Sentencing – addressing mitigating arguments

July 9, 2012

Where a sentencing court fails to address, even fleetingly, a meritorious argument in mitigation that is not a stock argument, the sentence must be vacated and remanded for consideration of that argument.

The 7th U.S. Circuit Court of Appeals vacated and remanded a decision by U.S. District Judge Rudolph T. Randa, Eastern District of Wisconsin.

Vincente Ramirez-Mendoza was part of a large drug trafficking organization. In April or May 2010, Roberto Vizcaino-Ortiz introduced Ramirez-Mendoza to his brother, Hector Vizcaino-Ortiz. Ramirez-Mendoza agreed to act as a middleman for marijuana transactions between Hector and a supplier, Jose Rodriguez. The arrangement lasted through August 2010, when Hector stopped paying Rodriguez for marijuana bought on consignment.

READ more here:

United States v. Vincente Ramirez-Mendoza
No. 11-3314

Writing for the court: Judge Michael S. Kanne
Concurring: Judges Ann Claire Williams and Ilana Diamond Rovner
Released: June 8, 2012

Chicago Daily Law Bulletin | Chicago Lawyer | Chicago Lawyer Network | Law Bulletin Publishing Co.

Suppression – Reasonable suspicion

October 11, 2012

Where an officer stops a vehicle leaving an area suspected of illegal activity without other reasonable suspicion, the stop is unreasonable.

The 7th U.S. Circuit Court of Appeals reversed and remanded a decision by Chief U.S. District Judge William M. Conley, Western District of Wisconsin.

In summer 2009, Ed Olmstead was arrested and indicated that he was willing to “snitch in exchange for consideration on his charges.” After a trusted investigator endorsed his reliability, Olmstead identified a plot of land on which he had seen an anhydrous ammonia tank within the prior week. The entrance road to the property was blocked by a cable and lock and where known methamphetamine cook Jack Barttelt had been seen several times recently driving a green Mercury Grand Marquis.

Sgt. Brian Kingsley drove to the property after his interview with Olmstead, arriving around 11 p.m. Another officer accompanied him. He saw the cable and was preparing his surveillance gear to investigate a cabin where he saw a light on. While doing so, he accidentally honked his horn. He backed his car up the road with his lights off and saw a vehicle drive down to the cable from the cabin, stop for some time and return up the driveway. About five minutes later, the same thing happened, but the car unlocked the cable and drove out onto the road. Kingsley, despite observing no traffic infractions, turned on his lights and pulled over the reddish-maroon Chevrolet Beretta.

Daniel Bohman was the driver and his passenger identified himself as Jake Barttelt, who claimed they had been hunting. Smelling anhydrous ammonia, Kingsley called for backup. The backup arrived and they separated the two men. Upon questioning, Bohman stated that Barttelt had been cooking meth. A search of the cabin, authorized by a subsequently issued warrant, confirmed that it was a meth lab. Bohman was arrested. After a suppression hearing, in which his motion to suppress was denied, Bohman offered a conditional plea of guilty to preserve the suppression issue on appeal.

On appeal, Bohman did not dispute that once he had been stopped, his admission and the scent of ammonia gave rise to probable cause to search the cabin. Instead, he contended that the stop itself was unreasonable and that anything obtained during the stop should be suppressed. As a result, the cabin search would be “fruit of the poisonous tree,” or evidence obtained illegally. The trial court had stated that stopping the car was a “debatable point,” but still found that any error was merely negligent and that Kingsley had acted in good faith.

The court began by quoting United States v. Johnson for the proposition that “A mere suspicion of illegal activity at a particular place is not enough to transfer that suspicion to anyone who leaves that property.” The court then offered the standard for reasonable suspicion, which does not require individualized suspicion.

The court stated that everything Kingsley reviewed had checked out so far, but he had yet to confirm the presence of the anhydrous ammonia tank, Jake Barttelt or Barttelt’s green Grand Marquis. The court agreed with the trial court that Kingsley needed something more to move his suspicions from being a hunch to being reasonable. The unusual response to the accidental car honk was insufficient.

The court then detailed the facts of Johnson, which dealt with suspicion on those emerging from an apartment generally suspected to host illegal activity. As in that case, Kingsley detained the first person who emerged. There was no suggestion that the Beretta posed any danger to anyone, nor did he hear or receive reports of an ongoing danger, as in United States v. Brewer. The court stated that this stop was based on a hunch, particularly because Kingsley testified that he could not identify the make or color of the car beyond its headlights.

From there, the court turned to the issue of Kingsley’s good faith and negligent error in stopping the Beretta. The court did not doubt Kingsley’s good faith, but stated that the government could not point to a single case where the good faith exception applied to a lack of reasonable suspicion — and did not think it so applied. It therefore reversed.

United States v. Daniel L. Bohman
No. 10-3656

Writing for the court: Judge John Daniel Tinder
Concurring: Judges Richard A. Posner and Diane P. Wood
Released: June 28, 2012