United States v. John G. Foutris

1158 court on remand. by tion for the district attorney’s fees is barred for claim Therefore, Hacker’s to address we decline merger.

the doctrine in this area. contentions Ellis is entitled to We conclude attorney’s fee for his services a reasonable failure spite of his appeals in IV. CONCLUSION the contract between terms of

establish the reasons, judgment foregoing For the the na Whatever himself and Lowrance. part, Affirmed of the district court is right Ellis has the agreement, ture of part Remanded part Reversed meruit for quantum compensated in to be not inconsistent with proceedings further he rendered: the services opinion. professional ser- attorney renders If an right compensated vices, has the services_ express an Where for such attorney

contract [between into, gener- there is not entered client] pay a reason- implied promise ally an the services ren- compensation for able attorney pursuant by the dered In Illinois meruit. theory quantum America, UNITED STATES quantum may under recover plaintiff Plaintiff-Appellee, pursuant made to an a claim meruit on v. amendment of without express contract plaintiff fails to es- pleadings, where FOUTRIS, Defendant-Appellant. John G. express contract but does tablish No. 91-2124. rendered. were in fact that services show Appeals, United States Court Braun, Browne, Ltd. & Greenbaum Circuit. Seventh 303, 309, 210, Ill.Dec. Ill.App.3d case, (1980). In this Ellis’ N.E.2d Argued April 1992. allege not even an for fees did petition July Decided and Low- himself express contract between Rehearing Aug. Denied of fees for Nor was the award rance. obtaining judg- the initial Ellis’ services the terms of based on

ment for Lowrance Ellis and Low- express contract between an Rather, the district awarded rance. it determined be a fees based on what hourly rate. We do not see reasonable plead attorney does not even why an who should be worse off express contract an fails plead one but than one who does its existence. prove even if

Finally, argues that Hacker right otherwise have Ellis would Hacker, postjudgment fees from recover denying peti Ellis’ order district court’s the fees affirmed because tion should be “unreasonable, unwarranted claimed are then offers sever Hacker and excessive.” allegedly of Ellis’ pages “examples” al unreasonable, and excessive unwarranted of a reasonable The determination

claims. fee, however, ques- is a factual attorney’s Atkinson, (ar-

Brenda Atty. Asst. U.S. gued), Atty., Office the U.S. Crim. Div. Elden, Barry R. Asst. Atty., U.S. Of- fice Atty., of the U.S. Receiving, Crim. D'iv., Ill., Appellate Chicago, plaintiff- for appellee. (argued)

Robert A. Novelle Philip M. Angelini, Serpico, Navigato, Novelle & Chi- Ill., cago, defendant-appellant. BAUER, Before Judge, Chief EASTERBROOK, Judge, Circuit NOLAND, Judge.1 Senior District

BAUER, Judge. Chief pleaded guilty offering John Foutris Alcohol, Tobacco, an undercover and Fire- Agent arms to burn $600.00 down his tav- ern, violation 18 U.S.C. 373. At sentencing, the district court determined recklessly endangered that Foutris others, pursuant lives of 2K1.4(b)(2), Guideline increased his base of- fense level appeals levels. Foutris increase; affirm.

