Judge Barrett on Criminal Law III

Before reading this summary, please read the overview for context.

United States v. Hagen (2019)

In the school year beginning in 2013, one of Mandy Hagen’s children missed 21 days of school. In 2015, her other child was absent without being excused eighteen times. Ms. Hagen pleaded guilty to two counts of allowing child truancy, which is a crime under Illinois law. [2] 2013 was also the year that Hagen joined a criminal organisation but this Hagen was no genius consigliere. She was eventually caught and, in 2017, pleaded guilty to one count of conspiracy to distribute certain illegal drugs. [2] The prosecution argued that she should receive a longer sentence because of her criminal history, including the two convictions for allowing truancy. Hagen objected but Judge J. Phil Gilbert agreed with the prosecution and counted these convictions as part of her criminal history. [2-3]

Hagen appealed, arguing that allowing truancy should be excluded from her criminal history, because it was similar to offences that were excluded from criminal history under the sentencing guidelines. First, Hagen repeated her argument below, which was that allowing truancy was similar to truancy, which was categorically excluded from criminal history. [2-3, 5] The district court had concluded that allowing truancy was worse than truancy itself, because adults are held to a higher standard of conduct than children. [3] Judge Barrett, writing for the Court of Appeals, agreed that guardians should know better than their children the importance of school. [5] She held that this was consistent with Illinois law, which did not criminalise truancy itself but did criminalise allowing it. [5]

Hagen argued, however, that allowing truancy was similar to other offences that were excluded from criminal history. Because she had not raised this argument before the sentencing court, Judge Barrett could only review it for plain error. [6] Even so, Judge Barrett found that allowing truancy was similar to – but, in many respects (including possible sentence), less serious than – failure to support a child, which was typically excluded from criminal history. [3, 6-9] These similarities were so obvious, as was the comparative lack of severity, that for the district court to ignore them had been plainly erroneous. This error had affected Hagen’s substantial right by increasing her sentence. [9]

Therefore, Hagen’s case was sent back to the district court, which was ordered to re-sentence her without regard for the two convictions for allowing truancy.

United States v. Kennedy-Robey (2020)

Jacqueline Kennedy-Robey was charged with defrauding both the IRS and Illinois unemployment agencies. She was released on bond and immediately returned to her crimes. The government found out and moved to revoke her bond but Ms. Kennedy-Robey did not attend the bond revocation hearing, as required, instead sending the court a note about eventually turning herself in. She never did but she was found and arrested months later. The district court sentenced her to a prison term of 72 months, well below the guideline range. [2]

When she was released to a halfway house years later, Kennedy-Robey immediately committed acts of fraud worth tens of thousands of dollars. [2-3] During this time, she began to receive mental health care, and presumably it is during this period that she was diagnosed with borderline bipolar disorder and adjustment disorder. [4] She pleaded guilty to one count of mail fraud. This time, the district court was less lenient: the prosecution asked for a sentence of eighteen months’ imprisonment, the maximum sentence recommended by the guidelines; Judge Ronald Guzmán sentenced Kennedy-Robey to twice that. [3]

At sentencing, Kennedy-Robey had attributed her conduct to her mental health problems and argued that she needed treatment rather than incarceration. On appeal, she argued that the district court had failed to properly respond to that argument. Judge Barrett wrote for the Court of Appeals that the district court had done just that: it had explained that the fault was not entirely with those who had not failed to provide Kennedy-Robey with care; it expressed doubt that a lesser sentence would deter further wrongdoing, given Kennedy-Robey’s history; and it had ensured that Kennedy-Robey would be able to receive the necessary care during her sentence. [4-5] This was sufficient to have considered Kennedy-Robey’s argument, rejected it, and explained its reasoning.

