United States v. Jon Bartlett ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 08-1196, 08-1197 & 08-1198
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JON B ARTLETT, A NDREW R. S PENGLER, and
D ANIEL M ASARIK,
Defendants-Appellants.
Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 06-CR-273—C.N. Clevert, Jr., Judge.
A RGUED M AY 15, 2009—D ECIDED JUNE 8, 2009
Before E ASTERBROOK, Chief Judge, and B AUER and
R OVNER, Circuit Judges.
E ASTERBROOK, Chief Judge. The distance between civiliza-
tion and barbarity, and the time needed to pass from one
state to the other, is depressingly short. Police officers
in Milwaukee proved this the morning of October 24, 2004.
Andrew Spengler held a housewarming party that
started on October 23 and lasted into the next morning.
Spengler and many guests were police officers. Liquor
2 Nos. 08-1196, 08-1197 & 08-1198
flowed freely. Katie Brown and Kirsten Antonissen were
among the invitees. They arrived after 2:30 AM on
October 24 with Frank Jude and Lovell Harris. The quartet
was immediately made to feel unwelcome because the
women are white, and the men are not. (Harris describes
himself as black; Jude describes himself as bi-racial.) After
five minutes, the four prepared to leave—but they were
prevented when at least ten men stormed outside, sur-
rounded Antonissen’s truck, and demanded to know
what the four new arrivals had done with Spengler’s
badge. Spengler says that he could not find it after the
quartet arrived, and he accused them of theft. The men
demanded that the four get out of the truck and surrender
the badge. When they stayed inside, the men threatened
them (“Nigger, we can kill you”) and began to vandalize
the truck. Harris tried to wake the neighbors; the men
responded: “Nigger, shut up, it’s our world.”
Eventually all four were dragged from the truck. A
search did not turn up the badge. Instead of concluding
that Spengler’s accusation was mistaken, the men
became enraged and violent. One cut Harris’s face in a
way that he described as “slow and demented.” Harris
managed to free himself and run away. Multiple men
began to kick and punch Jude. Antonissen managed to
call 911; she told the operator “they’re beating the shit
out of him.” When the men saw Antonissen use the
phone, they wrested it from her hand and flung her
against the truck so forcefully that its metal was dented.
Brown made two calls to 911 before her phone, too, was
seized.
Nos. 08-1196, 08-1197 & 08-1198 3
The first call was logged at 2:48, and two officers (Joseph
Schabel and Nicole Martinez) arrived at 3:00. The
beating continued until their appearance. Men punched
Jude’s face and torso; when he fell to the ground, they
kicked his head and thighs. The partygoers behaved as a
mob. Not a single person in the house tried to stop the
attack or even to call for aid. Jon Clausing, who had
slashed Harris’s face, explained his conduct as “just kind
of going along with everybody.” That is the way of the
mob. Society has police forces to pose a counterweight
to mobs, yet here the police became a mob.
Schabel and Martinez were on duty and had not been
drinking, so they should have put a stop to the violence.
Instead Schabel joined it, while Martinez watched. On
being told that Jude had stolen Spengler’s badge, Schabel
called Jude a “motherfucker” and stomped on his face
until others could hear bones breaking. After telling
Martinez “I’m really sorry you have to see this,” Daniel
Masarik picked Jude off the ground and kicked him in the
crotch so hard that his body left the ground. Jon Bartlett
then took one of Schabel’s pens and pressed it into each of
Jude’s ear canals, causing severe injury and excruciating
pain. The men also broke two of Jude’s fingers by bending
them back until they snapped. Spengler put a gun to
Jude’s head and said: “I’m the fucking police. I can do
whatever I want to do. I could kill you.” Bartlett used a
knife to cut off Jude’s jacket and pants, leaving him
naked on the street in a pool of his own blood.
The violence tapered off when additional on-duty police
arrived. At 3:09 officers arrested Jude. Yes, they arrested
4 Nos. 08-1196, 08-1197 & 08-1198
the victim, although Jude had never fought back. (He had
suffered a concussion and was unable to defend himself.)
