Ray Longstreet, Michael Ervin,
and Anselmo Zepeda were among twenty-nine defendants
charged with a variety of federal offenses arising from
their participation in a large drug operation on the west
side of Chicago. The defendants ranged from suppliers
to gang leaders to low-level, street-corner drug dealers.
All twenty-nine defendants were indicted for, inter alia,
a conspiracy to possess and distribute controlled sub2
stances. Unfortunately, we see many cases involving
large drug conspiracies. It is disheartening to know that
when the legal system removes one drug conspirator
from the street, someone else will quickly fill the void.
But as long as the actions occur, we must deal with
the actors.
Of the three appellants, only Longstreet—the leader of
the west side faction of the Four Corner Hustlers—
proceeded to trial, where a jury found him guilty
of a number of charges. Ervin and Zepeda both pled
guilty. The district court sentenced Longstreet, Ervin, and
Zepeda to 456, 300, and 210 months in prison, respectively.
On appeal, Longstreet challenges his conviction, and all
three defendants present issues regarding their sentences.
I. BACKGROUND
This case involves a widespread drug operation on
Chicago’s troubled west side, and the twenty-nine codefendants
included individuals involved in all aspects of
the business. The primary player for purposes of this
appeal is Ray Longstreet, who was the alleged “chief” of
the west side faction of a street gang named the Four
Corner Hustlers. Longstreet oversaw a drug network that
trafficked in heroin, cocaine, crack, and marijuana.
Longstreet’s activities included coordinating the purchase,
mixture, and packaging of substances containing heroin
and crack; directing drug sales by lower-level gang members;
collecting “street rent” from dealers in exchange
for permission to sell drugs in his territory; and controlling
the types of drugs available and the street
corners on which the dealers sold them.
Michael Ervin was a mid-level gang operative who
allegedly served as Longstreet’s “enforcer” and also sold
heroin on Longstreet’s behalf. Unlike the other two appellants,
Anselmo Zepeda was involved on the conspiracy’s
supply side; he allegedly fronted other dealers large
quantities of drugs to be repackaged and resold on the
streets. The remaining details reflect an all-too-common
illegal drug operation, and we see no need to describe
them further except as they relate to the analysis below.
In 2004, the Chicago Police Department and the Drug
Enforcement Agency began investigating drug trafficking
in the area controlled by the Four Corner Hustlers. The
investigation included live and video surveillance of
Longstreet and his co-conspirators, undercover
purchases at one of Longstreet’s corners, and court-authorized
wiretaps relating to three telephone numbers. In
total, law enforcement recorded between 3,000 and 5,000
calls on one telephone belonging to Longstreet and two
telephones belonging to Anthony Sutton, a crack cocaine
dealer who operated in Longstreet’s territory. Many of
the calls revealed the mechanics of a modern-day drug
business. At Longstreet’s trial, the government played
over one hundred of these calls, many of which
involved Longstreet and nearly all of which related to
drug activity.
On September 14, 2005, a grand jury returned a sixtyseven-
count indictment, Count One of which charged
twenty-nine individuals with a single conspiracy to
possess with intent to distribute, and to distribute, controlled
substances in violation of 21 U.S.C. § 846. The
controlled substances included mixtures and substances
containing cocaine, heroin, marijuana, and cocaine base
in the form of crack. The three appellants were also
charged with a number of other offenses related to
their participation in the drug operation.
Longstreet proceeded to trial, and the government, in
addition to introducing the recorded telephone conversations,
called law enforcement officers and four
cooperating witnesses, each of whom testified about his
or her interactions with Longstreet. The key government
witness was Anthony Sutton, who testified extensively
about Longstreet’s various roles in the local drug
business, as well as Sutton’s own role as a drug dealer.
After a week-long trial, the jury convicted Longstreet
for his participation in the conspiracy and several
related offenses. On March 19, 2007, the district court
sentenced Longstreet to 456 months in federal prison on
the conspiracy charge.1
Ervin and Zepeda each pled guilty to the conspiracy
charge and two related offenses. On May 23, 2007, the
district court sentenced Ervin to 300 months in prison.
On August 9, the district court sentenced Zepeda to
210 months in prison.
II. ANALYSIS
We consolidated the defendants’ cases for appeal. Each
co-defendant raises separate issues, and we address
each of them in turn. We first consider Longstreet’s
challenges to both his conviction and his sentence. We
next address the sole issue that Ervin presents, which
Longstreet raises as well: whether a limited remand is
appropriate for the district court to consider the
disparity created by the Sentencing Guidelines’
crack/powder cocaine ratio. Last, we address Zepeda’s
challenges to his sentence.
A. Longstreet’s Challenges to His Conviction and Sentence
Longstreet challenges both his conviction and his sentence,
and he raises four issues: (1) whether the government
produced sufficient evidence to prove that he was
part of the charged conspiracy; (2) whether the district
court properly instructed the jury regarding multiple
conspiracies; (3) whether the district court properly
precluded him from calling Andre Kincaid to testify
about drug purchases from a co-conspirator; and
(4) whether the court properly sentenced him to 456
months in prison.
1. Fatal Variance/Sufficiency of the Evidence
Longstreet first claims that there was a prejudicial
variance between the conspiracy charged and the evidence
produced at trial. According to him, the proof demonstrated,
at best, a number of smaller conspiracies, rather
than one unified conspiracy including him and Anthony
Sutton. Although Longstreet makes a belated effort to
separate himself from the activities of other co-conspirators,
particularly Sutton, we find his argument unavailing.
A variance arises when the facts proved at trial differ
from those alleged in the indictment. United States v.
Griffin, 493 F.3d 856, 862 (7th Cir. 2007). In a conspiracy
case, we treat a defendant’s variance claim as a challenge
to the sufficiency of the evidence supporting the jury’s
finding that the defendant was a member of the charged
conspiracy. Id. To succeed, Longstreet must establish
that (1) the evidence at trial was insufficient to support
the jury’s finding that he belonged to a single conspiracy,
and (2) he was prejudiced by the variance. United States
v. Jones, 275 F.3d 648, 651 (7th Cir. 2001). We view the
evidence in the light most favorable to the government
and will overturn a conviction only if the record contains
no evidence from which a reasonable juror could have
found the defendant guilty. United States v. Rollins, 544
F.3d 820, 835 (7th Cir. 2008). The defendant’s “heavy”
burden when challenging a conviction for insufficiency
of the evidence is “nearly insurmountable.” United States
v. Moses, 513 F.3d 727, 733 (7th Cir. 2008) (quotations
omitted); see also United States v. Melendez, 401 F.3d 851,
854 (7th Cir. 2005) (“Sufficiency of the evidence challenges
rarely succeed because we owe great deference to
the jury’s verdict.”)
Therefore, we must determine whether the record
contains sufficient evidence for a reasonable juror to have
found Longstreet guilty of the conspiracy in Count One
of the indictment. A conspiracy exists when two or more
people agree to commit an unlawful act, and the
defendant knowingly and intentionally joins that agreement.
Rollins, 544 F.3d at 835. A conspiracy under
21 U.S.C. § 846 requires “ ‘substantial evidence that the
defendant knew of the illegal objective of the conspiracy
and agreed to participate.’ ” Id. (quoting United States
v. Thornton, 197 F.3d 241, 254 (7th Cir. 1999)).
In proving a conspiracy, the government need not
establish with whom the defendant conspired; it must
simply prove “ ‘that the defendant joined the agreement
alleged, not the group.’ ” Griffin, 493 F.3d at 862 (quoting
United States v. Stigler, 413 F.3d 588, 592 (7th Cir. 2005)). “So
long as the evidence demonstrates that the co-conspirators
embraced a common criminal objective, a single conspiracy
exists, even if the parties do not know one or
another and do not participate in every aspect of the
scheme.” Jones, 275 F.3d at 652. For a drug conspiracy,
“[a]ll that is necessary is ‘enough circumstantial evidence
to support, beyond reasonable doubt, an inference that
the defendants agreed among themselves to distribute
drugs.’ ” United States v. Pagan, 196 F.3d 884, 889 (7th Cir.
1999) (quoting United States v. Townsend, 924 F.2d 1385,
1390 (7th Cir. 1991)).
In this case, the government introduced ample evidence
from which a reasonable juror could have found that
Longstreet knowingly agreed with others to distribute
illegal drugs. As long as such evidence was before the
jury, its verdict must stand; it is the jury’s role to determine
the credibility of the witnesses and weigh the evidence.
Rollins, 544 F.3d at 835; see also Pagan, 196 F.3d at
889. It is unnecessary to recount all of the facts of this
case; we will merely note a few pieces of evidence that
adequately support the jury’s verdict. The government
presented evidence that Longstreet controlled drug
trafficking in a particular area, operated his own drug
business by hiring employees to package and sell heroin,
and collected rent from dealers in exchange for the right
to sell drugs on street corners that he controlled. The jury
not only saw witnesses testify to these facts, but it
also heard multiple wiretapped phone conversations
between Longstreet and co-conspirators discussing drugs,
guns, and territory. This evidence supports the conspiracy
conviction.
First, evidence demonstrated that Longstreet operated
his own heroin business, which Longstreet does not
appear to contest on appeal. Several witnesses testified
that Longstreet purchased large quantities of heroin
from multiple suppliers, who often fronted him the
drugs expecting to be repaid from the proceeds of their
sale. Cf. United States v. Bustamante, 493 F.3d 879, 884-85
(7th Cir. 2007) (noting that factors indicating a drug
conspiracy include transactions involving large quantities
of drugs and sales on credit). Various co-conspirators
explained that Longstreet employed them to assist in
mixing and repackaging the drugs, to sell heroin at his
drug spots on the streets, to collect the proceeds, and, if
necessary, to act as his “enforcers.” This evidence
indicates that Longstreet was neither an individual,
disinterested drug distributor, nor engaged in a single
drug transaction. Cf. id. at 884 (“[B]uying and selling
drugs, without more, does not constitute a conspiracy.”).
Second, there was plentiful evidence indicating a criminal
agreement between Longstreet and Anthony Sutton.
Sutton testified that Longstreet was the chief of the Four
Corner Hustlers and that he controlled the territory
bordered by Pulaski Avenue, Chicago Avenue, Hamlin
Avenue, and Division Street. Sutton explained that
Longstreet was in a position of power over him and other
dealers, that Longstreet enlisted employees to handle
problems with the dealers, and that Longstreet required
the dealers—including Sutton—to pay rent for the right
to sell drugs in his territory. Sutton’s drug spot was
located in front of Longstreet’s home, and Sutton stopped
paying rent only when “Ray Longstreet told him he
didn’t have to anymore.” During cross-examination,
Sutton testified that when he first reopened this spot in
2002, three of Longstreet’s employees separately demanded
rent, using Longstreet’s name expressly. The record is
littered with evidence—including multiple recorded
telephone calls between Longstreet and Sutton—reflecting,
at least, an agreement between Longstreet and Sutton
to coordinate their own drug sales, and, at most,
Longstreet’s efforts to control the drug sales of many
dealers in the area.
