"[w]hoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $100 belonging to, or in the care, custody, control, management, or possession of any bank, credit union, or any savings and loan association."
Petitioner opened an account at a savings and loan institution using his own name, but giving a false address, birth date, and social security number. Later that day, at another branch, he deposited into his account a third party's $10,000 check on which the endorsement had been altered to show petitioner's account number. Subsequently petitioner closed his account and was paid the total balance in cash. He was convicted of violating § 2113(b) after trial in Federal District Court. The Court of Appeals ultimately affirmed, concluding that the statute embraces all felonious takings -- including obtaining money under false pretenses.
Held: Section 2113(b) is not limited to common law larceny, but also proscribes petitioner's crime of obtaining money under false pretenses. Pp. 462 U. S. 358-362.
(a) The statutory language does not suggest that it covers only common law larceny. The language "takes and carries away" is traditional common law language, but represents only one element of common law larceny. It is entirely consistent with false pretenses, although not a necessary element of that crime. Moreover, other language of § 2113(b) shows an intention to go beyond common law larceny. Section 2113(b) does not apply to a case of false pretenses in which there is not a taking and carrying away, but it proscribes petitioner's conduct here. Pp. 462 U. S. 360-361.
(b) The legislative history of § 2113(b) also suggests that Congress intended the statute to reach petitioner's conduct. The congressional purpose was to protect banks from those who wished to steal banks' assets -- even if they used no force in doing so. Pp. 462 U. S. 361-362.
POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, REHNQUIST, and O'CONNOR, JJ., joined. STEVENS, J., filed a dissenting opinion,post, p. 462 U. S. 362.
The issue presented is whether 18 U.S.C. § 2113(b), a provision of the Federal Bank Robbery Act, proscribes the crime of obtaining money under false pretenses.
On October 13, 1978, a Cincinnati man wrote a check for $10,000 drawn on a Cincinnati bank. He endorsed the check for deposit to his account at Dade Federal Savings & Loan of Miami and mailed the check to an agent there. The agent never received the check. On October 17, petitioner Nelson Bell opened an account at a Dade Federal branch and deposited $50 -- the minimum amount necessary for new accounts. He used his own name, but gave a false address, birth date, and social security number. Later that day, at another branch, he deposited the Cincinnati man's $10,000 check into this new account. The endorsement had been altered to show Bell's account number. Dade Federal accepted the deposit, but put a 20-day hold on the funds. On November 7, as soon as the hold had expired, Bell returned to the branch at which he had opened the account. The total balance, with accrued interest, was then slightly over $10,080. Bell closed the account and was paid the total balance in cash.
credit union, or any savings and loan association, shall be fined not more than $5,000 or imprisoned not more than ten years, or both. . . ."
Bell was convicted after a jury trial in the United States District Court for the Southern District of Florida.
On appeal, a divided panel of the United States Court of Appeals for the Fifth Circuit reversed the conviction on the ground that there was insufficient evidence of specific intent. 649 F.2d 281 (1981). The en banc court granted the Government's petition for rehearing, however, and affirmed the conviction. 678 F.2d 547 (1982) (Unit B). In so doing, it concluded that the statute embraces all felonious takings -- including obtaining money under false pretenses. The court thus rejected Bell's argument that § 2113(b) is limited to common law larceny. Id. at 548-549. Because this conclusion is inconsistent with that reached in United States v. Feroni, 655 F.2d 707, 708-711 (CA6 1981), and LeMasters v. United States, 378 F.2d 262, 267-268 (CA9 1967), we granted certiorari to resolve the conflict. [Footnote 1] 459 U.S. 1034 (1982). We now affirm.
In the 13th century, larceny was limited to trespassory taking: a thief committed larceny only if he feloniously "took and carried away" another's personal property from his possession. The goal was more to prevent breaches of the peace than losses of property, and violence was more likely when property was taken from the owner's actual possession.
As the common law developed, protection of property also became an important goal. The definition of larceny accordingly was expanded by judicial interpretation to include cases where the owner merely was deemed to be in possession. Thus when a bailee of packaged goods broke open the packages and misappropriated the contents, he committed larceny. The Carrier's Case, Y.B.Pasch. 13 Edw. IV, f. 9, pl. 5 (Star Ch. and Exch.Ch. 1473), reprinted in 64 Selden Society 30 (1945). The bailor was deemed to be in possession of the contents of the packages, at least by the time of the misappropriation. Similarly, a thief committed "larceny by trick" when he obtained custody of a horse by telling the owner that he intended to use it for one purpose when he in fact intended to sell it and to keep the proceeds. Kin v. Pear, 1 Leach 212, 168 Eng.Rep. 208 (Cr.Cas.Res. 1779). The judges accepted the fiction that the owner retained possession of the horse until it was sold, on the theory that the thief had custody only for a limited purpose. Id. at 213-214, 168 Eng.Rep. at 209.
by trick. See LaFave & Scott, supra, n 2, at 660-662. In this case the parties agree that Bell is guilty of obtaining money by false pretenses. When the teller at Dade Federal handed him $10,080 in cash, Bell acquired title to the money. The only dispute is whether 18 U.S.C. § 2113(b) proscribes the crime of false pretenses, or whether the statute is instead limited to common law larceny.
Bell's argument in favor of the narrower reading of § 2113(b) relies principally on the statute's use of the traditional common law language "takes and carries away." He cites the rule of statutory construction that, when a federal criminal statute uses a common law term without defining it, Congress is presumed to intend the common law meaning. See United States v. Turley, 352 U. S. 407, 352 U. S. 411 (1957). In § 2113(b), however, Congress has not adopted the elements of larceny in common law terms. The language "takes and carries away" is but one part of the statute, and represents only one element of common law larceny. Other language in § 2113(b), such as "with intent to steal or purloin," has no established meaning at common law. See Turley, supra, at 352 U. S. 411-412. Moreover, "taking and carrying away," although not a necessary element of the crime, is entirely consistent with false pretenses.
the owner. When the definition was expanded, it still applied only when the owner was deemed to be in possession. Section 2113(b), however, goes well beyond even this expanded definition. It applies when the property "belong[s] to," or is "in the care, custody, control, management, or possession of," a covered institution.
"t[ook] and carrie[d] away, with intent to steal or purloin, [over $10,000 that was] in the care, custody, control, management, or possession of"
Dade Federal Savings & Loan.
The legislative history of § 2113(b) also suggests that Congress intended the statute to reach Bell's conduct. As originally enacted in 1934, the Federal Bank Robbery Act, ch. 304, 48 Stat. 783, governed only robbery -- a crime requiring a forcible taking. Congress apparently was concerned with "gangsters who operate habitually from one State to another in robbing banks.'" [Footnote 3] S.Rep. No. 537, 73d Cong., 2d Sess., 1 (1934) (quoting Justice Department memorandum); see 78 Cong.Rec. 2946-2947 (1934); H.R.Rep. No. 1461, 73d Cong., 2d Sess., 2 (1934).
By 1937, the concern was broader, for the limited nature of the original Act "ha[d] led to some incongruous results.'" H.R.Rep. No. 732, 75th Cong., 1st Sess., 1 (1937) (quoting Attorney General's letter to the Speaker). It was possible for a thief to steal a large amount from a bank "`without displaying any force or violence and without putting any one in fear,'" id. at 2, and he would not violate any federal law.
Congress amended the Act to fill this gap, adding language now found at §§ 2113(a) and (b). Act of Aug. 24, 1937, ch. 747, 50 Stat. 749. Although the term "larceny" appears in the legislative Reports, the congressional purpose plainly was to protect banks from those who wished to steal banks' assets -- even if they used no force in doing so.
The congressional goal of protecting bank assets is entirely independent of the traditional distinction on which Bell relies. To the extent that a bank needs protection against larceny by trick, it also needs protection from false pretenses. We cannot believe that Congress wished to limit the scope of the amended Act's coverage, and thus limit its remedial purpose, on the basis of an arcane and artificial distinction more suited to the social conditions of 18th-century England than the needs of 20th-century America. Such an interpretation would signal a return to the "incongruous results" that the 1937 amendment was designed to eliminate.