Jude was taken to an emergency room; the admitting
physician took photographs because “[t]here were too
many [injuries] to document” in writing. The injuries to
Jude’s ears could not be diagnosed because the
physicians could not control the bleeding. One physician
testified that she had never seen ear injuries so severe.
While Jude was receiving treatment, on-duty officers
recovered Jude’s car. Bartlett and other men had ripped
up its seats with knives and poured antifreeze over
them; apparently they poured antifreeze into the gas tank
too, damaging the engine. The radio had been wrecked.
The men broke a headlight and tore a mirror off
Antonissen’s truck. Spengler’s badge was not found in
either the car or the truck; perhaps he had put down the
badge in the house and was too soused to remember
where.
Bartlett, Spengler, and Masarik were prosecuted in
state court and acquitted after Schabel and others com-
mitted perjury on their behalf, while many people who
had been at the party claimed to suffer memory loss. That
made it impossible to show who had done what, and
the judicial system (unlike a mob) demands personal
responsibility. The Civil Rights Division of the Justice
Department then investigated, and federal prosecutors
persuaded several witnesses to cooperate. Four men
(Joseph Schabel, Ryan Lemke, Jon Clausing, and Joseph
Stromei) pleaded guilty to obstruction of justice (by
perjury, including false testimony before the federal
grand jury), to violating Harris’s and Jude’s civil rights, or
Nos. 08-1196, 08-1197 & 08-1198 5
both. Bartlett, Spengler, and Masarik were convicted by a
jury of conspiring to violate Harris’s and Jude’s right to be
free from unreasonable searches and seizures (18 U.S.C.
§241), and of the substantive offense (18 U.S.C. §242).
(Excessive force in making an arrest violates the fourth
amendment to the Constitution, applied to state police
officers by the fourteenth amendment. See Graham v.
Connor, 490 U.S. 386 (1989).) Bartlett was sentenced to
208 months’ imprisonment, Spengler and Masarik to
188 months apiece. All seven men have been fired by the
Milwaukee Police. Two more officers were fired but
later reinstated; an additional four were disciplined.
Bartlett, Spengler, and Masarik present twelve appellate
issues. Only four require discussion. The rest have been
considered, and we reject them without comment.
1. The maximum punishment for a violation of either
§241 or §242 is 120 months’ imprisonment. The longer
sentences that Bartlett, Spengler, and Masarik received
depend on convictions of both offenses. All three
contend that the evidence of conspiracy is insufficient.
Conspiracy is agreement to violate some other law, see
United States v. Shabani, 513 U.S. 10 (1994), and defendants
maintain that events developed without an agreement.
When Spengler called for aid to recover his badge, people
rushed from the party to Antonissen’s truck without
prior negotiation or agreement.
This perspective assumes that the agreement must
predate the first substantive offense. Yet it need not. An
agreement forged in the course of committing a crime,
among people who plan to work together in an ongoing
6 Nos. 08-1196, 08-1197 & 08-1198
criminal venture, is no less a conspiracy than one that
precedes the first overt act. The battery of Jude lasted for
20 minutes. A reasonable jury could infer that defendants
and others formed a plan to do whatever was necessary
to recover Spengler’s badge and punish the thief—a
plan carried out through cooperative criminal activity.
Working together to commit a series of criminal acts, in
which each cooperative act implies a plan to cooperate
in the future, is a functional understanding of conspiracy.
See United States v. Lechuga, 994 F.2d 346 (7th Cir. 1993)
(en banc); United States v. Wantuch, 525 F.3d 505, 519
(7th Cir. 2008). None of the evidence suggests that defen-
dants worked at cross-purposes with each other, or with
the rest of the mob. The evidence is enough to permit
an inference of agreement and thus a conviction for
conspiracy.
2. Masarik contends that he did not participate in the
beating. He concedes that he was at the party but says
that he stayed indoors or on the mob’s periphery. He
did not report the crime or assist the prosecution, so he
might have been convicted of misprison of felony, see
18 U.S.C. §4, but if he was a bystander he did not violate
§241 or §242.