Sutton also contradicted one of the theories that
Longstreet propounded in an effort to undermine a
single conspiracy. Longstreet argued that the two men
competed with one another for heroin sales, which he
claims indicated that they were operating two separate
conspiracies. According to Sutton, however, he and
Longstreet agreed that Sutton would sell crack cocaine,
while Longstreet would sell heroin. Sutton stated a
number of times, including during cross-examination, that
he did not sell heroin. Longstreet attempted to introduce
evidence to the contrary, which we address below, but
even if we assume that Sutton competed with Longstreet
by selling heroin on occasion, the other evidence still
suggests that they joined in a single agreement to
possess and distribute illegal drugs. See United States v.
Maholias, 985 F.2d 869, 876 (7th Cir. 1993) (“Conspirators
who distribute drugs often sell in parallel strands rather
than in links essential to one another.”).
Longstreet goes to great lengths to separate himself
from Sutton, explaining how he lacked control over
Sutton; that Sutton sold his own drugs and withheld
from him information and profits; that Longstreet was
in prison or on house arrest during some relevant time
periods; and that Longstreet “was not a drug kingpin”
overseeing a large drug dealing operation. But none of
these affect the quintessential elements of a conspiracy.
These arguments, which perhaps suggest that Longstreet
was not omnipotent or overly successful at his business,
do not change the fact that there was evidence to support
a reasonable juror’s finding that Longstreet agreed with
others—Sutton included—to possess and distribute
controlled substances. The charge did not require the jury
to find that Longstreet was a “kingpin”—it merely required
the government to prove that he joined a criminal
conspiracy to possess and distribute illegal drugs, which
is exactly what Sutton and his fellow co-conspirators
said that Longstreet did.
There is evidence in the record from which a reasonable
juror could have found Longstreet guilty of the
conspiracy charged in the indictment. True, much of the
evidence came from Anthony Sutton, an admitted drug
dealer. But as we have already stated, if there is evidence
supporting a reasonable juror’s conclusion, it is up to the
juror, not this court, to evaluate and weigh that evidence.
Rollins, 544 F.3d at 835; see also Pagan, 196 F.3d at 889 (“The
extent to which [a witness’s] personal failings and motivations
may have influenced his testimony was for the jury
to decide.”). Because a rational jury could have believed
the witnesses’ testimony, there was no variance between
the charge and the evidence produced at trial.
2. Absence of a Jury Instruction Regarding Evidence of
Multiple Conspiracies
Longstreet’s second challenge to his conviction is that
the district court should have instructed the jury not to
consider evidence related to any separate, distinct conspiracy
when considering Longstreet’s guilt. Without
such an instruction, he argues, the jury was free to consider
criminal activity unrelated to him when rendering
its verdict, thereby prejudicing him.
Prior to trial, Longstreet proposed jury instructions
that included a multiple conspiracy instruction. At the
end of the trial, the government proposed its own
multiple conspiracy instruction, which the district court
accepted after a brief discussion among counsel;
Longstreet’s counsel stated that he would accept that
instruction. The instruction stated that the jury may find
the existence of multiple conspiracies, rather than a
single one, and it informed the jury that it must base
this decision “only on what the defendant did or said.” It
did not, however, expressly instruct the jury to
disregard evidence of conduct in any conspiracy in
which it might find that the defendant did not participate.
We typically review an attack on a jury instruction for
an abuse of discretion, but when the underlying error
implicates a question of law, we review de novo. United
States v. Macedo, 406 F.3d 778, 787 (7th Cir. 2005). However,
because Longstreet agreed to the instruction as written
and failed to request a component directing the jury not
to consider evidence of unrelated conspiracies, he
forfeited this challenge on appeal,2 and we review for
plain error. See United States v. Trennell, 290 F.3d 881, 886
(7th Cir. 2002); see also United States v. Olano, 507 U.S. 725,
732 (1993) (explaining that error must be plain and affect
defendant’s substantial rights to merit reversal).
We find no plain error here. Longstreet is correct that if
the evidence produced at trial does not support the
conspiracy alleged in the indictment, the court should
instruct the jury “that evidence relating to the other
conspiracy or conspiracies disclosed may not be used
against him under any circumstances.” United States v.
Lindsey, 602 F.2d 785, 787 (7th Cir. 1979) (quotations
omitted). But that is as far as Longstreet’s argument
takes him.
First, the evidence at trial supported the conspiracy
alleged in the indictment; we have already determined that
there was no variance. Therefore, there was no “other
conspiracy” disclosed at trial. Second, the absence of an
express instruction to disregard any potential evidence
of another conspiracy did not deprive Longstreet of a fair
trial. See Olano, 507 U.S. at 732 (noting that a court of
appeals has discretion to correct a plain error and “should
not exercise that discretion unless the error seriously
affect[s] the fairness, integrity or public reputation of
judicial proceedings” (alteration in original) (quotations
omitted)). The district court’s instruction properly informed
the jury of the requirements for a conspiracy
conviction and that it was only allowed to evaluate
Longstreet’s own words and conduct to determine the
conspiracies, if any, in which he participated. The instruction
also stated that the jury could find Longstreet
guilty only if he participated in the conspiracy alleged
in the indictment. Further, the district court advised the
jury that it should consider the convictions of the testifying
co-conspirators for credibility purposes only, not
to determine Longstreet’s guilt. In light of the entire
instruction, the court did not commit plain error.
3. Proposed Testimony of Andre Kincaid
Longstreet’s third challenge to his conviction is that the
district court improperly prohibited him from questioning
co-defendant Andre Kincaid about Anthony
Sutton. As noted, Longstreet claimed that Sutton operated
a distinct conspiracy in which Sutton competed with
Longstreet to sell heroin. Sutton, however, testified that
the two men had an agreement to sell different drugs
within Longstreet’s territory. At trial, Sutton claimed that
he sold only cocaine, crack, and marijuana, meaning that
his drug dealing activity did not conflict with Longstreet’s
heroin business. Sutton denied selling heroin in 2004
and specifically denied selling it to Andre Kincaid.
Longstreet sought to impeach Sutton with testimony
from Kincaid, who pled guilty to participating in the
conspiracy and admitted to purchasing cocaine and crack
from Sutton. In addition to crack purchases, Kincaid
had previously informed the government that he purchased
heroin from Sutton, that he saw Sutton’s workers
giving heroin away, and that Sutton had an international
heroin source. The district judge was prepared to permit
Kincaid to testify to these facts over the government’s
objection that it was an improper collateral impeachment.
Before testifying, however, Kincaid invoked his Fifth
Amendment right against self-incrimination, which the
district court accepted. The court then determined that
Kincaid was unavailable to testify, see Fed. R. Evid.
804(a)(1), and permitted Special Agent Chris Carlson of
the Internal Revenue Service to testify regarding Kincaid’s
prior proffer, see id. 804(b)(3). Agent Carlson was present
at Kincaid’s interview, and he testified that Kincaid
provided the government with the information stated
above. Longstreet asserts that the court erred because
he only intended to call Kincaid to testify about what he
had seen, not what he had done, i.e., there was no possibility
that Kincaid’s testimony could be self-incriminating.
The Fifth Amendment ensures that a criminal defendant
shall not “be compelled . . . to be a witness against himself.”
U.S. Const. amend. V. Such a right “must be
confined to instances where the witness has reasonable
cause to apprehend danger from a direct answer.” Hoffman
v. United States, 341 U.S. 479, 486 (1951). Thus, when a
witness invokes his Fifth Amendment right, the district
court should confirm that he “cannot possibly incriminate
himself,” and if the “witness’s testimony may make
him vulnerable to prosecution, the trial court may allow
him to . . . refuse to testify.” United States v. Mabrook, 301
F.3d 503, 506 (7th Cir. 2002). Because Kincaid had not yet
been sentenced when asked to testify, he retained the
ability to invoke his guarantee against self-incrimination.
See Mitchell v. United States, 526 U.S. 314, 325 (1999). We
review a district court’s Fifth Amendment privilege
determination for an abuse of discretion. Mabrook, 301
F.3d at 506.
Although Longstreet characterizes Kincaid’s proffered
testimony as encompassing only his observations of others,
the record tells a different story. Throughout the discussions
regarding Kincaid’s testimony, the government,
Longstreet’s counsel, and the district court referred to
Kincaid’s prior statements that he had purchased heroin
from Sutton, and the record reflects that these statements
were the primary focus of the dispute. Longstreet’s
counsel added that Kincaid observed Sutton’s other
heroin activities, but he also noted a number of times
that Kincaid bought heroin from Sutton. If questioned
about this activity, the answers certainly had the
potential to incriminate Sutton, and such testimony falls
squarely within the ambit of the privilege against selfincrimination.
On appeal, Longstreet argues that the district court could
have permitted questioning about some of Kincaid’s
observations, yet prevented questions directly implicating
him. Longstreet’s counsel never made this argument to
the district court. In fact, Longstreet’s primary argument
in favor of allowing Kincaid’s testimony was that
Kincaid relinquished or waived his Fifth Amendment
privilege by voluntarily making his prior proffer to the
government, an argument the court considered and
appropriately rejected.
But even if Longstreet had sought to limit Kincaid’s
testimony before the district court, Kincaid still could
have refused to take the stand. A testifying witness
“cannot deprive the opposing party of the right of crossexamination.”
United States v. Herrera-Medina, 853 F.2d 564,
567-68 (7th Cir. 1988). Consequently, a witness may not
choose to testify and then “assert the Fifth Amendment
privilege with respect to specific questions if they are
within the scope of his testimony.” Id. at 567. Thus, even
if Kincaid’s testimony on direct examination was limited
to non-incriminating statements, his testimony would
have exposed him to “broad-ranging cross-examination,”
id., the proper scope of which could have included his
heroin transactions with Sutton and other potentially
incriminating information. Kincaid could have been
incriminated by his answers to these questions, and,
therefore, “[h]is fear of self-incrimination was hardly
fanciful.” Id. at 568 (quotations omitted).
Last, Longstreet did not suffer prejudice from the
exclusion of Kincaid’s testimony. The district court permitted
Agent Carlson to tell the jury exactly what Longstreet
wanted Kincaid to say, and Longstreet has not suggested
any information that he was unable to present as a result
of Kincaid’s unavailability. Longstreet cannot demonstrate
a reasonable possibility that Kincaid’s testimony
would have altered the jury’s verdict. See United States
v. Castaldi, 547 F.3d 699, 705 (7th Cir. 2008). Consequently,
the district court did not abuse its discretion by
permitting Kincaid to invoke his Fifth Amendment privilege.