Kennedy-Robey had also argued that above-guideline sentences were rare for fraud-related crimes in the district. On appeal, she argued that the district court had also failed to consider and respond to this argument. Although the district court had not explicitly referred to this argument, Judge Barrett held that the district court had properly addressed it in repeatedly emphasising the many ways in which Kennedy-Robey differed from a typical defendant. [6-7]

Finally, Kennedy-Robey argued that her sentence was substantively unreasonable. Judge Barrett held that the court had acted within its discretion and given an adequate explanation of its reasoning, on much the same grounds as described above. [7-8]

United States v. Kienast (2018)

Neil Kienast, Marcus Owens, and Braman Bray all had accounts on Playpen, a child-pornography site that existed on the dark web. [3, 5] They accessed the site by entering a sixteen-character web address into a special software that allowed access to a special network (and, ordinarily, rendered this access untraceable). They then logged in with their user-names and passwords. [3] Unbeknownst to them, the FBI had obtained a warrant (“the NIT warrant”) to upload a virus onto the site, causing all computers that accessed it to send identifying information to the FBI. [3-4] Local FBI agents then obtained warrants, searched the defendants’ homes and computers, and found child pornography. [5] All moved to suppress the computer information and the results of the search, which the district courts denied. The defendants then appealed this decision.

The defendants argued that the NIT warrant, on which the FBI had relied to upload the virus and justify searching the defendants’ houses, was invalid under the Fourth Amendment. Judge Barrett, writing for the Court of Appeals, held that even if the searches had violated the Fourth Amendment then the resulting evidence did not have to be excluded because the police officers had acted in good faith. [5-6] Judge Barrett wrote that the focus of the Fourth Amendment was on the actions of the police, not the magistrate, and so even a warrant that the magistrate lacked authority to issue would have been within the good faith exception to the exclusionary rule. [6-8] Judge Barrett also remarked that every other court of appeals to consider the issue had also decided that the good faith exception protected warrants that were void ab initio and that the Federal Rules of Criminal Procedure had recently been amended to explicitly authorise the issue of such warrants. [7 and note 1 on the same page]

Second, the defendants argued that the NIT warrant was so manifestly deficient that no law enforcement officer could reasonably believe it valid, because magistrates are only authorised to issue warrants within their jurisdiction and the NIT warrant effectively permitted searches of computers across the country. Judge Barrett held that the actual validity of the NIT warrant was complex, which was why many district courts across the country had come to different conclusions on the subject, but that this very complexity demonstrated that FBI agents could well have believed in the validity of the warrant. There Judge Barrett held that the good faith exception applied (as had two other courts of appeals). [8-9 and note 3 on page 9]

Judge Barrett also held that minor inaccuracies in the warrant did not undermine its validity and that the NIT warrant was not overly broad because, given the specific activity required to access Playpen and the immediately apparent nature of the site, it was unlikely that anyone would innocently log in to Playpen. [10]

Two of the defendants also made individual arguments. Kienast appealed the denial of his motion to compel the government to let him analyse the source code and cross-examine the FBI agent who created the affidavit but Judge Barrett held that neither could have changed the determination that the government acted in good faith. [11] Owens appealed the denial of his motion to suppress on the grounds of the government’s outrageous conduct in distributing child pornography to catch Playpen’s users. Judge Barrett held that the 7th Circuit did not permit the defence that the government’s conduct shocked the conscience (rejecting the district court’s suggestion that this was in tension with Supreme Court precedent by explaining that, in United States v. Russell, the Supreme Court had permitted but not mandated that defence) and that it would not apply anyway because Owens was not the victim of that conduct. [11-13] Finally, Judge Barrett agreed with the district court that Owens had not provided evidence of any misinformation by law enforcement that would justify a hearing under Franks v. Delaware.

United States v. King (2018)

Nathaniel Hoskins, Julian Martin, and Torrie King were members of a gang in the west side of Chicago. [2] The bench trial of them and their comrades took a fortnight, with extensive evidence linking them to a range of crimes. [2-4] The defendants were convicted of many crimes but were found not guilty of attempting to murder Brian Smith, a rival gangster, in furtherance of their conspiracy. [3-4] Only after the trial (although before sentencing) did the prosecution inform the defence of a DEA report based on the testimony of a former leader of the gang. [4] The defendants (except Mr. King, who had already appealed) moved for a new trial but Judge Elaine Bucklo found that the newly disclosed report was not exculpatory, let alone significant. [4 and note 1 on the same page]

