Articles Tagged with “Seventh Circuit”

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It’s a catch-up blast of short wins today following my Spring Break.

My favorite of the bunch, continuing on our recent restitution cases, is United States v. Foley. There, the district court ordered restitution that was outside the offense of conviction. The First Circuit reversed. Go First Circuit!

To the victories!

you win.jpg1. United States v. Molina-Gomez, First Circuit: The district court erred by denying Appellant’s motion to suppress statements he made to United States Customs and Border Protection officers. The questioning occurred in a small, windowless room and Appellant was not given Miranda warnings prior to being questioned, which amounted to a violation of his Fifth Amendment rights. The case was remanded so Appellant could withdraw his plea and determine how he would like to proceed.

Defense Attorneys: Leonardo M. Aldridge-Kontos, Hector E. Guzman-Silva, Jr., Hector L. Ramos-Vega, and Lisa L. Rosado-Rodriguez
2. Perry v. Roy, First Circuit: Appellant, an inmate, brought a civil rights suit challenging the medical treatment he received after a violent scuffle with prison guards, which left him with a broken jaw. The trial court dismissed the case, holding that Appellant had not presented evidence that prison medical personnel deliberately denied him care. But the First Circuit concluded that the trial court had improperly weighed the evidence, which, when viewed in a light favorable to Appellant, could support a finding that the prison medical personnel were deliberately indifferent to Appellant’s condition.

Inmate’s Attorneys: Benjamin M. McGovern, Amanda O. Amendola

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The Seventh Circuit’s opinion in United States v. Hawkins – written by Easterbrook – presents a fascinating legal defense. When is getting money from someone for side benefits from the government bribery and when is it fraud?

Mr. Hawkins and his co-defendant Mr. Racasi worked in Chicago for the Board of Review – the entity that hears tax assessment appeals. They took money from a cop – Haleem – who they thought was dirty and, in fact, was – he was so dirty he was acting as an undercover officer to work his time down on some other criminal conduct of his.

It is an interesting question whether a dirty cop who has turned cooperator because his dirtiness has led to its own charges is truly “undercover” but let’s elide over that for a minute.

Messrs. Hawkins and Racasi took Mr. Haleem’s money so that they could work some influence at the Board that lowers tax assessments on some property Haleem owned. One of the properties didn’t have its assessment reduced, but the rest did.

They were charged with bribery and fraud in connection with the bribery. They were also charged with conspiracy, but that’s just because these days AUSAs get made fun of at the NAC if they don’t add a conspiracy charge to every case.

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This week’s favorite Short Win is United States v. Gray. I say this less because of the legal issue involved – a jury instruction for “malice” – than for how much fun the opinion is to read. Here’s the opening:

Words are slippery things. Take “malice,” its legal definitions alone can encompass: the intent to commit a wrongful act, reckless disregard for the law, ill will, wickedness of heart, and the intent to kill. See Black’s Law Dictionary 968-69 (7th ed. 1999). But can malice’s fifty shades of meaning include “improper motive?” Former flight attendant Nancy Gray, convicted of providing false information regarding a bomb threat on an airplane, seeks to convince us that she was denied a fundamentally fair trial when her jury was instructed that malice meant “evil purpose or improper motive.” Because we find that the district court’s definition just won’t fly, we vacate Gray’s conviction and remand this case for a new trial.

It goes on from there. And, really it’s a sad story about a flight attendant snapping. But it’s good prose.

To the victories!

Thumbnail image for Thumbnail image for you win.jpg1. United States v. Gray, First Circuit: Appellant’s conviction for giving false information regarding a bomb threat on an airplane was vacated and remanded because the trial court improperly instructed the jury on the definition of malice. By instructing he jury that malice could be “an improper purpose,” the trial court reduced the government’s burden of proof.

Defense Attorney: Inga L. Parsons
2. United States v. Medina, First Circuit: After pleading guilty to failure to register as a sex offender, Appellant was sentenced to 30 months’ imprisonment and 20 years of supervised release. This sentence was vacated and remanded for resentencing because the 20-year period of supervised release was based on the erroneous classification of Appeallant’s SORNA violation as a sex offense. In addition, two conditions of supervised release–one restricting Appellant from accessing or possessing a wide range of sexually stimulating material, and the second requiring Appellant to submit to intrusive penile plethysmograph testing–were not justified by the record.

Defense Attorney: Edward J. O’Brien

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The third level for acceptance of responsibility is interesting – it’s one area where some courts have held the government has pretty much unfettered discretion to decide whether or not it should apply. Basically, a person is supposed to get the third level only if she’s pled guilty early enough to keep the government from working. Though some U.S. Attorney’s offices are more or less stingy about how early is early enough.

Regardless, it can be hard to overcome an unreasonable government position on the applicability of the third-level for acceptance.

Which is why I was glad to see United States v. Castillo – which challenges the sovereignty of the government’s decisionmaking about the third level and its applicability. Good stuff there.

To the victories!

Thumbnail image for you win.jpg1. United States v. Alejandra-Montanez, First Circuit: Appellants were convicted of criminal conspiracy charges for importing cocaine. Because of recent amendments to the sentencing guidelines that retroactively reduced most drug quantity base offense levels, the case was remanded for reconsideration of Appellants’ sentences.