Six witnesses testified that Masarik held Jude while
others punched and kicked him. Some of these witnesses
testified that Masarik kicked Jude in the face at least
twice, and that Masarik kicked Jude in the crotch (after
apologizing to Martinez). Masarik contends that he must
have been confused with someone else, and he proposed
to present expert testimony about high error rates in
Nos. 08-1196, 08-1197 & 08-1198 7
eyewitness identifications. The district court excluded the
proposed testimony for two principal reasons. First, the
judge stated that jurors could determine the reliability of
identifications using the evidence from direct and cross
examinations. Second, the judge invoked Fed. R. Evid. 403,
which allows the exclusion of evidence that is needlessly
cumulative or will consume trial time out of proportion
to its value.
The first of these reasons is weak. Doubtless lawyers will
ask questions designed to assist the jurors in evaluating
whether a witness is telling the truth. But the problem
with eyewitness testimony is that witnesses who think
they are identifying the wrongdoer—who are credible
because they believe every word they utter on the
stand—may be mistaken. Study after study has shown very
high error rates in the identification of strangers. See, e.g.,
Elizabeth F. Loftus & James M. Doyle, Eyewitness Testimony:
Civil and Criminal (3d ed. 1997) (collecting studies); Eliza-
beth F. Loftus, Eyewitness Testimony (1979; rev. ed. 1996);
Daniel L. Schacter, The Seven Sins of Memory: How the
Mind Forgets and Remembers 112–37 (2001). “An important
body of psychological research undermines the lay intu-
ition that confident memories of salient experiences . . . are
accurate and do not fade with time unless a person’s
memory has some pathological impairment. . . . The basic
problem about testimony from memory is that most of our
recollections are not verifiable. The only warrant for them
is our certitude, and certitude is not a reliable test of
certainty.” Krist v. Eli Lilly & Co., 897 F.2d 293, 296–97 (7th
Cir. 1990) (citations to the scholarly literature omitted).
8 Nos. 08-1196, 08-1197 & 08-1198
It will not do to reply that jurors know from their daily
lives that memory is fallible. The question that social
science can address is how fallible, and thus how deeply
any given identification should be discounted. That jurors
have beliefs about this does not make expert evidence
irrelevant; to the contrary, it may make such evidence
vital, for if jurors’ beliefs are mistaken then they may
reach incorrect conclusions. Expert evidence can help
jurors evaluate whether their beliefs about the reliability
of eyewitness testimony are correct. Many people
believe that identifications expressed with certainty are
more likely to be correct; evidence that there is no
relation between certitude and accuracy may have a
powerful effect.
Still, using expert testimony to explore this question
may sidetrack a trial. A judge must balance the benefits
of illuminating evidence against the costs of collateral
inquiries. That’s why Rule 403 grants discretion to the
trial judge—and why we have held, many times, that a
trial court does not abuse its discretion by excluding
expert evidence about the reliability of eyewitness testi-
mony. See, e.g., United States v. Carter, 410 F.3d 942, 950
(7th Cir. 2005) (collecting cases); United States v. Hall,
165 F.3d 1095 (7th Cir. 1999) (same).
The district judge did not abuse his discretion in this
case, because the conviction does not rest on identifica-
tions by Jude and the other victims. Only two of the
people who identified Masarik were strangers to him.
The other four knew him well. The social-science studies
do not suggest that people who have known one another
Nos. 08-1196, 08-1197 & 08-1198 9
for weeks or years are apt to err when identifying them
in court. What’s more, the scholarly work concerns
identification by single eyewitnesses, not the probability
of error when multiple witnesses identify the same
person. If the six in-court identifications of Masarik were
independent, and each had a probable error rate of .333
(that is, there is a one-in-three chance that any witness
was mistaken), then the probability that Masarik is inno-
cent is .333 to the sixth power, or well under 1%. We
have remarked before that the scholarly findings about
eyewitnesses have only limited application when
multiple witnesses identify the same person. See United
States v. Williams, 522 F.3d 809 (7th Cir. 2008); Newsome v.
McCabe, 319 F.3d 301 (7th Cir. 2003). Masarik did not
proffer any evidence about the error rates in six-fold
identifications. Nor did he propose to ask an expert
whether the six identifications should be regarded as
independent, or what the risk of error in these identifica-
tions taken jointly is apt to be. Someone who proposes
expert testimony must show how the findings apply to
the litigation at hand; Masarik did not do this.
