United States v. Harold Benny Jewel, Also Known as "Bear," and Arthur S. Jackson, Also Known as Stevie Jackson

majority it- FSIA, the standard under recognizes.

self sum, attempts to estab- majority ways. They first in two jurisdiction

lish permits them to

conclude notwithstanding inferences certain

draw judge specifically magistrate majority next relies The

found otherwise. separate from those facts

upon a set of the cause of action. give rise to

facts which possible use relationship between con- negotiate better

of information to be untaint- technology believed

tract for is, attenuated to es- my opinion, too

ed jurisdiction.

tablish Dis- the decision of the

I reverse would and dismiss case

trict Court lacking. jurisdiction is For

subject matter reasons, respectfully dissent.

these America,

UNITED STATES

Plaintiff-Appellee, JEWEL, Benny also known as

Harold

“Bear,” Jackson, Arthur also S. Jackson, Defendants-

known Stevie

Appellants. 90-2001,

Nos. 90-2262. Appeals,

United States Court of Circuit.

Seventh

Argued Dec. Oct.

Decided

BACKGROUND A. Facts complicated of a set This case involves participants number of large and a facts witnesses, frequently of whom and some transcripts by their to in the are referred facts only here those present We aliases.1 case to understand will the reader need facts relevant whole. as a Additional Atty., Asst. U.S. Wil- Jeffrey Wagner, R. we introduced when specific issues will be (argued), Asset Forfeiture Lipscomb J. liam issues. up take those Wis., Milwaukee, Unit, for U.S. April September 1987 to From at least (ar- Shellow, R. Henak Robert M. James in- and Mr. Jackson were Shellow, Glynn, & Milwau- gued), Shellow trafficking in in narcotics Milwau- volved Benny kee, Wis., Jewel. for Harold in- who often kee. One individual was Wis., Milwaukee, Frinzi, for Ar- Dominic dealings Everett Pierce. in their was volved Jackson. thur S. known Pierce since appellants The began Pierce and Mr. Jackson childhood. COFFEY, and EASTERBROOK Before of from quantities cocaine purchasing small RIPPLE, Judges. Circuit later in 1987. Pierce Mr. Jewel for resale for, only than a supplier a rather became RIPPLE, Judge. Circuit of, In appellants. regular customer and Jewel Arthur Harold Co-defendants and contacted Mr. Jackson Pierce jointly before tried Jackson were Stevie a source of cocaine asked him to find Mr. and Mr. jury Jewel jury. The found and Mr. Jackson later them. Mr. Jewel violating 21 guilty of U.S.C. 846 Jackson § their cocaine for purchase asked Pierce to with intent to dis- (conspiracy possess brothers, Ricky and Michael younger Jewel (inter- cocaine), 18 U.S.C. tribute § through fell Jackson. That deal activity), unlawful travel to facilitate state younger brothers never showed 841(a)(1)(possession with and 21 U.S.C. § However, money. on purchase with the cocaine). Mr. Jewel and to distribute intent supplied Pierce three occasions in concurrent sen- each Jackson received Mr. cocaine Mr. kilograms three total of years, and thir- thirty years, five tences Jackson. on the three counts. years, respectively, ty Meanwhile, spring in the Pierce challenge convic- their appeal, both In drug charges agreed and arrested on For was as their sentences. as well tions informant for to serve as a confidential opinion, we affirm set forth in this reasons began Pierce police officers.2 Milwaukee vacate their sentences convictions but their investigation of the narcot- assist in the resentencing. and remand confusion, separately is in a Pierce’s direct examination possible we note at avoid 1. To transcript, as frequent- paginated which we shall cite referred Mr. is the outset that ly Jewel "Bear,” separately paginated transcripts and that at -. Pierce Tr. in the as spelled sentencing proceeding transcript "Jewell” be his brothers is of the will name and that of transcripts. Sentencing throughout Mr. Jackson re- Tr. at-. cited as places. some to as "Stevie" in Govern- ferred jailed Actually, on Everett Pierce at was several times ment informant and witness Pierce "Pierre,” government drug charges as and late and is referred to times between drug began providing is also referred to Donnell witness Pickens information Knox,” the names under trafficking police He "Parnell” "Kenneth officers. to Milwaukee not, however, was indicted. which he Jewel Mr. on Mr. did inform beginning as a his career consecutively paginated to the trial Citations designated -. confidential informant. transcripts as Tr. at will be Jackson, intent to distribute in excess of sess with ics activities cocaine, in kilograms of violation of 21 at the time. five living in Atlanta who period charged 846. The Police U.S.C. of Milwaukee supervision Under conspiracy January Septem- 1987 to James Cesar Department Detective (DEA) charged 1989. Count Two them ber Administration Drug Enforcement Tasch, interstate travel to facilitate the at- telephoned the with Agent Jeanne up tempted September cocaine transaction of Atlanta, to set purportedly appellants 21, 1989, in accompanied violation of U.S.C. 1952. purchase. He then a cocaine Three, early Septem- In Count the four men were Atlanta Detective Cesar to Agent' possession DEA with intent to distribute began working with ber 11, 1989, approximately kilograms 2.3 of cocaine on September Regina Bledsoe. On 21, in of 21 September met Mr. violation U.S.C. Agent Bledsoe Pierce and 841(a)(1). charged friend, Lewis, Lion’s Count Four Pickens at the and a Gilbert § possession he with intent to distribute Mr. Jackson that Den Pierce told bar. heroin, 841(a)(1). $100,000 of 21 hoped Atlanta and violation U.S.C. brought to charged expressly Each count also violation Mr. Jack- buy kilograms five of cocaine. to (aiding abetting). of 18 U.S.C. leaving for Mil- indicated that he was son day, Pierce to the next but advised waukee agreed plead guilty Pickens to to Counts Agent Pierce and Bled- Mr. Jewel. contact testify against Three and Four and to his day and Lewis the next soe met Mr. Jewel coconspirators. Ricky not ar- Jewel was Underground, another Atlanta at Bucks February rested. In Harold Jewel he out Mr. told Pierce that was bar. Jewel jointly jury tried in a and Mr. Jackson were arrange try that he would of cocaine but guilty that resulted in verdicts on all trial kilograms flown from Califor- to have five counts. Mr. Jewel and Mr. Jackson three nia to Milwaukee. pursuant April sentenced on were Sentencing Guidelines to the United States Milwaukee, Mr. Pierce returned to (U.S.S.G. Although guidelines).4 or the Pickens, a California- called Donnell indictment indicated that Count One of the dealer, drug to inform him about based on or about conspiracy had started Although Pickens was five-kilogram deal.3 1, 1987, court January the district conclud- amount, the entire he flew unable to obtain support a the evidence did not ed that kilo- approximately two to Milwaukee with had started finding conspiracy that the be- September 1989. grams of cocaine on Each defendant re- April fore arrested when day, next Pickens was thirty prison terms of ceived concurrent the cocaine. On Pierce to deliver he met and Three and years on each of Counts One and Mr. Jackson September Mr. Jewel Two, years on to be followed five Count separate locations in At- arrested at supervised release. Mr. Jew- years of five lanta. The district court timely appeal. a el filed motion to file granted Mr. Jackson’s Proceedings B. District Court Fed. appeal on June 1990. See notice of (on Jewel, 4(b) showing of excusable ne- 26, 1989, R.App.P. Mr. September On may extend time for Jackson, Jewel, glect, district court Ricky and Pickens were thirty appeal of filing notice in a four-count indictment. Count named conspiracy pos- days). them with One Milwaukee, kilograms using supplied total of five he a had been Mr. Jewel and Mr. Jackson supplier Ricky. Ac- for some time. In late Jewel’s brother Pickens as a of cocaine to Mr. early they Pickens, regarding twice obtained one negotiations 1987 and cording kilogram from Pickens. Pickens of cocaine Mr. Jewel. sales involved these jail early a spent April June 1989 in on 1988 to thereafter, Shortly again parole violation. guidelines to the ver- to the are 4. All citations began transporting cocaine to Milwaukee. sentencing. time of in effect at the sion trips from California Pickens made several July September. between Milwaukee admissibility to the specific regard With