Most Courts of Appeals have taken a broad reading of § 2113(b). See, e.g., United States v. Hinton, 703 F.2d 672, 675-677 (CA2 1983), cert. denied, post, p. 1121; United States v. Shoels, 685 F.2d 379, 381-383 (CA10 1982), cert. pending, No. 82-5550; United States v. Simmons, 679 F.2d 1042, 1045-1049 (CA3 1982), cert. pending sub nom. Brown v. United States, No. 82-5201; United States v. Giffre, 576 F.2d 126, 127-128 (CA7), cert. denied, 439 U.S. 833 (1978); cf. United States v. Johnson, 575 F.2d 678, 679-680 (CA8 1978) (dictum); but see United States v. Rogers, 289 F.2d 433, 437-438 (CA4 1961) (dictum).
The historical development of common law larceny and related crimes is discussed in detail in several treatises. See, e.g., W. LaFave & A. Scott, Handbook on Criminal Law 618-622 (1972); J. Hall, Theft, Law and Society 3-58 (2d ed.1952).
The narrow concern of the 1934 Congress is illustrated in its rejection of a broad bill that would have gone well beyond bank robbery. The rejected bill, for example, explicitly would have covered taking property by false pretenses. S. 2841, 73d Cong., 2d Sess., § 2 (1934).
There are dicta in Jerome v. United States, 318 U. S. 101 (1943), that suggest a narrow reading of § 2113(b), but our conclusion today is consistent with the Jerome holding. The only issue then before the Court was whether the Act's burglary provision, now codified in § 2113(a), proscribed entering a bank to commit a state law felony.
laws that merely subject the citizen to the risk of prosecution by two different sovereigns. See, e.g., United States v. Altobella, 442 F.2d 310, 316 (CA7 1971). When there is no perceivable obstacle to effective state enforcement, I believe federal criminal legislation should be narrowly construed unless it is clear that Congress intended the coverage in dispute. McElroy v. United States, 455 U. S. 642, 455 U. S. 675 (1982) (STEVENS, J., dissenting); see Jerome v. United States, 318 U. S. 101, 318 U. S. 104-105 (1943).
Three years later, the bank robbery statute was amended at the request of Attorney General Cummings. The Attorney General specifically described the anomaly created by the statute's failure to cover larceny by stealth, theft of money from a bank without violence, but also clearly without the bank's consent. [Footnote 2/4] The amendment -- making burglary and "larceny" of federal banks a federal crime -- was adopted routinely, without significant comment or debate. [Footnote 2/5] It is fair to infer that Congress viewed the amendment as a limited change that was entirely consistent with the intent of the 1934 Act, including the intent of legislators who perceived a danger in encouraging the unnecessary growth of a national police force.
"It is difficult to conclude in the face of this history that Congress, having rejected in 1934 an express provision making state felonies federal offenses, reversed itself in 1937. . . . It is likewise difficult to believe that Congress, through the same clause, adopted by indirection in 1937 much of the fraud provision which it rejected in 1934."
"there is not the slightest indication that the interstate activities of gangsters against national and insured banks had broken down or rendered ineffective enforcement of state laws covering all sorts of felonies."
Given the strong evidence of Congress' specific, limited intent, I would confine the bank larceny statute to takings without the bank's consent. Although I cannot deny that the Court's construction of the statutory language is plausible, the language remains ambiguous. I would not at this late date repudiate Jerome's understanding of Congress' intent. I therefore respectfully dissent.
"This bill is directed at one of the most serious forms of crime committed by organized gangsters who operate habitually from one State to another -- the robbery of banks. From all sections of this country, Federal relief has been requested. It is asserted that these criminals are sufficiently powerful and well equipped to defy local police, and to flee beyond the borders of the State before adequate forces can be organized to resist and capture these bandits."
H.R.Rep. No. 1461, 73d Cong., 2d Sess., 2 (1934); see S.Rep. No. 537, 73d Cong., 2d Sess., 1 (1934).
Indeed, the 1934 floor debates in the House included a clear reference to one of Dillinger's well-known escapades. Representative Blanton noted that a man might go into a bank with intent to rob, and "he might use one of these new kind of Indiana six shooters carved out of a piece of wood with a pocket knife." 78 Cong.Rec. 8132 (1934).
"Whoever, not being entitled to the possession of property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, takes and carries away, or attempts to take and carry away, such property or money or any other thing of value from any place (1) without the consent of such bank, or (2) with the consent of such bank obtained by the offender by any trick, artifice, fraud, or false or fraudulent representation, with intent to convert such property or money or any other thing of value to his use or to the use of any individual, association, partnership, or corporation, other than such bank, shall be punished by a fine of not more than 35,000 or imprisonment for not more than 10 years, or both."
S. 2841, § 2, 73d Cong., 2d Sess., 78 Cong.Rec. 8132 (1934) (emphasis supplied).
"I may say to the gentleman that we are going rather far in this bill, since all the property is owned, as a rule, by the citizens of the community where the bank is located. The committee was not willing to go further, and the Attorney General did not ask it to go further."
"sought throughout the session to confine extensions of federal power to those situations where the need to supplement state and local law enforcing agencies had become imperative."
A Note on the Racketeering, Bank Robbery, and "Kick-Back" Laws, 1 Law & Contemp. Prob. 445, 448-449 (1934).
"There is no intention that the Federal Government shall supersede the State authorities in this class of cases. It will intervene only to cooperate with local forces when it is evident that the latter cannot cope with the criminals."
H.R.Rep. No. 1461, supra, n. 1, at 2.
"The fact that the statute is limited to robbery and does not include larceny and burglary has led to some incongruous results. A striking instance arose a short time ago, when a man was arrested in a national bank while walking out of the building with $11,000 of the bank's funds on his person. He had managed to gain possession of the money during a momentary absence of one of the employees, without displaying any force or violence and without putting any one in fear -- necessary elements of the crime of robbery -- and was about to leave the bank when apprehended. As a result, it was not practicable to prosecute him under any Federal statute."
H.R.Rep. No. 732, 75th Cong., 1st Sess., 1-2 (1937).
See, e.g., 81 Cong.Rec. 5376-5377 (1937).
The provision construed by the Court made it a federal offense to enter any bank with intent to commit "any felony or larceny." The Court expressly noted that the term "larceny" was defined in the statute itself -- a reference to the section at issue here. 318 U.S. at 318 U. S. 105, 318 U. S. 106.
"In the bank situation, we see no reason, urgent or otherwise, why Congress in 1937 should have wanted to enter the field of obtaining by false pretenses, duplicating state law which was adequate and effectively enforced, and the duplication of which would bring innumerable cases, most of them small, within the jurisdiction of federal prosecutors and courts. Congress was as aware in 1937 as it was in 1934, when it rejected the unambiguous provision making obtaining by false pretense from a bank [a] federal crime, that such an extension of federal law would serve no purpose except to confuse and dilute state responsibility for local crimes which were being adequately dealt with by state law."


Frances C. Hulin, David E. Risley (argued), Office of the United States Attorney, Springfield, IL, for Plaintiff-Appellee.
Eric M. Schwing (argued), Babette P. Salus, Schwing & Salus, Springfield, IL, for Defendant-Appellant.
Before RIPPLE, MANION and EVANS, Circuit Judges.
Following a jury trial, Charles W. Westbrook was found guilty of conspiracy to distribute cocaine base (crack) in violation of 21 U.S.C. §§ 846 and 841. He was sentenced to 188 months of imprisonment followed by a five-year period of supervised release. On appeal he requests our consideration of three issues: the district court's denial of his motion to suppress statements made after his arrest, its refusal to admit evidence of gang affiliation at trial, and its denial of his motion to find unconstitutional the federal crack cocaine laws and the corresponding sentencing guidelines. For the reasons set forth in the following opinion, we affirm the judgment of the district court.
When the green Chevy did not appear on the main highway as they had expected, the troopers began looking for it. Finding the car parked unoccupied on a car dealership lot near the Red Roof Inn, they checked the car's vehicle identification number and license plate number and learned there was no registered owner. Shortly thereafter, Mrs. Westbrook returned to the car. She first denied that she had been in the car and then gave conflicting stories to the troopers about the ownership of the car. When Mr. Westbrook came up, the officers learned that neither Westbrook had a valid driver's license or car insurance. The troopers told the Westbrooks they could not move the car without a licensed driver and proof of insurance; the Westbrooks replied that their friend had gone back to the motel to get his driver's license and that they would walk home to arrange for insurance.