4. Longstreet’s Sentencing Issues
Finally, Longstreet challenges his sentence. After hearing
argument from both sides, the district court found that
Longstreet had a base offense level of thirty-eight and a
criminal history that placed him in sentencing category
six. The court added a two-level enhancement for possession
of a gun and a four-level enhancement for his leadership
role in the conspiracy, resulting in a final offense
level of forty-four. The advisory Sentencing Guidelines
range was life imprisonment, but the district court imposed
a below-Guidelines sentence of 456 months.
Longstreet contests that the district court committed
two errors that improperly increased his sentence:
(1) attributing to him drug quantities from sales that did
not relate to him; and (2) imposing the leadership role
enhancement.
a. Drug Quantity Attributable to Longstreet
Longstreet first challenges the district court’s calculations
of the drug quantities used to establish his base offense
level under the 2006 version of the Sentencing Guidelines.
At sentencing, the government has the burden of proving
the quantity of drugs attributable to a defendant by a
preponderance of the evidence. United States v. Krasinski,
545 F.3d 546, 551 (7th Cir. 2008). Although the district
court is not limited to evidence admissible at trial, United
States v. Clark, 538 F.3d 803, 812 (7th Cir. 2008), it must base
its sentence on information with “sufficient indicia of
reliability to support its probable accuracy,” United States
v. Bautista, 532 F.3d 667, 672 (7th Cir. 2008) (quotations
omitted). We review the district court’s factual findings
regarding drug quantity for clear error, id., which is a
“highly deferential standard of review[,] and we refuse
to second-guess the sentencing judge,” Clark, 538 F.3d at
812 (quotations omitted).
According to the Sentencing Guidelines, a defendant is
“accountable for all quantities of contraband [including
controlled substances] with which he was directly
involved and, in the case of a jointly undertaken
criminal activity, all reasonably foreseeable quantities of
contraband that were within the scope of the criminal
activity that he jointly undertook.” U.S. Sentencing Guidelines
Manual (U.S.S.G.) § 1B1.3(a)(1) cmt. n.2 (2006); see also
Bautista, 532 F.3d at 672; United States v. Nubuor, 274
F.3d 435, 443 (7th Cir. 2001) (noting that the district court
may sentence a defendant “for drug quantities that he
did not handle, so long as he could reasonabl[y] foresee
that the drug transactions would occur”). Further, “[t]he
guidelines’ concept of reasonable foreseeability does not
require that a coconspirator be aware of the precise quantity
involved in each of an ongoing series of illegal transactions.”
United States v. Scroggins, 939 F.2d 416, 423 (7th
Cir. 1991). Having already determined that Longstreet
and Sutton engaged in a single criminal conspiracy, we
must now consider whether Sutton’s crack cocaine sales
should be attributed to Longstreet as “reasonably foreseeable”
transactions within the scope of their conspiracy.
The probation officer recommended in Longstreet’s
presentence investigation report (PSR) that he be held
responsible for at least 1.5 kilograms of crack cocaine and
three kilograms of heroin. According to the Sentencing
Guidelines, this quantity of crack alone placed him at the
highest base offense level, thirty-eight. See U.S.S.G.
§ 2D1.1(c)(1) (Drug Quantity Table) (2006). The district
court, after examining the PSR and hearing argument
from the government and defendant, agreed with the
probation officer’s recommendation of a base offense
level of thirty-eight.
The driving force behind Longstreet’s base offense level
was the quantity of crack cocaine dealt by Anthony Sutton.
Specifically, the district court found that Longstreet was
accountable for at least 1.5 kilograms of crack handled
by Sutton. Because this quantity of crack provided a
sufficient basis for the recommended offense level, see id.,
the court did not address Longstreet’s heroin quantities,
nor did it incorporate drugs moved at any other operators’
drug spots within Longstreet’s territory.
Longstreet asserts that Sutton’s crack sales should not
be attributed to him because Sutton operated his own
conspiracy and did not share profits or details of his drug
sales. We discard much of this argument based on our
determination above that the evidence supports a single
conspiracy. According to the previously described arrangement
between the two men, Sutton sold crack at an estimated
1.5 ounces per day, seven days a week, over a nearly
three-year period. To reach the 1.5 kilogram quantity that
the district court calculated, Longstreet would have to be
attributed with only 53 ounces of crack. At a rate of 1.5
ounces per day, this would have taken a mere 36 days.
Sutton’s testimony clearly supports this amount. See
U.S.S.G. § 2D1.1 cmt. n.12 (2006) (“Where there is no drug
seizure or the amount seized does not reflect the scale of
the offense, the court shall approximate the quantity of the
controlled substance.”); Krasinski, 545 F.3d at 552 (“A
district court may use a reasonable estimate of the quantity
of drugs attributable to a defendant for guidelines purposes.”).
The district judge chose to credit Sutton’s testimony,
finding that although the two men did not expressly
share their profits, they were part of a single conspiracy in
which Sutton paid Longstreet rent for the right to sell
drugs in his territory. Therefore, Sutton’s crack sales
were within the scope of the conspiracy. If Sutton’s testimony
is true, such an agreement certainly renders future
crack sales reasonably foreseeable to Longstreet. That
Sutton was a potentially self-interested drug dealer does
not preclude the district court from crediting his testimony,
for a district court’s determination of a witness’s
credibility is “entitled to great deference and can virtually
never be clear error.” Clark, 538 F.3d at 813 (quotations
omitted). We find no such error here; the district court
properly calculated Longstreet’s base offense level.
b. Leadership Role Enhancement
In addition to setting Longstreet’s base offense level, the
district court applied a four-level enhancement based on
Longstreet’s leadership role in the conspiracy. Longstreet
contends that the evidence presented at trial did not
support the court’s finding that he was an organizer or
leader. We review the district court’s leadership enhancement
for clear error, which exists only when “we are
left with a definite and firm conviction that a mistake
has been made.” United States v. Hatten-Lubick, 525 F.3d
575, 580 (7th Cir. 2008).
Under § 3B1.1 of the Sentencing Guidelines, a district
court may enhance a defendant’s sentence by four levels
if it determines that he “was an organizer or leader of a
criminal activity that involved five or more participants
or was otherwise extensive.” U.S.S.G. § 3B1.1(a) (2006).
Longstreet does not dispute that the conspiracy in this
case involved more than five participants, and thus
we focus on Longstreet’s role within it.
To receive any § 3B1.1 increase for an aggravated role,
the defendant must, at a minimum, “have had some real
and direct influence, aimed at furthering the criminal
activity, upon one other identified participant.” United
States v. Mustread, 42 F.3d 1097, 1103 (7th Cir. 1994). In
deciding to apply the enhancement, courts should consider:
the exercise of decision making authority, the
nature of participation in the commission of the
offense, the recruitment of accomplices, the
claimed right to a larger share of the fruits of the
crime, the degree of participation in planning or
organizing the offense, the nature and scope of the
illegal activity, and the degree of control and
authority exercised over others.
U.S.S.G. § 3B1.1 cmt. n.4. The list is non-exclusive, we
have not necessarily given each factor equal weight, and
we may uphold Longstreet’s sentence on any ground in
the record, regardless of the rationale used by the
district court. See Mustread, 42 F.3d at 1104.
After reviewing the record and considering the above
factors, we agree with the government that the evidence
adequately supported Longstreet’s leadership enhancement.
As noted above and explained in the PSR, witnesses
testified that Longstreet was the leader of a faction of the
Four Corner Hustlers and controlled the drug business in
a particular territory. He procured various harmful illegal
drugs from a number of suppliers, employed and directed
workers to mix and repackage them, and operated a
variety of drug spots using other employees. For other
dealers, such as Anthony Sutton, Longstreet charged rent
for the right to sell within his territory and attempted
to control the locations where those dealers set up shop.
Sutton’s testimony alone demonstrates that Longstreet
sought to exert control over components of the charged
conspiracy. But even without considering Longstreet’s
relationship with Sutton, Longstreet exercised control over
many co-conspirators in this drug business, which is
sufficient for the § 3B1.1 enhancement.
Throughout his brief, Longstreet attempts to downplay
his role in the charged conspiracy, painting himself
as an out-of-touch former kingpin who is now struggling
to regain some semblance of his former power and territory.
But even the facts he raises support the leadership
enhancement. For example, he notes as the “most telling
evidence” of his minimal role that alleged co-conspirators
admitted to ignoring some of his orders. But this fact
necessarily implies that he was indeed giving orders, a
characteristic consistent with someone in a leadership role.
Similarly, he notes that “people routinely refused to pay
Longstreet drug money owed to him.” Unless we misunderstand
the drug business—or any business, for that
matter—one is not typically owed money unless he
provided something in exchange. Although being a drug
dealer, alone, is insufficient to support a leadership
enhancement, see Mustread, 42 F.3d at 1104, the evidence
at trial indicated that Longstreet was not out on the
corner selling his own drugs; he directed and controlled
other workers who sold drugs on his behalf. Rather than
demonstrate a lesser role, the facts that Longstreet highlights
simply indicate that he was not very good at the
leadership role he actually possessed. There is ample
evidence in the record of Longstreet’s elevated role in
this conspiracy, and we find no clear error below.
B. Defendants Longstreet and Ervin—Consideration of the
Crack/Powder Cocaine Ratio
Both Longstreet and co-defendant Michael Ervin assert
that they are entitled to a limited remand to permit the
district court to reconsider the previously mandatory 100:1
crack/powder cocaine ratio. At the time Longstreet and
Ervin were sentenced in the spring of 2007, our precedent
prohibited a district court from departing from the Sentencing
Guidelines based on the disparity created by the
crack/powder cocaine ratio. See, e.g., United States v. Miller,
450 F.3d 270, 275 (7th Cir. 2006). Following their
sentencings, however, the United States Supreme Court
determined that a district court may deviate from the
advisory guidelines range after considering the
crack/powder cocaine disparity. Kimbrough v. United
States, 552 U.S. 85 (2007). Consequently, a limited remand
may be warranted to permit the district court to state
whether it would have imposed a different sentence
under Kimbrough. United States v. Taylor, 520 F.3d 746, 748
(7th Cir. 2008).
Both Longstreet and Ervin were sentenced based solely
on crack cocaine quantities.6 Neither defendant, however,
raised this issue in the proceedings below, and we
cannot determine whether the district court would have
considered the disparity had it not been constrained by
our pre-Kimbrough precedent. See Taylor, 520 F.3d at 748-49.
Therefore, a limited remand is appropriate under Taylor
to allow the district court to state whether it wishes to resentence
Longstreet or Ervin in light of Kimbrough.
C. Zepeda’s Challenges to His Sentence
A third co-defendant, Anselmo Zepeda, also challenges
his sentence. Zepeda was a supplier who worked with
fellow co-conspirators to distribute drugs to other members
of the conspiracy. Anthony Sutton was one of
Zepeda’s primary cocaine purchasers. On appeal, Zepeda
claims that the district court did not have sufficient,
reliable evidence to support the quantity of drugs it
attributed to him and that the government failed to meet
its burden of proving “relevant conduct” under U.S.S.G.