A concurring opinion in Hall added that, although
jurors should be made aware of the scholarly findings
in appropriate cases, it is often better to have the judge
summarize the state of knowledge than to have a parade
of experts. 165 F.3d at 1120. Masarik did not ask the
judge to recap the scholarly findings for jurors’ benefit. For
him, it was an expert on the stand or it was nothing; the
judge did not abuse his discretion in blocking that testi-
mony in order to keep this trial on track.
10 Nos. 08-1196, 08-1197 & 08-1198
3. All three defendants contend that their sentences
are unreasonably high when evaluated under the criteria
in 18 U.S.C. §3553(a). They stress §3553(a)(6), which
requires a sentencing judge to consider “the need to
avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar
conduct”. Lemke, Clausing, Schabel, and Stromei all
received sentences considerably less than 188 months;
Bartlett, Spengler, and Masarik contend that this dif-
ference makes their sentences unreasonably high.
We have encountered this argument before and rejected
it.
There would be considerably less coopera-
tion—and thus more crime—if those who assist
prosecutors could not receive lower sentences
compared to those who fight to the last. Neither
[United States v.] Booker[, 543 U.S. 220 (2005)] nor
§3553(a)(6) removes the incentive for coopera-
tion—and because this incentive takes the form of
a lower sentence for a cooperator than for an
otherwise-identical defendant who does not coop-
erate, the reduction cannot be illegitimate. After
all, §3553(a)(6) disallows “unwarranted sentence
disparities” (emphasis added), not all sentence
differences.
[T]he kind of “disparity” with which §3553(a)(6) is
concerned is an unjustified difference across judges
(or districts) rather than among defendants to a
single case. If the national norm for first offenders
who gain $275,000 or so by fraud is a sentence
Nos. 08-1196, 08-1197 & 08-1198 11
in the range of 33 to 41 months, then system-wide
sentencing disparity will increase if Boscarino’s
sentence is reduced so that it comes closer to
Aulenta’s. Instead of one low sentence, there will
be two low sentences. But why should one culprit
receive a lower sentence than some otherwise-
similar offender, just because the first is “lucky”
enough to have a confederate turn state’s evi-
dence? Yet that is Boscarino’s position, which
has neither law nor logic to commend it.
Sentencing disparities are at their ebb when the
Guidelines are followed, for the ranges are them-
selves designed to treat similar offenders similarly.
That was the main goal of the Sentencing Reform
Act. The more out-of-range sentences that judges
impose after Booker, the more disparity there will
be. A sentence within a properly ascertained range
therefore cannot be treated as unreasonable by
reference to §3553(a)(6).
United States v. Boscarino, 437 F.3d 634, 638 (7th Cir. 2006).
Defendants acknowledge that the circuit’s law is against
them, but they contend that we must reevaluate the
subject in light of Rita v. United States, 551 U.S. 338 (2007),
Gall v. United States, 552 U.S. 38 (2007), and Kimbrough v.
United States, 552 U.S. 85 (2007), which emphasized that
the Guidelines are not binding and that district judges
have considerable discretion to implement their own
conceptions of just sentences, notwithstanding the Sen-
tencing Commission’s views. See also Spears v. United
States, 129 S. Ct. 840 (2009); Nelson v. United States, 129
S. Ct. 890 (2009).
12 Nos. 08-1196, 08-1197 & 08-1198
To address defendants’ contention, we must separate
two questions: first, does §3553(a)(6) require a judge to
reduce anyone’s sentence below the Guideline range
because other persons who committed the same crime
but pleaded guilty and cooperated received lower terms?;
second, does §3553 as a whole permit a judge to go
below the Guideline range for this reason?
