Judge Barrett on Criminal Law IV

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

Schmidt v. Foster (2018)

Judge Barrett listed this “in addition to the nine opinions authored by [her]” (referring to ten decisions, one of which was per curiam) as one of the most significant cases before her on the Court of Appeals for the 7th Circuit. She described the case as follows:

A Wisconsin jury convicted Scott Schmidt of first-degree intentional homicide for the murder of his wife. Before his trial, the judge conducted an ex parte, in camera hearing during which he questioned Schmidt directly, rather than through his counsel, and ruled that Schmidt could not present his intended defense of “adequate provocation” at trial. The Wisconsin Court of Appeals affirmed his conviction and concluded that this hearing did not violate Schmidt’s Sixth Amendment rights. Schmidt collaterally attacked his conviction in federal court, and the panel majority granted the writ of habeas corpus. I dissented because the statute governing collateral review of state criminal convictions prevents courts from granting a writ of habeas corpus unless the state court’s decision was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court. No Supreme Court precedent addressed the question whether a defendant has the right to counsel when testifying before a judge in a nonadversarial proceeding, and the majority gave too little deference to the decision of the Wisconsin Court of Appeals. The Seventh Circuit agreed to hear the case en banc and concluded, as I had, that Schmidt was not entitled to a writ of habeas corpus.

That Scott Schmidt had killed his wife was not in doubt. He shot her seven times, as he admitted to the police officers who found him standing over the body. [3-4] What was in doubt was why he had done it. Mr. Schmidt said that she had abused him physically and emotionally throughout the course of their marriage, culminating in a particularly vitriolic tirade that caused Schmidt to lose all self-control. [4-5] Schmidt intended to argue at trial that this provocation was severe enough that, under Wisconsin law, his crime should be reduced from first- to second-degree intentional homicide. [4]

Under Wisconsin law, Schmidt could argue at trial that he had endured adequate provocation if he could satisfy the court that he possessed some evidence of it. [4] The court decided to hold an evidentiary hearing to assess whether Schmidt met this standard. Schmidt had already submitted a legal analysis and a list of 29 potential witnesses but the trial court would not decide on the basis of these submissions. [5] Schmidt’s lawyer objected to presenting his evidence before the prosecution, so the judge decided to hold the hearing ex parte. To assuage the prosecutor’s concerns, the court decided that Schmidt’s lawyer could attend but not speak. The prosecution agreed to this and Schmidt’s lawyer did not object. Nobody asked Schmidt himself. [5] At the hearing, the trial court repeatedly asked Schmidt what had been on his mind when he shot his wife and Schmidt gave long, incoherent answers. The judge let Schmidt consult with his lawyer during a break but told him to discuss only the written offer of proof. The judge asked a few more questions, ended the hearing, and later announced that he would not permit the adequate provocation defence. [6-7]

A jury convicted Schmidt of first-degree intentional homicide. Schmidt moved for a new trial, arguing that he had been denied his constitutional rights to counsel and to present a defence. The trial court denied this motion, of course, and the Wisconsin Court of Appeals affirmed. The Wisconsin Court of Appeals held that Schmidt had not met the some-evidence standard, that state law permitted the ex parte hearing, and that Schmidt was not entitled to counsel under the Sixth Amendment for many reasons. The Wisconsin Supreme Court denied review. [8] Schmidt then requested habeas corpus in federal court, which rejected his claims but granted a certificate of appealability. [8-9]

 Judge Hamilton wrote for the Court of Appeals for the 7th Circuit that, under the Antiterrorism and Effective Death Penalty Act, a federal court could grant habeas corpus only if the state court’s decision had been not merely incorrect but “objectively unreasonable.” This included outright contradicting a decision by the Supreme Court of the United States or unreasonably extending a decision when it should not or failing to extend it when it should. [9] Judge Hamilton acknowledged that the Supreme Court had never faced factual circumstances quite like Schmidt’s, which was unsurprising given that American court proceedings are fundamentally adversarial, but cited Panetti v. Quarterman to argue that federal courts did not require a “nearly identical factual pattern” to a Supreme Court case to grant relief. [13-15]

First, Judge Hamilton concluded that the evidentiary hearing was a critical stage of proceedings, regardless of whether the police and prosecution were in the room, because it addressed an important substantive question: whether Schmidt would be able to put forth a defence, despite the prosecution’s challenge to that defence. [15-24] Judge Hamilton then concluded that Schmidt was prejudiced by the hearing, even though he had the assistance of counsel both before and afterwards, because a defendant is entitled to have the assistance of counsel throughout the entirety of a critical step. [24-25] The specific risks of such a hearing were: that Schmidt’s evidence would be lost from his inability to present it properly; that Schmidt, who did not understand the procedural issue, would let the hearing question turn from whether he possessed some evidence of provocation to whether he had been provoked; and that Schmidt’s attorney would not be able to undo the harm afterwards. All came to fruition. [25-26] Finally, Judge Hamilton wrote that counsel would have helped him avoid prejudice by presenting a clearer argument and preventing unhelpful statements. [26-28] Therefore, this was a critical stage of proceedings, during which Schmidt was entitled to the effective assistance of counsel.

