Index
I. Supreme Court News (updated 04/16/2008)  

A. SENTENCING GUIDELINES

B. FIREARMS

C. DRUGS

D.ENEMY COMBATANTS

E. CHILD PORNOGRAPHY

F. DEATH PENALTY

G. RIGHT TO COUNSEL

II. Guideline Amendments  

A. CRACK AMENDMENTS AND RETROACTIVITY

B. CRIMINAL HISTORY AMENDMENTS

III. Sex Offender Issues  

A. SORNA

B. CHALLENGES TO SORNA

IV. Research Starters "Excerpts from defense memos and briefs setting out legal standards on various issues."

A. DRUG OFFENSES: MANDATORY MINIMUMS FOR OFFENSE CONDUCT, ONLY

B.RELEVANT CONDUCT: LIMITATIONS IN DRUG CASES

C.CONSPIRACY: RELEVANT CONDUCT AND OFFENSE CONDUCT

D.RELEVANT CONDUCT: LIMITATIONS IN CHILD PORNOGRAPHY CASES

E.RELEVANT CONDUCT: LIMITATIONS IN GUN CASES

F. 3553(A) FACTORS

G. STATUTORY INTERPRETATION

H. RULE 404(B) EVIDENCE

I. FOURTH AMENDMENT

J. EYEWITNESS TESTIMONY

K. EXPERT TESTIMONY, DAUBERT

L. RELIABILITY OF SENTENCING INFORMATION

M. CRAWFORD AND CONFRONTATION CLAUSE

 

I. Supreme Court News


A. SENTENCING GUIDELINES.

            Variance does not require extraordinary circumstances: Gall.
Gall v. United States, 06-7949; 2007 WL 4292116. Decided 12/10/2007. “We reject . . . an appellate rule that requires ‘extraordinary’ circumstances to justify a sentence outside the Guidelines range.” Id. at *6.
             A sentencing judge must start with a proper Guideline range, which he may not presume is reasonable. Id. at *7. After argument from the parties, the judge must then “consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party.” Id. If a sentence outside the Guideline range is warranted, “he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of variance.” Id. On review for reasonableness, the appellate court may not employ a mathematical formula which uses the percentage of departure to gauge whether an outside the Guidelines sentence is warranted and may not require the departure to be based on extraordinary circumstances. Id. at *6. The appellate court may, but is not required to, apply a presumption of reasonableness to within-Guidelines sentences, and it may not presume that a sentence outside the Guideline range is unreasonable. Id. at 7. Opinion by Stevens; Alito and Thomas dissented.

            Variance justified by disagreement with Guidelines: Kimbrough.
Kimbrough v. United States, 06-6330; 2007 WL 42920404. Decided 12/10/2007. A sentencing judge may decide that a within Guidelines sentence is greater than necessary solely based on his disagreement with the disparity between powder and crack cocaine sentences. Id. at 14.
            A district judge’s variance from the Guidelines may “attract greatest respect” when the case is outside of the heartland. Accordingly, a judge’s variance may warrant closer review when the variance is based on a view that the range does not reflect § 3553(a) considerations. Id. However, in the case of a judge disagreeing with the crack cocaine Guidelines, elaborate discussion is not required because those Guidelines were not developed through the Commission’s usual empirical approach. Id. Rather, the Commission merely adopted the weight driven scheme in the Anti-Drug Abuse Act of 1986. In addition, it later criticized the resulting crack/powder disparity resulting from this scheme. Id at *14. Thus, the district court’s sentencing the defendant to 4.5 years below the bottom of the Guideline range, after consideration of that range, § 3553(a) factors, including the Commission’s criticism of the 100 to 1 ratio, was not an abuse of discretion. Opinion by Ginsburg, Alito and Thomas dissenting.


            Guideline sentence may be presumed reasonable on appeal: Rita 
Rita v. United States, 127 S.Ct. 2456, Decided 12/10/2007. Defendant had 25 years of military service, numerous commendations, a history of working in the criminal justice system, and poor physical health. The District Court imposed a Guideline sentence. On review, the Fourth Circuit applied a presumption that a within-Guidelines sentence was reasonable and affirmed. The Supreme Court affirmed, finding an appellate presumption of reasonableness for a within-Guidelines sentence was permissible although not required. Opinion also contains language indicating departures are not obsolete. Breyer, opinion, joined by Roberts, Stevens, Kennedy, Ginsburg, Alito, and, in part III by Scalia and Thomas; Stevens filed concurring joined by Ginsburg except Part II; Scalia concurred in part, joined by Thomas; Souter dissented.


            Must a court give notice of grounds for upward variance? Irizarry (pending)
Irizarry v. United States, No. 06-7517, argued April 15, 2008. Whether a district court must provide a criminal defendant notice of the contemplated grounds for a sentence above the range recommended by the Sentencing Guidelines.

B. FIREARMS.

            ACCA offenses which otherwise involve “a serious potential risk of physical injury” must be similar to those examples of offenses listed in 18 U.S.C. § 924(e)(2)(B)(ii) in that they are associated with a likelihood of future violent, aggressive, and purposeful “armed career criminal” behavior: Begay
Begay v. United States, No. 06-11543, decided April 16, 2008. Held: New Mexico’s felony drunk driving, a strict liability offense, does not fall into clause (ii) of 18 U.S.C. §924(e)(2)(B), the Armed Career Criminal Act, in that it is not a crime similar to the examples listed therein which pose “a serious potential risk of physical injury to another.” New Mexico’s drunk driving offense is unlike “violent and aggressive crimes committed intentionally such as arson, burglary, extortion, or crimes involving the use of explosives. The latter are associated with a likelihood of future violent, aggressive, and purposeful ‘armed career criminal’ behavior in a way that the former are not.” Id.

            Does the Second Amendment secure an individual’s right to bear arms? Heller (pending)
District of Columbia v. Heller
, No. 07-290, argued March 18, 2008. The appellate court struck down certain restrictions on individual gun ownership and use based on the Second Amendment. Cert granted on the question: Whether the following provisions - D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 - violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes? Decision below 478 F. 3d 370 (D.C. 2007).            

            Do state drug offenses trigger the ACCA where they meet the sentence length requirement only because of a recidivism enhancement? Rodriquez (pending)
United States v. Rodriquez, No. 06-1646, argued January 15, 2008. Where the ACCA provides for an enhanced sentence if the defendant has three prior convictions for state drug offenses with a maximum term of ten years or more, does “a state drug-trafficking offense, for which state law authorized a ten-year sentence because the defendant was a recidivist, qualif[y] as a predicate offense under the Armed Career Criminal Act, 18 U.S.C. 924(e) (2000 & Supp. IV 2004).”

            Do explosives carried during a felony have to be carried “in relation to” the felony to trigger18 U.S.C. § 1844(h)(2)? Ressam (pending)
United States v. Ressam, No. 07-455, argued March 25, 2008. Decision below 474 F.3d 597 (9th Cir. 2007).

 C. DRUGS.

            A felony drug offense, for purposes of federal sentencing, includes state misdemeanor drug offenses: Burgess
Burgess v. United States, 06-11429, Decided April 16, 2008. A felony drug offense, for purposes of sentencing enhancements under 21 U.S.C. § 841(b), includes state drug offenses classified by the state as misdemeanors, but punishable by more than a year imprisonment.  

            Trading drugs for guns does not constitutes “use” of a handgun during a drug trafficking crime under 18 U.S.C. § 924(c)(1)(A): Watson
Watson v. United States, No. 06-571; Decided Dec. 10, 2007, 2007 WL 4292111. In Smith v. United States, 508 U.S. 223 (1993), the Court held that a criminal who trades his firearm for drugs “uses” it during a drug trafficking offense for purposes of § 924(c)(1) based on the ordinary or natural meaning of “use.” However, under the natural meaning of “use,” a person who trades drugs for a firearm does not “use” the firearm in relation to a drug trafficking crime. Id. at *2. To receive a gun in a barter transaction does not meet the natural definition of use. Id. at 4. The fact that, under Smith, one side of the barter transaction is penalized and the other is not is of no consequence. “The problem, then, is not with the sturdiness of Smith but with the limited malleability of the language Smith construed, and the policy-driven symmetry cannot turn “receipt-in-trade” into ‘use.’” Id. at *6. Opinion by Souter.

