Buckle up! August was a busy month for the 7th, with many interesting cases decided including a defense lawyer telling the jury he believed the child victim during closing arguments, a couple of habeas cases, a discussion on the difference between direct and other acts evidence, false arrest for suspected animal abuse, an interesting decision on counsel’s obligation to litigate unsettled law, and so much more!
Eric Benson Skeens v. Ron Neal, No. 22-1910: Skeens was charged with five counts of child molestation. The State’s case heavily relied on the testimony of the alleged victim, who eventually disclosed the abuse to a teacher. Skeens’s attorney made a closing argument in which he told the jury he believed the victim. Specifically, the attorney argued:
We submit that you may return a verdict of not guilty based upon the unsubstantiated testimony of [K.W.]. There is nothing to use corroborate what she said. There is nothing to substantiate. Now, it doesn’t mean that you cannot believe her, if you were in a civil court, you certainly could. I believe her, it’s more likely than not, but clearly under the standard of clear and convincing evidence, or probably. But in a criminal court, we’re submitting that as a juror you should require some, you should require corroboration to exclude any reasonable doubt. That degree of certainty of guilt beyond a reasonable doubt.
Skeens was convicted and sentenced to 187 years in prison. After exhausting his State appellate rights, Skeens filed a habeas petition which was denied. On appeal, he argues that his lawyer was ineffective for telling the jury he believed the victim in a case where the victim’s credibility was the dispositive factual issue. The Seventh concludes that counsel’s statement was “ill-considered, if not reckless.” However, relying on the double deference of both AEDPA and the Strickland standard, the Court is satisfied that the state court did not unreasonably determine that Skeens was not prejudiced by the alleged deficiency. Here, the state court considered this comment in context of the evidence adduced at trial and “‘provided a terse but sufficient explanation’ for why counsel’s comment did not add significant weight to [the victim’s] testimony. […] That is enough.”
United States of America v. Kashif Dukes, No. 24-1928: Dukes was found guilty of carjacking, brandishing a firearm during a carjacking, and possession of a firearm by a felon. In addition to presenting testimony about the carjacking, the State also presented evidence about a shooting that occurred roughly five hours after that crime and which appeared to involve the stolen car in question. On appeal, Dukes argues the lower court erred by admitting evidence of this chaotic shooting, which he argues was other acts evidence. The Seventh disagrees that this was other acts evidence at all, instead finding it was admissible as “direct evidence” of Duke’s ongoing crime of unlawful possession of a firearm. (On this point, the decision includes a nice discussion of the difference between direct and other acts evidence). It was also properly admitted to establish Dukes’s involvement in the carjacking, as evidence that placed him in the stolen vehicle permitted “the reasonable inference that he was likely one of the individuals who stole it.” Broader testimony about the shooting was also admissible as other acts evidence because it established a motive for the carjacking–that “Dukes stole the Equinox to use it as a getaway car for a shooting that occurred the same day […].” Admission of this evidence was not unfairly prejudicial, especially when the more problematic details–such as the fact that two people were killed–were kept from the jury.
Nathan Nissenbaum v. Chad Jennings, No. 24-2162: Nissenbaum was charged and convicted of multiple serious crimes including aggravated sexual assault. According to the State’s evidence, the victim was in an abusive relationship and had recently obtained an order of protection against Nissenbaum. She also worked as an escort. Nissenbaum then booked her services under a fake name, arrived at her apartment in disguise and restrained, sexually assaulted, and battered the victim. At a bench trial, Nissenbaum claimed this incident was part of a consensual rape fantasy. Although the victim confirmed that she had engaged in such role play on previous occasions, she denied this was a consensual encounter. On appeal, Nissenbaum argued that his lawyer failed to accurately advise him about the risk of mandatory consecutive sentences prior to trial, leading him to have an erroneous belief about his sentencing exposure. Although the record as to deficiency was messy, with some points in Nissenbaum’s favor, the trial court ultimately found there was no prejudice as Nissenbaum “would have refused to accept a plea regardless.” After pursuing his state appellate remedies and seeking habeas relief in the district court, the Seventh addresses Nissenbaum’s habeas appeal. Even though the Court concludes there was some imprecision as to the lower court’s statement of the legal standard, the Court ultimately affirms. There was no proof that a formal plea offer was ever tendered to Nissenbaum and the Court finds that Nissenbaum failed to establish that he would have accepted a plea under these circumstances, including his conduct at trial.