I. Facts operated

Foutris the Six Pence Tavern Broadway a rented storefront at 5947 N. Street, Chicago, Illinois. The tavern was profitable, partner and Foutris’ ab- $100,000 sconded with from another ven- ture, leaving financial straits. lease, escape To his Foutris offered one of $1,000 regular customers to torch Apparently tavern. the customer did not offer, instead, leap at the introduced Foutris to Rich Marianos. Foutris believed arsonist, professional Marianos was a when fact, agent with the Bu- Marianos is an Tobacco, Alcohol, reau of and Firearms. meetings, told During taped their de- Marianos that he wanted tavern Foutris, stroyed. Marianos asked “You ground[,] completely it burned want “Well[,] not the huh?” Foutris answered: only, I thing, inside the bar don’t whole Noland, sitting by designation. 1. The Honorable James E. Senior Dis- Indiana, Judge trict for the Southern District Analysis II. my it’s not building, for the a shit give to bother I don’t want building.... government The bears the burden Con- Monitored Transcript of building.” justifying an enhance proof on factors (“4/18/90 4/18/90, made versation of a defendant’s sentence. United ment alarm, his disabled Transcript”). Foutris 721, (7th Spillman, 924 F.2d 723 v. States to accelerants with Marianos provided and ap Cir.1991). an enhancement Whether agreed to initially Foutris the fire. start for the sentenc question of fact plies is a gas- three bottles of two or bring Marianos for clear error. we review judge, which ing ultimately going, but the fire get oline to Boyer, 931 v. Id. See also lighter use should Marianos that decided Cir.1991); (7th United 1201, 1203-04 F.2d thinner, from the liquor fluid, and paint (7th Hubbard, 929 F.2d 310 v. States details were worked final After the bar. sentencing determi Cir.1991). review We out, arrested. Foutris was affirm the deferentially, and will nations con- a storefront located in tavern is The are left imposed unless we with sentence A hard- masonry brick. and of structed that mistake and firm conviction “definite liquids, flammable stocks store that ware Boyer, 931 F.2d committed.” has been thinner, turpentine, and paint paint, as such McGuire, v. States also United See adjoin- located accelerants, is other (7th Cir.1992); 315 F.2d 957 next beauty shop is a building. There (7th Lewis, 1396 v. F.2d States store, five residential and to the hardware Cir.1992). apartments The shop. over the apartments the tavern. 37.5 feet are applied by 2K1.4 The version.of § in- found that court The district .Foutris adjustments to district sets forth court destroy the fire that would a limited tended upon specific level based offense the base tavern, but fixtures his merchandise characteristics, de which must be offense Nevertheless, building. not the certainty. See reasonable termined ensure, or precautions took no Foutris con As the Sentencing 2X1.1. Guideline § influence, of containment significantly out, no section was points this currence concluded the district court sen when Foutris was longer effect of endangered the lives others. recklessly the Guidelines apply are to Courts tenced. intent, the court Foutris’ Regardless of sentencing time of unless in effect at the steps ensure that found, no he took Unit clause is violated. post the ex facto endangered be struck before fire could (7th Bader, 956 F.2d v. ed States firemen, and residents of passersby, did Cir.1992). 2K1.4 The amendment found that The court nearby apartments. case, in this Foutris’ sentence affect was whom he know with “did not Foutris error. See however, ignore the we shall so offense, of this planning dealing in the n. 2. demonstrating recklessness infra his further of his admonition spite to outcome 2K1.4(b)(2) “If the provided: Section damage property do coconspirator safety endangered recklessly defendant inside property fire to the to limit the Foutris another, by levels.” of increase building.” Transcript is unwar 14-levelincrease that the argues The also stated Hearing court at 38. (1) reasons: for three in this case ranted that an reasonably assume uncon- it could anyone not find that did district court expand tavern “will fire in a trolled no endangered because actually was regard to the intentions spread without set; (2) specifically intended Foutris upon at 39. Based Id. planner.” its fire; and by the endangered no one be Foutris held that findings, the district contemplated small fire (3) others, endangered the lives recklessly tavern. destroy only the inside to would pursuant level his offense increased the court contends government 21- The received 2K1.4. Guidelines § potential seriousness “the properly noted super- sentence, months with 36 month into entered that was plot of the criminal release. vised defendant,” Foutris we refined reviewing and sentenced the standards for de- appropriately. Sentencing 2K1.4(b)(2). Tr. at 33. terminations under We held contemplated arson, that the nature of the court, Foutris, and the The district might aggravate and factors that its seri- rely upon the First Cir- government heavily proper are ousness considerations under analysis cuit’s of 2K1.4 United States 2K1.4. Cir.1990). (1st Medeiros, In 