II has noted recordings, tape of ANALYSIS dis- judge exercises broad “the trial determining whether [the cretion Challenges to Convictions A. its burden has satisfied government audiotape 1. Admission recording]. Ac- tape authenticating a Jackson contend and Mr. ruling on the cordingly, judge’s the trial discretion court abused its district be over- admissibility tape will not inau partially a admitting into evidence ‘extraordinary appeal absent turned ” recording of a conver tape copy dible circumstances.’ Jewel, involving Everett sation Faurote, 749 (quoting States Even Regina Bledsoe. Agent DEA (7th Cir.1984) (citations omit- 40, 43 open played tape was never though the testimony ted)). doubt that There is no tape’s submit that court, appellants Bledsoe, participant Agent ade never established authenticity was discussion, normally Underground Bucks unfairly bol admission its quately and that adequate an foundation provide would Agent Bledsoe’s credibility of stered 375- tape. id. at the admission testimony. however, case, focus of the the this 76. In place Septem- took on tape The conversation the regarding disputed the appeal Underground, a bar at Bucks ber it was inaudible that so much of contention Appar- Omni Hotel. in Atlanta located the unreliable. tape as whole was at the background ently noise issue, because of discre- specific the abuse this On tape inaudible. bar, the was much of applies: “We have not- again tion standard Bledsoe, secretly Nonetheless, who Agent recordings which that, tape ‘[generally, ed conversation, testified the had recorded unintelligible are admissi- only partially are audible, it tape the was that, to extent is ren- recording a whole as ble unless Under- the Bucks accurately unintelligible reflected untrustworthy by the dered ” Fur- Tr. at 261. ground discussion. (quoting at 378 Id. portions.’ he had lis- thermore, that testified Camargo, 908 F.2d States parts hear of it. tape and could tened to the Cir.1990)). cross-examination at On See id. 169-70. tape and We have reviewed counsel, Pierce that insisted Jewel’s Mr. the district court and colloquy between spoke him can hear it where “you [Mr. admissibility. respect to its counsel keys [kilograms of co- five about Jewel] district court say that cannot We me.” he would call Id. and said caine] admitting tape. in its discretion abused dis- objections, defense at 240. Over tape, ample testimony that the There was tape evidence. into trict admitted audible, accurately re it is inasmuch the bar on the conversation in district court evi flected reviews This court Moreover, basis on the night question. in discre an dentiary rulings under abuse we believe it tape, of the our own review See, v. of e.g., United States tion standard. testimony (7th Cir.1990). is somewhat corroborative F.2d Degaglia, 913 Agent Bledsoe.5 explained Degaglia: As we chal- need not determine .whether challenges We as irrelevant Jewel also 5. Mr. lenged testimony the broad definition meets testimony by Pierce. unfairly prejudicial certain evidence, Fed. see presumptively relevant Ronnie that defendant’s brother Pierce testified probative was its value nor whether R.Evid. drug traf- helped him to to introduce Jewel had prejudicial outweighed by ef- substantially fect, its years Mr. ficking sixteen old. Pierce was when we conclude see Fed.R.Evid. testimony his Pierce’s on that Jewel contends Fed. possible was harmless. See any error drug trafficking no rele- bore introduction 52(a); see also R.Crim.P. McClain, jury any the case and issue in vance Cir.1991) ("even jurors against prejudiced him because was discretion in this find abuse of if we were to a minor in had involved brother learned balancing, any prejudice that ... 403] [Rule illegal drug activities. admission of this might from have resulted rebuttal, In his Assistant United States closing argument 2. Prosecutor’s (AUSA) Attorney Lipscomb William at- contend that appellants Both explain “troubling fact”: tempted to unfairly argument rebuttal prosecution’s question The is how if we have this call a fair trial right their prejudiced L.A., Pickens to Atlanta from Pickens The chal facts not in evidence. presenting Jewell, the, does does the three to Harold explanation an lenged proposed statement way the toll records? not show testi apparent discrepancy between of an Well, think about it. You’ll see the two three-way telephone a critical mony about calls, them, placed placed Pickens who allegedly placed had call that Jewel the calls from Milwaukee. Where was no toll records that showed telephone That, Pierce? folks Everett Milwaukee. Septem date of the call was such call. The just plain simple long ain’t distance. time, At that ber at 647. The district court overruled an Id. Milwaukee, Atlanta, Pierce was this statement and reminded objection to in Milwaukee from had arrived Pickens jury arguments, that “the statements The call concerned with cocaine. California in the case.” of counsel are not evidence ap delivery of the cocaine. plans for The court also denied a motion for a Pierce and Pickens argue that both pellants on the same statement. mistrial based originated the testified that prosecutorial When statements are However, telephone three-way call. challenged as based on facts not in evi no the trial included presented records dence, two-part them under the we review Atlanta number call from Mr. Jewel’s such Swiatek, test United States v. in Milwaukee. to Pierce (7th Cir.), denied, 484 U.S. cert. (1987): 98 L.Ed.2d Agent Tasch was confront- DEA Jeanne whether, First, Atlanta-to-Mil- the absence of the considered ed with we determine isolation, challenged remark was these the call when she testified about waukee so, im If we reexamine the might improper. that the call responded records. She entire proper light remark in the the number from have been the remark record to determine whether if calling in Milwaukee Pickens was which trial. deprived defendant of a fair the call, if even the Atlanta-to- he initiated the step, we consider part As of this second placed by Mr. leg then had been Milwaukee improper the and to what extent whether “Well, you know that when don’t Jewel: provoked the defense remark was one number and calling card call to make “invit argument so-called counsel’s —the number, I way it to another they three response” doctrine. ed appear on this don’t know that that would Torres, (citing v. at 730 United States telephone bill.” area 404 code] [Atlanta’s (7th Cir.1987)(Flaum, 429, F.2d 445-46 809 again Mr. Jewel’s counsel Tr. at 507-08. test, J., we concurring)).6 Applying this discrepancy during alleged pointed out the error in this case. find no reversible that argument suggested and closing his jury literally, Lipscomb’s “an asser- would offer Taken AUSA prosecution calls from placed “Pickens respond to his remarks on tion that explanation” to clearly by tes- supported not Milwaukee” is issue. Id. at 621. this 225, (7th Giovannetti, harmless"). 226 jury States v. evidence was doubtless extensive, However, testimony Cir.1991). that about Mr. the court also held detailed heard during period of the Jewel’s own activities a failure to to overlook "we have discretion harmlessness_” charged conspiracy substantive offenses. major argue Id. at 227. A firmly—that Mr. Jewel’s We are of that discretion convinced— affects our exercise factor that based on a brief reference conviction is not alleged certainty this case. of the harmlessness in is the illegal actions of his brother. earlier See id. however, contends, govern- that the on the harmless error has waived reliance ment rule Auerbach, F.2d v. 913 Accord United States by failing to raise that issue in its brief. Cir.1990); (7th v. United States see also 417 recently that a harmless court did hold This Cir.1991). (7th Rodriguez, F.2d may argument waived. See United be error evidence However, Sufficiency of his chal- record. timony in the nothing may have been lenged statement Jackson contends Mr. restatement inartful than a somewhat more evi present failed to sufficient government such, may it theory.7 As Agent Tasch’s jury beyond to find a rational dence for from the “sufficiently inferable have been guilty that he was reasonable doubt