Reporters Committee for Freedom of the Press et al. v. Todd Rokita, No. 24-2927: Indiana passed a “buffer law” which “makes it a crime for a person to knowingly or intentionally approach within 25 feet of a law enforcement officer who is ‘lawfully engaged in the execution of the law enforcement officer’s duties after the law enforcement officer has ordered the person to stop approaching.'” The litigants in this case obtained a preliminary injunction based on their claim that the law likely violated the Fourteenth Amendment’s due process requirement. The Court upholds that decision and finds that the law is “susceptible to arbitrary enforcement and is therefore unconstitutionally vague.”
United States of America v. Steven J. Hecke, No. 23-2384: Hecke was charged with and convicted of drug offenses. A central facet of the underlying prosecution was a search warrant reliant on information provided by a CI. Hecke requested a Franks hearing, believing that essential information about the CI’s credibility had been omitted from the warrant affidavit. Although the district court agreed that the affidavits “had omitted details about the CI’s criminal history, recent arrest, and agreement to cooperate with authorities[,]” it also “concluded that these omissions were immaterial to the determination of probable cause.” The Court affirms, holding that the CI provided “fresh” “firsthand” and “detailed” information. And, while there were omissions, the affidavits were “not devoid of information undermining the CI’s credibility.”
United States of America v. Israel C. Isbell, No. 24-3034: Isbell raises an interesting challenge to one of the conditions of supervised release requiring him to “install filtering software on any computer he possessed or used to monitor his access to sexually oriented websites.” Isbell claims the phrase “any computer” is impermissibly vague and could be read to prohibit his use of many internet-enabled devices such as smart appliances. The Court disagrees with Isbell’s attempts to manufacture ambiguity, finding that the condition clearly targets internet browsing. The district court also sufficiently clarified its intent in response to Isbell’s vagueness challenge, below. Even though there may be future hypotheticals that test the bounds of this condition, the Court does not believe those hypotheticals undermine the constitutionality of the condition, especially when it applies a presumption that his probation agent will apply the condition in a reasonable manner. The Court also did not impermissibly delegate authority to treatment providers when it permitted Isbell to use medical marijuana unless doing so would be prohibited by those treatment providers.
United States of America v. Jose Farias, No. 24-2725: Farias was prosecuted for his role as an upper-level drug dealer. On appeal, he focuses on testimony identifying his voice on recorded calls when that testimony was based in part on the officer overhearing Farias in court, possibly while speaking with his attorney. He argues that this violated his Fifth and Sixth Amendment rights. As to the Fifth, well-settled law already establishes there is no privilege against self-incrimination based on merely “hearing the characteristics” of Farias’s voice. As to the Sixth, the Court has previously held that voice identification testimony based on “overhearing the defendant speak privately with his attorney” created a constitutional issue. This case can be factually distinguished, however, as the officer in this case was merely basing his identification on Farias’s very loud voice while in court, which is inconsistent with a private attorney-client conversation.
United States of America v. Shawn Baldwin, No. 21-2925: At Baldwin’s trial involving allegations that he had run a large-scale Ponzi scheme, the Government was forced to rely on a videotaped deposition of a key witness who refused to return to the USA to testify. On appeal, Dawson argues that admission of this deposition violated his right to confrontation because he was not physically present when it was taken. Baldwin, however, waived his right to be present so he cannot pursue a constitutional challenge here.