            Exception to ACCA enhancement for individuals who have had their civil rights restored does not apply to those who never lost civil rights: Logan
Logan v. United States, No. 06-6911 (Dec. 4, 2007). Exception to Armed Career Criminal Enhancement for convictions for which civil rights were restored does not apply to convictions for which civil rights never lost. The armed career criminal enhancement increases a defendant’s maximum sentence for being a felon in possession. The enhancement is triggered when a defendant has three prior convictions for certain violent crimes. The statute provides an exception for convictions for which the person has been pardoned or has had his civil rights (right to vote, hold office, serve on a jury) restored. However, the defendant’s predicate convictions never triggered a loss of civil rights. Held: “Congress did not include offenders who retained civil rights at all times in its dispensation for offenders whose civil rights have been restored . . . We are not equipped to say what statutory alteration, if any, Congress would have made had its attention trained on offenders who retained civil rights.” Opinion by Ginsburg.

D. ENEMY COMBATANTS

            Does the Military Commissions Act of 2006 violate the constitution by removing federal court over jurisdiction over habeas corpus petitions filed for foreign Guantanamo Bay detainees? Boumediene and Odah (pending).
Boumediene v. Bush, No. 06-1195, Odah v. United States, No. 06-1196 cert. granted 6/29/07; argued Dec. 5, 2007. Whether the Military Commissions Act of 2006, which stripped federal court jurisdiction over habeas corpus petitions filed by foreign citizens imprisoned indefinitely at the United States Naval Station, Guantanamo Bay, is unconstitutional; whether Petitioners are entitled to habeas corpus relief, or, at least, a hearing on the merits of their habeas corpus petition; whether Petitioners have a common law right to habeas based on the historical reach of the writ and the fact that they are confined within the territorial jurisdiction of the United States; are Petitioners, detained by the United States without charge for over five years at Guantanamo, a territory under the plenary and exclusive jurisdiction of the United States, entitled to Fifth Amendment protection not to be deprived of liberty without due process of law and to the protection of the Geneva Conventions; does section 7(b) of the Military Commissions Act of 2006, which does not explicitly mention habeas corpus, eliminate the courts’ jurisdiction over petitioners’ pending habeas cases? Decision below: 476 F3d 981 (D.C. 2007).

E. CHILD PORNOGRAPHY

            Is 18 U.S.C. § 2252A(a) unconstitutionally broad or vague? Williams (pending)
United States v. Williams, No. 06-694. Cert. granted 3/26/07; argued Dec. 20, 2007. Is 18 U.S.C. § 2252A(a) is unconstitutionally broad and vague in that it prohibits knowingly advertising, promoting, presenting, distributing, or soliciting any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is illegal child pornography? Decision below: United States v. Williams, 444 F.3d 1286 (11th Cir. 2006).

F. DEATH PENALTY

            Lethal injection is not cruel and unusual punishment: Baze
Baze v. Rees, 07-5439. Decided April 16, 2008. Lethal injection does not violate the Eighth Amendment because it does not create a substantial risk of wanton and unnecessary infliction of pain, torture, or lingering death.

G. RIGHT TO COUNSEL

           May States adopt a higher standard for measuring competency to represent oneself at trial than for measuring competency to stand trial? Edwards (pending)
Indiana v. Edwards, no. 07-208. Cert. granted Dec. 7, 2007, argued March 26, 2008. Decision below: 866 N.E.2d 252 (Ind. 2007).

II. Guideline Amendments

A. CRACK AMENDMENTS AND RETROACTIVITY (Effective November 1, 2007).

            1) Offense Level Change. Amended Drug Quantity Table in U.S.S.G. § 2D1.1. The base offense levels are 2 levels lower than before for quantities of between 500mg and 4.5 kg of crack. There is no change for quantities outside of this range. However, as pointed out in “Applying the Crack Amendments 101" (Sentencing Resource Counsel, November 1, 2007), this results in a system in which the ratio of crack to powder cocaine varies dramatically and irrationally from one offense level to the next.

            As a result, you may want to make a variance argument based on the inequity. In Kimbrough v. United States, 2007 WL 4292040, the Supreme Court held a sentencing court could depart from the sentencing Guideline range based on the disparity between crack and powder cocaine. (The Sentencing Resource Counsel suggests arguing that the court not assign a ratio any higher than the lowest of the bunch, 25 to 1.). However, it should be noted that the court in Kimbrough relied, in part, on the fact that the Sentencing Commissions pre-amendment sentencing scheme for crack and powder cocaine was based on the statutory sentencing scheme, rather than the Commission’s “usual” empirical method for devising such a scheme, and the Commission did not merely copy Congress’s scheme when devising the amended range.

            In addition, the Crack Amendment changed the method of determining the base offense level in cases where that level will be based on both crack and a different controlled substance. A new provision, subsection D, was added to Application Note 10 of U.S.S.G. § 2D1.1. Subsection D contains a marijuana equivalency table to be used for converting crack, only, in cases where a defendant’s base offense level will be determined based on crack and another drug. Other types of drugs continue to be converted using the regular drug equivalency table (subsection E, Application Note 10).

            As Noted by the Sentencing Resource Counsel in Applying the Crack Amendments 101, this new system also sometimes produces irrational results because of the varying equivalencies at each crack offense level. The Sentencing Resource Counsel notes that an offense involving a quantity of crack and of another drug can sometimes be assigned a higher base offense level than an offense involving the same quantity of crack, only.

            2. Retroactivity. On December 11, 2007, the United States Sentencing Commission voted to make the above crack amendments retroactive. The effective date for retroactivity is March 3, 2008. As stated in the USSC’s press release,

Not every crack cocaine offender will be eligible for a lower sentence under the decision. A Federal sentencing judge will make the final determination of whether an offender is eligible for a lower sentence and how much that sentence should be lowered. That determination will be made only after consideration of many factors, including the Commission’s direction to consider whether lowering the offender’s sentence would pose a danger to public safety. In addition, the overall impact is anticipated to occur incrementally over approximately 30 years, due to the limited nature of the guideline amendment and the fact that many crack cocaine offenders will still be required under Federal law to serve mandatory five- or ten-year sentences because of the amount of crack involved in their offense.

http://www.ussc.gov/PRESS/rel121107.htm. The unofficial text to U.S.S.G. policy statement § 1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range), as amended effective March 3, 2008 and implementing the decision to make the November 1, 2007 crack amendments retroactive, can be found at: http://www.ussc.gov/2007guid/030308rf.pdf.

B. CRIMINAL HISTORY AMENDMENTS

            U.S.S.G. § 4A1.2(a)(2) addresses how sentences in related and unrelated cases are counted for criminal history purposes. The section was amended to say that prior sentences for offenses not separated by an intervening arrest are counted separately except when “(A) the sentences resulted from offenses contained in the same charging instrument; or (B) the sentences were imposed on the same day.”
            U.S.S.G. § 4A1.2(c)(1), which addresses which misdemeanor offenses are counted for criminal history purposes, was changed from:

 Sentences for the following prior offenses and offenses similar to them, by whatever name they are known, are counted only if (A) the sentence was a term of probation of at least one year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to an instant offense . . .

to:

Sentences for the following prior offenses and offenses similar to them, by whatever name they are known, are counted only if (A) the sentence was a term of probation of more than one year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to an instant offense . . .

U.S.S.G. § 4A1.2(c)(1) (2007) (emphasis added).

U.S.S.G. § 4A1.2(b)(2), the list of offenses not counted for criminal history purposes, was also amended to include:

            Fish and game violations
            Local ordinance violations (except those violations that are also violations under state criminal law).

U.S.S.G. § 4A1.2(c)(2) (2007).

The amendment also lists factors to be considered in determining when an offense is "similar to" one of the enumerated offenses at §4A1.2(c)(1) and (2):

12. Application of Subsection (c).--
(A) In General.--In determining whether an unlisted offense is similar to an offense listed in subdivision (c)(1) or (c)(2), the court should use a common sense approach that includes consideration of relevant factors such as (i) a comparison of punishments imposed for the listed and unlisted offenses; (ii) the perceived seriousness of the offense as indicated by the level of punishment; (iii) the elements of the offense; (iv) the level of culpability involved; and (v) the degree to which the commission of the offense indicates a likelihood of recurring criminal conduct.