After the Westbrooks left, Trooper Buckley stayed at the Westbrooks' car and Trooper Carnduff returned to the Red Roof Inn to tell the Westbrooks' friend about the needed insurance. The officer did not find their friend but did find crack cocaine buried in the mulch area behind the motel. Trooper Carnduff radioed Trooper Buckley that he had found "a lot of" narcotics, and then requested assistance. Master Sergeant Avart arrived to help Trooper Carnduff collect, photograph and secure the crack cocaine in the Master Sergeant's squad car. Master Sergeant Locke went to the car dealership and stayed with the Westbrooks' car while Trooper Buckley drove to the Red Roof Inn to see the crack.
A few minutes after Officer Buckley returned to the dealership, a taxicab brought the Westbrooks back to their car. Trooper Buckley placed them under arrest and advised Mr. Westbrook he was being arrested for possession with intent to distribute a controlled substance. He ordered the Westbrooks to lie on the ground; when Trooper Locke returned to assist Trooper Buckley, the two officers handcuffed Mr. and Mrs. Westbrook, placed them each in separate squad cars and transported them to the Red Roof Inn. No Miranda warnings were given at this point.
As Trooper Buckley approached the Red Roof Inn with Mr. Westbrook in his squad car, Mr. Westbrook looked toward the area where the crack cocaine had been found and said, "Man, I didn't know anything about that stuff." R.74 at 109. The officer told Mr. Westbrook to relax and assured him that someone would come to speak to him soon. Trooper Buckley then exited the squad car and left Mr. Westbrook, handcuffed and unattended, for approximately 45 minutes. While Mr. Westbrook was waiting in the squad car, he testified, he yelled out to Officer Carnduff; and when Officer Carnduff opened the driver's door of the squad car, Mr. Westbrook told him that the drugs were not his.2 Neither trooper gave Mr. Westbrook his Miranda warnings during this time.
Special Agents O'Neal and Fisher of the Illinois State Police Enforcement Group, a drug task force, then arrived at the motel. They directed that the Westbrooks be taken to the Investigations Office and placed in separate interview rooms. Mr. Westbrook was interviewed by Agent O'Neal, Mrs. Westbrook by Agent Fisher. Mr. Westbrook and Agent O'Neal gave diametrically different accounts of the interview. At the suppression hearing, Mr. Westbrook testified that Agent O'Neal never advised him of his Miranda rights; rather, he simply handed Mr. Westbrook some papers and "told me to initial here, here, here." R.52 at 12. Agent O'Neal testified that he took Mr. Westbrook's personal history, read Mr. Westbrook his Miranda rights and gave him a written form with those rights, each of which Mr. Westbrook read and initialed after stating that he understood it. Afterwards, stated the officer, Mr. Westbrook signed a waiver of those rights and agreed to give Agent O'Neal a written statement. In that statement Mr. Westbrook said he had met a person the previous day named Kevin Dean3 who paid Mr. Westbrook $20 to give him a ride from Evergreen Terrace to the Red Roof Inn and who then paged Mr. Westbrook later that day to come pick him up at the Red Roof Inn. According to Mr. Westbrook, he just had returned to that motel, after being paged, when the police saw him.
At some point during Mr. Westbrook's interview, Agent Fisher came into the room. Again the testimony of Mr. Westbrook differs significantly from that of Agent O'Neal. According to Mr. Westbrook, Agent Fisher held up a bag of marijuana and said, "Look what I found." R.52 at 13. He then told Mr. Westbrook that, if Westbrook cooperated in finding Kevin Dean, nothing would be said about the marijuana. Mr. Westbrook made his written statement for Officer O'Neal at that time. Agent O'Neal, however, testified that Mr. Westbrook signed the Miranda form, after being advised of each right, and that he agreed to waive his rights and signed the waiver portion of the Miranda form. According to the agent, Mr. Westbrook then wrote out a statement, voluntarily and without guidance from the officer. Agent O'Neal also testified that Agent Fisher came into the room with a bag of marijuana at some point, but the timing of the other agent's arrival was never clarified. Agent O'Neal denied that Mr. Westbrook was told that, if he cooperated, nothing would be said about the marijuana. Mr. and Mrs. Westbrook were released following their interviews but were told that the investigation would continue.
Some time later, in an unrelated investigation, Charles Dean (the man Mr. Westbrook had identified as "Kevin" Dean) was charged in the Southern District of Illinois with conspiracy to distribute cocaine. Dean pleaded guilty and agreed to cooperate with the government concerning any illegal activities in which he was involved. Pursuant to his plea agreement, therefore, Dean gave information about his criminal involvement in this investigation. When Agent O'Neal interviewed him, Dean told the officer about the events of January 27-30, 1995, and about the arrangement he had with Mr. Westbrook. Dean also testified at Mr. Westbrook's trial.4 Dean, Mr. Westbrook and the police officers presented three versions of the facts that differed significantly in their content.5 On March 29, 1996, following a three day trial, the jury found Mr. Westbrook guilty of conspiracy to distribute crack cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1). He was sentenced to 188 months of imprisonment and five years of supervised release. This appeal followed.
Mr. Westbrook sought to suppress both his oral statements to Troopers Carnduff and Buckley at the Red Roof Inn and his written statement made later during Special Agent O'Neal's interrogation. He submitted that the statements were obtained in violation of his Fifth Amendment Miranda rights and were coerced. Following a hearing, the district court denied Mr. Westbrook's motion to suppress. We review the appeal of that decision under the two-pronged standard set forth in Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), and its progeny. The Ornelas Court established that appellate courts are to review de novo the ultimate questions of reasonable suspicion and probable cause. Id. at ----, 116 S.Ct. at 1663. Since Ornelas, we have followed that reasoning by requiring independent review of the district court's determination of whether the interrogation was custodial, see United States v. Yusuff, 96 F.3d 982, 988 (7th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 999, 136 L.Ed.2d 878 (1997), whether the confession was voluntary, see United States v. D.F., 115 F.3d 413 (7th Cir.1997), and whether the Miranda waiver was voluntary, see United States v. Mills, 122 F.3d 346 (7th Cir.1997). However, our review of the district court's findings of historical fact is deferential; absent clear error, we shall not reverse those findings. We now turn to Mr. Westbrook's claims concerning the pre-Miranda oral statements and then to the post-Miranda written statement.
When Mr. Westbrook made his oral statements at the Red Roof Inn, he was in custody but had not been advised of his Miranda rights. On this point, there is no disagreement. Mr. Westbrook contended that the questions put to him without Miranda warnings amounted to unlawful custodial interrogation.
Westbrook testified that he was arrested at gunpoint by fifteen officers. He claimed that the police probed for information and encouraged him to talk. Finally, he claimed that while he was sitting in the police car at the Red Roof Inn, on[e] of the officers waved the bag of drugs in his face and asked if it looked familiar. These claims are not corroborated and do not mesh with the other testimony.
[T]hey did not ask any questions of him; they did nothing designed to induce Westbrook to talk. The testimony at the hearing indicated that all the officers did was stand around waiting for Special Agent O'Neal to arrive and respond to Mr. Westbrook's persistent inquiries.
Id. at 6-7. Based on these conclusions, the court denied Mr. Westbrook's motion to suppress.a.