§ 1B1.3(a)(1)(B).
On November 7, 2006, Zepeda pled guilty, without a
plea agreement, to the conspiracy to possess and
distribute controlled substances alleged in Count One of
the indictment. At his plea hearing, the government stated
that if the case were to proceed to trial, it would demonstrate
that Zepeda conspired to distribute over five kilograms
of cocaine and quantities of marijuana. The government
proffered that Zepeda distributed at least five
kilograms of cocaine to Sutton, in kilogram or multikilogram
quantities per transaction, with the understanding
that Sutton would resell it. Specifically, in December
2004, Zepeda began supplying Sutton with one kilogram
of cocaine approximately two times per week;
within one month, the quantity of cocaine per transaction
increased to three kilograms; and in March 2005, it increased
again to five kilograms per transaction. Zepeda
agreed that these statements represented the government’s
factual basis for his guilty plea.
The government’s written factual basis for Zepeda’s
plea included these statements and also asserted that on
March 31, 2005, a co-conspirator attempted to deliver to
Sutton six kilograms of Zepeda’s cocaine, which Zepeda
did not dispute. The factual basis also stated that Zepeda
fronted Sutton with twenty-five pounds of marijuana
on two occasions.
The probation officer attached the government’s
written factual basis for the plea to the PSR and recommended
a finding that the total amount of drugs attributable
to Zepeda was at least fifty kilograms of cocaine
and approximately fifty kilograms of marijuana. The
bases for these quantities were statements in the indictment,
the written factual basis for the plea, and an interview
with IRS Agent Chris Carlson. The PSR reflected the
same transactions between Zepeda and Sutton from
December 2004 to March 2005 that Zepeda admitted and
that were detailed in the written factual basis for the
plea, with one exception: the PSR did not mention the
increase from one to three kilograms of cocaine that
Zepeda supplied to Sutton within one month of December
2004. The PSR also found that Zepeda had engaged
in “relevant conduct,” see U.S.S.G. § 1B1.3(a)(1)(B), in that
he supplied an individual with cocaine from the end of
1994 until the end of 1996 or early 1997, first in one-quarter
kilogram quantities and later in two kilogram quantities.
The district judge considered the evidence in the
record, accepted the PSR’s calculation, and set Zepeda’s
base offense level at thirty-seven. The court applied a
leadership enhancement, and it sentenced Zepeda to
210 months on the conspiracy count. Zepeda’s main
argument is that the district court did not have reliable
information to determine that Zepeda was responsible
for over fifty kilograms of cocaine. He bases this assertion
primarily on a perceived conflict between the PSR and
Zepeda’s own admissions regarding the increase to threekilogram
deliveries of cocaine to Sutton.
Zepeda did not object to the PSR’s recommended quantity
of drugs prior to the sentencing hearing, nor at the
hearing itself. Consequently, he has forfeited his challenge,
and we review the district court’s calculation for
plain error. United States v. Jaimes-Jaimes, 406 F.3d 845, 849
(7th Cir. 2005); see also United States v. Middlebrook, 553 F.3d
572, 577 (7th Cir. 2009). Under such a standard, we will
correct only particularly egregious errors to prevent a
miscarriage of justice, and even if there was plain error, the
error must “ ‘seriously affect[] the fairness, integrity, or
public reputation of judicial proceedings’ ” to warrant
reversal. Middlebrook, 553 F.3d at 578 (quoting United States
v. Cusimano, 148 F.3d 824, 828 (7th Cir. 1998)). This standard
is high, and we find no such error here.
As described above, see supra pt. II.A.4.a., the district
court must determine the quantity of drugs attributable
to a defendant by a preponderance of the evidence.
Krasinski, 545 F.3d at 551. In so doing, the sentencing
court “may appropriately conduct an inquiry broad in
scope, largely unlimited either as to the kind of information
he may consider, or the source from which it may
come,” United States v. Hankton, 432 F.3d 779, 789 (7th Cir.
2005) (quotations omitted), as long as it has “sufficient
indicia of reliability to support its probable accuracy,”
Bautista, 532 F.3d at 672. The district court, therefore, is not
limited to reviewing the PSR when calculating drug
quantity; “what controls the analysis is the ‘entire evidence’
before the district court.” United States v. Sutton,
406 F.3d 472, 474 (7th Cir. 2005) (quoting United States v.
Span, 170 F.3d 798, 803 (7th Cir. 1999)); see also Hankton, 432
F.3d at 790 (“In determining reliability we consider the
totality of the evidence before the sentencing judge.”). We
may affirm a sentence on any basis supported by the
record, even evidence not relied on by the sentencing
judge. Sutton, 406 F.3d at 474.
Particularly damaging to Zepeda’s claim is that he
gave the district court no reason to believe that the information
upon which it relied to calculate the drug quantities
was inaccurate. A district court may rely on a PSR’s
recommended calculations where the defendant fails to
alert the court to potentially inaccurate or unreliable
information. See United States v. Artley, 489 F.3d 813, 821
(7th Cir. 2007); see also United States v. Jones, 209 F.3d 991,
996 (7th Cir. 2000) (rejecting defendant’s drug quantity
challenge because a mere denial of PSR’s truth is insufficient,
and he failed to demonstrate that the information
upon which the district court relied was inaccurate). On
appeal, a defendant must show “that the information
before the court was inaccurate, and that the court
relied on it” to successfully challenge his sentence. See
Hankton, 432 F.3d at 790 (quotations omitted). Zepeda
has made no such showing.
Here, Zepeda not only failed to object to the PSR’s
recommended drug quantities, but he actually admitted
during his plea colloquy that the government’s evidence
would demonstrate a series of transactions involving
cocaine quantities that, when added together, totaled at
least fifty kilograms of cocaine. Cf. Krasinski, 545 F.3d at 552
(“Admissions in a plea agreement also conclusively
establish the admitted facts.”); United States v. Warneke,
310 F.3d 542, 550 (7th Cir. 2002) (“An admission is even
better than a jury’s finding beyond a reasonable doubt; it
removes all contest from the case.”). We have previously
upheld a defendant’s sentence based largely on the defendant’s
own admissions or a plea agreement. See, e.g.,
Krasinski, 545 F.3d at 552 (using a range of ecstasy pills that
defendant admitted to distributing to calculate the total
quantity); United States v. Arenal, 500 F.3d 634, 639-40 (7th
Cir. 2007) (upholding sentence based on defendant’s
admission of quantity in plea agreement); Sutton, 406
F.3d at 474 (upholding sentence even though defendant
gave two different quantities of crack at plea colloquy).
The evidence before the district court—including the
PSR, the government’s factual basis for the plea, and
Zepeda’s own admissions—provided sufficiently reliable
information for the district court’s calculations, and we
need not reach the drug quantities attributed to Zepeda as
“relevant conduct.” Zepeda admitted that the evidence
at trial would demonstrate that he sold cocaine to
Anthony Sutton two times per week from December
2004 to the end of March 2005, beginning with one
kilogram deliveries, but increasing within one month to
three kilograms per exchange. In March 2005, the amount
increased again to five kilograms per transaction, and
there was one additional attempted transaction for six
kilograms. Zepeda sets forth what he deems the most
conservative number of transactions (twenty-seven), see
Petr.’s Br. 10, but even using this number of transactions,
multiplied by the weights that he admitted, the total
amount exceeds fifty kilograms. The omission from the
PSR of the increase to three-kilogram deliveries of crack
to Sutton does not alter our conclusion. The PSR did not
contradict Zepeda’s own admissions, and the district
court could rely on any evidence in the record. Further, a
district court does not automatically commit clear error
when it fails to use the most conservative calculation
possible. See Krasinski, 545 F.3d at 553 (noting that district
court could have employed a more conservative calculation,
but that it based the quantity on information provided
by the defendant himself). The district court had
reliable support for holding Zepeda responsible for at
least fifty kilograms of cocaine, and we therefore find no
plain error that would result in a miscarriage of justice.
See Middlebrook, 553 F.3d at 578. Consequently, we
affirm Zepeda’s sentence.
III. CONCLUSION
We find no error in Longstreet’s trial, and we AFFIRM
his conviction. We also find no error in the district court’s
calculation of the quantity of drugs attributable to
Longstreet, nor in its enhancement of his sentence based
on his leadership role. However, the district court did not
consider the crack/powder cocaine disparity when sentencing
both Longstreet and Ervin, and we therefore
order a LIMITED REMAND in both cases to allow the
district court to consider whether it wishes to resentence
either defendant in light of Kimbrough. Last, the district
court did not err in calculating Zepeda’s base offense
level, and we AFFIRM his sentence.
Chicago Criminal Lawyer - Robert J Callahan
Tuesday, June 16, 2009
U.S. vs. Jon Bartlett
The distance between civilization
and barbarity, and the time needed to pass from one
state to the other, is depressingly short. Police officers
in Milwaukee proved this the morning of October 24, 2004.
Andrew Spengler held a housewarming party that
started on October 23 and lasted into the next morning.
Spengler and many guests were police officers. Liquor
flowed freely. Katie Brown and Kirsten Antonissen were
among the invitees. They arrived after 2:30 AM on
October 24 with Frank Jude and Lovell Harris. The quartet
was immediately made to feel unwelcome because the
women are white, and the men are not. (Harris describes
himself as black; Jude describes himself as bi-racial.) After
five minutes, the four prepared to leave—but they were
prevented when at least ten men stormed outside, surrounded
Antonissen’s truck, and demanded to know
what the four new arrivals had done with Spengler’s
badge. Spengler says that he could not find it after the
quartet arrived, and he accused them of theft. The men
demanded that the four get out of the truck and surrender
the badge. When they stayed inside, the men threatened
them (“Nigger, we can kill you”) and began to vandalize
the truck. Harris tried to wake the neighbors; the men
responded: “Nigger, shut up, it’s our world.”
Eventually all four were dragged from the truck. A
search did not turn up the badge. Instead of concluding
that Spengler’s accusation was mistaken, the men
became enraged and violent. One cut Harris’s face in a
way that he described as “slow and demented.” Harris
managed to free himself and run away. Multiple men
began to kick and punch Jude. Antonissen managed to
call 911; she told the operator “they’re beating the shit
out of him.” When the men saw Antonissen use the
phone, they wrested it from her hand and flung her
against the truck so forcefully that its metal was dented.
Brown made two calls to 911 before her phone, too, was
seized.
The first call was logged at 2:48, and two officers (Joseph
Schabel and Nicole Martinez) arrived at 3:00. The
beating continued until their appearance. Men punched
Jude’s face and torso; when he fell to the ground, they
kicked his head and thighs. The partygoers behaved as a
mob. Not a single person in the house tried to stop the
attack or even to call for aid. Jon Clausing, who had
slashed Harris’s face, explained his conduct as “just kind
of going along with everybody.” That is the way of the
mob. Society has police forces to pose a counterweight
to mobs, yet here the police became a mob.