Judge Hamilton then held that it was objectively unreasonable for the Wisconsin Court to have concluded that Schmidt’s counsel provided effective assistance when the court prevented him from speaking. [28-31] Judge Hamilton rejected the argument that Schmidt’s counsel could have objected because to do so, having been instructed to remain silent, would amount to contempt of court. [32] Judge Hamilton also reasoned that Schmidt’s counsel could not have undone the damage later: Schmidt was entitled to counsel during all, not merely part of, every critical stage; his lawyer could not concentrate the diluted portions of his testimony; and the trial court did not leave sufficient time between the hearing and the decision for counsel to cure any prejudice. [32-33] The brief opportunity to speak during a break, on the limited subject of the written offer of proof, was not sufficient to satisfy the Sixth Amendment. [33-34] Although Schmidt’s counsel had not objected to the rules of the proceeding, the Court of Appeals held that only Schmidt himself could waive the right to counsel and could only do so knowingly and voluntarily. There was no evidence that Schmidt understood his right to counsel, that he was waiving it, or the consequences of doing so. [33] Therefore, the panel remanded the case for re-trial or sentencing for second-degree intentional homicide.

Judge Barrett dissented. [35] Judge Barrett first argued that all Supreme Court precedent on what constituted a critical stage of proceedings referred to adversarial proceedings. [36-41] Judge Barrett cited Carey v. Musladin to argue that the courts of appeal should track the level of generality at which the Supreme Court spoke. Because the Supreme Court had specifically addressed the right to counsel only in adversarial situations and the ex parte hearing was not adversarial, the Supreme Court had not addressed this situation. Therefore, the Wisconsin Court of Appeals had not violated Supreme Court precedent. [36, 44] Judge Barrett then argued that the judge had not effectively functioned as Schmidt’s adversary because he had held the hearing as he had to accommodate the concerns of Schmidt’s counsel, had barely spoke during the hearing, and had held a recess during which Schmidt could consult with his counsel as to the points he was to make. [44-49 and note 6 on page 48] Finally, Judge Barrett would have held that a fair-minded jurist could find the hearing was not prejudicial, because the trial judge (who was familiar with the legal and factual issues) would likely have understood the significant points that Schmidt made during the hearing. [49-50] Judge Barrett also wrote that she would deny relief on Schmidt’s argument that the hearing violated the Due Process Clause, because his new argument was sufficiently different from those raised in state court and in the district court that it was both forfeited and procedurally defaulted. [51-52]

The Court of Appeals for the 7th Circuit vacated the panel’s decision and granted en banc review. Judge St. Eve wrote the opinion for the Court, which Judge Barrett joined. [Final Schmidt Opinion at 1] Judge St. Eve opined that there was no clear explanation of what constituted a critical stage of proceedings, rendering it unclear whether the ex parte hearing would count, which suggested that granting habeas was not appropriate given the strict standards required to do so. [Final Schmidt Opinion at 10-12, 15-17] Even assuming that the hearing was a critical stage, however, Judge St. Eve held that habeas required not only a restriction on the assistance of counsel but a complete and utter denial of any assistance. [Final Schmidt Opinion at 18-23 and note 5 on page 23] That was not the case there, because Schmidt had the assistance of counsel throughout proceedings other than the ex parte hearing and could consult with his lawyer during the break in the hearing. [Final Schmidt Opinion at 17-18] Moreover, Judge St. Eve wrote that a fair-minded jurist could find that Schmidt was not prejudiced by his lack of counsel, which would be enough to deny relief. [Final Schmidt Opinion at 23-26] Judge St. Eve also held that Schmidt’s Due Process arguments were both waived and defaulted. [Final Schmidt Opinion at 26-29] The majority of the original panel, joined by Judge Rovner, dissented. [Final Schmidt Opinion at 31-63]

United States v. Lee (2018)