III. Sex Offender Issues

A. SORNA.  

            On July 27, 2006, the Adam Walsh Act was signed into law. Title I of the Act, SORNA, creates an obligation for individuals convicted of a “sex offense” to register with a sex offender registry, independent of any obligation under state law. The penalty for failing to register after being convicted of a federal sex offense, or convicted of a state sex offense and traveling in interstate commerce, is not more than 10 years. 18 U.S.C. § 2250.  
            On its face, SORNA generally requires those convicted of sex offenses to register “in each jurisdiction where the offender resides, where the offender is an employee, . . . where the offender is a student,” and for initial registration, only, where the offender is convicted. 42 U.S.C. § 16913(a). Registration is specifically required (1) before completing imprisonment for the underlying sex offense, or (2) within three business days of sentencing for that offense when not sentenced to imprisonment. 42 U.S.C. § 16913(b).
            Significantly for individuals with pre-SORNA sex offense convictions, SORNA sets out a special provision for offenders who cannot comply with registration within the time prescribed in subsection (b):

The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before July 27, 2006 or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b) of this section.
42 U.S.C. § 16913(d).
 42 U.S.C. § 16917 requires that sex offenders be notified of their registration requirements under the Act while still in custody for the sex offense or immediately after sentencing. The Act delegates to the Attorney General the obligation to promulgate regulations about how to notify offenders who can’t be notified within the time limits in the statute. 42 U.S.C. § 16917 (b).  

B. CHALLENGES TO SORNA

            Amy Baron-Evans, National Sentencing Resource Counsel, has written extensively on SORNA. Her work is on the www.fd.org website:http://www.fd.org/odstb_AdamWalsh.htm. She has also collected sample dismissal motions challenging SORNA prosecutions for lack of notice, and violation of the ex post facto clause, nondelegation doctrine, and commerce clause. http://www.fd.org/odstb_SelectDismissal.htm.
            The most successful challenge has been based on the Attorney General’s delay in promulgating regulations prescribing the registration obligations for sex offenders whose triggering convictions predated SORNA and whose failure to register predated the Attorney General’s regulations. Although SORNA was enacted on July 27, 2006, the Attorney General did not promulgate registration regulations for pre-SORNA sex offenders until February 28, 2007. Several individuals whose sex offense convictions pre-dated SORNA have made successful ex post facto challenges to prosecution based on a failure to register prior to the promulgation of the February regulations. E.g. United States v. Kapp, 487 F.Supp.2d 536 (M.D. Penn. May 16, 2007); United States v. Smith, 2007 WL 1725329 (S.D.W.Va. June 13, 2007), and United States v. Cole, 2007 WL 2714111 (S.D.Ill. Sept. 17, 2007); United States v. Sallee, No. CR-07-152-L (W.D. Okla. Aug. 13, 2007); United States v. Stinson, 2007 WL 2580464 (S.D.W.Va. 2007).
            As of December 26, 2007, no circuit court had issued an opinion on these challenges. However, at least three cases are on appeal: United States v. Cole, No. 0754-3 (7th Cir.); United States v. Smith, No. 07-1425 (6th Cir.); United States v. Stinson, No. 07-4971 (4th Cir.).

IV. Research Starters.

            Excerpts from defense memos and briefs setting out legal standards on various issues.

A. DRUG OFFENSES: MANDATORY MINIMUMS FOR OFFENSE CONDUCT, ONLY

            21 U.S.C. § 841(b) sets out the mandatory minimum terms for crack cocaine trafficking offenses and explicitly requires that these terms apply to the charged and proven violation of 21 U.S.C. § 841(a). 21 U.S.C. § 841(b)(1)(A) and (B) (“In the case of a violation of subsection (a) of this section involving . . ..”). In interpreting 21 U.S.C. § 841(b), the Seventh Circuit holds, “While the guidelines look to behavior that was part of the same course of conduct as the offense of conviction, U.S.S.G. §1B1.3, [21 U.S.C. §841(b)(1)(A), prescribing the mandatory minimum term] looks ‘only to the conduct which actually resulted in a conviction under that statute.’” United States v. Rodriguez, 67 F.3d 1312, 1324 (7th Cir. 1995) (citations omitted); see also United States v. Lewis, 110 F.3d 417, 422 (7th Cir. 1997) (same); Robinson v. United States, 220 WL 1126554 (N.D.Ill, May 4, 2005) (“Relevant conduct . . . is considered in determining the BOL under the Guidelines, not in determining the mandatory minimum under 21 U.S.C. § 841(b)”).
            Other circuits agree. United States v. Darmand, 3 F.3d 1578, 1581 (2d Cir. 1993) (“Unlike the Guidelines, which require a sentencing court to consider similar conduct in setting a sentence, the statutory mandatory minimum sentences of 21 U.S.C. §841(b)(1) apply only to the conduct which actually resulted in a conviction under that statute.”); United States v. Harrison, 241 F.3d 289, 291 -292 (2d Cir. 2001) (same, citing United States v. Winston, 37 F.3d 235, 241 (6th Cir.1994)); United States v. Santos, 195 F3d. 549, 551 (10th Cir. 1999) (“All other circuits to decide the issue have held that the drug quantities triggering the mandatory sentences prescribed in §841(b) are determined exclusively by reference to the offense of conviction. * * * [R]elevant conduct . . . [does] not affect the independent determination of the statutory sentencing directives.”); United States v. Rettelle, 165 F.3d 489, 491 (6th Cir.1999) (same, citing United Winston, supra); United States v. Estrada, 42 F.3d 228, 232 n. 4 (4th Cir.1994) (same, citing Darmand, supra).
            Where the charged offense is a drug conspiracy, however, the offense of conviction may encompass a series of drug transactions. United States v. Broce, 488 U.S. 563, 570-71 (1989) (“A single agreement to commit several crimes constitutes one conspiracy.”). In this situation, these transactions may be aggregated in calculating the mandatory minimum term under 21 U.S.C. § 841(b) because they are part of a single, unified offense. United States v. Pressley, 469 F.3d 63, 65 -66 (2d Cir. 2006). This rule is consistent with Rodriguez, Lewis, and Darmand, supra, because the transactions permitted to be aggregated are limited to those which actually resulted in a conviction. E.g. United States v. Rivera, 411 F.3d 864, 866 (7th Cir. 2005) (Drug quantities which may be aggregated for statutory penalties include "all criminal acts within the scope of the conspiracy and foreseeable to the accused.” (emphasis added)).
            Drug transactions not part of the conspiracy offense conduct may still be considered “relevant conduct” to the charged conduct for purposes of calculating the base offense level under the United States Sentencing Guidelines (as opposed to the statutory mandatory minimum). The transactions may be part of the “same course of conduct” as defined in the Sentencing Guidelines. U.S.S.G. § 1B1.3(a)(2). United States v. Rivera, 6 F.3d 431, 445 (7th Cir. 1993) (Finding drug amounts that were part of a separate conspiracy were properly considered as relevant conduct to the charged conspiracy: “[T]he offense level is increased ‘to account for “relevant conduct” . . . regardless of whether the defendant was charged with or convicted of carrying out those acts.’”).
            Whether conduct is part of a charged conspiracy, or outside of it, is largely determined by the scope of the agreement as described in the indictment. United States v. Arambula, 238 F.3d 865, 869 (7th Cir. 2001) (“The indictment defined the [conspiracy] scope by charging Arambula, Hand, and others unknown with conspiring to distribute cocaine on or about April 12-14, 1999.”); United States v. Quintanilla, 2 F.3d 1469, 1480 (7th Cir. 1993) (“Through its ability to draft the indictment, the government ‘is the master of the scope of the charged RICO conspiracy.’" (citation omitted)); e.g. United States v. Hernandez, 330 F.3d 964, 969 (7th Cir. 2003) ("The language in Count 1 of the indictment charges the defendants with a conspiracy to sell crack cocaine in the Lathrop Homes and to exclude other sellers through the use of violence."); see United States v. Johnson, 248 F.3d 655, 665 (7th Cir. 2001) (No error in admitting evidence of illegal activity outside the time frame of the charged conspiracy where jury was given limiting instruction to prevent broadening the scope of the crimes charged in rendering its verdict.).

B.RELEVANT CONDUCT: LIMITATIONS IN DRUG CASES

            1) In General

"[A] defendant is not automatically responsible under the relevant conduct guideline for all drug transactions revealed by the record, but only for those that are part either of the same course of conduct as the charged offense or of a common scheme or plan including the charged offense." United States v. Patel, 131 F.3d 1195, 1204 (7th Cir. 1997); United States v. Bacallao, 149 F.3d 717, 719 (7th Cir.1998) (same). This "relevant conduct" or "aggregation" rule permits sentencing courts to consider quantities of drugs not specified in the counts of conviction provided that "the unconvicted activities bore the necessary relation to the convicted offense." Id. (quoting United States v. Duarte, 950 F.2d 1255, 1263 (7th Cir.1991)).