Schabel and Martinez were on duty and had not been
drinking, so they should have put a stop to the violence.
Instead Schabel joined it, while Martinez watched. On
being told that Jude had stolen Spengler’s badge, Schabel
called Jude a “motherfucker” and stomped on his face
until others could hear bones breaking. After telling
Martinez “I’m really sorry you have to see this,” Daniel
Masarik picked Jude off the ground and kicked him in the
crotch so hard that his body left the ground. Jon Bartlett
then took one of Schabel’s pens and pressed it into each of
Jude’s ear canals, causing severe injury and excruciating
pain. The men also broke two of Jude’s fingers by bending
them back until they snapped. Spengler put a gun to
Jude’s head and said: “I’m the fucking police. I can do
whatever I want to do. I could kill you.” Bartlett used a
knife to cut off Jude’s jacket and pants, leaving him
naked on the street in a pool of his own blood.
The violence tapered off when additional on-duty police
arrived. At 3:09 officers arrested Jude. Yes, they arrested
the victim, although Jude had never fought back. (He had
suffered a concussion and was unable to defend himself.)
Jude was taken to an emergency room; the admitting
physician took photographs because “[t]here were too
many [injuries] to document” in writing. The injuries to
Jude’s ears could not be diagnosed because the
physicians could not control the bleeding. One physician
testified that she had never seen ear injuries so severe.
While Jude was receiving treatment, on-duty officers
recovered Jude’s car. Bartlett and other men had ripped
up its seats with knives and poured antifreeze over
them; apparently they poured antifreeze into the gas tank
too, damaging the engine. The radio had been wrecked.
The men broke a headlight and tore a mirror off
Antonissen’s truck. Spengler’s badge was not found in
either the car or the truck; perhaps he had put down the
badge in the house and was too soused to remember
where.
Bartlett, Spengler, and Masarik were prosecuted in
state court and acquitted after Schabel and others committed
perjury on their behalf, while many people who
had been at the party claimed to suffer memory loss. That
made it impossible to show who had done what, and
the judicial system (unlike a mob) demands personal
responsibility. The Civil Rights Division of the Justice
Department then investigated, and federal prosecutors
persuaded several witnesses to cooperate. Four men
(Joseph Schabel, Ryan Lemke, Jon Clausing, and Joseph
Stromei) pleaded guilty to obstruction of justice (by
perjury, including false testimony before the federal
grand jury), to violating Harris’s and Jude’s civil rights, or
both. Bartlett, Spengler, and Masarik were convicted by a
jury of conspiring to violate Harris’s and Jude’s right to be
free from unreasonable searches and seizures (18 U.S.C.
§241), and of the substantive offense (18 U.S.C. §242).
(Excessive force in making an arrest violates the fourth
amendment to the Constitution, applied to state police
officers by the fourteenth amendment. See Graham v.
Connor, 490 U.S. 386 (1989).) Bartlett was sentenced to
208 months’ imprisonment, Spengler and Masarik to
188 months apiece. All seven men have been fired by the
Milwaukee Police. Two more officers were fired but
later reinstated; an additional four were disciplined.
Bartlett, Spengler, and Masarik present twelve appellate
issues. Only four require discussion. The rest have been
considered, and we reject them without comment.
1. The maximum punishment for a violation of either
§241 or §242 is 120 months’ imprisonment. The longer
sentences that Bartlett, Spengler, and Masarik received
depend on convictions of both offenses. All three
contend that the evidence of conspiracy is insufficient.
Conspiracy is agreement to violate some other law, see
United States v. Shabani, 513 U.S. 10 (1994), and defendants
maintain that events developed without an agreement.
When Spengler called for aid to recover his badge, people
rushed from the party to Antonissen’s truck without
prior negotiation or agreement.
This perspective assumes that the agreement must
predate the first substantive offense. Yet it need not. An
agreement forged in the course of committing a crime,
among people who plan to work together in an ongoing
criminal venture, is no less a conspiracy than one that
precedes the first overt act. The battery of Jude lasted for
20 minutes. A reasonable jury could infer that defendants
and others formed a plan to do whatever was necessary
to recover Spengler’s badge and punish the thief—a
plan carried out through cooperative criminal activity.
Working together to commit a series of criminal acts, in
which each cooperative act implies a plan to cooperate
in the future, is a functional understanding of conspiracy.
See United States v. Lechuga, 994 F.2d 346 (7th Cir. 1993)
(en banc); United States v. Wantuch, 525 F.3d 505, 519
(7th Cir. 2008). None of the evidence suggests that defendants
worked at cross-purposes with each other, or with
the rest of the mob. The evidence is enough to permit
an inference of agreement and thus a conviction for
conspiracy.
2. Masarik contends that he did not participate in the
beating. He concedes that he was at the party but says
that he stayed indoors or on the mob’s periphery. He
did not report the crime or assist the prosecution, so he
might have been convicted of misprison of felony, see
18 U.S.C. §4, but if he was a bystander he did not violate
§241 or §242.
Six witnesses testified that Masarik held Jude while
others punched and kicked him. Some of these witnesses
testified that Masarik kicked Jude in the face at least
twice, and that Masarik kicked Jude in the crotch (after
apologizing to Martinez). Masarik contends that he must
have been confused with someone else, and he proposed
to present expert testimony about high error rates in
eyewitness identifications. The district court excluded the
proposed testimony for two principal reasons. First, the
judge stated that jurors could determine the reliability of
identifications using the evidence from direct and cross
examinations. Second, the judge invoked Fed. R. Evid. 403,
which allows the exclusion of evidence that is needlessly
cumulative or will consume trial time out of proportion
to its value.
The first of these reasons is weak. Doubtless lawyers will
ask questions designed to assist the jurors in evaluating
whether a witness is telling the truth. But the problem
with eyewitness testimony is that witnesses who think
they are identifying the wrongdoer—who are credible
because they believe every word they utter on the
stand—may be mistaken. Study after study has shown very
high error rates in the identification of strangers. See, e.g.,
Elizabeth F. Loftus & James M. Doyle, Eyewitness Testimony:
Civil and Criminal (3d ed. 1997) (collecting studies); Elizabeth
F. Loftus, Eyewitness Testimony (1979; rev. ed. 1996);
Daniel L. Schacter, The Seven Sins of Memory: How the
Mind Forgets and Remembers 112–37 (2001). “An important
body of psychological research undermines the lay intuition
that confident memories of salient experiences . . . are
accurate and do not fade with time unless a person’s
memory has some pathological impairment. . . . The basic
problem about testimony from memory is that most of our
recollections are not verifiable. The only warrant for them
is our certitude, and certitude is not a reliable test of
certainty.” Krist v. Eli Lilly & Co., 897 F.2d 293, 296–97 (7th
Cir. 1990) (citations to the scholarly literature omitted).
It will not do to reply that jurors know from their daily
lives that memory is fallible. The question that social
science can address is how fallible, and thus how deeply
any given identification should be discounted. That jurors
have beliefs about this does not make expert evidence
irrelevant; to the contrary, it may make such evidence
vital, for if jurors’ beliefs are mistaken then they may
reach incorrect conclusions. Expert evidence can help
jurors evaluate whether their beliefs about the reliability
of eyewitness testimony are correct. Many people
believe that identifications expressed with certainty are
more likely to be correct; evidence that there is no
relation between certitude and accuracy may have a
powerful effect.
Still, using expert testimony to explore this question
may sidetrack a trial. A judge must balance the benefits
of illuminating evidence against the costs of collateral
inquiries. That’s why Rule 403 grants discretion to the
trial judge—and why we have held, many times, that a
trial court does not abuse its discretion by excluding
expert evidence about the reliability of eyewitness testimony.
See, e.g., United States v. Carter, 410 F.3d 942, 950
(7th Cir. 2005) (collecting cases); United States v. Hall,
165 F.3d 1095 (7th Cir. 1999) (same).
The district judge did not abuse his discretion in this
case, because the conviction does not rest on identifications
by Jude and the other victims. Only two of the
people who identified Masarik were strangers to him.
The other four knew him well. The social-science studies
do not suggest that people who have known one another
for weeks or years are apt to err when identifying them
in court. What’s more, the scholarly work concerns
identification by single eyewitnesses, not the probability
of error when multiple witnesses identify the same
person. If the six in-court identifications of Masarik were
independent, and each had a probable error rate of .333
(that is, there is a one-in-three chance that any witness
was mistaken), then the probability that Masarik is innocent
is .333 to the sixth power, or well under 1%. We
have remarked before that the scholarly findings about
eyewitnesses have only limited application when
multiple witnesses identify the same person. See United
States v. Williams, 522 F.3d 809 (7th Cir. 2008); Newsome v.
McCabe, 319 F.3d 301 (7th Cir. 2003). Masarik did not
proffer any evidence about the error rates in six-fold
identifications. Nor did he propose to ask an expert
whether the six identifications should be regarded as
independent, or what the risk of error in these identifications
taken jointly is apt to be. Someone who proposes
expert testimony must show how the findings apply to
the litigation at hand; Masarik did not do this.
A concurring opinion in Hall added that, although
jurors should be made aware of the scholarly findings
in appropriate cases, it is often better to have the judge
summarize the state of knowledge than to have a parade
of experts. 165 F.3d at 1120. Masarik did not ask the
judge to recap the scholarly findings for jurors’ benefit. For
him, it was an expert on the stand or it was nothing; the
judge did not abuse his discretion in blocking that testimony
in order to keep this trial on track.
3. All three defendants contend that their sentences
are unreasonably high when evaluated under the criteria
in 18 U.S.C. §3553(a). They stress §3553(a)(6), which
requires a sentencing judge to consider “the need to
avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar
conduct”. Lemke, Clausing, Schabel, and Stromei all
received sentences considerably less than 188 months;
Bartlett, Spengler, and Masarik contend that this difference
makes their sentences unreasonably high.
We have encountered this argument before and rejected
it.
There would be considerably less cooperation—
and thus more crime—if those who assist
prosecutors could not receive lower sentences
compared to those who fight to the last. Neither
[United States v.] Booker[, 543 U.S. 220 (2005)] nor
§3553(a)(6) removes the incentive for cooperation—
and because this incentive takes the form of
a lower sentence for a cooperator than for an
otherwise-identical defendant who does not cooperate,
the reduction cannot be illegitimate. After
all, §3553(a)(6) disallows “unwarranted sentence
disparities” (emphasis added), not all sentence
differences.
[T]he kind of “disparity” with which §3553(a)(6) is
concerned is an unjustified difference across judges
(or districts) rather than among defendants to a
single case. If the national norm for first offenders
who gain $275,000 or so by fraud is a sentence
in the range of 33 to 41 months, then system-wide
sentencing disparity will increase if Boscarino’s
sentence is reduced so that it comes closer to
Aulenta’s. Instead of one low sentence, there will
be two low sentences. But why should one culprit
receive a lower sentence than some otherwisesimilar
offender, just because the first is “lucky”
enough to have a confederate turn state’s evidence?