prosecu- support presented evidence with intent possession travel and interstate v. United States closing arguments.” tor’s (Counts Two distribute counts Cir.1985); (7th see F.2d Doyle, 771 Agent Three). emphasizes part of one He Auerbach, 913 F.2d also United States testimony purports estab Bledsoe’s Cir.1990) (“the prosecutor’s (7th in planning he was not involved lish that permissible com- simply a statements involving Mr. 1989 deal September showed and upon what ment Jewel, September On and Pickens. opinion personal not a statement Pierce Agent Bledsoe met with guilt”). regarding the defendant’s Den, a Mr. at the Lion’s bar appellants agreed with if we Even During Hotel. that conver Atlanta’s Omni improper, challenged remark was sation, to con Jackson advised Pierce Mr. reversible. not find error we would How the cocaine. tact Mr. Jewel about appropriately cautioned The district court ever, as follows Agent Bledsoe testified by counsel closing arguments jury meeting Pierce her about in- cautionary Such a are not evidence. Underground: Bucks day the next prejudice any potential minimized struction Everett started when conversation [T]he Lipscomb’s remarks. from AUSA if asked Mr. Jewell Stevie [Mr. Gonzalez, F.2d United States message that given him the Cir.1991); Jackson] v. Rodri- night prior, and given he had Stevie the Cir. 1056 n. guez, 925 stated that Stevie had not. 1991). significant that AUSA Jewell find it We but, that, came in and he if I He that Stevie jury “even said Lipscomb told up and come with a Everett Pierce was basi- stand here knew that there couldn’t three-way phone talked on explanation cally reasonable we had [of sense, perfect so call], actually makes one that he stated that Stevie hadn’t but that all Does that mean So what. what? about what Mr. Pierce was anything said in you heard this case the other evidence there for. any sense?” up, doesn’t make doesn’t add Mr. thus asks this Tr. at 258. jury was conclude Tr. 648. We at nothing that he had to do court to conclude sufficiently discrepancy alerted plans developed that later involv- responsibility to sort and to its the evidence ing Pickens. discrepancy on the basis of evi- out that of review in sufficien than The standard rather presented witnesses dence cy challenges of evidence is well estab- by counsel. examination, just up that he I looked Atlanta [his number] Pierce A ... direct testified 7. On was, him and told him I I and called when Mr. uncle’s house Milwaukee was at his was Q in Milwaukee. here on the me with Parnell [Pickens] "called Jewel any arrangement Okay. you Did make However, telephone.” Tr. at 115. on as to do with the two kilos with him what to cross-examination, testimony was some- Pierce’s point? at that ambiguous: more what Well, he, called, called A that’s when he he they twice on one of the I know called A way. a three [Pierce] Pierre on phone and asked for he was on occasions cross-examination, Similarly, Id. at on staying. my, to where I the address was Mr. “and Pickens indicated that he called Jewel talking By you’re about Parnell? Q he and he told him that was here in Milwaukee phone were on the Parnell and Jewell A got way telephone Pierre on the three and we time. same testimony talked.” Id. at This consist- (emphasis supplied). Pickens’ testi- Tr. at 178 Agent theory ent with Tasch’s Jewel three-way suggests mony call that it placed about the call to Pierce while he was still Pickens, during just placed placed or after call to either connected to who had occurred from Milwaukee. Jewel in Atlanta: to Mr. call commerce, foreign including whether, viewing interstate or after is “The test lished: mail, to— with intent light most favorable of fact rational trier ‘any government, (1) proceeds any un- distribute the essential elements have found could activity; or lawful ” doubt.’ beyond a reasonable crime (2) any commit crime of violence to 1112, Pritchard, F.2d v. United States any activity; or further unlawful Cir.1984) (quoting Jackson Vir- (3) promote, manage, otherwise es- 307, 319, 99 S.Ct. 443 U.S. ginia, tablish, on, carry pro- or facilitate the (1979) (emphasis in 61 L.Ed.2d motion, establishment, management, “inherently testimony is original)).8 Unless on, carrying unlawful activi- or unbelievable,” may be guilty verdict ty, coconspirator testimony of a on the based attempts to performs and thereafter or plea agreement: pursuant to a testifying specified perform any of the acts sub- court, not this “Credibility jury, is for the (2), (3), (1), fined paragraphs shall be Mejia, 909 States v. to determine.” United $10,000 imprisoned not more than (7th Cir.1990). years, or not more than five both. chal turning to each of the Before 1952(a). 18 U.S.C. § counts, note that lenged we substantive case, that he In this Pickens testified challenge the suffi does not Mr. Jackson contacted both Mr. Jackson and Mr. Jewel conspiracy on the ciency of the evidence just September in Atlanta weeks before count, along he was indicted count. In that plans discussed 1989 transactions and Jewel, Jewel, Pickens. Ricky with Mr. to sell cocaine. Ac- travel to Milwaukee coconspira of vicarious the doctrine Under Bledsoe, cording Agent September continuing con liability, a member of a tor Pierce to Mr. Jackson advised the criminal acts spiracy responsible kilograms contact Mr. Jewel about five coconspirators in further committed Thus, jury Pierce wished to obtain. conspiracy. Pinkerton v. ance of the inferred that Mr. Jackson was could have States, 328 U.S. 66 S.Ct. even if he did initiating the deal involved (1946); L.Ed. 1489 exactly why Pierce was not tell Mr. Jewel & n. 48 Moya-Gomez, jury him. The also heard trying to contact Cir.1988), denied, 492 U.S. cert. that, a week testimony from Pickens about (1989). 3221, 106 L.Ed.2d 571 Angeles to Mil- he flew from Los before Therefore, government long as the say waukee, called him to “that prove presented sufficient evidence keys [kilograms].” five he had a deal for coconspirators committed any one of the unable Although Pickens was Tr. at 387. crimes in Counts the substantive kilograms, he did the entire five to obtain Three, sufficiency Mr. Jackson’s Two kilo- with over two travel to Milwaukee challenge must fail. When grams cocaine later that week. of Two, Mr. and his co- In Jackson Count to transfer met with Pierce Pickens violating, Thus, conspirators cocaine, arrested.10 Pickens was of, abetting a violation aiding and or that Pickens sufficient evidence there was its amendment 1952. Prior to U.S.C. 1952 and that had violated section himself part: 1990,9 pertinent section 1952 read activity in furtherance of criminal was this Mr. which ongoing conspiracy with (a) in interstate or an travels Whoever Similarly, the tes- associated. any facility in Jackson was foreign commerce or uses arrest, Lamon, regard jury have did not 10.In to the 8. Accord United States 1991). testimony. rely Milwaukee Cir. to on Pickens’ Mary County Department Detective Sheriffs appeal, amend- relevant to this the 1990 9. As present at his arrest Sage that she was testified change substantive- ments did not ly. section 1952 possession of the cocaine she took and that Pub.L. No. Crime Control Act of his hotel room. seized at 4789, 4831, 101-647, 1205(i), 104 Stat. §§ 4843. arrest, Mr. the court en- activities is sufficient Jewel’s Atlanta these timony about level levels hanced Mr. Jewel’s offense two jury to conclude permitted to have addition, justice. for In each obstruction the seized cocaine with possessed Pickens distribute, defendant’s offense level was enhanced charged in the crime intent to for his role in the offense and two levels Thus, under the Pinkerton Count Three. firearm, re- possession two for of a levels doctrine, con- jury properly could have sulting adjusted in an offense level of 40 and on both Counts Two victed Mr. Jackson Mr. Mr. The for Jewel and 38 for Jackson. Three. Mr. criminal histo- court calculated Jewel’s B. Challenges to Sentences ry category III to to be and Jackson’s sentencing range for Mr. be IV. The day-long court conducted a district life, range thus was 360 months to and the April sentencing proceeding for Mr. Jackson 324-405 months. was that the base offense The court