On appeal Mr. Westbrook submits that the district court erred in stating that the police did not ask him any questions. He contends that two questions were asked of him. The first came from Trooper Carnduff, who asked Mr. Westbrook the identity of the other person who was with the Westbrooks earlier that day. When Mr. Westbrook answered that he did not know who the other person was, the questioning ended. The second question came from an officer who walked by the window of the squad car in which Mr. Westbrook was being held; according to the defendant, the officer showed him the bag of drugs that had been uncovered, and asked: "Does this look familiar?" Mr. Westbrook testified that he began "screaming and yelling telling them I ain't never seen that before in my life, man." R.52 at 8. The defendant contends that these questions, asked without Miranda warnings while he was in custody, constituted custodial interrogation clearly intended to elicit a statement from him. He also asserts that the acts of transporting him back to the motel, questioning him and showing him the crack cocaine were coercive tactics that frightened him and succeeded in eliciting statements from him. The government responds that Mr. Westbrook initiated all of the conversations with the police and that his voluntarily made statements were not given in violation of Miranda.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), requires that, before a defendant is subjected to custodial interrogation, he must be told of his right to remain silent, his right to an attorney, and the possible use of any statement he makes as evidence against him. Id. at 444, 86 S.Ct. at 1612. In Miranda, the Court defined custodial interrogation as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. at 444, 86 S.Ct. at 1612 (emphasis added). In Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), the Supreme Court returned to the concept of "custodial interrogation": "[T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent." Id. at 300-01, 100 S.Ct. at 1689. The Court in Innis defined "interrogation" more expansively to mean "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Id. at 301, 100 S.Ct. at 1689. However, volunteered statements are not subject to Miranda warnings. 384 U.S. at 478, 86 S.Ct. at 1630; see Innis, 446 U.S. at 299-300, 100 S.Ct. at 1689; McGowan v. Miller, 109 F.3d 1168, 1175 (7th Cir.1997). Following Innis and the law of our circuit, we consider whether a reasonable objective observer would have believed that the two questions claimed by Mr. Westbrook to have been unlawful interrogation were in fact "reasonably likely to elicit" an incriminating response. Enoch v. Gramley, 70 F.3d 1490, 1499 (7th Cir.1995), cert. denied, --- U.S. ----, 117 S.Ct. 95, 136 L.Ed.2d 50 (1996); Killebrew v. Endicott, 992 F.2d 660, 663 (7th Cir.1993) (citing Innis, 446 U.S. at 301, 100 S.Ct. at 1690).
The first question was Trooper Carnduff's query whether Mr. Westbrook "knew who the third subject was that was with him earlier." R.52 at 74. There is no dispute as to whether this question was asked. Trooper Carnduff admitted in his testimony that it was asked. Yet, in its disposition of the suppression motion, the district court stated that the troopers "did not ask any questions of him." R.53 at 7. This conclusion is clear error because the transcript simply will not support such a broad assertion.
We begin our evaluation of the contention by placing the remark in context. When the Westbrooks and Trooper Carnduff were at the car dealership lot discussing the Westbrooks' uninsured, unregistered car, Mr. Westbrook told Trooper Carnduff that the friend who had been in the car with them had gone back to the motel to get his driver's license so that he could drive the Westbrooks' car. That statement was made before the crack cocaine was found at the motel and, of course, before Mr. Westbrook was arrested. Trooper Carnduff's inquiry as to the identity of the friend was made later, when Mr. Westbrook was sitting in the trooper's squad car at the motel. At that point, Mr. Westbrook was under arrest and handcuffed.
In its brief to this court, the government omits any substantive comment on Trooper Carnduff's question and Mr. Westbrook's reply that he did not know the identity of the individual. In other cases, we have held that brief informational questions that are not designed to elicit incriminating statements can be proper. We have tolerated inquiries such as the identity of others present in a room at the time the suspect is arrested. See United States v. Guiterrez, 92 F.3d 468, 471 (7th Cir.1996). We also have permitted pre-Miranda questioning about a defendant's identity and residence because the question, in that context, was not one that would be perceived as interrogation by a reasonable person in the same circumstances. See United States v. Edwards, 885 F.2d 377, 386 (7th Cir.1989). Similarly, we have held that an officer's question "What's this?" in the course of a pat-down search did not constitute custodial interrogation requiring Miranda warnings. See United States v. Yusuff, 96 F.3d 982, 988 (7th Cir.1996). Here, the question cannot be characterized quite so easily as a "preliminary" question not calculated to elicit an incriminating answer. Nor can it be justified as a "follow-up" question. If it had been asked earlier, before Mr. Westbrook's arrest, such a characterization might well have been justified. However, the intervening event of Mr. Westbrook's arrest changed substantially the situation. At the time he was asked for the information, Mr. Westbrook was in custody and had been told that he had been arrested for cocaine trafficking. Disclosure of the identity of his confederate was important to the authorities in building the case against him.
Nevertheless, when we evaluate this case in its entirety, we believe that the admission of this statement was harmless error. See Arizona v. Fulminante, 499 U.S. 279, 312, 111 S.Ct. 1246, 1266, 113 L.Ed.2d 302 (1991); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); Killebrew v. Endicott, 992 F.2d 660, 663 (7th Cir.1993). As Mr. Westbrook points out, the government did refer, with some emphasis, to his denials of involvement during the period at the Red Roof Inn. This particular statement was, in that context, merely cumulative.
The second question unlawfully addressed to Mr. Westbrook, he claims, was whether the bag of drugs being held up for him to see "looked familiar" to him. The district court found that the encounter simply was not corroborated and was not credible in light of the other testimony. We must accept the district court's factfinding and credibility determinations and shall not overturn them unless they are clearly erroneous. Yusuff, 96 F.3d at 988; see also McGowan, 109 F.3d at 1175 (upholding trial court's finding that defendant initiated conversation with detective and that defendant's claim that he was interrogated was not truthful).
Moreover, our plenary review of the record leads us to agree with the district court that other statements initiated by Mr. Westbrook were voluntary and that the police conduct did not amount to interrogation.6 Mr. Westbrook himself testified that he initiated unsolicited comments and questions to the officers. Westbrook continued to make statements even after the police, who were conducting their investigation at the Red Roof Inn, advised him to hold his comments until an investigator arrived. The conduct of the officers was neither coercive nor likely to evoke an incriminating response.
At police headquarters Mr. Westbrook was interrogated by Special Agent O'Neal. Mr. Westbrook asserts that he was never advised of his Miranda rights. Instead, he submits, he was told to initial some papers handed to him by Agent O'Neal. The papers he initialed and signed were a waiver of his rights. He then provided a written statement to Agent O'Neal. Mr. Westbrook contends that, even though he signed the waiver of his rights, he did so without being advised orally of the Miranda warnings beforehand.
Special Agent O'Neal's testimony contradicted Mr. Westbrook's. The agent testified that he followed his usual procedure when interviewing Mr. Westbrook. First he took Mr. Westbrook's personal history. He then gave Mr. Westbrook an Illinois State Police Constitutional Rights and Waiver Form containing the Miranda admonishment. After explaining the procedure he would follow, Agent O'Neal read each Miranda right statement from the form, asked Mr. Westbrook if he understood, and then asked him to initial the form beside each statement. After reading him all the Miranda rights, he asked whether Mr. Westbrook would give a written statement. Mr. Westbrook agreed; he signed the waiver and proceeded to write a statement.
The district court found Agent O'Neal's testimony "by far more credible than Westbrook's." R.53 at 7. The court believed that the officer read the Miranda warnings to Mr. Westbrook before interrogating him or taking his written statement. The district court's finding that the agent's testimony was more credible than the defendant's was not clearly erroneous. See United States v. Navarro, 90 F.3d 1245, 1258 (7th Cir.1996) (affirming district court's historical finding that the officer's testimony was more credible than the defendant's, concluding that Miranda rights were in fact read to defendant).
Mr. Westbrook also claims that his written statement was coerced by the conduct of Agent Fisher. The ultimate determination of the voluntariness of a confession we review de novo. United States v. D.F., 115 F.3d 413, 419 (7th Cir.1997). We accept the district court's findings of fact unless they are clearly erroneous. Id.
At the suppression hearing, the defendant testified that Agent Fisher came into the interview room, shook a bag of marijuana at Mr. Westbrook and said, "Look what I found." R.52 at 13. Mr. Westbrook stated that he figured the marijuana came from his wife. According to Mr. Westbrook, Agent Fisher told him that, if he helped them find Kevin Dean, the police would not mention the marijuana; "and so [he] made a statement for Officer O'Neal." Id. at 13-14. Mr. Westbrook now contends that, under these circumstances, the statement attributed to him was the product of coercion and should not have been admitted.
The government urges us to consider the issue one of credibility, resolved by the district court's explicit finding that the testimony of Agent O'Neal was "by far more credible than Westbrook's." R.53 at 7. However, the district court's credibility determination concerned its assessment of the presentation of Miranda warnings, not of the voluntariness of Mr. Westbrook's subsequent written statement. The court did not make a specific finding concerning the coercive nature of Agent Fisher's conduct or its possible effect on Mr. Westbrook's post-Miranda statement. We are quite willing to defer to the credibility assessments of the district court that saw the witnesses and heard their testimony, see Navarro, 90 F.3d at 1258; United States v. Montgomery, 14 F.3d 1189, 1194 (7th Cir.1994), as long as those findings are related to the particular issue on appeal.