Defense Attorneys: David A.F. Lewis, Leslie W. O’Brien, and Joshua L. Gordon
2. United States v. Martinez-Rodriguez, First Circuit: Appellants were convicted of drug and firearms offenses. Appellant Rodriguez’s conviction for the drug offense was reversed because the evidence was insufficient to connect him to Appellant Santini’s possession of narcotics. And the evidence connecting Appellant Santini to Appellant Rodriguez’s possession of a firearm was also insufficient, so that conviction was reversed as well. The only evidence of a connection between Appellants, who are brothers-in-law, was that they had been in a car together when the car was stopped. But the lack of evidence about the full nature of their relationship, of any plan they had to carry out a drug-trafficking offense, and of their prior dealings with each other was insufficient to show that the two had the requisite knowledge of the other’s offense.

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Entrapment is making a comeback.

As a defense I mean. It started making a comeback as a government tactic shortly after September 11 before it migrated to the non-national security law enforcement world.

And the Seventh Circuit appears to be the new home of the entrapment defense as it rises, phoenix-like, on the shores of Lake Michigan. In United States v. Barta, the Seventh Circuit again affirmed the new strength of an entrapment defense in that part of the country.

If you remember one quote from this opinion, remember this one: “The point is that the government is supposed to catch criminals, not create them.”

the-venus-flytrap-4-1234316-m.jpgMr. Barta’s Business

James Barta founded a company called Sav-Rx. Sav-Rx was a “prescription benefit management business.” I believe that means that they help businesses that offer a prescription benefit to their employees with that.

Mr. Barta Meets with the FBI (Unwittingly)

In any event, Mr. Barta came to meet with a man named Castro. Or, referred to as Castro, since he was actually an undercover FBI agent. Castro was known as a guy who could deliver contracts with people at Los Angeles County. He delivered those contracts by bribing them.

When Mr. Barta first met with Castro he told him, right off the jump, “I’m not trying to sell you anything.” He said he was merely there to tell Castro what Sav-Rx does.

Castro told Mr. Barta that he could connect Sav-Rx with the Los Angeles County government because he knew a guy and he’d need to be paid. Barta left twelve minutes after the meeting started.

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There are two cases in this batch of short wins that I think deserve a special shout out.

First, there’s United States v. Torres-Perez. Appeal waivers are the bane of federal criminal practice (or one of them). Their only advantage is that they make prosecutors’ lives easier. The downside, which is significant, is that they discourage the development of the law. I’d rather have the government work more and know what the law is. Though I may be crazy. In Perez, the Fifth Circuit slapped down an appeal waiver requirement in order to get credit for a acceptance.

Second, there’s United States v. Barta – another great entrapment case from the Seventh Circuit. That circuit is bustin out entrapment cases like Taylor Swift and Katy Perry bust out insults of each other. Or something.

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United States v. Fard is a nice study in the wrong way for a lawyer to handle a plea hearing.

Let me say, at the start, that I get that a plea hearing can be hard. Sometimes a lawyer sees what’s in his client’s best interests more clearly than the client. There can be a temptation to push a client really hard to take a plea when the client doesn’t want to. And getting a client who has reluctantly inked a plea through a plea hearing can also be hard.

There are few things you can do to handle that. Maybe you spend more time with the client explaining why a plea makes sense. Maybe you talk – with permission – to the client’s loved ones about whether a plea makes sense. Maybe, if the client doesn’t want to plead, you reflect that it’s the client’s Sixth Amendment right to go to trial, and not the lawyer’s and you take the case to trial.

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It’s been an interesting week in the federal circuits. Aside from the normal and expected sentencing appeals, there are two cases that caught my eye.

The first is United States v. Fard on withdrawing a plea. I often hear from people who have entered a plea and want to talk about hiring me to withdraw it. It can be maddening to see how other lawyers have poorly advised their clients, or have simply had them enter pleas that their client does not understand (sometimes, especially when the lawyer has no prior criminal defense experience, I fear the lawyer doesn’t understand the plea either). Fard helps, a bit, in attacking pleas that aren’t knowing and voluntary.

The second case I find interesting solely for the schaedenfraude it gives me. The case is United States v. Smith. There, an AUSA was appointed and confirmed to be a judge. As a judge, he worked on a case he also worked on as an AUSA. Hijinks ensue.

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the-money-trap-621161-m.jpgAs I’ve been writing about a lot over on Above the Law, one thing that is really not good about the federal criminal system is that it is extremely hard to attack government conduct.

This isn’t to say that all prosecutors or cops are bad. But they have massive amounts of unchecked power. And, my view at least, is that human nature is such that any given with power has at least a decent chance of abusing it. Prosecutors and cops aren’t saints – some of them are going to do what they ought not. And, when that happens, absent an egregious Brady violation and a really good judge, nothing much is likely to happen to the prosecutor.

Perhaps the hardest part of this is in entrapment law. The government should be in the business of catching crime, not creating crime to catch.

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And, after a really long break, we’re back. Apologies. This day job has been very busy lately.

And, of course, if you ever find yourself jonesing for my writing, you can always check out my stuff on Above the Law.

You saw our guest post on Hite last week – it’s a great case that bears a close read.