nervous—
stated that she was driving back to Chicago from
Atlanta with her boyfriend (Loera). She said they drove
together to Atlanta to visit Loera’s sick father for a
couple of days. When Carmin left Bennett to question
Loera, however, he received a different story. Loera said
he was in Atlanta by himself for two weeks—not two
days—and that Bennett drove alone from Chicago to
pick him up. Though Carmin detected the inconsistencies,
he didn’t press Loera. Instead, he returned to Bennett,
told her she could wait in the Explorer, and walked back
to his cruiser. Given the totality of the circumstances—
including the DEA call—Carmin radioed
Bloom and asked him to bring along his drug dog. In
the meantime, Carmin walked back to the Explorer
and handed Bennett a written warning for the minor
traffic violations. But if Bennett and Loera thought
they were off the hook, they were mistaken.
After taking three steps towards his cruiser, Carmin
turned on his heels, freezing Bennett in position as she
was reaching to put the truck in gear. Playing Columbo
to perfection, Carmin had “just one more thing.” Nothing
major, only a small matter of drugs—were they carrying
any? Bennett responded that they were not and agreed
to a search of the vehicle. That was the nail in the coffin.
Bloom showed up with his drug dog, which alerted to
Some of the packages had 2 stickers warning “No Fumar,”
Spanish for “No Smoking.” That’s curious—powder cocaine is
normally snorted, not smoked—but perhaps this was some
kind of marketing strategy. Cocaine peddlers often brand
their products with logos (authorities have seen everything
from Nike “swooshes” to Teletubbies). If that’s what these
dealers had in mind, it gives no meaning to the expression
“mere puffery.”
the presence of cocaine in a hidden compartment built
into the floor of the rear cargo area. Carmin lifted the
trap door to reveal several packages, wrapped in black
duct tape, emanating an “overwhelmingly strong odor
of raw cocaine.” Loera and Bennett were immediately
placed in handcuffs.
If the arrest was swift, however, it was offset by the
delay leading up to trial. Nearly two-and-a-half years
passed from the date Loera was apprehended (December
14, 2004) to the date his trial began (April 23, 2007).
(We bid adieu to Bennett at this point. Though she was
tried with Loera—and convicted—she has not appealed.)
There was little holdup in the beginning: Loera was
indicted in early May 2005, and the court scheduled trial
for September. Then the continuances—granted at the
request of both parties—started piling up. Coupled with
a slew of pretrial motions, the trial date was gradually
pushed further and further into the distance. Finally, on
December 4, 2006, the court dismissed the indictment
for a violation of the Speedy Trial Act, finding that it
had improperly excluded a five-month delay from the
calculation under 18 U.S.C. § 3161. But the dismissal was
without prejudice (over Loera’s objection), so a fresh
indictment was handed up on February 7, 2007. Things
went much quicker this time. The trial started just twoand-
a-half months later, well within the period set forth
in the Speedy Trial Act, 18 U.S.C. § 3161(c)(1). Still,
Loera says the overall delay was excessive.
Before trial, the parties clashed over the admissibility
of the drug evidence. Then, as now, Loera maintained that
the evidence should be suppressed for violation of the
Fourth Amendment. The court rejected this argument,
concluding that there was probable cause to effect the
stop; the officers’ subjective motivations were
irrelevant; the questioning unrelated to the traffic violations
did not unreasonably prolong the stop; and Bennett’s
consent to the search was valid (albeit unnecessary since
a dog sniff is not a “search” within the meaning of the
Fourth Amendment, United States v. Place, 462 U.S. 696,
706-07 (1983), and the canine’s alert provided probable
cause to search the SUV thereafter). With the drug and
other evidence in place, the jury found Loera guilty as
charged—guilty of conspiring to distribute cocaine and
of possessing five kilograms or more of cocaine with
the intent to distribute it, all in violation of 21 U.S.C.
§ 841(a)(1).
At sentencing, the court found that Loera had been
convicted of a felony drug offense in Illinois state court
in 2002, mandating a 20-year minimum custodial sentence
under 21 U.S.C. § 841(b). Loera argued that the prior
conviction should not be counted because the surrounding
facts (including whether he was represented
by counsel) were not submitted to the jury and proven
beyond a reasonable doubt. The court overruled
Loera’s objection and sentenced him to the enhanced
mandatory minimum of 20 years.
Loera renews on appeal the arguments he made in the
district court: The evidence should have been suppressed;
the court should have dismissed the first indictment
with prejudice and, at any rate, the overall delay
ran afoul of his constitutional right to a speedy trial; and
finally the court erred in enhancing his sentence for a
prior felony drug offense. We take these issues in order.
With its decision in Whren, the Supreme Court
“foreclose[d] any argument that the constitutional reasonableness
of traffic stops depends on the actual motivations
of the individual officers involved.” 517 U.S. at 813;
see also United States v. Stribling, 94 F.3d 321, 323 (7th Cir.