            When deciding whether uncharged conduct is part of the same course of conduct,

a court should assess whether there is “a strong relationship” between the uncharged conduct and the offense of conviction, looking to whether there is “significant similarity, regularity, and temporal proximity.” United States v. Bacallao, 149 F.3d 717, 719 (7th Cir.1998) (quotations omitted). A court must consider “the identity of the participants and their roles in the events at issue, as well as the nature, structure and location of the allegedly related transactions.” United States v. Cedano-Rojas, 999 F.2d 1175, 1180 (7th Cir.1993). But we also have warned that the relevant conduct guideline “must not be read to encompass any offense that is similar in kind to the offense of conviction, but that does not bear the required relationship to that offense.” Bacallao, 149 F.3d at 719-20 (quotations omitted); see also United States v. Crockett, 82 F.3d 722, 729 (7th Cir.1996) (noting that the relevant conduct guideline “should not be applied to offenses that are of the same kind, but not encompassed in the same course of conduct or plan as the convicted offenses” (quotations omitted)).

United States v. Johnson, 324 F.3d 875, *879 (7th Cir. 2003).

The commentary accompanying the Guidelines explains that “common scheme or plan” and “same course of conduct” are “two closely related concepts.” Two or more offenses are part of a common scheme or plan if they are “substantially connected to each other by at least one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi. ” Offenses are part of the same course of conduct if they are “sufficiently connected or related to each other as to warrant the conclusion that they are part of a single episode, spree, or ongoing series of offenses.” Factors indicating that two or more offenses are part of the same course of conduct include “the degree of similarity of the offenses, the regularity (repetitions) of the offenses, and the time interval between the offenses.” U.S.S.G. § 1B1.3(a). See also Cedano-Rojas, 999 F.2d at 1180 (factors include “similarity, regularity, and temporal proximity of the incidents in question”); United States v. Hatchett, 31 F.3d 1411, 1419 (7th Cir.1994) (factors include similarity of parties, geographic relationship, temporal relationship, and “any other relationship between the convicted offense and the relevant conduct”).

United States v. Taylor, 72 F.3d 533, 548 (7th Cir. 1995).

            The Seventh Circuit has noted its “concern with the potential abuse of ‘relevant conduct’ aggregation on numerous instances. See, e.g., United States v. Bacallao, 149 F.3d 717, 721 (7th Cir.1998); United States v. Duarte, 950 F.2d 1255, 1263 (7th Cir.1991); United States v. Ebbole, 917 F.2d 1495, 1501-02 (7th Cir.1990); United States v. Fischer, 905 F.2d 140, 141 (7th Cir.1990).” United States v. Morrison, 207 F.3d 962, *968 (7th Cir. 2000).
            The Seventh Circuit has similarly elsewhere repeatedly cautioned against viewing relevant conduct too broadly. "We have noted our concern with the potential abuse of "relevant conduct" aggregation on numerous instances. See e.g., United States v. Bacallao, 149 F.3d 717, 721 (7th Cir.1998); United States v. Duarte, 950 F.2d 1255, 1263 (7th Cir.1991); United States v.Ebbole, 917 F.2d 1495, 1501-02 (7th Cir.1990); United States v. Fischer, 905 F.2d 140, 141 (7th Cir.1990)." United States v. Morrison, 207 F.3d 962, 968 (7th Cir. 2002).
            A defendant is not automatically responsible under the relevant conduct guideline for all drug transactions revealed by the record, but only for those that are part either of the same course of conduct as the charged offense or of a common scheme or plan including the charged offense. United States v. Patel, 131 F.3d 1195, 1204 (7th Cir. 1997). A sentencing court must consider whether there are distinctive similarities between the offense of conviction and the remote conduct that signal that they are part of a single course of conduct rather than isolated, unrelated events that happen only to be similar in kind. United States v. Ruiz, 178 F.3d 877, 882 (7th Cir. 1999), quoting United States v. Skyles, 7F.3d 1331, 1336 (7th Cir. 1993). District courts must look to a "strong relationship between the uncharged conduct and the convicted offense, focusing on whether the government has demonstrated a significant similarity, regularity, and temporal proximity." Bacallao, 149 F.3d at 719 (citations omitted) (emphasis added).
            Thus, a relevant conduct analysis is substantially fact-driven. Differences in the offense conduct and relevant conduct will support the conclusion that they are separate ventures. If acts are "discrete, identifiable units" rather than "the same course of conduct or a common scheme or plan," they do not qualify as relevant conduct. Sykes, 7 F.3d at 1337; U.S.S.G. 1B1.3, cmt., background (noting that same course of conduct and common scheme or plan definitions are designed to take account of "a pattern of misconduct that cannot readily be broken into discrete, identifiable units that are meaningful for purposes of sentencing").

C.CONSPIRACY: RELEVANT CONDUCT AND OFFENSE CONDUCT

            Whether conduct is part of a charged conspiracy, or outside of it, is largely determined by the scope of the agreement as described in the indictment. United States v. Arambula, 238 F.3d 865, 869 (7th Cir. 2001) (“The indictment defined the [conspiracy] scope by charging Arambula, Hand, and others unknown with conspiring to distribute cocaine on or about April 12-14, 1999.”); United States v. Quintanilla, 2 F.3d 1469, 1480 (7th Cir. 1993) (“Through its ability to draft the indictment, the government ‘is the master of the scope of the charged RICO conspiracy.’" (citation omitted)); e.g. United States v. Hernandez, 330 F.3d 964, 969 (7th Cir. 2003) ("The language in Count 1 of the indictment charges the defendants with a conspiracy to sell crack cocaine in the Lathrop Homes and to exclude other sellers through the use of violence."); see United States v. Johnson, 248 F.3d 655, 665 (7th Cir. 2001) (No error in admitting evidence of illegal activity outside the time frame of the charged conspiracy where jury was given limiting instruction to prevent broadening the scope of the crimes charged in rendering its verdict.).
            Pinkerton v. United States, 328 U.S. 640 (1946), governs the quantity of drugs which count when applying the sentencing provisions of 21 U.S.C. 841(b). United States v. Rodriguez, 67 F.3d 1312, 1324 (7th Cir. 1995) (while the analysis of the drug quantities involved in a conspiracy resembles the relevant conduct inquiry under Section 1B1.3, the analysis actually proceeds under Pinkerton). Under Pinkerton, drug quantity that is material to the mandatory minimum sentence in a conspiracy case includes "all criminal acts within the scope of the conspiracy and foreseeable to the accused." United States v. Rivera, 411 F.3d 864, 866 (7th Cir. 2005) (emphasis added), citing Pinkerton, supra. See also United States v. Townsend, 924 F.2d 1385, 1399 (7th Cir. 1991) (the offense of conspiracy is complete at the time of agreement, whether or not its object is ever achieved); United States v. Trigg, 119 F.3d 493, 505 (7th Cir. 1997) (conspiracy requires proof of an agreement, to which the defendant was a party, to commit an unlawful act).

The issue of what conduct will be counted in triggering the mandatory minimum term versus what conduct will be counted only toward the offense level under the Guidelines can be confusing. One subsection of the relevant conduct Guidelines incorporates the Pinkerton standard for jointly undertaken activity: "all reasonably foreseeable acts . . . in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction." U.S.S.G. 1B1.3(a)(1)(B) (emphasis added ). Hence, with regard to offense of conviction conduct for 841(b) purposes and relevant conduct, "[t]he inquiries . . . become quite similar in conspiracy cases, in which each conspirator is responsible for drug amounts handled by co-conspirators if those amounts were foreseeable to him and in furtherance of the jointly undertaken criminal activity to which he agreed." United States v. Lewis, 110 F.3d 417, 423 (7th Cir. 1997 ). Only in this narrow circumstance are relevant conduct and conduct resulting in the offense of conviction the same.

            However, "relevant conduct" is broader than just this subsection pertaining to jointly undertaken activity. Another subsection of the Guideline includes activity that is part of the "same course of conduct or common scheme or plan" as the offense of conviction U.S.S.G. 1B1.3(a)(2). Hence, despite the overlap for jointly undertaken criminal activity, the Seventh Circuit makes clear that only drug quantities resulting in the offense of conviction can trigger mandatory minimum 21 U.S.C. 841(b) sentences:
the standard for determining the quantity of drugs "involved" in a conspiracy under 841(b)(1)(A) differs from the "relevant conduct" approach typically applied in drug quantity calculations under the Guidelines. Id. (citing U.S.S.G. 1B1.3, 2D1.1(c)). "While the guidelines look to behavior that was part of the same course of conduct as the offense of conviction, U.S.S.G. 1B1.3, the statute looks 'only to the conduct which actually resulted in a conviction under that statute." id. (quoting United States v. Darmand, 3 F.3d 1578, 1581 (2d Cir. 1993)).

