Valpo Law Blog

Analysis of current legal issues and cases in the Seventh Circuit Court of Appeals

Category: Sentencing (page 1 of 2)

Life in prison for juveniles under RICO?

Ashley Merritt
J.D. Candidate 2017
Valparaiso University School of Law

Should juveniles be sentenced to life in prison without the possibility of parole? In a recent case, the Seventh Circuit Court of Appeals addressed this unsettling question.

In 2005, Latin Kings gang members Martinez and Vallejo were indicted under the Racketeer Influenced and Corrupt Organization Act (RICO) for crimes they committed as juveniles, including first degree murder. After pleading guilty, both Martinez and Vallejo were sentenced to life in prison. The defendants now claim that they are entitled to new sentencing hearings under Miller v. Alabama, which held that mandatory sentences of life in prison without the possibility of parole for juveniles violate the Eighth Amendment.

Martinez and Vallejo were both sentenced to life in prison under 18 U.S.C. § 1963, which states that anyone who violates any RICO provision shall be imprisoned not more than 20 years, or for life if the violation is based on a racketeering activity for which the maximum penalty includes life imprisonment.

In his opinion, Judge Flaum identifies two possible interpretations of the statute. On one hand, it is possible that the statute mandates a life sentence whenever the crime carries a maximum sentence of life in prison. If so, the statute is unconstitutional under Miller. On the other, it is possible that the statute sets only a maximum sentence of life in prison in such cases, and a court could choose to give a lower sentence.

Although Judge Flaum states that most courts have interpreted the statute to impose a sentence of no more than twenty years, he reasons that because the defendants were given individualized sentencing hearings and not sentenced by statutory mandate, the district court did not violate Miller.

Given the severe nature of the defendants’ crimes, life sentences can certainly be justified even if they were minors at the time. However, the ambiguity behind the sentencing guidelines suggests that even courts have trouble interpreting them. Maybe the legislature should change the language of the statute to be less ambiguous. But perhaps it is time for a complete overhaul of the mandatory minimum sentencing guidelines.

Homicide By Strangulation… During Sex

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By: Macey Albert
J.D. Candidate, 2017
Valparaiso University School of Law

For one man, a seemingly great night turned into a long journey through the judicial system. In Thomas v. Clements, the Seventh Circuit Court of Appeals reviewed a man’s conviction where he killed his wife after applying too much pressure on her during sex.

Joyce Oliver-Thomas and Oscar Thomas were married. After nine years of marriage, the two divorced; however, Oliver allowed Thomas to continue living in her apartment where the two continued a sexual relationship. On the night of the incident in question, the police received a call from Thomas saying that Oliver was unconscious. When the police arrived Oliver was unresponsive, eyes open, and without any pulse. She was announced dead at the hospital.

Thomas gave two inconstant statements. He first stated that he left the apartment and came back and found Oliver grabbing her neck in a choking manner. He later stated that he left the apartment and began watching a pornographic movie. When he returned he and Oliver had sex, during which they fell off the bed and continued to have sex. He mentioned that at one point while engaging in sexual activity he had his arm around her neck. Thomas was found guilty by the trial court for unintentionally causing Oliver’s death by putting pressure on her neck for too long during sex. The trial court ruled under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and Thomas appealed, alleging that the wrong standard was applied.

To prevail on his claim, Thomas had to first show that his counsel’s performance was deficient, meaning it fell below the objective standard of reasonableness. Thomas argued the defense counsel was deficient in failing to consider and consult with a pathologist who would have reviewed the autopsy report and testified. Dr. Mainland’s (the plaintiff’s expert) pretrial testimony showed that Thomas acted intentionally. This corroborated with the testimony of the plaintiff in which he admitted having his arm around her neck before she died, as well as the counsel choosing not to argue the issue of causation. The combination of these factors gave what seemed to be a reasonable inference of intent. There were no signs of fight or struggle between Thomas and Oliver, however. Therefore,  counsel should have known there was reason to question a finding of intentional homicide. A responsible counsel would have at least contacted an expert to check if the medical findings could be reconciled.