Kiontae Mack v. City of Chicago, et al, No. 23-2662: Mack was charged with participating in a robbery/shooting but ultimately acquitted at trial after spending five years in custody. Mack claims that the police violated his rights in various ways, such as by relying on problematic show-up evidence to detain and arrest him. Here, however, a tentative identification in response to a show-up was sufficient to prove “arguable” probable cause, a lesser constitutional standard applicable in such cases. While Mack presents a number of other legal arguments to show why this investigation and prosecution was legally problematic, all his claims are denied under the unforgiving legal standards that formerly accused suspects like Mack must meet.
Jeffrey Alan Weisheit v. Ron Neal, No. 23-2906: This is a BEAST of a habeas opinion which goes deep on the procedural aspects of Weisheit’s case. While relevant to habeas nerds, we’ll try to focus on the most significant substantive issue. Here, Weisheit was accused of killing two children. During his trial, one of the jurors brought in some cookies baked by his wife with a note that read, “Thank you for your service for the family of [the victims]. I will pray for you all to have strength and wisdom to deal with the days ahead. God bless!” The trial court denied Weisheit’s motion for a mistrial and Weisheit fails to persuade the Seventh that the state courts acted unreasonably in upholding that decision. To begin, the trial court is afforded broad deference in judging the credibility of jurors in response to voir dire seeking to ferret out whether the note had any improper influence. The lower courts reasonably relied on the trial court’s “swift corrective actions” as well as the well-established presumption that jurors would heed the court’s admonishment not to be swayed by this note.
United States of America v. Jorge Diaz, No. 24-1369: Diaz’s alleged co-conspirator, Bonilla, testified at length against Diaz in front of the grand jury. At trial, however, she claimed an almost total lack of recollection. The court permitted the Government to admit her grand jury testimony as a prior inconsistent statement. Diaz claims that he could not effectively cross-examine Bonilla and that his right to confrontation was violated by this procedure. The Court disagrees: “There is no dispute that Diaz cross-examined Bonilla. We therefore hold that the admission of Bonilla’s prior grand jury testimony did not violate Diaz’s rights under the Sixth Amendment.”
Charles W. Christopher v. United States of America, No. 23-2976: One of the charges Christopher pleaded to required the Government to prove he committed a felony offense “involving a minor” while being required to register as a sex offender. The felony offense in question was attempting to entice a minor to engage in unlawful sexual activity. Christopher, believing he was chatting with a teenage girl, made plans to meet up for sex with what turned out to be an undercover law enforcement agent. As Christopher points out, whether this is a crime “involving a minor” is, in fact, an open legal question. At least one court has said a defendant cannot be guilty of the charged offense unless there is an actual minor involved. Christopher claims his attorney was ineffective because he “did not consider, much less argue” that Christopher’s conduct was not covered by the text of the statute to which he pleaded. While the nuanced discussion of the federal statute is largely irrelevant to our readers, we are intrigued by the Seventh’s discussion of when a lawyer is required to “make, or at least evaluate, an argument that is sufficiently foreshadowed in existing case law.” This is, as the Seventh states, a close call. Those litigants who feel boxed in by Wisconsin’s much more stringent rule (that counsel is never ineffective so long as the issue can be categorized as “unsettled”) might therefore find this section of the opinion useful. Ultimately, rather than deciding deficient performance, the Court assumes without deciding that counsel was deficient for not challenging the application of this statute under these facts. It ultimately concludes that counsel’s challenge would fail, as Christopher’s interpretation of the statute is wrong.
United States of America v. Gregg Smith, Michael Nowak, and Christopher Jordan, Nos. 23-2840, 23-2846 and 23-2849: This white-collar case gives the Court another opportunity to delineate the differences between lay and expert testimony as well as the permissible contours of such evidence. Although lay witnesses “may not offer legal conclusions or opine on the application of statutory elements […] they can use words ‘in a colloquial sense’ that ’employ the vernacular of their financial professions,’ even if those words mirror legal standards.” Testimony describing what these defendants did, using industry terms, was not improperly admitted expert testimony. Moreover, investigators “can testify about their role in an investigation and provide their impressions of the case without crossing into expert territory.”
