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Friday, October 08, 2004

Indiana Decisons - Three today from 7th Circuit

USA v. Schreckengost, James (SD Ill.)

Before EASTERBROOK, WOOD, and EVANS, Circuit Judges.
EASTERBROOK, Circuit Judge. James Schreckengost removed the ink from genuine $5 bills with a chemical solution and used an inkjet printer to produce facsimiles of $100 bills on the blank sheets. These fakes had the feel of currency and could pass some tests employed to identify genuine bills. * * *

The district court calculated the sentence by applying U.S.S.G. §2B1.1, the generic provision for frauds. According to the prosecutor, however, the district court should have used §2B5.1, which bears directly on counterfeiting. * * *

A fake that includes genuine currency paper has not been “falsely made or manufactured in its entirety”, the district court held. It is instead an altered version of a genuine instrument. Accord, United States v. Inclema, 363 F.3d 1177 (11th Cir. 2004). * * *

Well, is genuine currency paper derived from bills in circulation different from paper diverted before it reaches the Bureau? The answer is yes in both physical and legal senses. Bills are printed by an intaglio process under high pressure, so indentations remain even if the ink disappears. This leads to the legal difference: the Treasury Department treats bills from which all ink has been removed as currency, which it will replace with new notes. * * *

The federal government’s willingness to treat even an erased bill as a legal obligation of the Treasury shows that the paper remains an “instrument” and vindicates the district court’s decision to sentence Schreckengost under §2B1.1.

This outcome is unsettling, because it means a lower sentence for someone whose crime, being harder to detect than that of a counterfeiter who starts with plain bond paper, instead requires a higher sentence in order to preserve deterrence. * * *

The Sentencing Commission may deem it wise to revisit this subject. As the Application Note stands, however, counterfeiters such as Schreckengost are beneficiaries, even if accidental ones.

USA v. Lagiglio, Bonnie (ND Ill.)
Before BAUER, POSNER, and MANION, Circuit Judges.
POSNER, Circuit Judge. * * * A jury convicted Bonnie LaGiglio of conspiracy to impede collection of taxes by the Internal Revenue Service, 18 U.S.C. § 371, an offense for which the federal sentencing guidelines prescribe a base offense level of 10; but, consistent with the guidelines, the judge increased LaGiglio’s offense level by a total of 11 because of the amount of the government’s tax loss and LaGiglio’s use of sophisticated means to commit the crime, and sentenced her to 41 months in prison. * * *

LaGiglio moved us to order her released pending appeal, arguing that Booker caps her sentence at 12 months and she has already been in prison that long. We directed the district judge to revisit his denial of her motion for release in light of the intervening decisions. He ruled that her sentence was unlawful under Booker and ordered her released, precipitating this appeal by the government.

The government points out that LaGiglio is entitled to be released only if she is likely to be resentenced to a term of imprisonment shorter than the length of time that she will have been in prison by the time her appeal is decided. * * *

The district judge did not indicate whether he thought LaGiglio was entitled to a sentence short enough not to exceed the time she has already served, and rather than speculate we shall again direct him to revisit her motion, this time in light of Booker. For his guidance in considering the motion, we note that there are only three circumstances in which, consistent with the Bail Reform Act, Booker would entitle a district court to release a defendant pending appeal: (1) the district court plans not to rely on the sentencing guidelines at all, but instead to use its discretion to sentence the defendant to a term of imprisonment shorter than the time the defendant is expected to serve pending appeal (of course if there is a statutory minimum sentence the judge cannot go below that); (2) the court plans to empanel a sentencing jury to consider the government’s evidence in support of increasing the base offense level and believes that the jury will make findings that will preclude a sentence longer than the expected duration of the appeal; or (3) the court intends that there shall be no adjustments to the base offense level and a sentence consistent with that level will expire before the appeal is likely to be resolved. Should the judge be minded to release LaGiglio, he will have to consider the government’s argument that she has waived or forfeited reliance on Booker. If he is not minded to order her release, he will not have to enter that briar patch.

The motion for release is referred to the district court for further proceedings consistent with this opinion.

Koszola, Kathleen v. Bd Educ City Chicago (ND Ill.)
Before RIPPLE, MANION, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Kathleen Koszola sued the Board of Education of the City of Chicago under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., for refusing to hire her for a full-time teaching position because she is white. The Board moved for summary judgment at the close of discovery. Citing the dearth of facts in Koszola’s submissions pursuant to Northern District of Illinois Local Rule 56.1, the district court granted the Board’s motion. We affirm, as Koszola has provided no evidence showing that she may have suffered discrimination.

Posted by Marcia Oddi on October 8, 2004 12:40 PM
Posted to Indiana Decisions