Kash Lee was convicted of drug trafficking and, after serving 112 months in prison, moved to Iowa. While on supervised release, he failed to meet several requirements and he seriously beat up his girlfriend. Despite Mr. Lee’s attempts to intimidate her into silence, she testified and the district court held that he had violating the conditions of his supervised release. [2] Chief Judge James E. Shadid sentenced him to 30 months in prison. [3]

On appeal, Lee argued that the district court had failed to seriously address his argument that his sentence created an unwarranted disparity in sentencing with similar offenders, because battery which would have been punished with at most one year of imprisonment in Iowa state court (and probably just with counselling). [3-5] Citing United States v. Anya-Aguire, Judge Barrett wrote for the Court of Appeals that Lee had not properly made this argument, because he had failed to identify any similar offender who received a lower sentence. [4-5] Because he had not made this argument, the district court had not been obligated to address it.

Lee then argued that the district court had erred by failing to fill out a statement of reasons form explaining its sentence and requested that the Court of Appeals direct to do so. [5-6] Judge Barrett declined to do so, stating that the district court’s oral explanation of its reasoning was sufficient and that Lee had suffered no harm from the lack of writing. [6-7] Judge Barrett then opined that these reports were intended to benefit the Sentencing Commission, not the defendant. [7-8]

United States v. Moody (2019)

In exchange for his role in a train heist, Dandre Moody received a cut of the loot: thirteen of the 111 stolen guns. Over the next two days, he sold them all to anonymous callers who “heard about it.” Although many of the stolen guns were linked to crimes, none of those guns were connected to Mr. Moody. The investigation records did not clarify what Moody meant when he had said the callers had “heard about it.” [2] Moody pleaded guilty to possessing a gun as a felon, possessing a stolen gun, and cargo theft. Judge John Tharp, Jr. calculated a guideline range of 121-151 months’ imprisonment, in part because the offenses involved trafficking in firearms. Moody had sold his share of the stolen guns to anybody who asked, and some of the stolen guns had been used in crimes, so the district court presumed that the guns Moody sold had been or would be used in crimes. [3-4] The court only actually sentenced Moody to 93 months. [4]

On appeal, Moody argued that the district court should not have treated him as trafficking in firearms. He argued that the government had provided no evidence that he knew, or should have known, that at least two of the buyers were barred from firearms possession or would use the guns unlawfully. [4] Judge Barrett held that Moody had forfeited but not waived his objection – that is, he’d failed to make the argument instead of deciding not to – and the Court of Appeals could therefore review his argument for plain error. [5]

Judge Barrett then held that the prosecution had failed to prove that any of the buyers intended to use the guns in crimes, let alone that Moody had reason to know it. The record did not establish about what the anonymous buyers had heard. “It” might simply have meant Moody’s willingness to sell guns, not necessarily that they were obtained by robbery. In that case, it would have been unlawful for them to buy the guns from Moody but they would not have been prohibited from using them or have gone on to use them in crimes, as required to lengthen Moody’s sentence. Judge Barrett even identified a specific buyer who had bought stolen guns despite being legally permitted to own firearms. [7] Judge Barrett therefore concluded that the sentencing enhancement was not appropriate, unlike in cases where the defendant knew something about the buyer that permitted the inference that they would use the guns illegally, such as their membership of a gang in United States v. Jemison. Judge Barrett instead found it closer to a (nonprecedential) out-of-circuit case, United States v. Green, in which the 5th Circuit held that smuggling guns into Mexico did not permit the inference that they would be used in drug trafficking. [8] Judge Barrett hinted that more evidence might have led to a different outcome but, as it was, the inference of the buyers’ criminality was so speculative that the district court had been plainly erroneous in making it. [8-9 and note 2 on page 8]

Judge Barrett then held that because the district court had not expressly ignored the guidelines in setting the sentence, it may have ordered a lower sentence if it had not improperly enhanced Moody’s sentence. [9-10] Judge Barrett therefore remanded the case to district court for re-sentencing. Judge Barrett suggested that the district court could impose the same sentence because Moody had not inquired into his buyers’ motives but did not say how the Court of Appeals would rule on such a sentence. [10]

Perrone v. United States (2018)

This is another case that is technical, procedural, and complicated. Non-lawyers may wish to skip it.