Next, Thomas had to show that there was a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different. The expert mention that strangulation would likely result after four minutes of pressure, meaning there were roughly fifty-five minutes in which Oliver was not being choked to death. All parties admit there was no evidence of external marks on either Thomas or Oliver. Dr. Teas’s testimony in the post-conviction hearing stated that because there were no external bruising on the neck or bone, the necessary injuries of strangulation were missing.

Dr. Teas’s testimony provided that even if Thomas did cause Oliver’s death, it was not intentional. The facts were consistent with an accidental death and sufficient to raise a reasonable doubt; therefore, there was evidence of prejudice for ineffective assistance of counsel purposes. The Seven Circuit  ruled that after reviewing the case de novo the counsel’s performance in relation to a pathologist expert was deficient and that Oliver was prejudiced by counsel’s deficient performance.

The Unlawful Inquisition

By: Jonathan Joseph,  MBA, CPA
J.D. Candidate, 2016
Valparaiso University School of Law

How much information may a judge solicit from a telephonic interview? When does an oral interview become an unlawful interrogation? A recent case decided by the Seventh Circuit attempts to answer these very questions.

After serving a term in an Illinois state prison for a sex crime, the plaintiff was committed to a Treatment and Detention Facility, pursuant to the civil Sexually Violent Persons Commitment Act. He had a job in the facility’s dietary services department, but was fired. He filed suit against four dietary department staff members under 42 U.S.C. 1983. The plaintiff alleged that he was fired in retaliation for previous lawsuits he had brought against staff members. As required by 28 U.S.C. § 1915(e)(2), the district judge screened the complaint at the outset of the case to determine whether it “fail[ed] to state a claim upon which relief may be granted.” The judge found that the lawsuit “contained only conclusory allegations [in which] the plaintiff simply stated he had filed previous lawsuits and assumed people knew about it.” He ruled that the complaint did, indeed, fail to state a claim, and dismissed the suit with prejudice.

The judge had interviewed the plaintiff by telephone. During the interview, which the judge characterized as a “merit review,” no transcript or audio recording was kept. One could characterize the interview as inquisitional in its nature. The term “inquisition” has ominous overtones to those familiar with European medieval religious history, but today, an inquisitorial hearing is defined as “a hearing in open court in which the judge examines the parties to the suit rather than leaving examination to the lawyers, which is adversarial rather than inquisitorial.” In this case, the district judge went beyond the inquisitorial in its modern sense, because he examined the plaintiff in “secrecy being secured by the absence of a transcript, or even a judge’s or reporter’s notes.”

The Seventh Circuit reversed the district judge’s decision, noting that it previously rejected ex parte telephonic interrogation as a method of screening complaints to determine whether they state a claim. The court recognized that there are circumstances that merit telephonic interviews. These  can involve parties who are incarcerated and are done in order to save the time and expense of transporting a prisoner to court. However, these circumstances do not allow for questioning regarding the validity of the case. It is permissible for the judge to interview a pro se detainee plaintiff to determine what the facts of the case are, but not whether the plaintiff’s case is meritorious.

When a judge conducts any questioning of a witness, plaintiff, or defendant, that interview must be recorded and entered into the record. The judge must ensure that a transcript or recording of the interview be made to allow appellate review and prevent a reversal of a case that even the Seventh Circuit felt was weak: “barebones—maybe so thin that it could have been dismissed without further ado.” The court was obligated to take the judge’s error as grounds for reversal.