determined Each was sentenced to 360 months. was 34. After the level for each defendant support government put appeal, on witnesses to its this both Jewel and Mr. challenge had threatened the district court’s calcu- contention that Mr. Jewel days just in the after lation of their base offense level.11 Both Everett twice just challenge also their role in the offense en- Pickens’ Milwaukee arrest before sentencing, 11. Both defendants also contend that the district defendant’s base offense level at receiving sentencing purposes police justify court erred in misconduct is not sufficient videotape portrayed interfering sentencing.... a Mr. Jewel and Mr. with individualized wearing party January open question suppres- a a Jackson at leave whether [W]e jewelry.” Sentencing display at necessary proper “lavish Tr. sion would be at the sen- videotape pursuant tencing phase 114. The had been seized police where it is shown that the that, a forfeiture warrant. Mr. Jewel contends egregiously, e.g., by undertaking acted a war- legal, videotape even if the seizure of the very purpose rantless search for the of obtain- indepen- “viewing videotape constituted an ing evidence to increase a defendant’s sen- warrant, by proba- tence.”); J., dent search unauthorized (Silberman, concurring id. at 71 cause, Appel- plain ble or the view doctrine." concurring judgment) part (express- lant Jewel’s Br. at 32 n. 8. The district court that, ing guidelines, po- concern under ”[i]f exclusionary apply held that the rule does not they prosecution lice and know beforehand that Sentencing sentencing proceedings. See Tr. at get relatively can a conviction on minor of- application The court reasoned that statutory sentencing fense which has a broad exclusionary sentencing rule at would have little they guarantee range and that can a sentence deterrent effect. by seizing near the maximum other evidence remanding illegally introducing sentencing, Because we are this case for resen- it at there tencing, nothing seizing we need resolve this issue. The them evi- not to deter from warrant, sufficiently developed, especially immediately obtaining a record is not dence without question especially 'greater' on the of whether Mr. Jackson has when a conviction on a sentence.”); standing object to the admission of the video crime would lead to a similar Unit- note, however, Torres, (3d tape. We that several courts ed States v. Cir. 1991) rejected (refusing exclusionary apply rule that the have blanket exclusion rule at ary sentencing. sentencing illegally applies rule never See Verdu to evidence seized but not- States, that, go ing Verdugo, v. United 402 F.2d supposed, Cir. unlike in “the record not [did 1968) (“It example, illegally cannot be that evidence was seized for the show] purpose sentence”). properly enhancing the court could consider evidence il Neither legally McCrory seized after conviction from the ac court nor the Torres court com- agents pletely possibility applying cused’s home narcotics foreclosed the misguided sentencing probation exclusionary officer in a zealous but rule at in a suitable case, though effort to furnish the court with full information even 18 U.S.C. 3661 states that denied, sentencing.”), placed for cert. 397 U.S. shall be on the informa- limitation ”[n]o character, (1970), concerning background, S.Ct. 25 L.Ed.2d 105 and 402 U.S. tion the and (1971); person 29 L.Ed.2d 124 Unit conduct of a convicted of an offense Cabrera, F.Supp. may ed which of the United States receive States v. 135-36 a court (S.D.N.Y.1991) (guidelines provide purpose imposing an authorities and consider for the appropriate of illegal with incentive to conduct searches even if sentence.” See abo U.S.S.G. (“In guilt); determining prove im- § items seized cannot be used to 1B1.4 the sentence to cf. consider, may McCrory, pose tion, United States v. ... the without limita- (D.C.Cir.1991) (“Where showing concerning the back- there is no of a information defendant, purposeful ground, violation of the Fourth Amendment ly designed character and conduct of the law.”). prohibited by to obtain evidence to increase a unless otherwise addition, sisted of little more than the uncorrob- Mr. Jewel chal- In hancement. testimony and unreliable of Pierce. orated a imposition of two-level lenges the court’s They argued also that some of these trans- justice. of for obstruction enhancement actions, including kilograms allegedly four his firearm en- contests appellant Neither by Elroy in delivered to Mr. Jewel history category. criminal or his hancement Chaney, part were not of the con- addition, spiracy. they argued In that it level 1. Base offense improper kilograms to include three was of guidelines, the base the Under allegedly in after supplied is determined drug offenses fense level began serving government infor- as a drug quantity of involved type challenged Finally, they mant. inclusion of 2Dl.l(a)(8), U.S.S.G. the offense. See § allegedly approximately kilograms 6.5 (c). conspiracy, a defen When convicted subject preliminary discussions a offense level that assigned dant is base that never were delivered either be- but conspiracy object if the of the “the same as conspiracy could not cause a member of 2D1.4. completed.” Id. had been ... § raise produce such amounts or could not not distributed are negotiated but Amounts all, In money pay for the cocaine. unless “the court finds to be counted specific and Mr. Jackson raised produce defendant did not intend approximately objections to inclusion of producing reasonably capable of was not kilograms. Had the district court sus- 13.5 amount_” 2D1.4 negotiated objections all these and hence found tained addition, l.12 Application Note kilograms, responsible only them 11.5 in- a defendant guidelines recognize that their base offense level would have been “jointly- conspiracy or other volved a 2D1.1(c)(6)(at least five but 32. See id. § activity” can be held undertaken criminal cocaine). kilograms of less than fifteen of others responsible for the “conduct ruling specific objection, on each Without jointly- of the execution furtherance following con- the district court reached activity that was rea- criminal undertaken on the base offense level: clusions sonably by the defendant.... foreseeable easily a 34 case if there’s It becomes the conduct Where it is established cocaine involved. 15 or more kilos of scope of the defen- neither within the was presented in And on the evidence based reasonably nor fore- agreement, dant’s trial, testimony of Mr. criminal ac- in connection with the seeable jewelry so on from display of lavish jointly un- tivity agreed the defendant videos, DEA with the the discussions dertake, included such conduct is not quite agent, it is obvi- agents, undercover lev- establishing the defendant’s offense and, I’m not re- again, ous to me that — el_” Application 1B1.3 Note Id. § the bureau of quired here to work for district court for clear error We review up with weights measures and come of the amount factual determinations drugs in- amount of precise exact See, e.g., narcotics involved. sup- cases. I’m in these kinds of volved Cir. Ocampo, believe, out, pick posed my do best to 1989). IAnd general responsibility. area of a properly responsibility that area of think According presentence to the re to 50 kilo the 15 lies in level between case, Mr. Jack Mr. Jewel and port in defendant, and category. So as to each twenty-four responsible for each was son allega- through each going go I’m not cocaine, pro resulting in a kilograms of sup- tion, the evidence but I find that of 34. posed offense level base within or responsibility ports finding (at 2Dl.l(c)(5) fifteen but least U.S.S.G. level 34. quantity the offense within cocaine). Dur fifty kilograms of less than Sentencing Tr. at sentencing the defen ing proceeding, the deferential regarding recognition Despite our contended that dants is- appropriate on this review con- standard of underlying transactions number of the cases). 1070, Cir.1990) (7th (citing Buggs, 1078-79 v. 904 F.2d See also United States 12. 234 presentencing report. The district appreciation for the the our sue—as well court, however, specific refused to make a undertaken and effort care