The first of these questions received a negative answer
in Boscarino and similar cases, which have observed that
§3553(a)(6) addresses only “unwarranted” disparities. A
difference justified by the fact that some wrongdoers
have accepted responsibility and assisted the prosecution,
while others have not, is not “unwarranted.” The best way
to curtail “unwarranted” disparities is to follow the
Guidelines, which are designed to treat similar offenses
and offenders similarly. Far from disapproving this
understanding, the Supreme Court adopted it in Gall:
Section 3553(a)(6) requires judges to consider “the
need to avoid unwarranted sentence disparities
among defendants with similar records who
have been found guilty of similar conduct.” The
Court of Appeals stated that “the record does not
show that the district court considered whether
a sentence of probation would result in unwar-
ranted disparities.” 446 F.3d at 890. As with the
seriousness of the offense conduct, avoidance of
unwarranted disparities was clearly considered
by the Sentencing Commission when setting the
Guidelines ranges. Since the District Judge cor-
rectly calculated and carefully reviewed the Guide-
Nos. 08-1196, 08-1197 & 08-1198 13
lines range, he necessarily gave significant weight
and consideration to the need to avoid unwar-
ranted disparities.
128 S. Ct. 586, 599 (emphasis added). A sentence within a
Guideline range “necessarily” complies with §3553(a)(6).
But there is more to §3553 than §3553(a)(6). A judge must
respect all of the statutory criteria in order to mete out a
sentence “sufficient, but not greater than necessary, to
comply with the purposes [of sentencing] set forth in
paragraph (2) of this subsection.” 18 U.S.C. §3553(a). The
Court held in Kimbrough, and reiterated in Spears, that a
judge need not accept the Sentencing Commission’s
penological framework. The court may adopt its own. It
follows that §3553 permits a judge to reduce one defen-
dant’s sentence because of another’s lenient sentence—not
because of §3553(a)(6), but despite it. Avoiding “unwar-
ranted” disparities (as the Sentencing Commission or a
court of appeals defines them) is not the summum
bonum in sentencing. Other objectives may have
greater weight, and the court is free to have its own
policy about which differences are “unwarranted.”
It follows that, if the district judge thought himself
forbidden to take account of Lemke’s, Clausing’s,
Schabel’s, or Stromei’s (relatively) low sentences when
deciding what punishment to impose on Bartlett, Spengler,
or Masarik, he was mistaken. The judge did not make
this error, however. He concluded that the disparity is
justified by material differences in the offenders’ conduct
and acceptance of responsibility, not that a disparity is
unjustified but irremediable. The district judge followed
14 Nos. 08-1196, 08-1197 & 08-1198
§3553(a), and understood the extent of his discretion,
when sentencing Bartlett, Spengler, and Masarik.
4. Masarik was sentenced at the top of his range (151
to 188 months); that sentence is reasonable under §3553
and Rita. See also United States v. Mykytiuk, 415 F.3d 606,
608 (7th Cir. 2005) (an in-range sentence is presumed
reasonable on appeal). Spengler’s sentence of 188 months
exceeds the top of his range (121 to 151 months) but is
reasonable under Gall: the district judge properly
deemed him the instigator. Some of his conduct, such as
pointing a gun at Jude’s head and proclaiming authority
to kill anyone he wanted, was not taken into account in
the Guidelines calculation.
Bartlett’s sentence of 208 months likewise exceeds the
top of his range. He committed the most brutal acts.
Thrusting a pen into a person’s ear canals is torture by
any definition. While facing the state charges, Bartlett
threatened to blow up his former police station, a crime
for which he has been convicted in state court and sen-
tenced to 54 months. He also defrauded a gun dealer into
selling him a submachine gun, violating gun-control laws
as well as the terms of his federal bail; this conduct drew
another 18 months in a separate prosecution. A district
judge might deem a lengthy consecutive sentence
essential for incapacitation as well as deterrence and
desert. But the court may not have appreciated that Bart-
lett’s sentence exceeds his Guideline range.
Many cases in this circuit say that sentences exceeding
the Guideline range must be explained not only in
absolute terms, under the criteria of §3553(a), but also
Nos. 08-1196, 08-1197 & 08-1198 15
with an analysis of why a Guideline sentence would be
insufficient. See, e.g., United States v. Gordon, 513 F.3d
659, 666 (7th Cir. 2008); United States v. Wachowiak, 496
F.3d 744, 749–50 (7th Cir. 2007). These decisions did not
survive Nelson, which holds that district judges need
not—indeed must not—begin with a presumption in
favor of a Guideline sentence. If there is no need to start
from the perspective that an in-range sentence usually
is best, there is also no need to explain why some
different sentence is better. The judge’s task is to choose
a reasonable sentence. The court must take the Sen-
tencing Commission’s views into account, but a sentence
cannot be called “unreasonable” just because the
judge explains why he chose that sentence, rather than ex-
plaining his decision from the Guidelines’ perspective.