Citing Williams v. Wahner, the Court did not “mince words” when declaring that the use of ex parte telephonic interrogation as a method of screening complaints to determine whether they state a claim is unlawful. The court said that 28 U.S.C. § 1915A(a), a screening provision similar to § 1915(e)(2), does not contemplate an oral examination of a party by the judge designed to elicit answers that will enable the judge to resolve contestable factual issues. “If the validity of a claim depends on the accuracy of the plaintiff’s factual allegations, and their accuracy can’t be resolved without an oral hearing, it is a matter to be resolved at trial, in conformity with the procedures that govern trials. . . We expect that when this court declares a procedure employed by a district judge, or district judges, of this circuit unlawful, the procedure will be abandoned. Regrettably, not all the district judges have abandoned it.”

If a judge needs additional information from a detainee to determine the merits of a lawsuit going forward, the judge can make a limited appointment of counsel specifically for the purpose of fact-finding and release the attorney after sufficient information has been gathered. That may only involve a single interview or even a telephone call, which would satisfy the judge’s need for information and uphold the lawfulness of the manner in which it was obtained. Inquisitions, however, are unlawful and viewed with prejudice by the Seventh Circuit.

Coming Back to Bite You: Immunity for Expert Witnesses

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By: Macey Albert
J.D. Candidate, 2017
Valparaiso University School of Law

Can teeth marks on a body come back and bite you for falsifying your opinion during trial? The Seventh Circuit Court of Appeal issued an opinion explaining the immunity for expert witnesses. In Stinson v. Gauger, the court reviewed a case where an expert’s opinion resulted in a man being wrongly accused and sentenced for murder. Judge Sykes wrote the Opinion for a three-judge panel.

Robert Lee Stinson spent 23 years in prison for a murder that he did not commit. He was exonerated by DNA evidence. Stinson alleges that the two odontologists—key witnesses for the prosecution—fabricated their opinion. Stinson burger alleges that the detective in the case—Mr. Gauger—put them up to it and collectively the three suppressed evidence of the fabrication in violation of his due process of law.

The bite marks found on the victim showed that her killer had one missing tooth in the upper right lateral incisor and a twisted tooth in the same area. Stinson’s dental records were similar to those of the killer’s, but did not actually match. Stinson was missing his front right central incisor and had a damaged tooth, which resembled the killer’s dental records. Nonetheless, Dr. Raymond and Dr. Johnson testified that the bite marks on the victim implicated Stinson.

The Court examined three issues: 1) Appellate Jurisdiction;  2) Absolute Immunity; and 3) Qualified Immunity.  Did the appeal raise a question of law about historical facts? An order denying summary judgment usually lacks the finality required for appellate jurisdiction, but orders denying claims of immunity from suits are an exception. The odontologist and Gauger accepted Stinson’s version of historical facts, but they argued that the facts do not amount to violation of a constitutional right. As a result of this case being a legal question of a qualified-immunity claim, the district court order qualified for immediate appeal.

A witness has absolute immunity from suits on claims from their testimony at trial and from the preparation to testify at trial. Misconduct committed while investigating the case is not qualified for absolute immunity. Even if the doctors falsely testified at trial, they cannot be sued solely on that testimony in a civil suit. Stinson accused the odontologist of fabricating their opinions during the investigation before probable cause existed. Based on the principles outlined in Buckley v. Fitzsimmons, absolute immunity does not apply to this alleged misconduct.

To be protected under qualified immunity, Stinson had to possess evidence that showed the odontologist’s conduct violated a constitutional right and the right was established at the time of their actions. Stinson alleged that his Fourteenth Amendment right was violated. Stinson believed the doctors and the detective conspired to frame him with fabricated evidence. In order to suffice this requirement, an expert has to know their information is wrong and still use the false information. The defendant’s expert at the initial trial failed to show that the information given was fabricated. Stinson’s own expert missed the errors that were later identified and, therefore, there was no suppression of evidence.

The Seven Circuit ruled that the defendants are not protected under absolute immunity because Stinson accused them of fabricating their opinion during the investigative phase, but they are entitled qualified immunity because they did not violate Stinson’s due process rights by fabricating their opinions since there was not any showing that they intentionally fabricated their opinion, and the detective did not violate Stinson’s due process right and was also entitled to qualified immunity.