considerable finding objection, on each nor did it make conducting lengthy a in court the district sufficiently relying clear it was not must vacate sentencing proceeding—we determining disputed information in the and Mr. the both Mr. Jewel sentences of the each defendant. resentencing. offense level of The base and remand for Jackson go through each refusal “to district court’s guidelines, it is the re Under with the allegation” was inconsistent of the district court “to resolve sponsibility Rule obligation under Federal court’s purely questions factual of how much 32(c)(3)(D) respond to Criminal Procedure was involved in each actual or [cocaine] presentence specific objection to a to each proposed transaction.” States v. that, requires when de- report. This rule (7th Cir.1990). Buggs, 904 F.2d 1079 inaccuracy in “allege any fendants factual case, general district court’s In this report or investigation presentence that Mr. and Mr. Jackson conclusion thereof, part summary report of the responsible for between fifteen and controverted, shall, matter court as to each fifty kilograms meaning makes of cocaine (i) finding allegation, or a as to the make impossible.14 appellate For ex ful review finding (ii) that no such a determination ample, alleged two-kilogram one of the de necessary the matter controverted because Chaney from Mr. Jewel oc liveries in sentenc- will not taken into account be curred, early in according to 32(c)(3)(D). ing.” As this Fed.R.Crim.P. the district court found that the Because in court made clear Es- only mid-April conspiracy started it (7th chweiler, F.2d 1389 Cir. 782 is unclear whether the court included that 1986), Similarly, transaction.15 our review all a defendant needs to show order to sentencing proceeding us uncertain leaves for a of Rule be resentenced violation any included whether the district court (1) 32(c)(3)(D) allegations of inac- is that amounts delivered sentencing court curacy were before govern a allegedly after he had become (2) findings the court failed to make addition, although informant. ne ment matters or a regarding controverted illegal gotiated but undelivered amounts of disputed informa- determination that the drugs should counted de generally be sentencing.13 would not used in tion be level, termining the offense it is the base court in the responsibility Mr. Jewel and Mr. of the district It is uncontroverted that protections distinguish first instance to between true triggered of Rule 32(c)(3)(D) idle talk.16 by raising specific objections negotiations We therefore Montoya, F.2d "convinced that there is other evidence in the 13. Accord United States v. 891 (7th Cir.1989); court could have relied see also United States record district ("The Stout, (7th Cir.1989) deny two-point F.2d 882 F.2d on to reduction.” 916 32(c)(3)(D) Sullivan, procedures are set forth in Rule As we noted in "it is incum- at 420. mandatory, discretionary, upon provide explana- and our court has not the trial an bent court reaching to characterize violations of been reluctant it on in its tion of factors relied harmless.’’) (citations omitted); the rule as its review decision to enable this Court to fulfill cf. Slaughter, United States v. 900 F.2d function.” (7th Cir.1990) challenge (rejecting Rule 32 when sufficiently district court made clear dis- White, United States v. Cf. sentence; puted district facts would not affect Cir.1989) (vacating sentence based on of all contested is- court stated that resolution relating conspiracy amounts defendant’s favor would not alter its sues in the negotiation conspir- sale and because and 1988 sentence). impose decision to maximum acy part a common scheme or course was not offenses and district court of conduct Sullivan, 14. In United States v. 916 F.2d 417 that the two 1988 offenses were failed find Cir.1990), this court vacated remanded related). resentencing pro court had district why inadequate explanation of it denied vided Ruiz, accept United States v. appellant two-point 16. In reduction for that, (7th Cir.1991), this court indicated al- responsibility ance of under U.S.S.G. 3E1.1. nego- though sentencing though should consider we were We remanded in that case even Appellant Jewel’s Br. participants at all. re- sentences and appellants’ both vacate opportu- at 45. court the give the district mand challenged of the clarify which