897 F.2d 13 Medeiros, acted as a middle- Further, we held that agent and a an undercover man between day age, the arson of an [i]n agent The told Me- professional arsonist. urban structure —whether residential or down a 90- that he wanted burn deiros commercial—is virtually per se reckless oil-soaked, wooden locat- year-old, endangerment of others.... if Even a explained a residence. Medeiros ed next to building abandoned, is always there is agent agent the undercover inside, the chance might that someone be stick around and watch the fire should fighter may or that a fire injured be “good would be show.” Id. at because putting killed while out the flames. It is Taped indicated that the conversations knowledge also common that fires which expected spectacular defendant blaze quickly cannot be contained will often flying debris. spread to other thereby structures and the con- The Medeiros court contrasted amplify injury the risks of to additional templated building in fire a commercial lo- fighters. civilians and fire residence, in cated close to a to a fire an Golden, 954 F.2d at We did note A abandoned barn in the middle of a field. Golden, however, building that an urban fire, major located close to residential might that is isolated from other structures buildings, with concomitant rescue at- pose danger the same manifest to oth- held, tempts, recklessly endan- and, ers, therefore, might applica- not merit gered recognized others. The court “that 2K1.4(b)(2). tion § present danger firefight- all fires some ers, Golden, presum- and of a poured risks minor have the defendants But. ably gasoline gro- been factored into the base offense a hole in down the roof of a However, conspiracy this is not a cery level. store and tossed in Molotov cocktails. mischief,’ i.e., involving ‘malicious minor The store located on the was south side of property damage under that Chicago neighborhood. circumstances in a residential We present appreciable danger.” do not an Id. found the defendant’s contentions that no (quoting Sentencing at 20 Guidelines actually injured, one was and that was 2K1.4, Commentary, Background). endangered by anyone not aware would be 14- application did not bar of the case, relying The district court in this level Id. at 1416-17. enhancement. Medeiros, upon inquiry found the relevant applying is when 2K1.4 Similarly Guadagno, the defendant whether there was sufficient evidence gasoline and one can of used two cans for the court to determine that the loca- grocery fire to his store. kerosine to set building tion of the as described and de- Although several hundred the store was picted and the nature of the fire as structure, was, feet from the nearest would, planned with reasonable certain- isolated, therefore, concluded physically we have, endangered ty, recklessly the occu- properly applied the district court 2K1.4. pants firefighters of the residence or the structures is Physical proximity to other upon called to control the fire. can only way in which an urban fire not the argued that (quoting Medeiros, endanger The defendant Tr. at 33 lives. people 19). precautions prevent recently revisited he took F.2d at We have one being fire—he blocked question injured two cases. United States Cir.1992); entrance, had left (7th employees sure his made Guadagno, v. 970 F.2d 217 nearby pay Golden, 1413 the disabled premises, 954 F.2d Nevertheless, found the (7th Cir.1992). telephone. we Guadagno In structure, reck- residential planned of a the defendant fire that large scale endangered lives. lessly firefighters endangered recklessly tried to who including woman passersby, Moreover, our do not believe just outside phone disabled use the se per almost fires are rule that urban gas to used so much The defendant store. under the old endangerment reckless of the wall that the back blaze start At sentenc 2K1.4(b)(2)is unwarranted. off. building blown required gather de ing, judge is not Guadagno are We find that Golden on the con tailed technical information the defendants Like dispositive here. on or statistics struction of cases, contends that those buildings spread. in such fires how often any harm intend to specifically he did not that district trilogy of cases illustrates This actually no one was one, and because carefully consider the facts sur courts endan found have harmed, he cannot arson, including location rounding each stated, As we recklessly. have gered lives neighboring building in relation to this con unavailing. “In this contention structures, residential proximity proof requires text, endangerment reckless of fire contem buildings, type and size intended specifically arsonist, way that the by the plated endanger could fire that type of cause the started, by the arson precautions taken is ‘consciously others, not that might injuries, and that to factors ist avoid ” - Guadagno, others.’ sought to harm spread. fire’s or exacerbate- the contain v. Gold (quoting F.2d at 224 the not used Clearly, district courts have 1415-16). en, at 954 F.2d support in set forth Golden standard impact sen unfairly judgments that snap a Further, planned start Foutris tencing. on liquids in a storefront using flammable adjoining In the busy Chicago Street. a appli- question the concurrence’s Wé also store, liq- flammable building, a hardware in case. It data of statistical cation to the hardware Next uids were stored. provided concludes, figures on arson based tavern, a store, the was 37.5 feet Association Fire Protection by the National That apartments. containing five result- (and others), that each arson not store were hardware liquids in the the (or, per deaths deaths 7.75 ed in .0075 tav- adjoining the immediately adjacent to arsons, of .00028 where difference they the risk remove does not ern wall per 26 lives figure represents in the overall Further, fire. severity of the the posed to facts, this, it other year). Based on system so the his alarm Foutris disabled death in risk of to conclude seems pre- discovery. This avoid arsonist could reason- But this quite low. arson cases warning the hazard any early vented Another entirely unproblematic. ing is not neighboring occupants of the passersby or difficulty. There example illustrates in the no buildings. There is evidence military per- 16,354,000United States were system on sprinkler was a record-that there these, II. Of in World War involved sonnel might extinguish a premises which fig- Annual 291,557 killed in battle. were exteri- spread from bar before soldiers, 8.6 every 1000 that for ures show or structure. of Com- Department in battle. were killed of the United merce, 2 Historical Statistics facts, contends Despite these (1976). 856-903, p. 1140 States,'Series Y at intend start did not he that because forces armed This a member one con- means like the spectacular major or in action. death chance found faced .0086 Medeiros, be he cannot templated calculations, then, we upon Based these of others the lives endangered to have during military service might upon the conclude disagree. Based recklessly. We But, risky. particularly is not war-time district find that the dictates head, lobbed getting bullets finding soldier clear error not commit court did burning build- facing a firefighter like the factors, particularly the upon based might disagree. ing, proximity close and the of accelerants use Moreover, EASTERBROOK, the Guidelines have been Judge, Circuit amended, concurring. interpretation and our of reckless questionable endangerment seems to The sentencing guideline for arson anyway. significance for future cases See through October 1990 established a basé Sentencing Guidelines 1990 and offense level of increased 14 levels if 2K1.4(a)(lH4).2 § “recklessly endangered defendant another”, safety 2K1.4(b)(2), or 18 if argues former also “knowingly created a substantial risk of 2K1.4(b)(5), applied “if which the defen- bodily death serious injury”, endangered safety per- of another dant 2K1.4(b)(l). “Reckless” slippery is a appropriate specific is the more of- son” term, which Commission fense characteristic these facts. The promulgating discarded when a new arson simple endangerment increase is four guideline effective November 1990. See levels, opposed to the 14-level increase replacement gives amendment 330. The endangerment. for reckless “(A) if base level of 20 the offense created Commentary guideline The to the arson a substantial risk bodily of death or serious provides specific more than one where injury any person partici- other than a applies, offense characteristic the sentenc- offense; pant (B) involved the de- greatest. use should attempted struction or destruction of a 2K1.4(b). found that the dis- We have (C) structure other than a dwelling; or trict court’s determination that Foutris endangered dwelling, or a structure other recklessly endangered the lives of others dwelling”. 2K1.4(a)(2). than a U.S.S.G. § clearly erroneous. Because we The base offense level is 24 if the substan- find no clear error the district court’s tial risk is “knowingly” created or the ar- findings, refuse to alter its sentence attempted son involves the actual or de- apply and the lesser increase. As the court dwelling. struction of a U.S.S.G. noted, always in Medeiros will be the “[i]t 2K1.4(a)(l). § endangerment case that where reckless is Under the current version found, endangerment simple even more 2K1.4(a)(2) easy this is an case. Foutris § clearly appear.” F.2d will 897 at 20. This bar, hired torch someone to a which at a justify disturbing judge’s does not a trial “endangered minimum ... a oth- structure sentencing determination. dwelling”. er than a Foutris was sen- 1991, May judges tenced in and must use III. guidelines the “that on are effect the is date the defendant sentenced”. 