This case shows that witnesses should be held responsible for their testimonies and that all individuals—despite being accused of a crime—should be awarded the same protection as everyone else. Additionally, this case illustrates the demand for immunity to be granted to expert witnesses so they will feel free to tell the truth to the best of their overall knowledge without the threat of being sued for a mere mistake. However, one question remains with this type of interpretation: Would this allow experts to say what they want geared by their personal opinions?

Equalizing Administrative Remedies for Prisoners

By: Haley Holmberg
J.D. Candidate, 2017

Valparaiso University School of Law

Under 42 U.S.C. § 1997e(a), “no action shall be brought with respect to prison conditions until administrative remedies as are available are exhausted.” Recently, the 7th Circuit Court of Appeals reviewed White v. Bukowski to determine the outcome when a detainee does not follow protocol for reporting an abuse of a fundamental right–or at the very least, a right protected under statute regarding prison regulations.

When Wenona White arrive at jail for pre-trial detention on alleged conspiracy to commit bank fraud, she was almost eight months pregnant. Eleven days later, she experienced labor pains and was taken by ambulance to the hospital, where she delivered a daughter with severe birth defects. She was returned to the jail several days after giving birth, and was transferred to another jail four days later while she awaited trial. Two years later, she filed suit alleging that her child’s birth defects were caused by failure to take a proper medical history when she arrived at the jail (which would have revealed the complications in birth); failure to respond to her repeated medical requests; and failure to react quickly when she was in labor. The trial court dismissed White’s claim based on her failure to seek administrative remedies prior to filing suit.

However, White claimed there were no administrative remedies available to her in this case. Grievances are filed to obtain a change of some sort within the jail and to allow the jail time to address the issues. Even in cases where the harm has already occurred, a grievance must be filed or the detainee loses the right to sue. However, there is no administrative remedy to exhaust where the relevant administrative procedure provides no remedy. White was not aware while being held in the first jail that she was receiving inadequate health care, which contributed to her child’s birth defects. Therefore, it was not possible for her to file a grievance before the harm occurred. Further, according to the jail’s inmate handbook, there was no deadline for filing a grievance. Moreover, White was not aware that she would be transferred from the first jail at which she was being detained shortly after returning from the hospital.

The 7th Circuit Court of Appeals agreed with White that she could not be faulted for having not filed a grievance when no deadline existed, and when she had no knowledge that she was to be transferred from the jail. After she was transferred, it was too late to file her grievance, as the jail would not entertain a grievance by an individual no longer being detained in that jail. The Court held for these reasons that the judgment must be vacated and remanded.

Although a detainee’s rights and freedoms are extremely limited compared to other citizens, it is unethical to deny an individual a granted right based on circumstances beyond her control. This ruling will help ensure that all prisoners are given equal opportunity to be heard in court despite administrative procedures of the jail limiting such right and failing to offer relief to address the issue under such conditions.

The Wealthy’s “Get Out of Jail Free” Card

Get Out of Jail Free card

By: Ashley Merritt
J.D. Candidate, 2017
Valparaiso University School of Law

Should wealthy criminal defendants be given lesser sentences compared to their more modest counterparts? This question has left many contemplating if wealth is distorting the criminal justice system and sending the wrong message to the public. This was the very issue that was demonstrated in the case of United States v. Warner.

Billionaire H. Ty Warner is the founder of the company Ty, Inc., which was made famous for creating a popular toy in the 1990s, called the Beanie Baby. As the Beanie Baby’s popularity skyrocketed, so did Warner’s wealth. Soon after Beanie Babies became a success, Warner opened an off-shore bank account in Switzerland and began depositing funds to hide his assets. Within several years, the account balance was over $93 million. Warner even went as far as instructing the bankers to destroy any correspondence, documentation, and evidence of the bank account after five years. Accordingly, he did not report the account to the Internal Revenue Service (IRS).