However, there is a good reason for the district court's lack of findings on this issue. Mr. Westbrook failed to raise the issue of Agent Fisher's conduct in his motion to suppress or supporting filings. Mr. Westbrook testified about those events for the first time at the suppression hearing; at the end of the hearing, his counsel proffered Agent Fisher's investigative report of Sonya Westbrook's interview. Usually a defendant's failure to raise an argument before the district court waives the issue on appeal. However, because the government did not raise the defense of waiver, it has waived the waiver and we shall address the issue. See United States v. Cichon, 48 F.3d 269, 275 (7th Cir.1995), cert. denied, 516 U.S. 1111, 116 S.Ct. 908, 133 L.Ed.2d 840 (1996); Garlington v. O'Leary, 879 F.2d 277, 282-83 (7th Cir.1989).
It is clear to us that, even if we assume that Agent Fisher conducted himself as Mr. Westbrook claimed he did, the agent's actions were not coercive. We believe the officer's first announcement as he entered the room, "Look what I found," was neither an interrogation nor the functional equivalent of an interrogation. The officer should not have known that it was reasonably likely to elicit an incriminating response from the suspect. See Innis, 446 U.S. at 301, 100 S.Ct. at 1690; cf. United States v. Taylor, 985 F.2d 3, 6-7 (1st Cir.) (concluding that officer's statement "You can't be growing dope on your property like that" was spontaneous and noncoercive), cert. denied, 508 U.S. 944, 113 S.Ct. 2426, 124 L.Ed.2d 647 (1993). In fact, Mr. Westbrook does not claim that it caused him to respond. Instead, he submits that he gave his written statement because the agent "told me that upon my cooperation with them finding Kevin Dean that they wouldn't say nothing about the marijuana." R.52 at 14. Agent O'Neal denies the statement was made, but we know through Agent Fisher's report that Mrs. Westbrook was told that her case would be evaluated by the state prosecutor "depending on the level of cooperation received from her husband, Charles, in locating Kevin Dean." Id. Def. Ex.1. Upon reflection, we conclude that neither version of Agent Fisher's statement was coercive.
It is not improperly coercive conduct for an officer to tell a suspect that the prosecutor will be informed of his cooperation and will evaluate his case in light of his cooperation. United States v. Rutledge, 900 F.2d 1127, 1130-31 (7th Cir.) ("Government is not forbidden to 'buy' information with honest promises of consideration."), cert. denied, 498 U.S. 875, 111 S.Ct. 203, 112 L.Ed.2d 164 (1990). An officer's statement or promise to a defendant that the prosecutor would be told of the defendant's cooperation does not transform a defendant's otherwise voluntary statement into an involuntary one.9 "The police are allowed to play on a suspect's ignorance, his anxieties, his fears, and his uncertainties; they just are not allowed to magnify those fears, uncertainties, and so forth to the point where rational decision becomes impossible." Rutledge, 900 F.2d at 1131 (concluding that the statement "all cooperation is helpful" is not improper inducement).
In this case, if we assume Mr. Westbrook's version of the facts, the agent presented Mr. Westbrook with the reality that his wife had marijuana in her purse and made him an offer: If he would cooperate by helping the police find Dean, that cooperation would be helpful. According to Agent Fisher's report, it would be helpful because the state prosecutor would take it into consideration when evaluating Mrs. Westbrook's case. According to Mr. Westbrook's claim, it would be helpful because there would be no mention of the marijuana.10 Mr. Westbrook does not contend that the marijuana was mentioned as a factor in later legal proceedings; therefore we have no reason to believe a false promise was made. See Sprosty v. Buchler, 79 F.3d 635, 646 (7th Cir.) (stating that "the state is not prohibited from inducing a confession with an honest promise of leniency"), cert. denied, --- U.S. ----, 117 S.Ct. 150, 136 L.Ed.2d 95 (1996). Indeed, nothing in this record leads us to believe the agents misled him or exploited Mr. Westbrook's anxiety to the point that he was unable to make a rational decision about whether to confess. See id. at 647; Rutledge, 900 F.2d at 1131. Nor do we believe that the agent placed undue psychological coercion on Mr. Westbrook by suggesting that it would be to his wife's benefit, rather than (or as well as) to his own benefit, to cooperate. It is clear to us that Agent Fisher was inviting Mr. Westbrook to cooperate and nothing more. The agent's statement pointed out the desirability of cooperation and did not misrepresent the government's intention or purpose. The record reflects that, after hearing this comment simply urging him to cooperate with the police, Mr. Westbrook made a voluntary, common-sense decision to cooperate. Finally, we believe the agent's showing of the bag of marijuana, along with discussion about cooperation, was not unduly coercive. See United States v. Toro-Pelaez, 107 F.3d 819, 826 (10th Cir.) ("That the troopers showed [the defendant] the cocaine and pointed out the possible consequences if convicted in an effort to elicit cooperation does not compel a finding of coercion."), pet'n for cert. filed, 66 U.S.L.W. 3257 (U.S. May 22, 1997) (No. 96-9380).
In sum, we conclude that Agent Fisher's actions were not unconstitutionally coercive. We also have examined the totality of the circumstances surrounding Mr. Westbrook's statement--including the conditions of the interrogation and detention, the conduct of other officers, the age and characteristics of the suspect and his susceptibility to coercive tactics. We hold that, on this record, Mr. Westbrook was not compelled to make a statement that was not a product of a free intellect. Having concluded that Mr. Westbrook voluntarily made his written statement after Miranda warnings were properly given and properly waived, we hold that the district court did not err when it denied the motion to suppress.
Mr. Westbrook submits that the district court erred in disallowing testimony from Charles Dean and Special Agent O'Neal about Dean's affiliation with the Gangster Disciples gang. He asserts first that the testimony was relevant to defend his credibility and to explain his fear of reprisal. He testified he misidentified Charles Dean as "Kevin Dean" because he did not want to put his wife and her children in danger. He contends now that evidence about the Gangster Disciples would certainly be material to the reasonableness of his fear of gang reprisals. Mr. Westbrook also claims that the real conspiracy in this case was not between Dean and himself but between Dean and gang members who were trying to bring drugs into Springfield and who conspired to use Westbrook as a "fall guy." Relying on United States v. Thomas, 86 F.3d 647 (7th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 392, 136 L.Ed.2d 307 (1996), Mr. Westbrook asserts that he should have been allowed to pursue the relationship between Westbrook on one hand and Dean and the other government witnesses on the other. The court's determination that evidence of gang affiliation was irrelevant was, insists Mr. Westbrook, a prejudicial error of law.
The government responds that there was no evidence that anyone was a member of a gang. According to the government, Mr. Westbrook prior to trial never advised any of the agents that he feared for his or his wife's safety or even that Dean was a member of the Gangster Disciples. There was no evidence of threats made to the Westbrooks; in fact, Mr. Westbrook testified that he went with his wife and her children to see Dean on January 30, 1995, after the Westbrooks' release by the agents. In addition, the government notes, Mr. Westbrook challenged Dean's credibility at length on cross-examination. The jury was fully apprised of facts from which to assess Dean's version of events.
The admission of gang affiliation evidence at trial is generally governed under Rules 401 and 403 of the Federal Rules of Evidence.11 We review a district court's ruling concerning the admissibility of evidence of gang membership for a clear abuse of discretion. United States v. Sargent, 98 F.3d 325, 328 (7th Cir.1996); United States v. Irvin, 87 F.3d 860, 863 (7th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 259, 136 L.Ed.2d 184 (1996). Evidence of gang affiliation is admissible in cases in which it is relevant to demonstrate the existence of a joint venture or conspiracy and a relationship among its members. Thomas, 86 F.3d at 652; United States v. Lewis, 910 F.2d 1367, 1372 (7th Cir.1990). We are fully cognizant of the powerful nature of such evidence; when introduced by the government against a criminal defendant, it can taint a defendant in the eyes of the jury and also can establish criminal intent or agreement to conspire. Sargent, 98 F.3d at 328 (collecting cases). For this reason, in our review we examine the care and thoroughness with which a district judge considered the admission or exclusion of gang-involvement evidence. See United States v. Butler, 71 F.3d 243, 251 (7th Cir.1995) (stating that this court demands careful consideration by district judges in determining admissibility of gang evidence).