Abre Jackson v. Marc T. Anastasio, et al, No. 23-1703: This is a MONSTER of an opinion, which is largely outside the scope of this blog and which would probably take too many words for us to productively explain or summarize. It deals with a fascinating legal issue, however–“when prisoners’ disciplinary placements in solitary confinement amount to deprivations of a liberty interest protected by procedural due process, as well as the extent of process that may be due.” The majority notes at one point, “Long terms of solitary confinement are not necessarily unconstitutional, at least not yet. But they call for at least some due process protections that apply when prison discipline deprives a prisoner of a liberty interest.” Jackson, however, cannot prevail under governing law:
Jackson presented evidence showing that he was subjected to three months in appalling conditions of solitary confinement at Pontiac. Taking that evidence as true, Jackson had a liberty interest in avoiding the described conditions, so prison officials should have afforded him due process. Even so, “the Defendants should not be held responsible for incorrectly guessing otherwise due to the ambiguity of the parameters of the law.” Hardaway, 734 F.3d at 745. The defendants are therefore entitled to qualified immunity on Jackson’s due process claim. Moving forward, such short terms of solitary confinement combined with comparable disgusting conditions will suffice to show a loss of protected liberty requiring procedural protections, as will longer terms of solitary confinement alone.
For those interested in the issue, however, we encourage a close read of the passionate concurrence from Judges Hamilton and Rovner, which is motivated throughout by a repudiation of the inherent cruelty of solitary confinement. According to the concurring judges, “We should begin bringing our Eighth Amendment law and actual prison practices into line with evolving standards of human decency and with the Nelson Mandela Rules.”
Vaughn Neita v. City of Chicago et al, No. 23-1813: Do-gooder dog lovers, believing that Neita was mistreating his pitbull, Macy, filed a series of reports with the police requesting an investigation into Macy’s living environment–a dog house that may or may not have been too cold for comfort (the dog house was heated). Instead of warning Neita, citing him or otherwise addressing the problem, police arrested Neita and a prosecutor charged him with two misdemeanors. Although the prosecutor tried to force Neita to forfeit the dog, the court denied the motion after some inconsistencies in the State’s case, along with a veterinary report showing the dog was in good condition–were presented. Undaunted, the State took the case to trial. The court found that none of the State’s allegations were factually supported and Neita was acquitted. At that point, Neita sued. In a rare qualified immunity win, the Seventh holds that a jury “could conclude a reasonable officer would not have believed (not even by mistake) that Neita was neglecting his duties as Macy’s owner or abusing her. Thus, Defendants cannot enjoy qualified immunity at this stage of the case.” Along the way, the Court address the role of the anonymous tip in conjunction with the ensuing investigation that failed to establish a crime had been committed: “It is clearly established law that where officers receive an anonymous tip about a suspected crime and pursue an investigation, but that investigation does not yield evidence that a crime has been committed, there is no probable cause to arrest.”
United States of America v. James T. Weiss, No. 23-3094: Weiss attempted to bribe state legislators to pass legislation favorable to his (questionably lawful) gambling enterprise. FBI agents obtained a search warrant for his person and his cell phone. They then conducted a traffic stop after watching Weiss leave his residence. Officers approached Weiss’s car and told him they need to speak with him. Weiss asked if he should get out of his car and an agent asked him to get inside the FBI vehicle. He was told he was not under arrest. Weiss then spoke with the agents for almost 2 hours inside their car. On appeal, he argues this was a custodial statement and that Miranda warnings should have been given. The Court disagrees, finding that a reasonable person under these circumstances would have felt free to terminate the encounter. And, while the Court does not “doubt that circumstances exist under which a reasonable individual who is the subject of a search warrant would not feel free to leave,” this is not that case. The Court also rejects a Fourth Amendment claim that the traffic stop was unlawfully prolonged, as its length was attributable to the consensual interaction between Weiss and the agents. The Court also holds that the statements of a co-conspirator were properly admitted.