Lewis, 110 F.3d at 422-23; see also United States v. Rodriguez, 67 F.3d 1312 (7th Cir. 1995) ("We begin by noting that the standard for determining the quantity of controlled substances 'involved' in a conspiracy for purposes of the mandatory life sentence in 21 U.S.C. 841(b)(1)(A) is not precisely the same as the 'relevant conduct' approach . . .."); see also United States v. Edwards, 397 F.3d 570, 571 (7th Cir. 2005) (terminology under Guidelines cannot be presumed to have the same meaning as under 21 U.S.C. 841(b)).

D.RELEVANT CONDUCT: LIMITATIONS IN CHILD PORNOGRAPHY CASES


            Acts can also qualify as "relevant conduct" if they are "part of the same course of conduct or common scheme or plan as the offense of conviction." U.S.S.G. 1B1.3(a)(2). Relevant conduct under this provision "is designed to take account of a pattern of misconduct that cannot readily be broken into discrete, identifiable units that are meaningful for purposes of sentencing." United States v. Sykes, 7 F.3d 1331, 1335 (7th Cir. 1993) (discussing Background of Application Notes to 1B1.3(a)(2)). "A court must consider whether there are distinctive similarities between the offense of conviction and the remote conduct that signal that they are part of a single course of conduct rather than isolated, unrelated events that happen only to be similar in kind." United States v. Ruiz, 178 F.3d 877, 882 (7th Cir. 1999) quoting United States v. Skyles, 7F.3d 1331, 1336 ( 7th Cir. 1993); United States v. Beler, 20 F.3d 1428, 1432 (7th Cir. 1994).
            “[B]ecause the relevant conduct rule is 'not without limits' and 'because its application so favors the government,' [the Seventh Circuit] insist[s] that courts be 'scrupulous to ensure that the government has adhered to those limits.'" United States v. Crockett, 82 F.3d 722, 729 (7th Cir.1996), quoting United States v. Beler, 20 F.3d 1428, 1431-32 (7th Cir. 1994). The Government cannot meet its burden merely because the August 2004 conduct, predating the offense of conviction, also involved child pornography. United States v. Ruiz, 178 F.3d 877, 882 (7th Cir. 1999). Compare United States v. Ellison, 113 F.3d 77, *83 (7th Cir. 1997) (Where the defendant was charged with receipt of new pornography, it was not error to enhance his sentence based on sadomasachistic character of pornography he possessed contemporaneously with his offense of conviction.).

E.RELEVANT CONDUCT: LIMITATIONS IN GUN CASES

Only firearms that qualify as relevant conduct can trigger a U.S.S.G. 2K2.1(b) increase. U.S.S.G. § 1B1.1, Application Note H. . For example, in United States v. Taylor, 272 F.3d 980 (7th Cir. 2001), the defendant escaped from police custody after being arrested for a gun offense. A week later, while still committing the ongoing offense of escape, he fired shots at an individual, although that shooting had nothing to do with avoiding police or facilitating his escape.

            The government in Taylor asserted that the shooting was relevant conduct to the escape, arguing that the relevant conduct guidelines made the defendant "liable for every act he committed during the course of his escape." Id. at 982-83. The Seventh Circuit absolutely disagreed:

This premise is faulty. "Relevant" must have meaning under U.S. S.G. § 1B1.3, even when the charge is escape. It is true that escape under 751(a) is a continuing offense . . . However, we cannot conclude that every crime committed during the time a person is on escape status automatically becomes relevant conduct in regard to the crimes committed before the escape. The relevant conduct guideline is "not without limits." United States v. Crockett, 82 F.3d 722, 729 (7th Cir. 1996). We cautioned in Ritsema that "the relevant conduct provision, interpreted in an overly broad manner, has the potential of being a coarse instrument capable of causing years of serious incidental criminality to ride in at sentencing on the coattails of a relatively minor conviction." .


Id.; see also United States v. Bjorkman, 270 F.3d 482, 497 (7th Cir. 2001) ("relevant conduct" by definition is not "collateral conduct").
           United States v. Ritsema, 31 F.3d 559 (7th Cir. 1994), also undermines the PSI's recommendation. In Ritsema, the defendant plead guilty to possessing unregistered silencers. The district court found that the defendant had used a firearm with a silencer to threaten a mentally retarded girl whom he sexually assaulted, although there was no evidence the girl was intimidated by the silencer, in particular, as opposed to the firearm. The Seventh Circuit reversed the defendant's sentence, holding that the mere fact that the intimidation and sexual assault were contemporaneous with possessing the silencer was not sufficient to: 1) make the intimidation/obstruction relevant conduct; 2) to cross reference to the sexual assault guideline; nor 3) to enhance for vulnerable victim under U.S.S.G. 1B1.3(a)(1) ("all acts . . . caused by the defendant . . . that occurred during the commission of the offense . . ..").

           As explained by the Ritsema Court:

 

We recognize, however, that Ritsema's threats were contemporaneous with the silencer possession, and thus, under a strict literal interpretation of section 1B1.3(a)(1), may be considered relevant conduct under condition (1). * * * We do not believe that holding Ritsema's obstruction of justice conduct relevant to his possession of unregistered silencers is consistent with the policies that underlie the Relevant Conduct provision. * * * the Relevant Conduct provision directs a court to sentence a defendant for uncharged conduct germane to the charge-offense by authorizing it to consider events before, during, and after the offense conduct. The temporal dimension of relevant conduct, however, could not reasonably have been intended to cause a court to convert a single possession conviction into a sweeping tool to gather in all of the otherwise unrelated criminality of a defendant which occurred contemporaneously with the charge-offense. * * * If judges were required to read the Relevant Conduct provision in this fashion, absurd results would obtain, especially in the context of possession crimes.

Id. at 566-67 (emphasis added).

            The Seventh Circuit in Ritsema simply noted that the criminal conduct unrelated to the possession of the silencers bore a "too attenuated connection" to the charged offense. Id. at 565. Hence, the PSI's conclusion that all offenses committed during the offense of conviction are relevant conduct, even if completely unrelated, is simply wrong.
As the Risema Court noted, Section 1B1.1(a)(1) provides that there are four conditions for conduct to be deemed "relevant conduct" to a charged offense: all acts and omissions by the defendant that (1) occurred during the commission of the charged offense, which (2) were in preparation for committing it, or (3) were done in an attempt to hide the charged offense, or (4) were otherwise done in furtherance of it. Id. at 566. None of these conditions have been met by the Defendant with regard to the possession of the of the charged machine gun and the 8 to 24 firearms (antique or otherwise) for the past 10 to 15 years.

F. 3553(A) FACTORS

            Two recent Supreme Court cases strengthened a sentencing court’s power to sentence outside the Guideline range, effectively increasing the strength of 3553(a) factors. In Kimbrough v. United States, 2007 WL 42920404, the Supreme Court held that a sentencing court may sentence a defendant outside the Guideline range in the absence of extraordinary circumstances. Also, in Gall v. United States, 2007 WL 4292116, the Court held that a sentencing court could justify an outside the Guidelines sentence on its disagreement with the Guidelines scheme–however, the Sentencing Commission’s own reports undermined the validity of the scheme. The Court stated that the scheme had not been developed though the usual empirical approach used in formulating Guidelines–rather, the Sentencing Commission merely adopted a ratio used by Congress in its statutory sentencing scheme.

            In United States v. Miranda, 505 F.3d 785 (7th Cir. 2007), involving a defendant with a serious mental illness, the Seventh Circuit reversed a within-Guidelines sentence because the district court did not adequately respond to non-frivolous 3553(a) arguments asserted by the defendant. Although a “judge need not comment on every argument the defendant raises,” it cannot give “little or no attention to the defendant’s principle argument when that argument ‘was not so weak as not to merit discussion . . ..’” Id. at 792. Although the sentencing court did justify its ultimate sentence, it did so with “sentencing considerations that are worked into the standard guidelines sentence,” none of which were specific to the defendant or his arguments that his mental illness warranted a different sentence. The Seventh Circuit vacated and reversed because it could not “tell from the district court's comments whether the court made that individualized analysis of Miranda's factually and legally supported sentencing arguments under section 3553(a).” Id. at 796.