This case is unusual. Typically the defendant claims that the prejudicial effect of the evidence substantially outweighs its probative value.12 In this case, however, the defendant objects to the exclusion of such evidence because he believes it would substantiate his claim that he feared reprisal.
Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. "Evidence which is not relevant is not admissible." Fed.R.Evid. 402. One measure of the relevance of evidence is whether " 'its exclusion would leave a chronological and conceptual void in the story.' " Wilson v. Groaning, 25 F.3d 581, 584 (7th Cir.1994) (quoting United States v. Vretta, 790 F.2d 651, 655 (7th Cir.), cert. denied, 479 U.S. 851, 107 S.Ct. 179, 93 L.Ed.2d 115 (1986)). On the other hand, evidence is not relevant if there is no connection between the evidence and the issues of the case or material facts at issue. See United States v. Mazzanti, 888 F.2d 1165, 1169 (7th Cir.1989), cert. denied, 495 U.S. 930, 110 S.Ct. 2167, 109 L.Ed.2d 497 (1990); see also United States v. Rubio-Topete, 999 F.2d 1334, 1339 (9th Cir.1993) ; United States v. Smith, 918 F.2d 1032, 1038 (2d Cir.1990), cert. denied, 498 U.S. 1125, 111 S.Ct. 1086, 112 L.Ed.2d 1191 (1991).
Following our review of the record, we are confident that the district court did not abuse its discretion in its handling of gang membership evidence in this case. Mr. Westbrook was permitted to testify, over objection, that he knew Charles Dean was affiliated with the Gangster Disciples gang and that the gang's members were dangerous. In fact, he further explained that he had known Dean from East St. Louis, had seen him using the Gangster Disciple handshake (which Mr. Westbrook then demonstrated), and knew Dean had a Gangster Disciples tattoo. Although Agent O'Neal later testified on rebuttal that Dean did not have any tattoos, the evidence of Dean's gang affiliation was before the jury. Mr. Westbrook also testified that he was afraid of Dean and concerned that he might put his wife and her kids in jeopardy. This testimony allowed the defendant to put to the jury his fear-of-reprisal theory of defense.
First thing is that [defense counsel] wanted to recall Special Agent O'Neal for the limited purpose of inquiring about the Gangster Disciples. The Government objected to that as being totally irrelevant to the issues before the Court in this case and in this prosecution. I agreed with the government that it was not an issue and it was not an element, and therefore I allowed the objection, and Agent O'Neal was not recalled by [defense counsel] for that purpose.
We believe that the trial court, in its discretion, properly limited the admission of evidence in this case. Mr. Westbrook's testimony about Dean's gang affiliation was the only evidence of gang membership in the trial; Mr. Westbrook did not examine other witnesses to establish their gang affiliation or their relationship with Dean as anything other than relative or friend. There was no evidence that Dean had reason to conspire with other witnesses to testify falsely against Mr. Westbrook. Finally, no relationship or connection was drawn between the material facts at issue at trial, namely the evidence of conspiracy to distribute crack cocaine on January 30, 1995, and affiliation with the Gangster Disciples. No foundation was laid, no proffer was made to establish the relevance of such evidence. See Mazzanti, 888 F.2d at 1169-70 (concluding that defendant's failure to proffer evidence connecting gang operation to the cocaine transactions at issue in that case led to proper exclusion of gang evidence on relevancy grounds). We thus conclude that the trial court in this case properly acted within its discretion in excluding, on relevance grounds, testimony concerning gang affiliation.
Mr. Westbrook raises a constitutional challenge to 21 U.S.C. § 841(a)(1) for offenses involving crack cocaine and to the mandatory penalties of § 841(b).13 Relying on United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), he first claims that Congress lacks the authority to enact federal laws concerning crack cocaine because the manufacture of crack is a local activity, one that has nothing to do with interstate commerce. We review de novo his challenge to the constitutionality of this provision. See United States v. Turner, 93 F.3d 276, 286 (7th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 596, 136 L.Ed.2d 524 (1996).
In Lopez, the Supreme Court held that Congress had exceeded its power under the Commerce Clause when it enacted the Gun-Free School Zones Act of 1990. The Court struck down the act as unconstitutional on the ground that it was "a criminal statute that by its terms has nothing to do with 'commerce' or any sort of economic enterprise." 514 U.S. at 561, 115 S.Ct. at 1630-31. In this circuit, we recently distinguished Lopez from cases involving drug offenses: "Unlike possession of firearms, which the Gun-Free School Zones Act proscribed, drug dealing is an economic activity that affects interstate commerce." United States v. Rogers, 89 F.3d 1326, 1338 (7th Cir.), cert. denied, --- U.S. ----, 117 S. Ct. 495, 136 L.Ed.2d 387 (1996). We concluded that the defendant's convictions for various drug-related activities were not constitutionally invalid, given Congress' broad authority to regulate drug-related activity. Id. In United States v. Stowe, 100 F.3d 494 (7th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1438, 137 L.Ed.2d 545 (1997), we also rejected the claim that Congress exceeded its authority under the Commerce Clause when it created the sentencing penalty for crack cocaine. Id. at 501 (noting that "local distribution of cocaine-based drugs, such as the crack in this case, [is] part of a long and continuous chain of international and interstate commerce" and that "[l]ocal participation in the international and interstate drug trade bears [a substantial] relation [to interstate commerce]") (quoting Lopez, 514 U.S. at 559, 115 S.ct. at 1630).
It is clear to us that Congress validly exercised its authority under the Commerce Clause when it enacted the Controlled Substances Act, 21 U.S.C. §§ 801 et seq., which includes the cocaine distribution conspiracy statute, 21 U.S.C. § 846, under which Mr. Westbrook was convicted. See 21 U.S.C. § 801(3)-(6) (Congressional declaration that local narcotics activities have a substantial effect on interstate commerce).14 We held before Lopez that the Controlled Substances Act was a permissible exercise of the Congress' power under the Commerce Clause to regulate and penalize intrastate drug trafficking activities. See United States v. Esposito, 492 F.2d 6, 10 (7th Cir.1973), cert. denied, 414 U.S. 1135, 94 S.Ct. 879, 38 L.Ed.2d 760 (1974). Like the District of Columbia Circuit, we believe that Lopez does not affect that holding. See United States v. Edwards, 98 F.3d 1364, 1369 (D.C.Cir.1996) (noting that the Drug Act, in contrast with the Gun-Free School Zones Act, "includes specific findings that intrastate drug activity has a substantial effect on interstate drug activities and that effective control of drug activities occurring intrastate requires both interstate and intrastate regulation"), cert. denied, --- U.S. ----, 117 S.Ct. 1437, 137 L.Ed.2d 544 (1997). We join the other circuits that uniformly have held, after Lopez, that it was within the authority of the Congress under the Commerce Clause to create drug laws criminalizing narcotics transactions such as those found under 21 U.S.C. §§ 846 and 841.15 We hold that 21 U.S.C. §§ 841 and 846, under which Mr. Westbrook was convicted, pass constitutional muster.
Mr. Westbrook also asserts that the law governing crack, which establishes a 100-to-1 disparity between crack and powder cocaine, is unconstitutional on its face and as applied. In light of the fact that every constitutional challenge to the penalty differential found in 21 U.S.C. § 841 and § 2D1.1(c) of the Sentencing Guidelines has failed, this argument cannot succeed. Since our first consideration of the issue in United States v. Lawrence, 951 F.2d 751, 753-56 (7th Cir.1991), this court has consistently held that the disparity of the penalty structure imposed by the Guidelines between cocaine base and cocaine powder is constitutional.16 We shall not overrule existing precedent.