The district court then sentenced Mr. King to 230 months’ imprisonment, which was above the sentencing guideline range, but did not enhance his sentence because of the alleged attempt to murder Mr. Smith. [4-5] It changed course when it came to Mr. Matin, deciding that it had been wrong before and the attempt to murder Mr. Smith had been part of the criminal conspiracy. It also found that another murder, which Martin had ordered but which had not been carried out, had been intended to further the conspiracy. The district court then sentenced Martin to 310 months’ imprisonment, below the guideline range, and said the outcome probably would have been the same regardless of the attempt to murder Smith. [5] The court sentenced Mr. Hoskins to life in prison. [5]

The defendants argued that they were entitled to a new trial on their conspiracy-related convictions under Brady v. Maryland. [6 and note 2 on page 7] Because the government admitted it had suppressed evidence, the issue before the Court of Appeals was whether it was both material and favourable to the defence. Judge Barrett, writing for the Court of Appeals, held that the infighting demonstrated by the report carried “some weight” in undermining the conspiracy conviction, so it was favourable. [6-7]

The bar for materiality was higher: was there “a reasonable probability” that disclosing the evidence would have affected the outcome of trial? Judge Barrett held that there was not, because the defendants had already presented evidence of some infighting and disloyalty but been found guilty all the same. The defendants had not been able to argue that a former leader had betrayed the gang to the police but Judge Barrett held that this fact did not undermine the existence of a criminal conspiracy. [7-8] The defendants also argued that they could have used the report to impeach the testimony of two trial witnesses, although they did not explain how. Judge Barrett observed that impeachment evidence was rarely material then held that, regardless, any inconsistencies between the report and the witness’ testimony would have been cumulative of other evidence (not identified by Judge Barrett but presumably the evidence of infighting) that was before the district court. [9] Finally, Martin argued that the report would have enabled him to impeach the testimony of the man he ordered killed, but Judge Barrett held that the fact he intended to prove would not have been at all favourable to his case. [9]

Martin alone then issued two further challenges to his sentence. First, he argued that the prosecution had violated his right under the Sixth Amendment “to be confronted with the witnesses against him.” This was undeniably true: after being arrested, Hoskins had made a statement that incriminated Martin as well as himself, but Hoskins had not testified at trial and the police had read out his statement. [10] Under Bruton v. United States, this testimony would not have been admissible in a jury trial. In Faulisi v. Pinkney, however, the 7th Circuit had held that the Bruton rule did not apply to bench trials. [10] Martin argued that the Supreme Court had applied the rule to bench trials in Lee v. Illinois. Judge Barrett held that Lee meant only that a judge could not rely on such statements, citing authority from other circuits to support her holding. [10-11] Because the district court acknowledged that it could not use those statements against Martin and did not list them in the evidence on which it based its conviction, Judge Barrett concluded that the district court had not relied on those statements and so had not violated Martin’s rights under the Confrontation Clause. [11-12]

Finally, Martin argued that the district court had erred in enhancing his sentence based on murder attempts for which he had not been convicted. Citing the sentencing guidelines and U.S. v. Waltower, Judge Barrett explained that uncharged or acquitted crimes could still be considered in determining a sentence, if they were proved by preponderance of the evidence to have occurred during the offence for which the defendant was convicted. [12] First, King argued that the district court could not have found an attempted murder to be part of a conspiracy for him after reaching the opposite result for King. Judge Barrett held that a district court’s obligation to reach consistent sentences did not require it to repeat previous mistakes, providing that the district court explained the reason for changing its conclusion. To support this proposition, Judge Barrett cited United States v. Block (although the quoted section of Block refers to “consider[ing] new evidence,” which isn’t what the district court did here). The district court explained that it had previously conducted the wrong analysis, and there was evidence to support its new conclusion, so Judge Barrett held that the district court had not erred. Martin then argued that his sentence was substantively unreasonable but Judge Barrett held that this was not the case, because the district court had given Martin a sentence below the guideline range and explained its basis for doing so, including the disparity between his sentence and King’s. [14]

Finally, Martin argued that the district court had abused its discretion in treating a different murder attempt as relevant conduct. Judge Barrett held that there was sufficient evidence to find this conduct relevant to the conspiracy, because a subordinate testified that Martin had given him a gun and told him to kill the victim and because a former gang leader had tried to kill the victim for the benefit of the gang. [15]

Therefore, Judge Barrett affirmed all the sentences.

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