Terry Learn consumed a lot of heroin and cocaine with a colleague. Ms. Learn then went to work and, eight hours later, went home with her boyfriend Joseph Perrone. [2] Some time after midnight, for whatever reason – Mr. Perrone says that they had made a suicide pact and Ms. Learn had ingested too little cocaine to be fatal – Perrone injected her with 7.5 grams of cocaine. She immediately died from a combination of cocaine, alcohol, and opiates. Perrone then tried to hide his presence at Learn’s death. [2-3] Months later, after being arrested for an unrelated incident, Perrone confessed to his “premeditated murder” of Learn. [3]

Perrone was not actually convicted of murder. Instead, he was indicted for distributing a controlled substance, but the indictment specified that he had caused death by doing so. [3-4] Perrone pleaded guilty to all of this. [4] A day before he was sentenced, the Court of Appeals for the 7th Circuit decided United States v. Hatfield, which required the prosecution to prove that the defendants’ drugs were a “but for” cause of death to lengthen the defendants’ sentence. Perrone’s attorney did not tell Perrone about Hatfield and, when the court raised the subject, did not address it. The district court enhanced Perrone’s sentence because death had resulted and sentenced Perrone to 240 months in prison. [4-5] Perrone did not appeal his sentence. [5]

Four years later, in Burrage v. United States, the Supreme Court held that the sentencing enhancement for causing death required the prosecution to prove that the victim would have lived if it were not for the drugs given by the defendant. This was effectively the same standard of causation the 7th Circuit had adopted in Hatfield. [5] Perrone then petitioned to vacate his sentence on the grounds that, under Burrage, he was actually innocent of causing Learn’s death. He also claimed that his counsel had been ineffective in failing to tell him about Hatfield. Judge David Herndon dismissed these claims with prejudice. [6]

Perrone could have raised his Burrage (then Hatfield) claim on direct appeal but failed to do so. Therefore, Perrone had to show that he was “actually innocent” of the crime to assert the argument. Because proving actual innocence was also Perrone’s task to win on the merits, both parties and the district court assumed that the actual innocence exception to default was effectively available to Perrone. Judge Barrett wrote for the Court of Appeals that it probably was not. Citing Herrera v. Collins, Judge Barrett explained that “actual innocence” was not itself a constitutional claim (except perhaps to prevent execution under the Eighth Amendment) but a means of making a constitutional argument that would otherwise be prohibited. Perrone had abandoned his argument that his plea was not knowing and voluntary, and he had not lost his ineffective assistance claim by failing to appeal it, so Judge Barrett suggested that Perrone could not use the actual innocence exception to make his defaulted argument that he was actually innocent. [7-8 and note 1 on page 8] Because the government had not made this argument, however, the Court of Appeals held it waived and ignored it.

Citing 7th Circuit case law, Judge Barrett wrote that suffering under a mandatory sentencing enhancement that is later narrowed to exclude oneself would justify relief under 28 U.S.C. § 2255. [9] Under Krieger v. United States, the “death results” sentencing enhancement was considered an element of the crime in the 7th Circuit, so Judge Barrett held that Perrone was required to prove (by preponderance) that no reasonable juror would have found him guilty beyond a reasonable doubt of causing Learn’s death. [10-13]

Reaching the merits, Judge Barrett first clarified that a jury would not have needed to consider Perrone’s cocaine the sole cause of Learn’s death. Rather, it could have found Perrone guilty if it concluded that Perrone had administered the fatal dose, even if the other drugs in Learn’s system had also contributed to her death. [13] Judge Barrett also suggested that a jury could have found Perrone guilty if he had given her a dose that would have been fatal had the other drugs not killed her first but did not need to rule on that theory. [13-14] Citing Perrone’s admissions and a medical expert’s testimony that Learn would have lived if Perrone had not injected her with cocaine, Judge Barrett held that there was sufficient evidence for a jury to have found Perrone guilty beyond a reasonable doubt. [14-17]

Perrone also argued that his counsel had been ineffective in not telling him about Hatfield, which might have driven him to withdraw his guilty plea. [17-18] Judge Barrett suggested that this argument would likely fail, because Hatfield was decided so close to sentencing that Perrone probably would not have risked his sentence reduction and the district court probably would not have let him withdraw his plea. The point was academic, though, because he had missed the statute of limitations for this argument, which was one year from conviction under 28 U.S.C. §2255(f)(1). That Burrage rendered other arguments timely was of no moment. [18-19] Perrone argued that the government had forfeited this argument but Perrone had first raised ineffective assistance in his reply brief, and local rules did not permit a sur-reply, so Judge Barrett held that the argument was not forfeited. [20] Judge Barrett also affirmed the district court’s denial of a re-hearing because Perrone had shown no need for one. [20-21]

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