Finally, Mr. Westbrook asserts that the federal crack cocaine laws usurp the states' traditional police powers under the Tenth Amendment. As we recognized in United States v. Kenney, 91 F.3d 884, 891 (7th Cir.1996), however, the Congress may regulate conduct that a state may also regulate. When the law or regulation in question is a proper exercise of congressional power under the Commerce Clause and does not require state action, the statute does not violate the Tenth Amendment. Id. (holding that 18 U.S.C. § 922(o) does not violate the Tenth Amendment). The same argument has been made in the context of 21 U.S.C. §§ 841 and 846 as well. See United States v. Lerebours, 87 F.3d 582, 585 (1st Cir.1996) (holding that "courts will not strike down a statute under the Tenth Amendment where Congress was within its powers under the Commerce Clause to enact the statute") (citing United States v. Owens, 996 F.2d 59, 60-61 (5th Cir.1993)), cert. denied, --- U.S. ----, 117 S.Ct. 694, 136 L.Ed.2d 617 (1997). We conclude that the federal statutes criminalizing conduct involving narcotics trafficking, such as the conspiracy to distribute crack at issue here, are constitutional as a proper exercise of Congress' powers under the Commerce Clause.
On Monday, January 30, Mr. Westbrook came to the Red Roof Inn to arrange an additional sale of 4+ ounces of crack for $3,200. Dean testified that he said he would page Mr. Westbrook when Dean was ready to deliver the crack. When Dean paged him, Mr. Westbrook returned to the Red Roof Inn with his wife. The two troopers, Carnduff and Buckley, noticed Mr. Westbrook as he glanced over his shoulders when he slid through the narrow doorway into Dean's room. They began the vigil of room 228 that led to Mr. Westbrook's arrest later that afternoon.
The agents advised Westbrook that it was unknown at this time what the disposition or outcome would be concerning the cannabis that was in Sonya Westbrook's possession. It was explained to Westbrook that depending on the level of cooperation received from her husband, Charles, in locating Kevin Dean for the Illinois State Police, her case would be evaluated by the State's Attorney's office.
"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Rule 403 provides: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.


I'm seriously considering emancipation due to extreme differences between me and my parents (of various natures, including religion). However, I'm worried about the legal consequences on my family- I'm moving out to less complicate their lives on my account. If I request emancipation, will there be investigation on ANY level that would go down on records involving my parents? Would they request counseling of any sort? Any sort of investigation, of any kind, could seriously jeopardize my father's job in the government. I'm not considering emancipation due to any sort abuse whatsoever, just purely ideological differences that would eventually drive a permanent wedge between my family and I, and by emancipation I hope to keep that from happening... I can't continue to live at home or we'll end up resenting each other.
P.S. And yes, I could prove that I am financially capable of independence.
Any minor who has reached his sixteenth birthday and is residing in this Commonwealth, or any parent or guardian of such minor, may petition the juvenile and domestic relations district court for the county or city in which either the minor or his parents or guardian resides for a determination that the minor named in the petition be emancipated. The petition shall contain, in addition to the information required by § 16.1-262, the gender of the minor and, if the petitioner is not the minor, the name of the petitioner and the relationship of the petitioner to the minor.
§ 16.1-332. Orders of court; investigation, report and appointment of counsel.
If deemed appropriate the court may (i) require the local department of welfare or social services or any other agency or person to investigate the allegations in the petition and file a report of that investigation with the court, (ii) appoint counsel for the minor's parents or guardian, or (iii) make any other orders regarding the matter which the court deems appropriate. In any case pursuant to this article the court shall appoint counsel for the minor to serve as guardian ad litem.
§ 16.1-333. Findings necessary to order that minor is emancipated.
The court may enter an order declaring the minor emancipated if, after a hearing, it is found that: (i) the minor has entered into a valid marriage, whether or not that marriage has been terminated by dissolution; or (ii) the minor is on active duty with any of the armed forces of the United States of America; or (iii) the minor willingly lives separate and apart from his parents or guardian, with the consent or acquiescence of the parents or guardian, and that the minor is or is capable of supporting himself and competently managing his own financial affairs.
§ 16.1-334. Effects of order.
16. The minor may marry without parental, judicial, or other consent.
The acts done when such order is or is purported to be in effect shall be valid notwithstanding any subsequent action terminating such order or a judicial determination that the order was void ab initio.
§ 16.1-334.1. Identification card issued to minor by DMV.
When entering an emancipation order under § 16.1-333, the court shall issue to the emancipated minor a copy of the order. Upon application to the Department of Motor Vehicles and submission of the copy, the Department shall issue to the minor an identification card containing the minor's photograph, a statement that such minor is emancipated, and a listing of all effects of the emancipation order as set forth in § 16.1-334.
Does anyone know the likelihood of any sort of investigation in to my family if I explained that my request for emancipation had nothing to do with abuse??
How old are you to begin with? Do you hold down a full time job. Do you make enough money to live on your own, with no help, like a roomate? Have you been in trouble with the law? If not for abuse, what would your reasons be specifically?


text:
STATE v. CROCHET June 23, 2006 No. 2005-K-0123.
IN RE: Judge William A. ROE. June 23, 2006 No. 2006-O-1243.
IN RE: Richard B. COOK. June 16, 2006 No. 2006-B-0426.
STATE v. PARKER June 16, 2006 No. 2006-KK-0053.
HAMILTON v. WINDER June 16, 2006 No. 2006-C-0994.
LEARD v. SCHENKER June 16, 2006 No. 2006-C-1116.
STATE v. LEONARD June 16, 2006 No. 2005-K-1382.
IN RE: Samuel M. YONTER. June 2, 2006 No. 2005-B-1737.
IN RE: Edward Eugene SUMPTER. June 2, 2006 No. 2006-B-0576.
IN RE: Vincent P. BLANSON. June 2, 2006 No. 2005-B-2561.
IN RE: Gordon L. HACKMAN. June 2, 2006 No. 2006-OB-0892.
STATE v. CONNOLLY III June 2, 2006 No. 2006-KD-0540.
STROTHER v. CONTINENTAL CASUALTY COMPANY June 2, 2006 No. 2006-C-302.
COPELAND v. COPELAND June 2, 2006 No. 2006-CC-1023.

matches: v. v. v. v. v. v. v. v.


Justia › US Law › US Case Law › US Supreme Court › Volume 292 › Oklahoma Gas & Electric Co. v. Oklahoma Packing Co.
Oklahoma Gas & Electric Co. v. Oklahoma Packing Co.
1. The three-judge procedure under Jud.Code § 266 is an extraordinary one, designed for a specific class of cases, and must be kept within the limitations imposed by the statute. P. 292 U. S. 391.
2. The procedure prescribed br § 266 may be invoked only if the suit is in fact and in law a suit to restrain the action of state officers. P. 292 U. S. 390.
3. When it becomes apparent that the plaintiff has no case for three judges, though they may have been properly convened, their action is no longer prescribed, and direct appeal to this Court must fail, as well as where the plaintiff does not press his injunction or his constitutional attack. P. 292 U. S. 391.
4. In a suit brought by a public utility company under Judicial Code § 266 to enjoin the enforcement by state officers of an allegedly unconstitutional order affecting its service and rates, and also to enjoin a private party from prosecuting an action based upon the order, it became apparent at final hearing that there had been no basis for relief against the officers because the order had been superseded by another before the suit was begun, and no penalties were threatened. Held, that there was no occasion for proceeding under § 266, and that a direct appeal would not lie to this Court for the purpose of determining the private controversy, although it was one within the general jurisdiction of the District Court. P. 292 U. S. 390.
5. Although without jurisdiction to hear the merits of an appeal erroneously based on Jud.Code § 266, this Court has authority in the case to enforce the limitations of that section by appropriate directions, and it may frame its order in a way that will save to the appellants their proper remedies. P. 292 U. S. 392.
6 F.Supp. 893, decree vacated.
to enjoin the enforcement of an order affecting service and rates of the plaintiff gas company, and also against a private corporation, beneficiary of the order, to restrain it from prosecuting an action to recover what it had paid in excess.
commission, directed that the Oklahoma Natural Gas Company be required to supply it with gas at a lower rate than it had been paying for gas supplied by the Oklahoma Gas & Electric Company which that company purchased from the Natural Gas Company for distribution.
On appeal, the state supreme court affirmed the order. 146 Okl. 272, 288 P. 316. Pending the appeal, supersedeas bonds were given which suspended the order, and Wilson & Co. continued to take its gas supply from the Oklahoma Gas & Electric Company at the higher rate. In the meantime, while the petition to review the order was pending before the state supreme court, and before the present suit was brought, the Oklahoma Natural Gas Company acquired the properties of the Oklahoma Gas & Electric Company, and a new industrial rate for natural gas supplied by it was put into effect by order of the Commission.