In 2013, the federal government charged Warner with tax evasion in violation of 26 U.S.C. § 7201. He pled guilty to one count of tax evasion, made full restitution, and paid $53.6 million in civil penalties. According to the Federal Sentencing Guidelines, the recommended term of imprisonment for tax evasion is between forty-six and fifty-seven months. However, the district court judge gave Warner a much more lenient sentence, consisting of two years’ probation, 500 hours of community service, and $100,000 in fines and costs. The court based its decision on a series of letters demonstrating Warner’s contributions and donations to public charities. At the time of his sentencing, his net worth was about $1.7 billion.

In the decision by the Seventh Circuit Court of Appeals, Warner’s probationary sentence was upheld. The court reasoned that Warner’s character was “one of a kind” and that his $53.6 million penalty provides enough deterrence for him to escape imprisonment.

How should other, more typical criminal defendants and the general public feel about this decision? On one hand, Warner’s generous contributions to society are applaudable, but on the other hand it sends a message that wealthy criminal defendants are “above” the law. The implications of the case may create a slippery slope in which wealthy defendants are given lighter and lighter punishments for serious crimes.

A Proper Proffer, After All

PyramidSchemeMS

By: Jonathan Joseph,  MBA, CPA
J.D. Candidate, 2016
Valparaiso University School of Law

Larry Pust was convicted of four counts of wire fraud after a jury trial in March 2013. On appeal, Pust’s attorney argued that Pust’s conviction should be overturned, on two grounds: First, that the evidence presented by prosecutors was insufficient to establish that he acted with intend to defraud the victims, and second, that the district court’s decision to admit evidence under Federal Rule of Evidence 801(d) (2) (E) was improper.

His conviction, which was upheld by the Seventh Circuit U.S. Court of Appeals, demonstrates the court’s familiarity with fraudulent practices in Ponzi schemes and the defense attorney’s missed opportunities to oppose evidentiary proffers during trial.

In 1919, a Boston clerk named Charles Ponzi devised an investment scheme in which new investors paid interest to earlier backers. The scheme collapsed then Ponzi was unable to recruit enough new capital to pay promised returns on investments. Over the years, other Ponzi schemes have made headlines, most recently an effort by financier Bernard Madoff (2008) that is considered the largest financial fraud in United States history. In Pust’s scheme, he and co-conspirator Robert Anderson, recruited investors for several phony investment schemes, among them Rosand Industries, a low-income housing project in Chicago. Pust and Anderson promised their investors that their monies would be held in an attorney’s escrow account that was “absolutely secure” and guaranteeing returns “as high as 20%.” No real estate was ever purchased, and Anderson and Pust were indicted for wire fraud in violation of 18 U. S. C. §1343. Anderson pled guilty, but Pust went to trial.

With regard to the defense failing to prove that Pust intend to defraud investors, the court noted that in none of the 7500+ emails between Anderson and Pust was there any mention of real estate transactions, permits, or any of the logistics that would have been involved in a project of that score. Furthermore, the emails included statements that proved Pust knew that monies were not being held in an escrow account as he had promised investors and that they needed additional monies to get “caught up” on certain investors’ interest payments through the infusion of new capital. In an email to an investor, Pust stated that the cost of inner-city real estate in Chicago had increased, which is why the investor would only be receiving 10 percent interest on his investment rather than the 20 percent he had been promised. These emails, combined with witness statement and other evidence presented by the government, proved that Pust had lied to investors in his effort to defraud them.

On the second point, the court examined how the government had introduced evidence in Pust’s original trial. In pre-trial proceedings, prosecutors made a Santiago proffer to admit statements made by Anderson against Pust under FRE 801(d)(2)(E). This type of proffer is a “road map” of the government’s case – it ties co-conspirators together, presents a specific, detailed outline of the witnesses and evidence that connect back to the defendant. The government also presented evidence in the form of over 7500 emails between Anderson and Pust and the testimonies of several investors Pust recruited for the Rosand Industries project.