nity to a that the dis Absent contention estimating the it considered transactions guidelines, has trict court misconstrued in the offenses. of cocaine involved amount under the court’s enhancements we review See, e.g., 3B1.1 for clear error. section enhancement in the offense 2. Role Ruiz, (7th Cir.1991). applicable 3B1.1 is Section report recom presentence The partici involving more than one to offenses for each enhancement a three-level mended in the offense enhancement pant, but a role managerial role alleged for his defendant every case. applied in such need not be report that The indicated in the offense. Introductory Pt. B Ch. See U.S.S.G. eight persons: conspiracy consisted of time, Commentary. At the same “[t]here Pickens, defendants, Ricky Jew course, can, person than one be more Lewis, Jackson, and Jea el, Gilbert Michael organizer leader of a qualifies as a or who The (Mr. girlfriend). Jewel’s Walker nine conspiracy.” or association criminal skepticism some court indicated district 3. The Back Application 3B1.1 Note had been individuals some of these that indi Commentary to this section ground “As to the managed by the defendants: Sentencing “Commission’s cates that many offense, my view is in the role in adjustment should intent is in this case were people involved these organiza the size of crease with both lead anybody to who didn’t need people the defendant’s re degree tion and get encourage them to and around them sponsibility.” Sentencing Tr. activity.” in this involved rejected pro thus 117. The court approved the district court enhancement, im but posed three-level than the rec enhancement rather two-level for each posed a two-level enhancement enhancement, but three-level ommended 3Bl.l(c), under which defendant U.S.S.G. § alleged which of the gave no indication orga for “an an enhancement authorizes super participants each defendant leader, supervisor any nizer, manager, or remarked, already as we also vised. It five not involve activity” that does criminal the cocon- noted, least some of that at have or is not “otherwise participants or more as fol not be characterized spirators could extensive.” circum these anyone. Under lowers of stances, that the district must conclude we Jackson contend “evidentiary basis for left unclear its find- support court failed district sentencing determination.” with sufficient on this enhancement ings [its] n. 2 Hernandez, clearly findings are States and that specificity curiam). may Cir.1991) There be (per They that the individuals argue erroneous. support in the adequate basis record an report were presentence in the either cited Jack that Mr. Jewel conspiracy” the conclusion “co-equal participants] par- one other Lewis, supervised at son each least not or, in the case Walker manager (b) or su- "actually the defendant was If defendant amounts when tiated arranged leader) (e.g., (but organizer drug price, or pervisor sale not an details of a location),” activity "an or more should not consider five it involved quantity, the criminal referring larger quantities extensive, statement in- offhand was otherwise participants or brag- amounts to no more than narcotics that of gadocio." levels. crease organizer, (c) lead- was an the defendant If er, supervisor criminal manager, or provides: U.S.S.G. 3B1.1 (b), (a) or than activity other described offense, role in Based on the defendant’s by 2 levels. increase level as follows: increase the offense “a “participant” as Application Note 1 defines organizer (a)If was an the defendant criminally responsible for person who activity that five involved leader of criminal offense, have need not but commission participants otherwise exten- or was or more been convicted.” sive, increase levels. 236 sentencing pro However, record, presented at the this we can evidence on