Yet that is Boscarino’s position, which
has neither law nor logic to commend it.
Sentencing disparities are at their ebb when the
Guidelines are followed, for the ranges are themselves
designed to treat similar offenders similarly.
That was the main goal of the Sentencing Reform
Act. The more out-of-range sentences that judges
impose after Booker, the more disparity there will
be. A sentence within a properly ascertained range
therefore cannot be treated as unreasonable by
reference to §3553(a)(6).
United States v. Boscarino, 437 F.3d 634, 638 (7th Cir. 2006).
Defendants acknowledge that the circuit’s law is against
them, but they contend that we must reevaluate the
subject in light of Rita v. United States, 551 U.S. 338 (2007),
Gall v. United States, 552 U.S. 38 (2007), and Kimbrough v.
United States, 552 U.S. 85 (2007), which emphasized that
the Guidelines are not binding and that district judges
have considerable discretion to implement their own
conceptions of just sentences, notwithstanding the Sentencing
Commission’s views. See also Spears v. United
States, 129 S. Ct. 840 (2009); Nelson v. United States, 129
S. Ct. 890 (2009).
To address defendants’ contention, we must separate
two questions: first, does §3553(a)(6) require a judge to
reduce anyone’s sentence below the Guideline range
because other persons who committed the same crime
but pleaded guilty and cooperated received lower terms?;
second, does §3553 as a whole permit a judge to go
below the Guideline range for this reason?
The first of these questions received a negative answer
in Boscarino and similar cases, which have observed that
§3553(a)(6) addresses only “unwarranted” disparities. A
difference justified by the fact that some wrongdoers
have accepted responsibility and assisted the prosecution,
while others have not, is not “unwarranted.” The best way
to curtail “unwarranted” disparities is to follow the
Guidelines, which are designed to treat similar offenses
and offenders similarly. Far from disapproving this
understanding, the Supreme Court adopted it in Gall:
Section 3553(a)(6) requires judges to consider “the
need to avoid unwarranted sentence disparities
among defendants with similar records who
have been found guilty of similar conduct.” The
Court of Appeals stated that “the record does not
show that the district court considered whether
a sentence of probation would result in unwarranted
disparities.” 446 F.3d at 890. As with the
seriousness of the offense conduct, avoidance of
unwarranted disparities was clearly considered
by the Sentencing Commission when setting the
Guidelines ranges. Since the District Judge correctly
calculated and carefully reviewed the Guide
lines range, he necessarily gave significant weight
and consideration to the need to avoid unwarranted
disparities.
128 S. Ct. 586, 599 (emphasis added). A sentence within a
Guideline range “necessarily” complies with §3553(a)(6).
But there is more to §3553 than §3553(a)(6). A judge must
respect all of the statutory criteria in order to mete out a
sentence “sufficient, but not greater than necessary, to
comply with the purposes [of sentencing] set forth in
paragraph (2) of this subsection.” 18 U.S.C. §3553(a). The
Court held in Kimbrough, and reiterated in Spears, that a
judge need not accept the Sentencing Commission’s
penological framework. The court may adopt its own. It
follows that §3553 permits a judge to reduce one defendant’s
sentence because of another’s lenient sentence—not
because of §3553(a)(6), but despite it. Avoiding “unwarranted”
disparities (as the Sentencing Commission or a
court of appeals defines them) is not the summum
bonum in sentencing. Other objectives may have
greater weight, and the court is free to have its own
policy about which differences are “unwarranted.”
It follows that, if the district judge thought himself
forbidden to take account of Lemke’s, Clausing’s,
Schabel’s, or Stromei’s (relatively) low sentences when
deciding what punishment to impose on Bartlett, Spengler,
or Masarik, he was mistaken. The judge did not make
this error, however. He concluded that the disparity is
justified by material differences in the offenders’ conduct
and acceptance of responsibility, not that a disparity is
unjustified but irremediable. The district judge followed
§3553(a), and understood the extent of his discretion,
when sentencing Bartlett, Spengler, and Masarik.
4. Masarik was sentenced at the top of his range (151
to 188 months); that sentence is reasonable under §3553
and Rita. See also United States v. Mykytiuk, 415 F.3d 606,
608 (7th Cir. 2005) (an in-range sentence is presumed
reasonable on appeal). Spengler’s sentence of 188 months
exceeds the top of his range (121 to 151 months) but is
reasonable under Gall: the district judge properly
deemed him the instigator. Some of his conduct, such as
pointing a gun at Jude’s head and proclaiming authority
to kill anyone he wanted, was not taken into account in
the Guidelines calculation.
Bartlett’s sentence of 208 months likewise exceeds the
top of his range. He committed the most brutal acts.
Thrusting a pen into a person’s ear canals is torture by
any definition. While facing the state charges, Bartlett
threatened to blow up his former police station, a crime
for which he has been convicted in state court and sentenced
to 54 months. He also defrauded a gun dealer into
selling him a submachine gun, violating gun-control laws
as well as the terms of his federal bail; this conduct drew
another 18 months in a separate prosecution. A district
judge might deem a lengthy consecutive sentence
essential for incapacitation as well as deterrence and
desert. But the court may not have appreciated that Bartlett’s
sentence exceeds his Guideline range.
Many cases in this circuit say that sentences exceeding
the Guideline range must be explained not only in
absolute terms, under the criteria of §3553(a), but also
with an analysis of why a Guideline sentence would be
insufficient. See, e.g., United States v. Gordon, 513 F.3d
659, 666 (7th Cir. 2008); United States v. Wachowiak, 496
F.3d 744, 749–50 (7th Cir. 2007). These decisions did not
survive Nelson, which holds that district judges need
not—indeed must not—begin with a presumption in
favor of a Guideline sentence. If there is no need to start
from the perspective that an in-range sentence usually
is best, there is also no need to explain why some
different sentence is better. The judge’s task is to choose
a reasonable sentence. The court must take the Sentencing
Commission’s views into account, but a sentence
cannot be called “unreasonable” just because the
judge explains why he chose that sentence, rather than explaining
his decision from the Guidelines’ perspective.
The old regime of “departures” is defunct. See Irizarry v.
United States, 128 S. Ct. 2198 (2008).
Although the judge need not use the Guidelines as the
fulcrum of analysis, the court still needs to understand
the relation between the Guidelines and the ultimate
sentence. Both Rita and Gall say that the court must
construct a Guideline range accurately. A sentence is
procedurally unreasonable if the judge thinks it within
the range, but it isn’t—either because the range was
not determined accurately in the district court, or
because the judge misunderstood what that range was.
Bartlett’s range is 151 to 188 months. Much of the sentencing
transcript reads as an explanation about why
the sentence is at the high end of the range. At the end
of the proceeding, the judge stated bluntly that the sen
tence would be the top of the range. But the actual sentence
of 208 months is 20 months higher. That’s a problem.
The prosecutor says that, by the close of the proceeding,
the judge had recognized that 208 months exceeds Bartlett’s
range. The transcript is not as clear to us as it
appears to be to the prosecutor. Given the risk of confusion,
the better part of wisdom is to ask the district judge
to take another look, to ensure that the sentence rests on
a deliberate choice rather than a mistake. A 208-month
sentence is reasonable substantively, but no one, not
even a Bartlett, should lose 20 months of freedom
because a district judge read across the wrong line in a
table. (The range 168 to 210 months is the next highest
in the Guidelines’ sentencing table.)
Nonetheless, the prosecutor maintains, Bartlett forfeited
any opportunity for appellate relief because he did
not “object” to the 208-month sentence on the ground that
it exceeds the Guideline range. We put “object” in scare
quotes because remonstration with the judge is not an
objection as usually understood. Both the Rules of Evidence
and the Rules of Criminal Procedure require a
litigant to make known the position it advocates and to
present evidence and argument for that position. These
steps are essential to facilitate intelligent decision in the
district court. Counsel present positions, and judges
then decide. But the rules do not require a litigant to
complain about a judicial choice after it has been made.
Such a complaint is properly called, not an objection, but
an exception. The rule about exceptions is explicit: “Exceptions
to rulings or orders of the court are unnecessary.”
Fed. R. Crim. P. 51(a). Rule 51(b) adds that a litigant
preserves a contention for review “by informing the
court [before the decision is made] of the action the party
wishes the court to take . . . and the grounds for” that
action. Bartlett and his lawyer argued for a lower sentence,
and they gave reasons. They have preserved their
appellate options.
Having said this, we must acknowledge that some of our
opinions use the word “objection” in the same way the
prosecutor did, and they hold (or at least suggest) that
lawyers must ask a judge to reconsider the sentence (or
other decision) as the price of appellate review. See, e.g.,
United States v. Harvey, 232 F.3d 585, 587 (7th Cir. 2000);
United States v. Marvin, 135 F.3d 1129, 1135 (7th Cir. 1998).
These decisions do not discuss Rule 51(a), and for the
most part they did not need to; they are compatible
with Rule 51(b), which (in language that we did not
reproduce above) requires a protest immediately after
the ruling if the litigant did not have an opportunity to
argue the point earlier. When the judge surprises counsel,
it is far better to air and resolve the matter in the
district court than to bypass available opportunities for
correction and save the issue for appeal. But when an
issue is argued before the judicial ruling, counsel need not
take exception once the court’s decision has been announced.
That’s what Rule 51(a) says. Bartlett’s sentence
was the subject of extensive argument and evidence; his
lawyer did not need to argue with the judge once the
sentence had been pronounced.
All three convictions, and the sentences of Spengler and
Masarik, are affirmed. Bartlett’s sentence is vacated, and
his case is remanded for proceedings consistent with
this opinion.
Chicago Criminal Lawyer - Robert J Callahan
and barbarity, and the time needed to pass from one
state to the other, is depressingly short. Police officers
in Milwaukee proved this the morning of October 24, 2004.
Andrew Spengler held a housewarming party that
started on October 23 and lasted into the next morning.
Spengler and many guests were police officers. Liquor
flowed freely. Katie Brown and Kirsten Antonissen were
among the invitees. They arrived after 2:30 AM on
October 24 with Frank Jude and Lovell Harris. The quartet
was immediately made to feel unwelcome because the
women are white, and the men are not. (Harris describes
himself as black; Jude describes himself as bi-racial.) After
five minutes, the four prepared to leave—but they were
prevented when at least ten men stormed outside, surrounded
Antonissen’s truck, and demanded to know
what the four new arrivals had done with Spengler’s
badge. Spengler says that he could not find it after the
quartet arrived, and he accused them of theft. The men
demanded that the four get out of the truck and surrender
the badge. When they stayed inside, the men threatened
them (“Nigger, we can kill you”) and began to vandalize
the truck. Harris tried to wake the neighbors; the men
responded: “Nigger, shut up, it’s our world.”