18 reasons, foregoing judgment For the the 3553(a)(4). everyone, U.S.C. Yet includ- § of the district court is judge, the the old version believed that applies, 2K1.4 and the brief for the § Affirmed. defraud; provides: § 2. The current version of 2K1.4 ted in connection a scheme or (a) Greatest): (Apply Base Offense Level (4)2 plus the offense level from 2B1.3 24, (1) (A) the offense created a if substan- Destruction). (Property Damage or bodily injury tial risk of death or serious The version of the Guidelines under which Fou- offense, participant other than a in the provided tris was a 14-level increase sentenced (B) knowingly: the risk created or in a defendant’s base offense level if he reckless- attempted involved the destruction or destruc- ly endangered the lives others. This corre- dwelling; tion of a sponds current offense level of 20 20, to the base (2) (A) a if the offense created substan- (base plus for such conduct offense level 6 14 bodily injury tial risk of death or serious Thus, levels). guideline provides the the new any offense; participant person other than a punishment, (B) same level of but defines more involved the destruction or at- precisely requirements of each offense tempted level. destruction of a structure other than pro- (C) Application dwelling; endangered dwelling, more difficult altogether, and a question of of died a result incendi- fighters ... gen- in dangerous respond- is arson suspicious how fires—4 while ary one. Just fires, To answer 9 at eral, returning at hand? such in the or from case to fires, hear 2 at wildland fires.” must either questions judges structure such arson, to data about Id. at experts or turn depend on that adjustments then make (excluding firefighters’ deaths Adding 14 fires transmit such as how issues technical fires) to the NFPA’s data wildland two are comfortable Although judges heat. implies that each arson deaths on civilian intuition, facts consulting their are. in That number deaths led to 0.0075 mat- and technical guide to proper scientific such as Fou- risks for arsons overstates people that the told ters. “Common sense” however, includes deaths tris’s, it and that of the universe is the center Earth buildings occupied at the set in from fires earth, air, are four elements in 715 deaths Eighty-seven of the time. States declared When the Happy water. at the in the blaze 1990 occurred knew one in the world independence, no York. its in New Such club Land social do anything get with oxygen had handle deaths,must that be subtracted empty In- “phlogiston”). build- (the prime suspect was of arsons hazards on the unoccupied “informa- in an dangers of ings. source trospection poor is a For balance; kind: risks different hangs in the are of a liberty tion” when extinguish the flames trying pur- firefighters defeat guesstimates also judicial may buildings that adjacent uniform and risks guidelines producing in pose of the in assumed Despite what we populated. pri- sentences, judge’s for untutored one rarely even in urban areas fire less than the norm 1,000 of one per death adjacent buildings. A study by affects unoccupied fires in buildings. Because an Department Dallas Fire reveals act is reckless the sense of criminal law city early 530 fires 9 when it reflects indifference to a substan- spread beyond original structure. Mea- tial risk—see Model Penal Code (U.S. Spread Department Fire suring of 2.02(2)(c)(1985), providing that one who Commerce, National Technical Information “consciously disregards a substantial and 1979). Service unjustifiable risk” recklessly acts is—it I many No data could locate show how of say hard to creating acts hazards one traced to deaths could be fires started time in a thousand are “reckless” for pur- unoccupied buildings. The NFPA has a poses of the sentencing guidelines unless expert database from which an could ex- we take the dangerous view that all acts information, publish- tract that but it is not that lack social benefits are “reckless.” In ed. A safe estimate is that the hazard is at event, however, there would be no magnitude least an order of for less arson reason to treat “recklessness” as an aggra- unoccupied building, in an so that such a vating law, factor in the criminal for arson fire is- associated fewer 0.001 than unjustifiable is itself an dangerous act. deaths and many about five times that So the Commission came to re- (The injuries. injuries ratio of fire to fire alize when it eliminated recklessness as a many deaths has been stable at for five separate sentencing. factor in years. See 1991 Statistical Abstract of parties Because the 346.) argued have the United States Table superseded case to us guidelines, under Aggregate judi- data do not conclude the makes little difference how we resolve task, cial for fires differ in their propensity dispute. their presented Neither side spread. buildings Wooden much burn facts, speculation and in a world of readily masonry ones, more than and be- judge’s guess district good is as as any. spread cause by structural fires radi- more authority Golden, On the embers, I concur in ated heat than the size and openings judgment affirming location of impor- walls are the sentence. In liti- See, Steward, e.g., tant. F.R. gation however, Prin- under guidelines, Basic law- ciples Transfer, Radiative in Heat yers’ hot air is no substitute for facts. (Perry Fires L. Blackshear Transfer 1974); Gross, ed. Daniel Data Sources for Parameters Used in Predictive Modeling (U.S. Growth Spread Fire and Smoke Department Commerce, National Bureau Standards, America, Center Fire Research UNITED STATES of 1985). Plaintiff-Appellee, planned one-story a fire in a bar masonry only adja- double walls. The MITAN, Defendant-Appellant. W. Jason building, store, cent one-story hardware 91-1867, Nos. 91-2779.