 G.STATUTORY INTERPRETATION

            A court must "give effect to the will of Congress, and where its will has been expressed in reasonably plain terms, that language must ordinarily be regarded as conclusive." Negonsott v. Samuels, 113 S. Ct. 1119, 1122-23 (1993) (quoting from Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 570 (1992)). A statute's plain language is "the most reliable indicator of congressional intent." Central States, et al. v. Cullum Companies, 973 F.2d 1333, 1339 (7th Cir.1992).

            "[A] statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant." United States v. Campos-Serrano, 404 U.S. 293, 301 (1971) (citation omitted); United States v. Franz, 886 F.2d 973, 978 (7th Cir. 1989) ("[A] court should not construe a statute in a way that makes words or phrases meaningless ... or superfluous."); Hughes Air Corp. v. Public Util. Comm'n, 644 F.2d 1334, 1338 (9th Cir.1981) ("One provision should not be interpreted in a way which is internally contradictory or that renders other provisions of the same statute inconsistent or meaningless."). "If an absolutely literal reading of a statutory provision is irreconcilably at war with the clear congressional purpose, a less literal construction must be considered." United States v. Campos- Serrano, 404 U.S. 293, 298 (1971); United States v Balint, 201 F.3d 928, 932-33 (7th Cir. 2000) ("The plain meaning of a statute is conclusive unless literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.") (citation omitted).

H.RULE 404(B) EVIDENCE

            Rule 404(b) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

Federal Rule of Criminal Procedure 404(b).
“[S]imply because the evidence in question tends to show intent, motive, identity, or the like does not mean the evidence is automatically admissible. Rather, the second sentence of the rule makes explicitly clear that such evidence ‘may’ be admissible, not that admission is automatic.” United States v. Simpson, 479 F.3d 492, 497 (7th Cir. 2007) (citation omitted). “Evidence is unfairly prejudicial only if it will induce the jury to decide the case on an improper basis, commonly an emotional one rather than on the evidence presented.” United States v. Hicks, 368 F.3d 801, 807 (7th Cir. 2004) (citation omitted).
To be admissible under F.R.E. 404(b), evidence must:

           (1) be directed toward establishing a matter in issue other than the defendant’s propensity to commit the crime charged; (2) show that the other act is similar enough and close enough in time to be relevant to the matter in issue; (3) be sufficient to support a jury finding that the defendant committed the similar act; and (4) have a probative value that is not substantially outweighed by the danger of unfair prejudice.

           United States v. Thomas, 321 F.3d 627, 633-34 (7th Cir. 2003) (citations omitted).

            “Rules 403 and 404(b) establish standards rather than rules. [The objective] is to ensure that standards not be applied as if they were rules, as if they established mechanical indicia (such as ‘One drug offense may be used as evidence to prove any other’). The list of exceptions in Rule 404(b), if mechanically applied, would overwhelm the central principle. Almost any bad act evidence simultaneously condemns by besmirching character and by showing one or more of ‘motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident’, not to mention the ‘other purposes’ of which this list is meant to be illustrative.” United States v. Beasley, 809 F.2d 1273, 1279 (7th Cir. 1987).

            A District Court’s decision to admit 404(b) evidence must be the result of “a principled exercise of discretion.” Beasley, 809 F.2d at 1279, citing McCormick on Evidence at 453 and United States v. Philliips, 401 F.2d 301 (7th Cir. 1968). “The district judge must both identify the exception that applies to the evidence in question and evaluate whether the evidence, although relevant and within the exception, is sufficiently probative to make tolerable the risk that jurors will act on the basis of emotion or an inference via the blackening of the defendant's character. Discretion, when exercised, will rarely be disturbed.” Beasley, 809 F.2d at 1279.

I. FOURTH AMENDMENT
         1) Seizure

            Where law enforcement officers approach an individual in a public place, a "'seizure' of the person occurs only if a reasonable person in similar circumstances would not have felt 'free to leave.'" United States v. Jerez, 108 F.3d 684, 689 (7th Cir. 1997) (citations omitted). "The determination of whether an encounter is a seizure is made on the basis of the 'totality of the circumstances' surrounding the encounter." Id. at 690. Where an individual approached by law enforcement has not been seized, he is free to go on about his business. United States v. Pedroza, 269 F.3d 821, 826 -827 (7th Cir. 2001).

           2) Investigatory Stop

            Terry v. Ohio, 392 U.S. 1 (1968) created a limited exception to the rule that all seizures must be supported by probable cause. "Under Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), 'police officers may conduct a brief, investigatory stop of a suspect if they have reasonable suspicion based on articulable facts that a crime is about to be or has been committed.' United States v. Wimbush, 337 F.3d 947, 949 (7th Cir.2003); see also United States v. Mancillas, 183 F.3d 682, 695 (7th Cir.1999)." United States v. Johnson, 383 F.3d 538, 542 -543 (7th Cir. 2004). "Reasonable suspicion means some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." United States v. Swift, 220 F.3d 502, 506 (7th Cir.2000) (citation omitted).
            When evaluating whether reasonable suspicion exists, "each case is to be decided on its own facts and circumstances." Ornelas v. United States, 517 U.S. 690, 696 (1996) (quoting Terry v. Ohio, 392 U. S. at 29). "[Reasonable suspicion] is a concept that is not readily, or even usefully, reduced to a neat set of legal rules. . . . In the end, the analytical process requires a practical determination; it does not deal with hard certainties, but with probabilities . . . [Courts] must reach a common sense conclusion as to whether the articulable facts to which the deputies point reasonably would raise a suspicion that the particular individual[s] being stopped [were] engaged in wrongdoing." Jerez, 108 F.3d at 693 (citations omitted).

            An officer's "inchoate and unparticularized suspicion or 'hunch,'" is insufficient to constitute a reasonable suspicion sufficient to support an investigatory detention. Reid v. Georgia, 448 U.S. 438, 441 (1980) (citation omitted). Accordingly, a combination of general circumstances commonly true of many innocent citizens is not ordinarily sufficient to support reasonable suspicion. See Brown v. Texas, 443 U.S. 47, 52 (1979) ("The fact that appellant was in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that appellant himself was engaged in criminal conduct. In short, the appellant's activity was no different from the activity of other pedestrians in that neighborhood."). If reasonable suspicion routinely could be supported by common and lawful conduct and circumstances, "a very large category of presumably innocent travelers . . . would be subject to virtually random seizures . . .." Reid v. Georgia, 448 U.S. 438, 441 (1980) (citation omitted); see also Moya v. United States, 761 F.2d 322 at 325 (7th Cir.1984) ( "We must be especially cautious when the evidence that is alleged to establish probable cause is entirely consistent with innocent behavior.").