Eventually all four were dragged from the truck. A
search did not turn up the badge. Instead of concluding
that Spengler’s accusation was mistaken, the men
became enraged and violent. One cut Harris’s face in a
way that he described as “slow and demented.” Harris
managed to free himself and run away. Multiple men
began to kick and punch Jude. Antonissen managed to
call 911; she told the operator “they’re beating the shit
out of him.” When the men saw Antonissen use the
phone, they wrested it from her hand and flung her
against the truck so forcefully that its metal was dented.
Brown made two calls to 911 before her phone, too, was
seized.
The first call was logged at 2:48, and two officers (Joseph
Schabel and Nicole Martinez) arrived at 3:00. The
beating continued until their appearance. Men punched
Jude’s face and torso; when he fell to the ground, they
kicked his head and thighs. The partygoers behaved as a
mob. Not a single person in the house tried to stop the
attack or even to call for aid. Jon Clausing, who had
slashed Harris’s face, explained his conduct as “just kind
of going along with everybody.” That is the way of the
mob. Society has police forces to pose a counterweight
to mobs, yet here the police became a mob.
Schabel and Martinez were on duty and had not been
drinking, so they should have put a stop to the violence.
Instead Schabel joined it, while Martinez watched. On
being told that Jude had stolen Spengler’s badge, Schabel
called Jude a “motherfucker” and stomped on his face
until others could hear bones breaking. After telling
Martinez “I’m really sorry you have to see this,” Daniel
Masarik picked Jude off the ground and kicked him in the
crotch so hard that his body left the ground. Jon Bartlett
then took one of Schabel’s pens and pressed it into each of
Jude’s ear canals, causing severe injury and excruciating
pain. The men also broke two of Jude’s fingers by bending
them back until they snapped. Spengler put a gun to
Jude’s head and said: “I’m the fucking police. I can do
whatever I want to do. I could kill you.” Bartlett used a
knife to cut off Jude’s jacket and pants, leaving him
naked on the street in a pool of his own blood.
The violence tapered off when additional on-duty police
arrived. At 3:09 officers arrested Jude. Yes, they arrested
the victim, although Jude had never fought back. (He had
suffered a concussion and was unable to defend himself.)
Jude was taken to an emergency room; the admitting
physician took photographs because “[t]here were too
many [injuries] to document” in writing. The injuries to
Jude’s ears could not be diagnosed because the
physicians could not control the bleeding. One physician
testified that she had never seen ear injuries so severe.
While Jude was receiving treatment, on-duty officers
recovered Jude’s car. Bartlett and other men had ripped
up its seats with knives and poured antifreeze over
them; apparently they poured antifreeze into the gas tank
too, damaging the engine. The radio had been wrecked.
The men broke a headlight and tore a mirror off
Antonissen’s truck. Spengler’s badge was not found in
either the car or the truck; perhaps he had put down the
badge in the house and was too soused to remember
where.
Bartlett, Spengler, and Masarik were prosecuted in
state court and acquitted after Schabel and others committed
perjury on their behalf, while many people who
had been at the party claimed to suffer memory loss. That
made it impossible to show who had done what, and
the judicial system (unlike a mob) demands personal
responsibility. The Civil Rights Division of the Justice
Department then investigated, and federal prosecutors
persuaded several witnesses to cooperate. Four men
(Joseph Schabel, Ryan Lemke, Jon Clausing, and Joseph
Stromei) pleaded guilty to obstruction of justice (by
perjury, including false testimony before the federal
grand jury), to violating Harris’s and Jude’s civil rights, or
both. Bartlett, Spengler, and Masarik were convicted by a
jury of conspiring to violate Harris’s and Jude’s right to be
free from unreasonable searches and seizures (18 U.S.C.
§241), and of the substantive offense (18 U.S.C. §242).
(Excessive force in making an arrest violates the fourth
amendment to the Constitution, applied to state police
officers by the fourteenth amendment. See Graham v.
Connor, 490 U.S. 386 (1989).) Bartlett was sentenced to
208 months’ imprisonment, Spengler and Masarik to
188 months apiece. All seven men have been fired by the
Milwaukee Police. Two more officers were fired but
later reinstated; an additional four were disciplined.
Bartlett, Spengler, and Masarik present twelve appellate
issues. Only four require discussion. The rest have been
considered, and we reject them without comment.
1. The maximum punishment for a violation of either
§241 or §242 is 120 months’ imprisonment. The longer
sentences that Bartlett, Spengler, and Masarik received
depend on convictions of both offenses. All three
contend that the evidence of conspiracy is insufficient.
Conspiracy is agreement to violate some other law, see
United States v. Shabani, 513 U.S. 10 (1994), and defendants
maintain that events developed without an agreement.
When Spengler called for aid to recover his badge, people
rushed from the party to Antonissen’s truck without
prior negotiation or agreement.
This perspective assumes that the agreement must
predate the first substantive offense. Yet it need not. An
agreement forged in the course of committing a crime,
among people who plan to work together in an ongoing
criminal venture, is no less a conspiracy than one that
precedes the first overt act. The battery of Jude lasted for
20 minutes. A reasonable jury could infer that defendants
and others formed a plan to do whatever was necessary
to recover Spengler’s badge and punish the thief—a
plan carried out through cooperative criminal activity.
Working together to commit a series of criminal acts, in
which each cooperative act implies a plan to cooperate
in the future, is a functional understanding of conspiracy.
See United States v. Lechuga, 994 F.2d 346 (7th Cir. 1993)
(en banc); United States v. Wantuch, 525 F.3d 505, 519
(7th Cir. 2008). None of the evidence suggests that defendants
worked at cross-purposes with each other, or with
the rest of the mob. The evidence is enough to permit
an inference of agreement and thus a conviction for
conspiracy.
2. Masarik contends that he did not participate in the
beating. He concedes that he was at the party but says
that he stayed indoors or on the mob’s periphery. He
did not report the crime or assist the prosecution, so he
might have been convicted of misprison of felony, see
18 U.S.C. §4, but if he was a bystander he did not violate
§241 or §242.
Six witnesses testified that Masarik held Jude while
others punched and kicked him. Some of these witnesses
testified that Masarik kicked Jude in the face at least
twice, and that Masarik kicked Jude in the crotch (after
apologizing to Martinez). Masarik contends that he must
have been confused with someone else, and he proposed
to present expert testimony about high error rates in
eyewitness identifications. The district court excluded the
proposed testimony for two principal reasons. First, the
judge stated that jurors could determine the reliability of
identifications using the evidence from direct and cross
examinations. Second, the judge invoked Fed. R. Evid. 403,
which allows the exclusion of evidence that is needlessly
cumulative or will consume trial time out of proportion
to its value.
The first of these reasons is weak. Doubtless lawyers will
ask questions designed to assist the jurors in evaluating
whether a witness is telling the truth. But the problem
with eyewitness testimony is that witnesses who think
they are identifying the wrongdoer—who are credible
because they believe every word they utter on the
stand—may be mistaken. Study after study has shown very
high error rates in the identification of strangers. See, e.g.,
Elizabeth F. Loftus & James M. Doyle, Eyewitness Testimony:
Civil and Criminal (3d ed. 1997) (collecting studies); Elizabeth
F. Loftus, Eyewitness Testimony (1979; rev. ed. 1996);
Daniel L. Schacter, The Seven Sins of Memory: How the
Mind Forgets and Remembers 112–37 (2001). “An important
body of psychological research undermines the lay intuition
that confident memories of salient experiences . . . are
accurate and do not fade with time unless a person’s
memory has some pathological impairment. . . . The basic
problem about testimony from memory is that most of our
recollections are not verifiable. The only warrant for them
is our certitude, and certitude is not a reliable test of
certainty.” Krist v. Eli Lilly & Co., 897 F.2d 293, 296–97 (7th
Cir. 1990) (citations to the scholarly literature omitted).
It will not do to reply that jurors know from their daily
lives that memory is fallible. The question that social
science can address is how fallible, and thus how deeply
any given identification should be discounted. That jurors
have beliefs about this does not make expert evidence
irrelevant; to the contrary, it may make such evidence
vital, for if jurors’ beliefs are mistaken then they may
reach incorrect conclusions. Expert evidence can help
jurors evaluate whether their beliefs about the reliability
of eyewitness testimony are correct. Many people
believe that identifications expressed with certainty are
more likely to be correct; evidence that there is no
relation between certitude and accuracy may have a
powerful effect.
Still, using expert testimony to explore this question
may sidetrack a trial. A judge must balance the benefits
of illuminating evidence against the costs of collateral
inquiries. That’s why Rule 403 grants discretion to the
trial judge—and why we have held, many times, that a
trial court does not abuse its discretion by excluding
expert evidence about the reliability of eyewitness testimony.
See, e.g., United States v. Carter, 410 F.3d 942, 950
(7th Cir. 2005) (collecting cases); United States v. Hall,
165 F.3d 1095 (7th Cir. 1999) (same).
The district judge did not abuse his discretion in this
case, because the conviction does not rest on identifications
by Jude and the other victims. Only two of the
people who identified Masarik were strangers to him.
The other four knew him well. The social-science studies
do not suggest that people who have known one another
for weeks or years are apt to err when identifying them
in court. What’s more, the scholarly work concerns
identification by single eyewitnesses, not the probability
of error when multiple witnesses identify the same
person. If the six in-court identifications of Masarik were
independent, and each had a probable error rate of .333
(that is, there is a one-in-three chance that any witness
was mistaken), then the probability that Masarik is innocent
is .333 to the sixth power, or well under 1%. We
have remarked before that the scholarly findings about
eyewitnesses have only limited application when
multiple witnesses identify the same person. See United
States v. Williams, 522 F.3d 809 (7th Cir. 2008); Newsome v.
McCabe, 319 F.3d 301 (7th Cir. 2003). Masarik did not
proffer any evidence about the error rates in six-fold
identifications. Nor did he propose to ask an expert
whether the six identifications should be regarded as
independent, or what the risk of error in these identifications
taken jointly is apt to be. Someone who proposes
expert testimony must show how the findings apply to
the litigation at hand; Masarik did not do this.
A concurring opinion in Hall added that, although
jurors should be made aware of the scholarly findings
in appropriate cases, it is often better to have the judge
summarize the state of knowledge than to have a parade
of experts. 165 F.3d at 1120. Masarik did not ask the
judge to recap the scholarly findings for jurors’ benefit. For
him, it was an expert on the stand or it was nothing; the
judge did not abuse his discretion in blocking that testimony
in order to keep this trial on track.
3. All three defendants contend that their sentences
are unreasonably high when evaluated under the criteria
in 18 U.S.C. §3553(a). They stress §3553(a)(6), which
requires a sentencing judge to consider “the need to
avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar
conduct”. Lemke, Clausing, Schabel, and Stromei all
received sentences considerably less than 188 months;
Bartlett, Spengler, and Masarik contend that this difference
makes their sentences unreasonably high.