Pust’s attorney did not object to these admissions either during pre-trial proceedings or during the trial itself. In its decision, the Court cited specific instances where Pust’s attorney stated specifically that he had “no objection” to the proffers and determined that Pust had waived his rights to challenge the admission of these statements, citing United States v. Natale: “When a defendant intentionally relinquished or abandons a known right, the issue has been waived and cannot be reviewed on appeal, not even for plain error.” Therefore, the appellate court upheld Pust’s conviction on this point.

There are two lessons to be learned from Pust’s case, conviction, and failed appeal. First, the time to object to a proffer is when it is made. Pust’s attorney had numerous opportunities to object to any or all of the government’s proffer, but repeatedly failed to do so. The introduction of the defense attorney’s decision not to object to proffered evidence during pre-trial and trial proceedings made any subsequent appeal on the grounds of improper admission of evidence invalid. Second, the overwhelming amount of evidence contained in the email traffic between Anderson and Pust created a clear case of intent after prosecutors connected the dots between the co-conspirators and their victims. The importance of these emails cannot be overstated and illustrated the ways that our digital technology can still provide an old-fashioned “paper trail.”

Offensive Calculations

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Source: Wikipedia

By: Jonathan Joseph, MBA, CPA
Valparaiso University School of Law
J.D. Candidate, 2016

Sometimes the law becomes a numbers game. In US v. Frederic S. Haywood, a former Chicago loan officer, full name, appealed his conviction for orchestrating a $1.6M mortgage fraud scheme of 65 separate properties. He was sentenced to twelve years in prison. Haywood’s illegal actions included supervising a group of co-conspirators to recruit nominees who were paid to prepare and file fraudulent mortgage documents for properties in which they had no intention of residing in.

The appeal was based on Haywood’s contention that the government had miscalculated the total amount defrauded and that the district court improperly applied a 4-level, aggravating-role adjustment under United States Sentencing Guide (“U.S.S.G.”) § 3B1.1(a). Ironically, if anyone on Haywood’s legal team had used a calculator to check their computations, the grounds for his appeal would have disappeared.

During proffer sessions in 2007 (prior to federal charges being filed in 2008 and Haywood’s subsequent conviction in 2012), Haywood disclosed some of his illegal activities, which he alleged, should have been protected by U.S.S.G. § 1B1.8. A review of the interviews conducted by federal agents revealed that, although Haywood admitted to creating false documents to support phony mortgage applications, he denied the other criminal activities that he was subsequently charged with and convicted. Haywood’s plea agreement, in which he admitted to a single charge of wire fraud, contains a list of 65 properties whose mortgages totaled $1,447,270. The “Offense Level Calculation” of the same plea agreements reveals that a 16-level increase would apply under U.S.S.G. § 2B1.1(b)(1)(I) “because the loss amount of $1,447,270 exceeds $1,000,000 but is less than $2,500,000.” The probation officer recommended an imprisonment range of “151 to 188 months, based on a total offense level of 29 and a criminal history category of VI.” That offense level includes the 16-level increase under § 2B1.1(b)(1)(I) for a loss between $1 million and $2.5 million and a 4-level increase under U.S.S.G. § 3B1.1(a), which applies to “an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.”

On appeal, Haywood claimed that his 2007 proffer should have excluded $486,000 from the total loss of $1,447,270, because he had discussed three specific properties with investigators. If $486,000 were subtracted from $1,447,720, the total loss would fall beneath the threshold that was used by the probation officer in his calculations. Exhibit A of Haywood’s plea agreement, however, describes five addresses, not three, and the total losses for these five properties total $423,750, not $486,000. As Haywood’s new attorney asserted, subtracting $423,750 from the total loss of $1,447,270 left a revised loss of $1,023,520, which remained above the probation officer’s offense level calculation and thus making his argument futile.

Haywood further argued that, although he recruited “bird dogs” to find people with good credit who were willing to sign fraudulent mortgage documents, he was not an organizer or leader of criminal activity involving five or more members. As he was the last of six defendants to be sentenced for the same incident, the judge added correctly and upheld the original conviction suggested by the probation officer.