            On occasion, a combination of predominantly innocent facts may add up to reasonable suspicion. Reid, 448 U.S. at 441 ("Although there could, of course, be circumstances in which wholly lawful conduct might justify the suspicion that criminal activity was afoot . . . this is not such a case." (citation omitted)); e.g. United States v. Lechuga, 925 F.2d 1035, 1039 (7th Cir. 1991) (Reasonable suspicion was supported by a combination of general but seemingly furtive actions, such as the suspect meeting with another individual in a parking lot near his house, using a payphone near his house, retrieving a package from an apartment near his house, placing the package deep in his car trunk, and driving in a way to suggest counter-surveillance.). However, courts will not find reasonable suspicion based on any combination of innocent circumstances merely because police assert a particularized suspicion of criminal activity. E.g. Reid, 448 U.S. at 441 (Finding no reasonable suspicion where the evidence consisted largely of circumstances that would describe a very large category of presumably innocent travelers and the only evidence relating to the petitioner's particular conduct was the fact that "the petitioner preceded another person and occasionally looked backward at him as they proceeded through the concourse."); Jerez, 108 F.3d at 693 -694 (No reasonable suspicion of drug activity to stop defendant on the street or in his motel room based on the fact that the defendant's car was parked near an airport and an interstate, it was a two-door car (a target car) with a license plate from Florida (a "source" state), and the defendant had a suspended driver's license and a conviction for smuggling an unknown type of contraband into a Florida jail.); United States v. Packer, 15 F.3d 654, 658 (7th Cir. 1994) (Evidence insufficient for reasonable suspicion where four individuals were in a car parked along the street at 1:00 a.m. with the windows fogged and there was no evidence that the officers knew how long the car had been parked there.).
            The fact that an individual is stopped in a high crime area is a relevant consideration in a reasonable suspicion analysis. United States v. Brown, 188 F.3d 860, 865 (7th Cir. 1999). Still, "an individual's presence in an area of expected criminal activity, standing alone, is not enough to support reasonable, particularized suspicion that the person is committing a crime." Illinois v. Wardlow, 528 U.S. 119, 124-125 (2000); see also Liston v. Steffes, 300 F.Supp.2d 742, 750-53 (W.D.Wis. 2002) (collecting cases).
            In some instances, a defendant's unprovoked flight immediately upon seeing police, combined with his location in a high crime neighborhood, can provide sufficient reasonable suspicion to warrant a Terry stop. Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000) (Reasonable suspicion found where police officers patrolling a high crime area saw the defendant standing near a building holding an opaque bag, and the defendant took off running as soon as he saw police.). Even so, "Walking away from the police hardly amounts to the headlong flight considered in Wardlow and of course would not give rise to reasonable suspicion by itself, even in a high-crime area, but it is a factor that can be considered in the totality of the circumstances." United States v. Valentine, 232 F.3d 350, 357 (3rd Cir. 2000).
            As stated in United States v. Patterson, 340 F.3d 368 (6th Cir. 2003), "Walking in the opposite direction from the police could be considered an indication of a person's fear of being caught participating in illegal activities, but it also could be purely innocent activity . . .." Id. at 370-372; see also Moreno v. Baca, 400 F.3d 1152, 1168 -1169 (9th Cir. 2005) ("But Moreno's simple act of walking away from the officers could not have been reasonably mistaken for the type of 'flight' the officers confronted in Wardlow."); see also United States v. McCray, 148 F.Supp.2d 379, 389 (D.Del.,2001) ("[Defendants] continued walking when the officers arrived. The record before the court clearly demonstrates that there was not the same sort of unprovoked, headlong flight that there was in Wardlow ."); see also Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (Distinguishing refusing to cooperate from headlong flight: "[U]nprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature, is not 'going about one's business'; in fact, it is just the opposite."). In fact, the Supreme Court has "consistently held that a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure." Florida v. Bostick, 501 U.S. 429, 437 (1991). As stated in Florida v. Royer, 460 U.S. 491 (1983), " The person approached . . . need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way . . . He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds." Id. at 497-98 (citations omitted). Further, although it was Appellant's initial burden to demonstrate that the detention was without justification in violation of the Fourth Amendment, the Government "has the ultimate burden of persuasion to show that its evidence is untainted." United States v. Crouch, 528 F.2d 625, 629 (7th Cir. 1976); see also United States v. Ienco, 182 F.3d 517, 528 (7th Cir. 1999).

            3) Search warrant:

            A search warrant is not sufficient if it merely establishes probable cause to believe a crime has been committed. Rather, the warrant and supporting affidavit must establish a reasonable probability that evidence of a crime will be found in a particular place. As stated by the Seventh Circuit:

"The critical element in a reasonable search," the Supreme Court has said, "is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific 'things' to be searched for and seized are located on the property to which entry is sought." Zurcher v. Stanford Daily, 436 U.S. 547, 556, 98 S.Ct. 1970, 1977, 56 L.Ed.2d 525 (1978); see also United States v. Malin, 908 F.2d 163, 165 (7th Cir.), cert. denied, 498 U.S. 991, 111 S.Ct. 534, 112 L.Ed.2d 544 (1990).

United States v. Sleet, 54 F.3d 303, 306 (7th Cir. 1995) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)); see also United States v. Pless, 982 F.2d 1118, 1124 (7th Cir.1992).
            When evaluating a search warrant application, "[A]ge of inculpatory information is of course one element that magistrates should consider in determining whether probable cause exists." United Pless, 982 F.2d at 1125-26 (citing United States v. Lamon, 930 F.2d 1183, 1187-88 (7th Cir.1991)); see also Durham v. United States, 403 F.2d 190, 193 (9th Cir.1968) (a search warrant affidavit must be based on facts "'so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time.' " (quoting Sgro v. United States, 287 U.S. 206, 210, 53 S.Ct. 138, 140, 77 L.Ed. 260 (1932)).
            The "[p]assage of time is less critical when the affidavit refers to facts that indicate ongoing continuous criminal activity." United States v. Spry, 190 F.3d 829, 836 (7th Cir.1999) (quoting Pless, 982 F.2d at 1126; citing Lamon, 930 F.2d at 1188); see also United States v. Gann, 732 F.2d 714, 722 (9th Cir.1984) (the information is not stale if "there is sufficient basis to believe, based on a continuing pattern or other good reasons, that the items to be seized are still on the premises").
            An isolated episode of criminal activity in the past, without recent corroboration of ongoing activity, generally is not sufficient to establish probable cause to believe the contraband is still present. For instance, a Wisconsin District Court found that a report that the defendant illegally possessed a gun at a party three weeks prior did not give probable cause to search his residence. As stated by that court:

 Observations of past criminal activity that by themselves are stale can be sufficient if the affidavit also establishes a pattern of continuing criminal activity such that there is reason to believe that the observed activity was probably not a one-time occurrence. Wagner, 989 F.2d at 75; see also United States v. Pless, 982 F.2d 1118, 1126 (7th Cir.1992) (stating that the passage of time is less critical when the affidavit refers to ongoing criminal activity). However, in the present case, Clark provided no information suggesting on-going criminal activity. * * * Clark indicated that the gun had only been observed on one occasion. Based on the information presented to the commissioner, it is just as likely that defendant possessed the gun only on New Year's Eve than it was that he owned it and kept it at home. Cf. Owens v. United States, 387 F.3d 607, 608 (7th Cir.2004) (finding no probable cause based on affidavit stating that three months earlier an informant had bought a unknown quantity of crack from defendant at a house believed defendant's because it would be as likely that defendant or someone with access to defendant's house had made a single, isolated sale).

United States v. Harju, 384 F.Supp.2d 1278, 1284-85 (E.D.Wis.,2005).

            This principle is particularly true where the contraband is highly consumable or easily destroyed. For instance, in United States v. Kennedy, 427 F.3d 1136 (8th Cir. 2005), the defendant's former girlfriend reported to police that, at some time in the past, he kept drugs in his car and she saw him selling drugs. The court found that this information was not sufficient to establish probable cause. As explained by that court:

 

Where suspected criminal activity is continuing in nature and the property is not likely to be destroyed or dissipated, the passage of time may be less significant. Gleich, 397 F.3d at 613. [FN5] However, information of an unknown and undetermined vintage relaying the location of mobile, easily concealed, readily consumable, and highly incriminating narcotics could quickly go stale in the absence of information indicating an ongoing and continuing narcotics operation. * * * Here, Kennedy was not the subject of an ongoing narcotics investigation; he was stopped on suspicion that he was involved in a burglary and arrested for driving without a license. Police had nothing to go on other than one isolated conversation with a former girlfriend, who, despite her apparent eagerness to enmesh Kennedy in further legal troubles, failed to provide Officer Abbott with a key piece of information. Under these circumstances, the magistrate judge's finding that Officer Abbot had no reason to believe that narcotics were currently hidden in the vehicle was not clearly erroneous.
Id. at 1142.

            Seventh Circuit precedent is consistent with the notion that evidence which is easily destroyed or dissipated quickly becomes stale without evidence of ongoing activity: "After all, the Fourth Amendment requires searches and seizures to be 'reasonable.' Passage of time could affect reasonableness, especially for search warrants that authorize the police to hunt for items that are portable (or consumable)." United States v. Martin, 399 F.3d 879, 881 (7th Cir. 2005).

 J.EYEWITNESS TESTIMONY

            A plethora of case law, legal articles, and psychological studies recognize the pitfalls of relying on uncorroborated eyewitness testimony in criminal proceedings:

The basic problem about testimony from memory is that most of our recollections are not verifiable . . . the mere fact that we remember something with great confidence is not a powerful warrant for thinking it true. It therefore becomes an empirical question whether and in what circumstances memory is accurate . . . But although the answers certainly are not definitive, they are suggestive. The basic findings are: accuracy of recollection decreases at a geometric rather than arithmetic rate (so passage of time has a highly distorting effect on recollection); accuracy of recollection is not highly correlated with the recollector's confidence; and memory is highly suggestible-people are easily "reminded" of events that never happened, and having been "reminded" may thereafter hold the false recollection as tenaciously as they would a true one.