ticipant. ceeding. Cesar testified focused Detective James the district court sure that not be that, 25, September proceeding at the on precision.18 with sufficient on the matter 1989, record, a call from who we he received the statements Given serving his confidential infor had been as appropriate for that it would be believe setting up in in the mant and had assisted the matter court to address district sting led to Pickens’ arrest four encourage that had continue to instance. We first call, days During that Pierce re findings of facts earlier. support district courts him subsidiary ported that Mr. Jewel had called from sentencing proceedings and asked “whether or not he was district court Atlanta findings to “aid the both person responsible was for indict applying who identifying relevant factors to, going that were ments that were reviewing court to guide Guidelines down.[19] that at brought And stated sentencing de evidentiary for a basis person indicating to him that cases); that time this (citing see also termination.” Id. hap something happen could to him like 1284, Lanese, 890 F.2d Magee.” Sentencing Tr. at pened to Porter (2d Cir.1989) (“Since, on the record 1294 Magee early had murdered in 29. been court, it is unclear whether before this testified that 1989. Detective Cesar also support the there is sufficient evidence to again September him 26 to Pierce called on as to the district court’s determination report that he had received another call— purposes ‘participants,’ number one from either Mr. or Mr. Jack Jewel 1.1(b), remand to the district section 3B we threatening both Pierce and his attor finding as the identi specific for a son— According ney, McNally. to Detec John ”), ‘participants.’ cert. de ties of — Cesar, McNally Pierce also had told tive 2207, —, nied, 110 S.Ct. 109 U.S. that second threat. Less than one about (1990). L.Ed.2d 533 later, 1, 1989, Pierce week on October by after Jeans justice enhancement shot at Cleveland Jeans 3. Obstruction being accused Pierce of a “snitch.” Id. at Finally, Mr. Jewel contends that 32. enhancing the district court erred McNally justice un Neither Pierce nor testified at offense level for obstruction sentencing hearing alleged Specifically, he ar about der U.S.S.G. 3C1.1. Moreover, government gues that the court based the enhancement threats. hearsay presented Mr. Jewel had and uncorroborated no evidence that on unreliable serving government government informant. See United contends that the record super DeCicco, 1531, supports the conclusion that Mr. Jewel States v. 899 F.2d 1535 Cir. Ricky vised Mr. Jackson as well as 1990) "only (holding applies that section 3B1.1 argues Similarly, government Pickens. organizes to situations where the offender or supervised there is evidence that Mr. Jackson Ricky individuals”); criminally responsible Unit- leads Jackson, Jewel, and Pierce. If Michael 1502, Carroll, F.2d ed States v. 1506-09 the district court had the record indicated that given Cir.1990) (rejecting application section sufficient focused attention the matter 1.1(c) only other 3B individuals than conclude, government and we were to submits, as the government defendant involved in offense were permitted have that the record would agents). We do not decide whether the record 1.1(c) finding by that a the district court 3B supports super- a conclusion that Pierce was appropriate, enhancement was we could affirm by during period vised Mr. proceedings. point on the without further conspiracy Pierce an informant. became Lamon, before States v. 930 F.2d 1193 n. United ought This entire matter to be resolved in the (7th Cir.1991); v. Bev see also United States first the district court. instance (7th Cir.1990), erly, denied, cert. 361-65 — U.S. —, 111 S.Ct. 112 L.Ed.2d Although the indictment was not handed (1991), granted and cert. sub nom. Griffin alleg- September — after Mr. Jewel down until States, U.S. —, 111 S.Ct. threat, edly had the first an arrest warrant (1991); made Holguin, L.Ed.2d 1039 United States v. denied, (7th Cir.), complaint been been issued and a criminal cert. (1989). day against September after U.S. 107 L.Ed.2d 60 filed him on Sep- Pickens’ arrest. Mr. Jewel was arrested We note that Pierce cannot be considered a participant period during tember 26. for the which he was offense, in the instant prosecution of days in or Atlanta on from called levels.” level two the offense present did it crease Nor question. triggering Mr. Jack- One basis for 3C1.1. to either U.S.S.G. § link Jeans of during cross-examination “threat Finally, enhancement is application of this son. that Cesar, it was established unlawful intimidating, Detective or otherwise ening, only threat the second had reported co-defendant, to influence a ly attempting on arrested had been he himself after witness, indirectly.” juror, directly or or The dis- charges. weapons and narcotics Application Note 1(d). As Mr. Id. § 3C1.1 inade- there was that determined trict do rules of recognizes, evidence obstruction support an to quate sentencing proceedings,20 and apply to not lev- offense Mr. Jackson’s of enhancement may be con hearsay evidence “[rjeliable Mr. Jew- However, the court overruled el. Id. Commentary.21 6A1.3 sidered.” “ proposed enhancement: objection el’s in [sentencing] broad part ‘As of th[e] threats testimony regarding believe to consid judge permitted is the trial quiry, of general direction directed deter if he or she hearsay ... evidence’ er timing to witness, the close pro is reliable the evidence mines of Mr. to the arrest reported threats to rebut opportunity the defendant vides or Jewell, snitches testimony about Hubbard, v. States evidence.” United Ma- happened to Porter remember what Cir.1991) (7th (quoting 307, F.2d 309-10 929 activities, the re- kind of gee, those Nowicki, 405, v. States F.2d 870 United McNally Attorney John port from evalua (1989)).22 The district court’s 407 an reviewed under reliability is of tion id. at 310, see at 118. standard, of discretion abuse findings re factual the district court’s sentenc of Mr. At time Jewel’s are 3C1.1 enhancements section garding “If the defen provided: guidelines ing, the stan clearly erroneous under a obstructed, reviewed or or impeded willfully dant Lozoya-Mo v. States See United admin dard. impede or obstruct attempted to rales, Cir.1991). 1216, (7th 1218 931 F.2d investigation during the justice of istration sentencing, over the against at a defendant 1101(d)(3) (except used for rules See Fed.R.Evid. objection, Evidence violate Confrontation privileges, of defendant’s regarding Federal Rules sentencing proceedings); see well- are inapplicable at statements within are Clause unless the 1204, rule, Leung, 1209 hearsay v. 929 F.2d or exceptions abo United States recognized 1101(d)(3)). Cir.1991) (7th (citing Rule finding the state the court makes unless reliable.”), especially cert. are otherwise ments Miller, 891 F.2d v. States 21. See abo United 2018, — —, denied, 114 S.Ct. 111 U.S. Cir.1989) (under guidelines, 1265, (7th 1270 (1991); Cammba States v. United L.Ed.2d 105 long as the informa that 'so rule "it remains our (remand Cir.1990) 1057, (8th no, 1062 F.2d 917 sentencing judge has considers tion which the testimony hearsay resentencing ing because for reliability support its indicia sufficient informants reports of two confidential on based may proper accuracy, the information probable departure); upward Unit insufficient sustain passing sen ly into account be taken 100, (8th Fortier, Cir. Marshall, 911 F.2d 103 v. ”) ed States v. (quoting United States ]’ tence! 519 apply 1990) ("The at 751, (D.Wis.1981), aff’d, evidence do 719 not rules F.Supp. 754 1983)); Ayme (7th v. Clause ... sentencing, United States Cir. but the Confrontation 887 F.2d (reliable 64, (1st Cir.1991) hear lek, [Hjearsay admitted F.2d 68 apply.... 926 statements does sentencing); United say may be considered against do violate the Confrontation a defendant Cir.1991) 641, (3d 660 Inigo, F.2d v. 925 States (same); is declarant a court finds unless Clause Prescott, v. 920 F.2d States United of relia there are indicia and that unavailable (same); (2d Cir.1990) v. United States 143-45 hearsay cf. bility supporting the truthfulness Cir.1990) (re (7th Barnes, F.2d 696-97 907 statements.”). resentencing district court manding because informant’s may on confidential have relied Query, F.2d 928 v. 22.Accord op giving defendant hearsay without statements Bowman, Cir.1991); (11th v. States United 385 accuracy); challenge United their portunity to Cir.1991); (4th States United F.2d 381 Townley, F.2d 370-71 States Cir.), Beaulieu, cert. resentencing Cir.1991) (remanding — —, denied, U.S. uncorroborated, unrelia on district court relied (1990). Lowrimore, L.Ed.2d hearsay); States v. ble (8th Cir.) ("Hearsay statements tencing, relying on 18 U.S.C. which case is Jewel’s The enhancement placed We do have “No limitation shall be provides: of clear error. the result not alone, whether, standing concerning doubts the back- serious the information allegations that Mr. Jewel character, Pierce’s person and conduct of a ground, sufficiently reliable him are threatened of an offense which a court convicted enhance- for the obstruction form the basis may receive and consider the United States fact significant find Nor do we ment. purpose imposing appropriate an for the “corrobo- those threats was that one of statute is unconsti- sentence.” Unless this attorney attorney, for the by his rated” tutional, ordinary negates only rules through only threat apparently knew of the evidence, exclusionary inappli- rule Nonetheless, him. report Pierce’s 3661 consistent with the fourth cable. Is § incident, shooting 1 which October it recent cases hold that amendment? Two deny place, took itself tends does not Jewel McCrory, 930 F.2d 63 is. v. United States claims, ac- Pierce’s and an to corroborate Torres, (D.C.Cir.1991); v. shooting the dis- was before count of that (3d Cir.1991). remand the 926 F.2d 321 On cooperating with Pierce was trict court. fol- judge must decide whether to district up proposed they set authorities when decisions, if Jackson establishes low these led to Pickens’ ar- transaction that cocaine I the search invaded his interests. cooper- Part of that September rest thoughts for his consideration. offer some meeting with Mr. Jackson ation involved By in Atlanta. the time the and Mr. Jewel Torres, pre- McCrory and like few received, Mr. Jewel alleged threats were cases, guidelines possibility— mention the certainly might have learned—or at least they reject— which neither embrace nor Pierce had been strongly suspected—that might these courts exclude evidence when he traveled working with authorities police illegally expressly seized that the Moreover, knowing that his to Atlanta. sentencing. Judge opin- use in Silberman’s in coconspirator had been arrested Milwau- concurring in McCrory ion observes that kee, unlikely have been Mr. Jewel would exception is chimerical. 