Appellate Law & Practice

CA7: Posner discusses “substantial step,” the “psychology of intent” and intent to have sex with an internet minor

SL&P's special guest-bloggers  point to US v. Gladish.  For many people that practice criminal law, the scenario is sort of normal.  Some guy gets on the internet and starts chatting with a cop.  Only the cop claims to be a thirteen-year-old girl.  Because this case contains a discussion of expert testimony as well as the substantive crime everyone should read it and discuss it on the internet.

Here are the facts:

The defendant lived in southern Indiana; "Abagail" purported to live in the northern part of the state. She agreed to have sex with the defendant and in a subsequent chat he discussed the possibility of traveling to meet her in a couple of weeks, but no arrangements were made. He was then arrested.

He was charged with violating 18 U.S.C. § 2422(b), which "which, so far as bears on this case, forbids knowingly attempting to persuade, induce, entice, or coerce a person under 18 to engage either in prostitution or in any sexual activity for which one could be charged with a criminal offense."

So, here it is:  1) No sex; 2) no contact; 3) just words.  Posner, to his credit, takes a break from writing articles which explain why the executive should be able to detain random people (even partners at large law firms) without judicial review to write a quite coherent opinion about the law of the "substantial step."

Posner's trashing of Experts

DotD has a post entitled “Seventh Trashes Prominent Finance Professor” which you should read.  Essentially, Posner flexes his muscles and says that a PhD economist “cannot be trusted to continue as an expert witness in the case in which he has demonstrated that willingness, and perhaps not in other cases either.”

There is a fundamental flaw in this.  Rule 702 doesn’t require or even demand scrutiny of an individual expert’s character.  Moreover, the Federal Rules do not “certify” individual experts as always being admissible.  Their propose testimony (or perhaps actual testimony) is scrutinized on a case-by-case basis by individual trial court judges based on whether it will assist the jury.

Yes.  I know, Posner likes to think that he knows about science.  But, in declaring that an expert can never be good enough to assist any jury (apparently with stare decisis effect), he has essentially usurped the jury’s function.  But, hey if Posner would do that with so-called “cop” experts, maybe I would be more cool with it.  But, it ain’t going to happen.

DotD shows how the Seventh Unnecessarily trashes yet another attorney.

Here.  Justice was not served.

Mike from C&F (I think) explains that this is a typical example of the Seventh Circuit doing everything it can to trash someone in private practice (who, the Seventh figures is a bad person because he didn’t go to law school right out of college like a real American would), when they rarely, if ever name the AUSAs that cross various lines.  (Luckily, PACER will tell you who they are.)

This decision is one of the worst ever! Already people have written me to agree. They have told me that they will: 1) Not serve on CJA panels; and 2) refuse to eat “Chicago style pizza.”

CA7: Frisk the poor

It is no secret that poor people – the kind that live in dark places – are what is wrong with America. The constitution doesn’t apply to their kind. If they did care about America, they would live in well-lit, gated communities. They also wouldn’t borrow their cousin’s clothes. And their cousins wouldn’t be fat.  See U.S. v. Barnett.

So, when a District Court finds that there was no probable cause to frisk someone wearing clothes meant for a man 200 pounds heavier, in an area where there was no burglary, the Seven searches for a way to frisk this person.

 As DotD says:

The Court explains that “some crimes by their very nature are so suggestive of the presence and use of weapons that a frisk is always reasonable when officers have a reasonable suspicion that an individual might be involved in such a crime.”  Here, the officers suspected Barnett of a burglary, and burglars often carry weapons.

 Of course, there was no burglary.  There was no report of a burglary.  This doesn't bother the Seventh, that decides that the government is therefore right and the police can do what they want to poor people.    But with one more poor person in jail, we are all safer. In related news, Saucy Vixen describes the difference between a frisk and a grope.

CA7: Really interesting decision on conspiracy and fraud (and Wikipedia citation)

Judge Posner takes a break from using economic lingo to justify the unjust and writes an interesting decision, US v. Rodomski, No. 05-3792.