Krist v. Eli Lilly and Company, 897 F.2d 293, 297 (7th Cir. 1990). See also United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) ("The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.")

In United States v. Russell, 532 F.2d 1063, 1066 (1976), the Supreme Court addressed the deficiencies of perception and memory in the context of eyewitness testimony:

 

Many investigators believe that perception and memory are not purely deductive, but have substantial inductive components. See, e. g., Buckhout, “Eyewitness Testimony,” 231 Scientific American 23 (Dec.1974). Witnesses focus on gross or salient characteristics of any sensory experience, and fill in the details, not according to the observed facts of the experience, but according to some previously internalized pattern they associate with the perceived gross characteristics. In addition, the construction of memory is greatly influenced by post-experience suggestion. Suggestions compatible with the witness' internalized stereotype are likely to become part of the witness' memory, not because they are in fact similar to the actual experience, but because they fit the preconceived stereotype. Buckhout, supra, at 23-24, see Ringel, supra, at 8-11.

Also, unreliability can be compounded by inaccurate perception of even the gross characteristics of the experience. Some studies have shown that even under ideal conditions, height estimates by different witnesses can vary by more than two feet. Even the estimates of experienced police officers can vary by as much as five inches, and their weight and age estimates can vary by as much as twenty pounds and fifteen years. Wall, supra, at 10-11.

*1067 This problem is important because of all the evidence that may be presented to a jury, a witness' in-court statement that “he is the one” is probably the most dramatic and persuasive. Eisenberg & Fenstel, supra, E. Borchard, Convicting the Innocent (1932).

United States v. Russell, 532 F.2d 1063, 1066 -1067 (C.A.Mich. 1976).
            In addition, among the many factors affecting memory and perception is stress. In United States v. Norwood, 939 F.Supp. 1132, 1137 (D. New Jersey 1996), the court recounted portions of expert testimony on the impact of stress on eyewitness identifications: "[n]umerous studies reveal that, while low levels of stress may increase an individual's memory, extreme levels of stress will often impair memory." Similarly, in United States v. Downing, 753 F.2d 1224, 1230 (3d Cir. 1985), the Third Circuit noted: "[t]he proffer stated that the expert would testify concerning . . . the fact that, contrary to common understanding, stress causes inaccuracy of perception and distorts one's subsequent recall . . .." The Seventh Circuit has held that a litigant may assert that stress will affect a witness' memory even without expert testimony. United States v. Ricketts, 146 F.3d 492, 496-97 (7th Cir. 1998).

            In United States v. Jordan, 924 F.Supp. 443, 448 (W.D. New York 1996), the district court listed various factors which affect perception and memory when describing an expert's proffered testimony: (1) any activity in which a witness engages during an event will have an effect on the accuracy of a witnesses recollection; (2) the more time in which the witness is exposed to the perpetrator will positively correlate to the accuracy of the identification; (3) there is no correlation between a witness' level of confidence and accuracy; and (4) stress impacts a witness' sensory perception and subsequent recollection.

K. EXPERT TESTIMONY, DAUBERT

            In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court clarified the role of federal judges as "gatekeepers" who must evaluate when and whether "expert" evidence should be admitted. Two years later, the Court extended the Daubert approach to expert evidence outside of fields narrowly defined as "scientific." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999). "The admission of expert testimony from technical fields is governed by the same concerns and criteria as the admissibility of scientific expert testimony." United States v. Brumley, 217 F.3d 905, 911 (7th Cir. 2000).
            Pursuant to these cases, the Seventh Circuit now recognizes that, under Daubert, a court must make a preliminary determination of (1) whether the scientific or technical reasoning or method applied by the expert is valid, and (2) whether the scientific or specialized testimony will assist the trier of fact. As stated recently by the Seventh Circuit:
            First, the court must determine whether the expert's testimony reflects scientific knowledge; that is, the court must make a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid. This requires the court to consider whether the testimony has been subjected to the scientific method, ruling out any subjective belief or unsupported speculation.
            The second part of the Daubert analysis requires the district court to determine whether the evidence or testimony assists the trier of fact in understanding the evidence or in determining a fact in issue. In other words, the suggested scientific testimony must fit the issue to which the expert is testifying . . ..

            Chapman v. Maytag Corp., 297 F.3d 682, 686-87 (7th Cir. 2002) (citation omitted).
            In addition, Daubert set out a nonexclusive list of factors that a court should consider in analyzing whether scientific evidence is reliable. "(1) whether the theory can be and has been verified by the scientific method through testing; (2) whether the theory has been subjected to peer review; (3) the known or potential rate of error; and (4) the general acceptance of the theory in the scientific community." Chapman, 297 F.3d at 687 (citations omitted).
            Rule 702 was eventually amended to conform to Daubert:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

 Fed.R.Evid. 702.
           Further, in keeping with the requirement that an expert opinion be based on a scientifically valid method, "an expert witness cannot simply guess or base an opinion on surmise or conjecture.'" United States v. Brown, 7 F.3d 648, 652-53 (7th Cir. 1993). Similarly, an expert opinion based on anecdotal information should preclude admissibility. See Glastetter v. Norvartis Pharmaceuticals Corp., 252 F.3d 986, 989-990 (8th Cir. 2001).
            In addition, "[a]n expert who supplies nothing but a bottom line supplies nothing of value to the judicial process." Zeigler Coal Company v. Director, Office of Workers' Compensation Programs, 312 F.3d 332, 335 (7th Cir. 2002) (finding worthless and of no help to the decision maker the opinion of an medical "expert" who gave an ultimate opinion but did not point to studies or scientific articles to support his opinion.), quoting Mid-State Fertilizer Co. v. Exchange National Bank, 877 F.2d 1333, 1339 (7th Cir. 1989). "'[N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.'" United States v. Navarro, 90 F.3d 1245, 1262 (7th Cir. 1996), quoting General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).

L. RELIABILITY OF SENTENCING INFORMATION

            "[A] sentencing court may consider a wide range of information in making [sentencing determinations], provided that this information includes 'sufficient indicia of reliability to support its probable accuracy.'" United States v. Morrison, 207 F.3d 962, 967 (7th Cir. 2000), quoting United States v. Robinson, 164 F.3d 1068, 1070 (7th Cir. 1999); United States v. Vivit, 214 F.3d 908, 916 (7th Cir. 2000). Defendants have a constitutional right to be sentenced on the basis of accurate information. United States v. Townsend, 73 F.3d 747, 751 (7th Cir. 1996); United States v. Coonce, 961 F.2d 1268, 1275 (7th Cir. 1992). Although strict rules of evidence do not apply at sentencing hearings, "a convicted defendant has the right to be sentenced on the basis of accurate and reliable information . . . looser evidentiary standards at sentencing are in some tension with that right." United States v. Garcia, 66 F.3d 851, 856 (7th Cir. 1995).

            Further, "[t]he court's resolution of disputed sentencing factors usually has a measurable effect on the applicable punishment. More formality is therefore unavoidable if the sentencing process is to be accurate and fair. Although lengthy sentencing hearings should seldom be necessary, disputes about sentencing factors must be resolved with care." Commentary, U.S.S.G. 6A1.3. Resolution of Disputed Factors (Policy Statement).

M. CRAWFORD AND CONFRONTATION CLAUSE

            In United States v. Crawford, --- U.S. ----, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court recognized that a defendant's right to confront witnesses precludes the introduction of hearsay testimony, regardless of any hearsay exceptions, where a defendant was not given the opportunity to cross-examine the witness. As stated by the Court:
Our cases have thus remained faithful to the Framers' understanding: Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.
124 S.Ct. at 1369.
            While the Court did not define the limits of when a statement is "testimonial," it made clear that a confidential informant's statements to police investigators in the course of their investigation would qualify. As stated by the court: Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross- examination. We leave for another day any effort to spell out a comprehensive definition of "testimonial." Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.
124 S.Ct. at 1374.
           Defendant was never given the opportunity to cross-examine the confidential informant, or Benny Barnes, regarding their hearsay statements. Hence, even if these statements were admissible under some exception to the hearsay rule (which they are not) they still would have to be excluded, pursuant to Crawford, to protect Defendant Chambers's rights under the Confrontation Clause. See also Cruz v. New York, 481 U.S. 186, 193 (1987) ("[W]here a nontestifying codefendant's confession incriminating the defendant is not directly admissible against the defendant . . . the Confrontation Clause bars its admission at their joint trial, even if the jury is instructed not to consider it against the defendant, and even if the defendant's own confession is admitted against him.").