1996). Nevertheless, Loera tries to distinguish Whren on
the grounds that in this case, unlike Whren, there was no
need for a pretext. Armed with the information it had
from its undercover agent and informant, the DEA could
have detained the vehicle itself. There was no need to
involve the state police who, lacking the DEA’s information,
first had to witness a traffic violation to effect the
stop. This supposed distinction is not only tortured, it
bears no meaning. If it is permissible to stop a vehicle for
a traffic violation where the ulterior motive of looking
for drugs is prompted by the occupants’ youth and presence
in a “high drug area,” Whren, 517 U.S. at 808, certainly
it is permissible to do so when the impetus is a request
from a DEA agent of all people. For all intents and purposes,
Loera asks us to ignore Whren, not because it isn’t
on point, but because he disagrees with it. As well he
should; Whren dooms his argument, and we cannot
pretend otherwise. There was no violation of the
Fourth Amendment.3
Which brings us to the second issue—pretrial delay.
Here, Loera presents two related arguments: one
under the Speedy Trial Act and the other under the
Sixth Amendment. In both cases, we review legal conclusions
de novo and factual findings for clear error.
United States v. Arceo, 535 F.3d 679, 684 (7th Cir. 2008);
United States v. King, 338 F.3d 794, 797 (7th Cir. 2003).
Loera first claims that the district court didn’t go far
enough in its dismissal of the original indictment under
the Speedy Trial Act. The court was in the right to
throw out the charges, yes, but it should have done so
with prejudice. However, when a violation of the Speedy
Trial Act has occurred—and neither party in this case
asks us to revisit the court’s finding on this score—the
district court has discretion to determine whether to
dismiss the indictment with or without prejudice. United
States v. Killingsworth, 507 F.3d 1087, 1090 (7th Cir. 2007);
United States v. Fountain, 840 F.2d 509, 512 (7th Cir. 1988).
In making this election, the court must consider “the
seriousness of the offense; the facts and circumstances
of the case which led to the dismissal; and the impact of
a reprosecution on the administration of this chapter
and on the administration of justice.” 18 U.S.C. § 3162(a)(2).
Loera concedes that the offense here was serious,
weighing in favor of dismissal without prejudice, but
he says the court failed to assess properly the parties’
relative fault and the burden dismissal would cause
him. We disagree. The district court accurately noted
that both parties requested continuances; Loera suffered
no significant prejudice; and there was nothing to
indicate bad faith on the part of the government. As
we explained in Killingsworth, 507 F.3d at 1091 (citing
United States v. Taylor, 487 U.S. 326, 342 (1988)), dismissal
without prejudice is appropriate in these circumstances.
It is a response commensurate with the magnitude of
the violation and facts of the case.
The analysis is somewhat different under the Sixth
Amendment. See United States v. White, 443 F.3d 582, 588
(7th Cir. 2006) (explaining that the constitutional and
statutory speedy trial rights “are related but distinct, so
that a violation of one may be found without a violation
of the other”). The constitutional right to a speedy trial
is “triggered by an arrest, indictment, or some other
official accusation.” Arceo, 535 F.3d at 684. Once the
right is triggered, a claimed violation is assessed by
considering “whether delay before trial was uncommonly
long, whether the government or the criminal
defendant is more to blame for that delay, whether, in
due course, the defendant asserted his right to a speedy
trial, and whether he suffered prejudice as the delay’s
result.” Doggett v. United States, 505 U.S. 647, 651 (1992).
The first factor—the length of the delay—is not so much
a factor as it is a threshold requirement: “without a
delay that is presumptively prejudicial, we need not
examine the other factors.” White, 443 F.3d at 589. Delay
approaching one year is presumptively prejudicial. Id.
For Loera, this first hurdle is insurmountable. He
admits that the delay between the second indictment
and trial—a mere two-and-a-half months—falls far short.
Yet, he says we should also consider the delay
associated with the first indictment. We cannot do that.
“The Speedy Trial Clause applies only to an accused,”
United States v. Samples, 713 F.2d 298, 301 (7th Cir. 1983), so
when the first indictment was dismissed, Loera was
“legally and constitutionally in the same posture as
though no charges had been made,” United States v.
MacDonald, 456 U.S. 1, 10 (1982). The delay following the
second indictment must be measured independently, and
from that perspective it fails. And to the extent Loera
would have us find a constitutional violation on the
delay after the first indictment alone, the time to make
that argument was then, not now. As the district court
noted, even though Loera mentioned the Sixth Amend
ment in his motion to dismiss, his argument revolved
entirely around the Speedy Trial Act. In his eight-page
supporting memorandum, Loera never uttered a word
about the Constitution. By failing to develop the constitutional
issue in the context of the earlier case, Loera
waived it. United States v. Kumpf, 438 F.3d 785, 791 (7th
Cir. 2006).
Loera’s final argument—that his rights under Apprendi
were violated because the fact of his prior conviction was
not presented to the jury and proved beyond a reasonable
doubt—is a nonstarter. Because we are powerless to
overrule Almendarez-Torres v. United States, 523 U.S. 224
(1998), a decision left intact by Apprendi, we must reject
Loera’s argument on this point.
The judgment of the district court is AFFIRMED.
Chicago Criminal Lawyer - Robert J Callahan
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