A Guy A was an Ecstasy dealer.  After being approached by a government informant, He plead guilty to conspiring to sell the stuff with guy B.  Guy B decided to go to trial. 

Problem is this.  Guy A didn’t actually sell the informant any Ecstasy.  Despite their best efforts, the Feds couldn’t find it.

Guy B is convicted of conspiring with Guy A, and sentenced to about the same sentence. 

"Wait," says Guy B.  "There is insufficient evidence to show that I was actually conspiring to sell Ecstasy.   The best you have is a statement that whatever was being sold was 'packed nicely.'"

Posner points out that, their cell-phone calls did place their activity into interstate commerce, but it is just as likely that they were really trying to defraud the informant, and the government’s decision is really “inexplicable.” 

Posner goes on to point out that there is no indication of the weight of whatever was packed nicely, and Guy A’s guilty plea can’t be used as evidence in Guy B’s trial.  Sucks to be Guy A, who happens, according to Posner’s citation of Wikipedia, to be “a former trainer of the Polish boxer Andrew Golota—the world’s most colorful boxer.”

Lawyer gets Kanned

Sloppy practice in the 7th Circuit continues to be costly. Last month, the court sanctioned lawyers on both sides of an appeal for failing to follow a circuit rule in drafting the jurisdictional statements in their briefs. Smoot v. Mazda Motors of Am., Inc., No. 05-4577 (7th Cir. Nov. 29, 2006). Today the court, in an opinion by Judge Kanne, fined a criminal appellant's lawyer $1,000 for filing an appendix that failed to comply with F.R.A.P. 30 and Cir. R. 30. U.S. v. White, No. 06-1769 (7th Cir. Dec. 19, 2006). (Hat tip to Robert Loblaw.)

CA7: interviewing witnesses is a must

Although it seems obvious to most people, the Seven Circuit, in Stanley v. Bartley, No. 06-2184, makes it clear that it is ineffective assistance of counsel to not interview a key witness:

When a defendant’s lawyer has failed to interview key actual or potential witnesses, as in this case, and in postconviction proceedings the witnesses give testimony that the defendant contends a competent lawyer could have elicited by interviewing them before trial and could have used effectively at the trial, two questions arise. The first is whether they actually would have told the lawyer the same thing before trial, and the second is whether, if they had, the defendant would have had a reasonable chance of being acquitted.

I guess this is a blow for “victims rights” or something.

¶¶

Seventh Circuit now one big blog

• According to Robert J. Ambrogi, "The 7th U.S. Circuit Court of Appeals now offers an RSS feed for its opinions and a podcast feed for its oral arguments."  It is not known whether the Seventh Circuit will offer dating tips, and moody posts about its parents’ impending divorce
  
• And if your preferred court isn’t a blog, Steve Matthews shows you how to make it into an RSS feed.  We offered some other RSS tricks here.

CA7: Government attorneys still have to work

US v. Fortner, No. 05-4104. You gotta love this. “Five days before the brief for the United States as appellee was due, the government filed a motion for summary affirmance along with a motion to suspend briefing in the appeal.” The District Court had said that he would get a longer sentence. It is denied. Why? The government essentially the same arguments it would have made in a brief, and:

Motions for summary affirmance generally should be confined to certain limited circumstances. Summary disposition is appropriate in an emergency, when time is of the essence and the court cannot wait for full briefing and must decide a matter on motion papers alone…. Summary affirmance may also be in order when the arguments in the opening brief are incomprehensible or completely insubstantial.

Interesting opinion on collateral attacks from the 7th

In Simpson v. Nickel, Judge Easterbrook, writes a sensible (or pro-criminal) opinion in which he states that dismissal under 12(b)(6) of a prisoner’s retaliation claim is unwarranted, because 1) people don’t need to prove anything at the pleadings stage; and 2) since the state judiciary only affords review of prison disciplinary by a petition for cert., the court can reexamine (subject to issue preclusion, to be examined at summary judgment) the claims that the prisoner was lying to a prison disciplinary board.  There probably is a lot to be learned from this in attacking decisions of any administrative decision.  Read for some neat language.