930 F.2d such an threatening telephone to which his use a potential at 72. Police do not mull over the That Pierce Pierce could be traced. call to evidence, use, fix on a and then uses of being a “snitch” and at- was accused of purpose. for that Offi- seize days after Mr. Jewel was just tacked a few multiple purposes they cers have want to — claim arrested tends to corroborate Pierce’s (even drug operations down if no close implied called him and that Mr. Jewel had ensues), they get the prosecution want to way end the same as that Pierce would goods help dope peddler turn a that will Thus, Magee. we the murdered Porter against supplier, they want to facilitate court did not err conclude that the district convictions, they to maximize sen- want enhancing Mr. Jewel’s offense level for It is incon- tences when convictions occur. justice. obstruction of ceivable that defendant will be able to police only one of these show Conclusion purposes making in mind a seizure. when reasons, foregoing the convic- For the make such a None has been able to show- and Mr. Jackson are tions of ing years Verdugo in the 23 since v. Unit- affirmed, are vacated but their sentences States, (9th Cir.1968), ed to the district and their cases remanded possibility. raised the resentencing. court for awfully why It hard to see motive AND RE- AFFIRMED IN PART AND VACATED prudential or doc- should matter on either MANDED in Part. grounds. less offen- trinal Is seizure EASTERBROOK, Judge, Circuit Constitution, deterrence sive to the or is concurring. police drain their important, less when the possibility that the seizure minds of the prosecutor urges us to hold that the As for to a conviction? exclusionary may rule not be used sen- will contribute siderations, vividly. as Leon shows establish amendment the fourth doctrine: also, Krull, e.g., v. 480 U.S. standard. Graham Con Illinois objective anes 1865, 1872, 386, 397, 1160, 1165-66, nor, 109 S.Ct. 94 L.Ed.2d 490 U.S. 107 S.Ct. (1989); Maryland v. Ma (1987). wrongdoing 104 L.Ed.2d Exclusion deters 463, 470-71, con, 472 U.S. deprives also the court of valuable evi- but (1985); 2782-83, Scott L.Ed.2d 370 goal dence. How of one to sacrifice much 128, 136-38, States, 436 U.S. ques- pursuit of the other is a difficult (1978). L.Ed.2d 168 S.Ct. Congress answered it in favor of tion. Supreme unlikely that think it most evidence, using that cannot be dis- but through the intent back will admit Court Congress positive, else could abolish the exclu deciding apply whether to door in putting anything exclusionary rule without categorical: Application is sionary rule. (or prosecutions place. If criminal its doesn’t, exclusionary applies, rule or it disciplines) of officers who violated even litigation. juncture of to one or another routine, or if the fourth amendment were prosecu excluded from Evidence is illegal searches received mone- victims case-in-chief, may example, but tion’s balm, abrogation exclusionary tary the defendant impeachment be used A. rule would be attractive. See Richard deportation. States support or to Posner, Rethinking the Fourth Amend- 1912, 620, Havens, 64 446 U.S. 100 S.Ct. v. ment, Sup.Ct.Rev. police 49. But 1981 (1980); Lopez-Mendo v. L.Ed.2d 559 INS and sei- carry out unreasonable searches 3479, 1032, za, 104 82 S.Ct. 468 U.S. fearing without so much as the loss zures (1984). Not one of the Su L.Ed.2d 778 day’s pay, immunity and official makes of a opinions implies that preme Court’s damages. impossible to recover it next to police have one may apply when the rule Immunity “provides ample protection to all police have a when the motive and dissolve plainly incompetent or those who but the v. States different one. Even United knowingly Malley the law.” violate 3405, 897, Leon, 104 82 468 U.S. S.Ct. 335, 341, 1092, 106 475 U.S. S.Ct. Briggs, (1984), principal non-cate L.Ed.2d 677 (1986). the victim 89 L.Ed.2d 271 So rule, employs only exception to the gorical compensation, the offender anticipates no seized on the objective criteria. Evidence inroads on ex- no deterrence. Serious unless authority warrant is admissible of a matter, mean, practical clusionary rule as a reliance was so weak that the warrant was the fourth amendment. inroads on serious unreasonable, id. at “objectively” procur unless the officers illegally using S.Ct. Before November withheld ing misrepresented or the warrant sentencing could not seized evidence facts, 923, 104 at 3421. id. at S.Ct. material inroad on the called a serious have been exceptions any these makes Neither of sen- Judges their exclusionary rule. based exclusionary rule is a thing intent. “The prosecutor the crimes tences on applies the board it across prophylactic: the defendant. plus the character of proved po for the where the incentives situations prosecutor steep sentence the get To provided by the rule the deterrence lice and very on one obtain a conviction needed to required and exclusion is are such that multiple less serious charge or serious motivated the reference to what without evidence from Excluding the ones. McCrory, in issue.” particular search mortal, grievous, often case in chief was a J., concurring). (Silberman, F.2d at present at Today prosecutors often blow. of the defen- only a small fraction trial inquiry subjective Why invite a re- The rest is provable conduct. dant’s ap- Supreme Court’s inconsistent with Instead of a wide- sentencing. served for and at all the fourth amendment proach to char- the defendant’s inquiry into ranging In the hope to defendants? a false events fit punishment should in which “the acter simple answer: have a end we will crime”, merely the and not the offender sentencing, or applies rule exclusionary York, 246- 337 U.S. v. New scope of the exclu- Williams Today the it does not. 1082-83, L.Ed. 1337 con- 69 S.Ct. depends on instrumental sionary rule 841(b)(1)(C). (1949), sentencing has a focused prior become One with no convic- the defendant’s crimes. In inquiry into years tions cannot receive under the guidelines require the drug cases the guidelines 37, equivalent until offense level quantities all to take into consideration sold (or kilograms to 150 of cocaine 1.5 kilo- negotiation “part of the or under same crack). grams of police So if the seize a or common course of conduct scheme or smidgen legally, suspect cocaine can plan as the offense of conviction”. years police locked if be for 20 seize lB1.3(a)(2). U.S.S.G. Our case is the grams cocaine, another 1500 of rock or 150 prosecutor charged norm: the defen- cocaine, kilograms powered in violation distributing slightly dants with more than 5 of By any the fourth amendment. account kilograms drugs asked for a but sen- that would be a serious inroad on the exclu- (and tence based more than 50 the court sionary rule. 15). imposed a sentence based on more than Judge recognized Silberman that to allow Where once courts sentenced the offender unconstitutionally the use of seized evi- conduct, and not the now courts sentence sentencing dence in big is to take “a bite subject for crimes that were the of neither rule”, out of exclusionary McCrory, charge proving nor conviction. such willing 930 F.2d at but was to masticate crimes, illegally additional seized evidence because, possibility thought, may play a central role—the same sort of Supreme verge scuttling Court is on the play supporting role it used to convic- perhaps overruling even of Mapp rule— tions on additional counts. Ohio, 367 U.S. Changing importance of conviction (1961). L.Ed.2d 1081 I do not read the sentencing versus troubling would not be if jurisdiction Court’s cases so. A wanting to capped statutes using illegal- effects of use unconstitutionally seized evidence has ly-seized sentencing. evidence in But the to create some substitute —whether careful years last five have witnessed astounding training discipline police, see increases the maximum sentences for Anthony Amsterdam, Perspectives G. drug offenses. years ago Until a few Amendment, the Fourth 58 Minn.L.Rev. penalty distributing cocaine, maximum for (1974), 428-29 expansion or an of civil much, years no matter how pris- was 15 liability. A combination of official immuni- on, prisoner eligible and the parole ty with official employees indifference to serving after a third of that time. 21 who violate the Constitution means that the 841(b)(1)(A) (1982 ed.). U.S.C. Higher § exclusionary rule still has a vital role to sentences could be kingpins, meted out to play. appreciate arguments in Torres offenders, repeat or those who sold to mi- McCrory but cannot resist the conclu- school, nors or close to a but the maximum sion that if apply we do not the exclusion- simple practical distribution set the lim- ary sentencing rule in guidelines, under the it in most cases. changed! How times have the constitutional ban on unreasonable The crime of which Jewel and Jackson searches and parch- seizures will become a convicted, selling more than 5 kilo- ment barrier. grams of a mixture containing a detectable cocaine, amount 21 U.S.C. 841(b)(l)(A)(ii)(I),carries a minimum of years and a maximum of life. Parole police

has been abolished. If the seize 5

kilograms legally illegally, and another 46 statute, coupled lB1.3(a)(2), with al- impose

lows the court to a sentence of life

imprisonment, just if drugs all of the compliance

had been seized in with the caught

Constitution. Someone

cocaine, little, no matter how faces 20

years parole, without 21 U.S.C.

Case Details

Case Name: United States v. Harold Benny Jewel, Also Known as "Bear," and Arthur S. Jackson, Also Known as Stevie Jackson

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Oct 21, 1991

Citation: 947 F.2d 224

Docket Number: 90-2001, 90-2262

Court Abbreviation: 7th Cir.