The old regime of “departures” is defunct. See Irizarry v.
United States, 128 S. Ct. 2198 (2008).
Although the judge need not use the Guidelines as the
fulcrum of analysis, the court still needs to understand
the relation between the Guidelines and the ultimate
sentence. Both Rita and Gall say that the court must
construct a Guideline range accurately. A sentence is
procedurally unreasonable if the judge thinks it within
the range, but it isn’t—either because the range was
not determined accurately in the district court, or
because the judge misunderstood what that range was.
Bartlett’s range is 151 to 188 months. Much of the sen-
tencing transcript reads as an explanation about why
the sentence is at the high end of the range. At the end
of the proceeding, the judge stated bluntly that the sen-
16 Nos. 08-1196, 08-1197 & 08-1198
tence would be the top of the range. But the actual sen-
tence of 208 months is 20 months higher. That’s a problem.
The prosecutor says that, by the close of the proceeding,
the judge had recognized that 208 months exceeds Bart-
lett’s range. The transcript is not as clear to us as it
appears to be to the prosecutor. Given the risk of confu-
sion, the better part of wisdom is to ask the district judge
to take another look, to ensure that the sentence rests on
a deliberate choice rather than a mistake. A 208-month
sentence is reasonable substantively, but no one, not
even a Bartlett, should lose 20 months of freedom
because a district judge read across the wrong line in a
table. (The range 168 to 210 months is the next highest
in the Guidelines’ sentencing table.)
Nonetheless, the prosecutor maintains, Bartlett for-
feited any opportunity for appellate relief because he did
not “object” to the 208-month sentence on the ground that
it exceeds the Guideline range. We put “object” in scare
quotes because remonstration with the judge is not an
objection as usually understood. Both the Rules of Evi-
dence and the Rules of Criminal Procedure require a
litigant to make known the position it advocates and to
present evidence and argument for that position. These
steps are essential to facilitate intelligent decision in the
district court. Counsel present positions, and judges
then decide. But the rules do not require a litigant to
complain about a judicial choice after it has been made.
Such a complaint is properly called, not an objection, but
an exception. The rule about exceptions is explicit: “Excep-
tions to rulings or orders of the court are unnecessary.”
Nos. 08-1196, 08-1197 & 08-1198 17
Fed. R. Crim. P. 51(a). Rule 51(b) adds that a litigant
preserves a contention for review “by informing the
court [before the decision is made] of the action the party
wishes the court to take . . . and the grounds for” that
action. Bartlett and his lawyer argued for a lower sen-
tence, and they gave reasons. They have preserved their
appellate options.
Having said this, we must acknowledge that some of our
opinions use the word “objection” in the same way the
prosecutor did, and they hold (or at least suggest) that
lawyers must ask a judge to reconsider the sentence (or
other decision) as the price of appellate review. See, e.g.,
United States v. Harvey, 232 F.3d 585, 587 (7th Cir. 2000);
United States v. Marvin, 135 F.3d 1129, 1135 (7th Cir. 1998).
These decisions do not discuss Rule 51(a), and for the
most part they did not need to; they are compatible
with Rule 51(b), which (in language that we did not
reproduce above) requires a protest immediately after
the ruling if the litigant did not have an opportunity to
argue the point earlier. When the judge surprises counsel,
it is far better to air and resolve the matter in the
district court than to bypass available opportunities for
correction and save the issue for appeal. But when an
issue is argued before the judicial ruling, counsel need not
take exception once the court’s decision has been an-
nounced. That’s what Rule 51(a) says. Bartlett’s sentence
was the subject of extensive argument and evidence; his
lawyer did not need to argue with the judge once the
sentence had been pronounced.
All three convictions, and the sentences of Spengler and
Masarik, are affirmed. Bartlett’s sentence is vacated, and
18 Nos. 08-1196, 08-1197 & 08-1198
his case is remanded for proceedings consistent with
this opinion.
6-8-09