“Keying in on Carjacking: Criminal Enhancements for Stealing the Getaway Car”

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By Andrea J. LaMontagne
Valparaiso University Law School
J.D. Candidate, 2016

Keyjacking, or Carjacking? Should it matter? These are the questions that recently faced the Seventh Circuit Court of Appeals, when it rendered a decision concerning a sentencing enhancement for an armed robbery gone amuck. The sentencing enhancement stemmed from the theft of car keys from a bank employee’s purse (a keyjacking), and the use of her vehicle as a getaway car (a carjacking).

On February 4, 2015, the Seventh Circuit Court of Appeals followed the example of its sister courts when it held that level sentencing enhancements are applicable when a carjacking results from armed robbery, regardless of whether the car keys were taken by a direct exhibition of force.

In June of 2013, Defendant Duryea Rogers was involved in an armed robbery where a bank employee’s car keys were taken and used to carjack her vehicle in an attempt to escape from FBI agents after the robbery failed. Rogers argued that he should not be given a sentencing enhancement for carjacking in addition to the three charges he pled guilty to. Ultimately, the Seventh Circuit Court of Appeals held that applying the enhancement was proper.

Rogers, Xavier Hardy, and other co-conspirators pointed their guns at the first employee to arrive at the Community Bank of Fishers, Indiana and forced her to enter the bank. Upon entering the bank, the employee was directed to do all of the things she normally did upon arrival, such as turning on lights and deactivating the alarms. However, because of the circumstances, the employee did not signal to other bank employees that it was safe for them to come in to the bank, as she otherwise would have done.

While the employee was attempting to open the bank’s vault under the watchful eye of Rogers, Hardy searched her purse and stole her car keys and identification. The bank employee was unable to open the bank vault due to a safety precaution that only allowed the vault to be opened in the presence of at least two bank employees. As a result, the robbery was unsuccessful, and the bank employee was left unharmed, lying in the break room with her hands and feet zip-tied

Rogers and Hardy left in the employee’s Chevy Equinox, while the co-conspirators fled in two other vehicles. However, FBI agents had been maintaining surveillance on one of the co-conspirators, as they suspected his involvement in other recent robberies. The agents, who had been surveying the co-conspirator, gave chase and eventually caught up to Hardy and Rogers after they deserted the employee’s vehicle and attempted to flee on foot.

Rogers pled guilty to three charges: conspiracy to commit bank robbery; armed bank robbery; and knowingly using, carrying, and brandishing a firearm during and in relation to a crime of violence. Because of his act of carjacking, the district court decided to apply a two-level enhancement in addition to the already applied enhancement for restraining the victim. Rogers objected and subsequently appealed on the grounds that the two-level enhancement for the theft of the motor vehicle was improper.

According to the U.S. Sentencing Commission (“USSC”) Guidelines, a two-level enhancement is given for robberies including a carjacking. A carjacking is defined as “the taking or attempted taking of a motor vehicle from the person or presence of another by force and violence or by intimidation.” §2B3.1, cmt. n. 1.

Here, Rogers’ argument hedges on the fact that he did not use force when he took the car, and that he was neither taking the car directly from the person or from the presence of the owner of the vehicle. According to Rogers, his act was “keyjacking”, not carjacking, as far as the guidelines are concerned, because there was no further evidence of “force and violence or intimidation” as the guideline requires. On appeal, Rogers further argued that the mere rummaging around and finding keys in a purse did not constitute a holding of carjacking, because there was no force involved.

Under a similar fact pattern, the Sixth Circuit Court of Appeals found in United States v. Boucha, a case where after a robbery, an employee was forced by the defendant to surrender her keys; the two-level enhancement for carjacking was applicable.