was of similar construction. Radiative low, making heat transfer would have been Appeals, States Court likely it less than the norm that the Seventh Circuit. spread way would a fire indeed set —if April Argued 1992. wanted, whiskey with the alcohol in July Decided 1992. accelerant, and vodka principal as the had significant damage much of doing chance Rehearing En Banc Rehearing even the bar. closest to The residence Aug. Denied the bar was on of the hard- the other side Rehearing Sept. Denied store, ware could the time engulf leap hardware store

apartments, persons would been have

alerted. So the risk in Foutris’s plans We also note that the Notes or a injury dwelling; risk of death or vide that substantial structure other than a per- (3) firefighters emergency plus includes risk to 2 the offense level from 2F1.1 (Fraud Deceit) respond Id. if sonnel who to the fire. the offense was commit- 1164 unlikely to are about arson vate views guideline asserts “[t]he United States Aiken, 935 Brewer v. another’s. Cf. match of the defendant’s the time in effect at (7th Cir.1991)(concurring 850, F.2d 861-62 offense level a base sentencing contained opinion). guidelines read the no one 6”. Did changes in the Although some carefully? dangerous is arson How may crime date of the after the guidelines unoccupied? The record con- known be post facto ex under the problems create evidence, lawyers have tains no not, see 2K1.4 does clause, change in diametrically opposed, but presented their (7th Bader, F.2d 708 956 subject. ignorant, United States views on equally current ver- Cir.1992), only because if Fire Protection According to the National comes level of sion, Association, arsons of build- with base the facts for awith former version thing ings same are: recklessness, given plus 14 of 6 base age, this day our conclusion “[i]n structure —whether an urban arson of virtually a or commercial—is residential others.” endangerment of per .se reckless F.2d States v. in the figures those Uni- These exceed Cir.1992). (7th 46,- lists Reports, which Crime form § n of 2K1.4 version Under the former arsons in Crime 216 structural case, if easy Golden anything but an (1991), the FBI It obstacles put aside. illustrates arson, to be only blazes known counts uniform, sentences under predictable suspi- fires of the NFPA includes while guide- provisions guidelines. Many the difference does not origin. cious But tractable issues. knotty but present lines purposes. About for current matter “knowingly”? “In- act Did the defendant job annually. perish firefighters on possess tentionally”? Did 1990, only 44 of died in two One hundred How kilogram of cocaine? more than E. of a fire. Arthur at the scene in crime? Former partners about Washburn, Rita F. Paul R. LeBlanc & terms such as 2K1.4(b)(2) familiar uses Fahy, Fighter Fatalities Fire kind different presents a “recklessly” but “Sixteen (July/Aug.1991). NFPA Journal

Case Details

Case Name: United States v. John G. Foutris

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Aug 20, 1992

Citation: 966 F.2d 1158

Docket Number: 91-2124

Court Abbreviation: 7th Cir.