We have encountered this argument before and rejected
it.
There would be considerably less cooperation—
and thus more crime—if those who assist
prosecutors could not receive lower sentences
compared to those who fight to the last. Neither
[United States v.] Booker[, 543 U.S. 220 (2005)] nor
§3553(a)(6) removes the incentive for cooperation—
and because this incentive takes the form of
a lower sentence for a cooperator than for an
otherwise-identical defendant who does not cooperate,
the reduction cannot be illegitimate. After
all, §3553(a)(6) disallows “unwarranted sentence
disparities” (emphasis added), not all sentence
differences.
[T]he kind of “disparity” with which §3553(a)(6) is
concerned is an unjustified difference across judges
(or districts) rather than among defendants to a
single case. If the national norm for first offenders
who gain $275,000 or so by fraud is a sentence
in the range of 33 to 41 months, then system-wide
sentencing disparity will increase if Boscarino’s
sentence is reduced so that it comes closer to
Aulenta’s. Instead of one low sentence, there will
be two low sentences. But why should one culprit
receive a lower sentence than some otherwisesimilar
offender, just because the first is “lucky”
enough to have a confederate turn state’s evidence?
Yet that is Boscarino’s position, which
has neither law nor logic to commend it.
Sentencing disparities are at their ebb when the
Guidelines are followed, for the ranges are themselves
designed to treat similar offenders similarly.
That was the main goal of the Sentencing Reform
Act. The more out-of-range sentences that judges
impose after Booker, the more disparity there will
be. A sentence within a properly ascertained range
therefore cannot be treated as unreasonable by
reference to §3553(a)(6).
United States v. Boscarino, 437 F.3d 634, 638 (7th Cir. 2006).
Defendants acknowledge that the circuit’s law is against
them, but they contend that we must reevaluate the
subject in light of Rita v. United States, 551 U.S. 338 (2007),
Gall v. United States, 552 U.S. 38 (2007), and Kimbrough v.
United States, 552 U.S. 85 (2007), which emphasized that
the Guidelines are not binding and that district judges
have considerable discretion to implement their own
conceptions of just sentences, notwithstanding the Sentencing
Commission’s views. See also Spears v. United
States, 129 S. Ct. 840 (2009); Nelson v. United States, 129
S. Ct. 890 (2009).
To address defendants’ contention, we must separate
two questions: first, does §3553(a)(6) require a judge to
reduce anyone’s sentence below the Guideline range
because other persons who committed the same crime
but pleaded guilty and cooperated received lower terms?;
second, does §3553 as a whole permit a judge to go
below the Guideline range for this reason?
The first of these questions received a negative answer
in Boscarino and similar cases, which have observed that
§3553(a)(6) addresses only “unwarranted” disparities. A
difference justified by the fact that some wrongdoers
have accepted responsibility and assisted the prosecution,
while others have not, is not “unwarranted.” The best way
to curtail “unwarranted” disparities is to follow the
Guidelines, which are designed to treat similar offenses
and offenders similarly. Far from disapproving this
understanding, the Supreme Court adopted it in Gall:
Section 3553(a)(6) requires judges to consider “the
need to avoid unwarranted sentence disparities
among defendants with similar records who
have been found guilty of similar conduct.” The
Court of Appeals stated that “the record does not
show that the district court considered whether
a sentence of probation would result in unwarranted
disparities.” 446 F.3d at 890. As with the
seriousness of the offense conduct, avoidance of
unwarranted disparities was clearly considered
by the Sentencing Commission when setting the
Guidelines ranges. Since the District Judge correctly
calculated and carefully reviewed the Guide
lines range, he necessarily gave significant weight
and consideration to the need to avoid unwarranted
disparities.
128 S. Ct. 586, 599 (emphasis added). A sentence within a
Guideline range “necessarily” complies with §3553(a)(6).
But there is more to §3553 than §3553(a)(6). A judge must
respect all of the statutory criteria in order to mete out a
sentence “sufficient, but not greater than necessary, to
comply with the purposes [of sentencing] set forth in
paragraph (2) of this subsection.” 18 U.S.C. §3553(a). The
Court held in Kimbrough, and reiterated in Spears, that a
judge need not accept the Sentencing Commission’s
penological framework. The court may adopt its own. It
follows that §3553 permits a judge to reduce one defendant’s
sentence because of another’s lenient sentence—not
because of §3553(a)(6), but despite it. Avoiding “unwarranted”
disparities (as the Sentencing Commission or a
court of appeals defines them) is not the summum
bonum in sentencing. Other objectives may have
greater weight, and the court is free to have its own
policy about which differences are “unwarranted.”
It follows that, if the district judge thought himself
forbidden to take account of Lemke’s, Clausing’s,
Schabel’s, or Stromei’s (relatively) low sentences when
deciding what punishment to impose on Bartlett, Spengler,
or Masarik, he was mistaken. The judge did not make
this error, however. He concluded that the disparity is
justified by material differences in the offenders’ conduct
and acceptance of responsibility, not that a disparity is
unjustified but irremediable. The district judge followed
§3553(a), and understood the extent of his discretion,
when sentencing Bartlett, Spengler, and Masarik.
4. Masarik was sentenced at the top of his range (151
to 188 months); that sentence is reasonable under §3553
and Rita. See also United States v. Mykytiuk, 415 F.3d 606,
608 (7th Cir. 2005) (an in-range sentence is presumed
reasonable on appeal). Spengler’s sentence of 188 months
exceeds the top of his range (121 to 151 months) but is
reasonable under Gall: the district judge properly
deemed him the instigator. Some of his conduct, such as
pointing a gun at Jude’s head and proclaiming authority
to kill anyone he wanted, was not taken into account in
the Guidelines calculation.
Bartlett’s sentence of 208 months likewise exceeds the
top of his range. He committed the most brutal acts.
Thrusting a pen into a person’s ear canals is torture by
any definition. While facing the state charges, Bartlett
threatened to blow up his former police station, a crime
for which he has been convicted in state court and sentenced
to 54 months. He also defrauded a gun dealer into
selling him a submachine gun, violating gun-control laws
as well as the terms of his federal bail; this conduct drew
another 18 months in a separate prosecution. A district
judge might deem a lengthy consecutive sentence
essential for incapacitation as well as deterrence and
desert. But the court may not have appreciated that Bartlett’s
sentence exceeds his Guideline range.
Many cases in this circuit say that sentences exceeding
the Guideline range must be explained not only in
absolute terms, under the criteria of §3553(a), but also
with an analysis of why a Guideline sentence would be
insufficient. See, e.g., United States v. Gordon, 513 F.3d
659, 666 (7th Cir. 2008); United States v. Wachowiak, 496
F.3d 744, 749–50 (7th Cir. 2007). These decisions did not
survive Nelson, which holds that district judges need
not—indeed must not—begin with a presumption in
favor of a Guideline sentence. If there is no need to start
from the perspective that an in-range sentence usually
is best, there is also no need to explain why some
different sentence is better. The judge’s task is to choose
a reasonable sentence. The court must take the Sentencing
Commission’s views into account, but a sentence
cannot be called “unreasonable” just because the
judge explains why he chose that sentence, rather than explaining
his decision from the Guidelines’ perspective.
The old regime of “departures” is defunct. See Irizarry v.
United States, 128 S. Ct. 2198 (2008).
Although the judge need not use the Guidelines as the
fulcrum of analysis, the court still needs to understand
the relation between the Guidelines and the ultimate
sentence. Both Rita and Gall say that the court must
construct a Guideline range accurately. A sentence is
procedurally unreasonable if the judge thinks it within
the range, but it isn’t—either because the range was
not determined accurately in the district court, or
because the judge misunderstood what that range was.
Bartlett’s range is 151 to 188 months. Much of the sentencing
transcript reads as an explanation about why
the sentence is at the high end of the range. At the end
of the proceeding, the judge stated bluntly that the sen
tence would be the top of the range. But the actual sentence
of 208 months is 20 months higher. That’s a problem.
The prosecutor says that, by the close of the proceeding,
the judge had recognized that 208 months exceeds Bartlett’s
range. The transcript is not as clear to us as it
appears to be to the prosecutor. Given the risk of confusion,
the better part of wisdom is to ask the district judge
to take another look, to ensure that the sentence rests on
a deliberate choice rather than a mistake. A 208-month
sentence is reasonable substantively, but no one, not
even a Bartlett, should lose 20 months of freedom
because a district judge read across the wrong line in a
table. (The range 168 to 210 months is the next highest
in the Guidelines’ sentencing table.)
Nonetheless, the prosecutor maintains, Bartlett forfeited
any opportunity for appellate relief because he did
not “object” to the 208-month sentence on the ground that
it exceeds the Guideline range. We put “object” in scare
quotes because remonstration with the judge is not an
objection as usually understood. Both the Rules of Evidence
and the Rules of Criminal Procedure require a
litigant to make known the position it advocates and to
present evidence and argument for that position. These
steps are essential to facilitate intelligent decision in the
district court. Counsel present positions, and judges
then decide. But the rules do not require a litigant to
complain about a judicial choice after it has been made.
Such a complaint is properly called, not an objection, but
an exception. The rule about exceptions is explicit: “Exceptions
to rulings or orders of the court are unnecessary.”
Fed. R. Crim. P. 51(a). Rule 51(b) adds that a litigant
preserves a contention for review “by informing the
court [before the decision is made] of the action the party
wishes the court to take . . . and the grounds for” that
action. Bartlett and his lawyer argued for a lower sentence,
and they gave reasons. They have preserved their
appellate options.
Having said this, we must acknowledge that some of our
opinions use the word “objection” in the same way the
prosecutor did, and they hold (or at least suggest) that
lawyers must ask a judge to reconsider the sentence (or
other decision) as the price of appellate review. See, e.g.,
United States v. Harvey, 232 F.3d 585, 587 (7th Cir. 2000);
United States v. Marvin, 135 F.3d 1129, 1135 (7th Cir. 1998).
These decisions do not discuss Rule 51(a), and for the
most part they did not need to; they are compatible
with Rule 51(b), which (in language that we did not
reproduce above) requires a protest immediately after
the ruling if the litigant did not have an opportunity to
argue the point earlier. When the judge surprises counsel,
it is far better to air and resolve the matter in the
district court than to bypass available opportunities for
correction and save the issue for appeal. But when an
issue is argued before the judicial ruling, counsel need not
take exception once the court’s decision has been announced.
That’s what Rule 51(a) says. Bartlett’s sentence
was the subject of extensive argument and evidence; his
lawyer did not need to argue with the judge once the
sentence had been pronounced.
All three convictions, and the sentences of Spengler and
Masarik, are affirmed. Bartlett’s sentence is vacated, and
his case is remanded for proceedings consistent with
this opinion.
Chicago Criminal Lawyer - Robert J Callahan
U.S. vs. James Kincannon
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
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
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
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