Similarly, the Seventh Circuit Court held here that in order to fulfill the guidelines, “a defendant who takes a victim’s keys by force or threat of force, and who later takes the car, may be sentenced as if he took the victim’s car in the presence of the victim by force or threat of force.” The Seventh Circuit Court further held that since the employee was in the presence of a weapon at all relevant times during the robbery, it was reasonable to determine that the events took place through “force and violence or by intimidation.”

Regardless of whether a carjacking or a keyjacking has taken place after a robbery, in both the Sixth and Seventh Circuits it is apparent that such an act will enhance the sentencing of the guilty parties.

No Escape for Consecutive Sentencing

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By: Andrea J. LaMontagne
Valparaiso University Law School
J.D. Candidate, 2016

On Friday, the Seventh Circuit Court of Appeals issued its decision concerning whether an inmate’s sentence, resulting from his act of breaking out of prison, should be served consecutively or concurrently to his original sentence. The Seventh Circuit Court of Appeals affirmed the decision of the District Court for the Northern District of Illinois, Eastern Division, when it held that the sentences will be served consecutively.

In December of 2012, two prison inmates escaped Chicago’s Metropolitan Correctional Center (MCC) after they sawed through cell windows and removed part of the concrete surrounding the window. The cellmates used a rope made up of bed sheets to scale the seventeen floors between their cell window and the ground.

One of the escaped inmates, Kenneth Conley, was missing for seventeen days before he was finally recaptured. Conley was originally arrested for and pled guilty to one count of bank robbery in October of 2012. He was awaiting sentencing for this charge when he escaped from the MCC. According to the Huffington Post, Conley originally pled not guilty to the charges that resulted from his escape.

Conley came before the Seventh Circuit Court of Appeals on the grounds that the sentencing that resulted from this escape was not just, as the District Court had used the wrong provision in determining that Conley should serve a consecutive sentence, instead of a concurrent one. Furthermore, Conley claimed that the 41-month sentence he was given for the escape was substantively unreasonable.

In regards to Conley’s first argument, Conley is correct in stating that in certain circumstances, under U.S.S.G. § 5G1.3(b) the court should recommend a concurrent sentence instead of a consecutive one. Here, for subsection (b) to apply, the Seventh Circuit Court of Appeals stated that the following must be proven: “… the bank robbery must be relevant conduct to the escape, and the bank robbery must have served as the basis for an increase in the offense level for the escape.”

Conley argued that subsection (b) should apply because his escape from jail, while he was awaiting sentencing after pleading guilty to charges of bank robbery, resulted from his bank robbery conduct, and thus, the first requirement of subsection (b) was satisfied. However, the Seventh Circuit Court held here that because it can be proven that Conley’s bank robbery conduct had completely ended before the time of his escape, as was proven by the fact that he had already plead guilty to the charges, there is no congruence between his bank robbery conduct and his escape conduct.

Appellant Conley was further unable to meet the requirements of the second part of subsection (b). In short, Conley argued that because he was considered a repeat offender based upon his most recent charges for his bank robbery conduct and his offense level was raised as a result, subsection (b) should apply.

The Seventh Circuit in turn held that Conley ignored specific language within subsection (b) that would have instructed him that only enhancements that arose under Offense Conduct or Adjustments were to be considered for subsection (b) use of concurrent sentencing. Conley’s enhancement arose under Career Offenders and Criminal Livelihood, which rendered him unable to fulfill the subsection (b) requirement of increase in the offense level.

Finally, the Seventh Circuit addressed whether such a 41-month sentence, to be served consecutively, was substantively unreasonable. The Seventh Circuit Court weighed a variety of factors in determining the reasonableness of Conley’s sentence, including: Conley’s past, the potential length of his incarceration, his already increased sentence from the bank robbery after his escape, and his consistent disrespect for legal authority. After weighing these factors, the Seventh Circuit determined that such a 41-month sentence “was necessary to achieve a reasonable punishment for the escape.”

The Seventh Circuit Court of Appeals in this instance reinforced that fact that while inmates might temporarily be able to escape from jail, they will not likely be able to escape from the consequences of their actions.

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