Upon affirmance by the state supreme court of the Commission's earlier order, Wilson & Co. brought suit in the state district court, joining as defendants the Oklahoma Gas & Electric Company and the sureties on the supersedeas bonds, to recover the amount paid for gas in excess of the rate prescribed by the earlier order of the Commission. That suit was defended upon the ground, among others, of the constitutional invalidity of the order. Judgment was given for Wilson & Co., from which an appeal was taken and is now pending in he state supreme court.
"there is no suggestion in the record of any intention on the part of any of the officials of Oklahoma to undertake to impose any statutory penalties for failure to comply with the order."
The court concluded that there was no basis for relief by injunction against state officials, and that the only issue left in the case was the right asserted by appellees to enjoin prosecution of the suit of Wilson & Co. in the state courts, and that, as the alleged invalidity of the Commission's order had been interposed as a defense in that suit and had been passed upon by the state court, there was no occasion for relief by a federal court of equity.
The appellants insist here, as they did below, that the District Court of Oklahoma is without jurisdiction to pass upon the issue of the invalidity of the order, since, by § 20, Art. 9, of the state constitution, exclusive jurisdiction to review or set aside an order of the Commission is conferred on the state supreme court. See Pioneer Tel. & Tel. Co. v. State, 40 Okl. 417, 138 P. 1033. We are asked on this appeal to sustain the equity jurisdiction of the three-judge court to restrain the prosecution of the suit at law in the state courts, upon the ground that appellants are without adequate legal remedy to protect themselves from the exactions of the unconstitutional order.
By § 266 of the Judicial Code, suits, in which an interlocutory injunction is sought and pressed, to restrain any state officer from enforcing or executing a state statute or an order of a state Commission, on the ground of its unconstitutionality, are required to be tried before a court of three judges. The section provides that "a direct appeal to the Supreme Court may be taken from a final decree granting or denying a permanent injunction in such suit." Our jurisdiction to hear the present appeal is challenged, and, as this is the only provision authorizing the appeal to this Court, it is necessary at the outset to determine whether this is "such suit."
The procedure prescribed by § 266 may be invoked only if the suit is one to restrain the action of state officers. Ex parte Public National Bank, 278 U. S. 101; Ex parte Collins, 277 U. S. 565. That this condition is vital is sufficiently indicated by reference to the part played by Ex parte Young, 209 U. S. 123, in inducing enactment of the section. [Footnote 1] Hence, the cause of action alleged against Wilson & Co., although within the jurisdiction of the District Court, is subject to this extraordinary procedure, and appealable directly to this Court, if at all, only because it is incidental to the relief prayed against the state officers. See Pittsburgh & West Virginia Ry. Co. v. United States, 281 U. S. 479. Whether it is so incidental we need not inquire, for we conclude that the case against the state officers was not one within the appellate jurisdiction conferred upon this Court by § 266 so as to bring either that case or its incidents before us for decision. Compare Levering & Garrigues Co. v. Morrin, 289 U. S. 103; Clark v. Wooster, 119 U. S. 322, 119 U. S. 325.
The allegations against appellee officers, it is true, present on their face every prerequisite to three-judge action. But, when it became apparent, as it did upon the final hearing, that there was never any basis for relief of any sort against the state officers, and that the only matter in controversy was the right of Wilson & Co. to recover the alleged excess payments for gas, there was no longer any occasion for proceeding under § 266. The issue is not one of the federal jurisdiction of the District Court, see Healy v. Ratta, ante, p. 292 U. S. 263; Ex parte Poresky, 290 U. S. 30, 290 U. S. 31; compare Rice & Adams Corp. v. Lathrop, 278 U. S. 509, 278 U. S. 514, with Smith v. Wilson, 273 U. S. 388, and Ex parte Hobbs, 280 U. S. 168, but whether a final hearing by three judges was prescribed by the section, and hence whether this Court has jurisdiction to hear the appeal. Smith v. Wilson, supra.
Although without jurisdiction to hear the merits of the appeal, this Court, in the exercise of its appellate jurisdiction, has authority to give such directions as may be appropriate to enforce the limitations of § 266, and to conform the procedure to its requirements. And we may frame our order in a way that will save to the appellants their proper remedies. Gully v. Interstate Natural Gas Co., 292 U. S. 16. See Gulf, C. & S.F. Ry. Co. v. Dennis, 224 U. S. 503. Compare United States v. Anchor Coal Co., 279 U.S. 812.
By mistakenly appealing directly to this Court, appellants have lost their opportunity to have the decree below reviewed on its merits, as the time for appeal to the Circuit Court of Appeals has expired. Compare Healy v. Ratta, 289 U.S. 701; ante, p. 292 U. S. 263. We might now terminate the litigation by dismissing the appeal without more, and it would be proper to do so had the correct procedure under § 266 been more definitely settled at the time the appeal to this Court was attempted. But, in the circumstances, it is appropriate that the decree below should be vacated and the cause remanded to the District Court for further proceedings to be taken independently of § 266 of the Judicial Code. Gully v. Interstate Natural Gas Co., supra.
Costs will be awarded against the appellants. See Mansfield, Coldwater & Lake Michigan Ry. Co. v. Swan, 111 U. S. 379, 111 U. S. 387.
See 42 Cong.Rec. 4846 et seq.; 45 id. 7252 et seq.; Hutcheson, A case for Three Judges, 47 Harvard Law Rev. 795, 805.
The authorities are collected and discussed in Bowen, When Are Three Federal Judges Required, 16 Minnesota Law Rev. 1, 33-39.


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907.01 Opinion testimony by lay witnesses.
907.03 Bases of opinion testimony by experts.
907.04 Opinion on ultimate issue.
907.05 Disclosure of facts or data underlying expert opinion.
907.07 Reading of report by expert.
Ch. 907 Note NOTE: Extensive comments by the Judicial Council Committee and the Federal Advisory Committee are printed with chs. 901 to 911 in 59 Wis. 2d. The court did not adopt the comments but ordered them printed with the rules for information purposes.
907.01(1) (1) Rationally based on the perception of the witness.
907.01(2) (2) Helpful to a clear understanding of the witness's testimony or the determination of a fact in issue.
907.01(3) (3) Not based on scientific, technical, or other specialized knowledge within the scope of a witness under s. 907.02 (1).
907.01 History History: Sup. Ct. Order, 59 Wis. 2d R1, R205 (1973); 1991 a. 32; 2011 a. 2.
907.01 Annotation When a victim admitted injecting heroin about 72 hours before testifying, the trial court properly denied the defendant's request that the witness display his arm in the presence of the jury in an attempt to prove that the injection was more recent. Edwards v. State, 49 Wis. 2d 105, 181 N.W.2d 383 (1970).
907.01 Annotation An attorney, not qualified as an expert, could testify regarding negotiations in which he was an actor, including expressing opinions about the transaction, but could not testify as to what a reasonably competent attorney would or should do in similar circumstances. Hennig v. Ahearn, 230 Wis. 2d 149, 601 N.W.2d 14 (Ct. App. 1999), 98-2319.
907.01 Annotation Using Lay Opinion Evidence at Trial. Coaty. Wis. Law. May 2009.
907.02 907.02 Testimony by experts.
907.02(1)(1) If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case.
907.02(2) (2) Notwithstanding sub. (1), the testimony of an expert witness may not be admitted if the expert witness is entitled to receive any compensation contingent on the outcome of any claim or case with respect to which the testimony is being offered.
907.02 History History: Sup. Ct. Order, 59 Wis. 2d R1, R206 (1973); 2011 a. 2.
907.02 Annotation A chemist testifying as to the alcohol content of blood may not testify as to the physiological effect that the alcohol would have on the defendant. State v. Bailey, 54 Wis. 2d 679, 196 N.W.2d 664 (1972).
907.02 Annotation The trial court abused its discretion in ordering the defendant to make its expert available for adverse examination because the agreement was for the exchange of expert reports only and did not include adverse examination of the expert retained by the defendant. Broaster Co. v. Waukesha Foundry Co. 65 Wis. 2d 468, 222 N.W.2d 920 (1974).
907.02 Annotation In a personal injury action, the court did not err in permitting a psychologist specializing in behavioral disorders to refute a physician's medical diagnosis when the specialist was a qualified expert. Qualification of an expert is a matter of experience, not licensure. Karl v. Employers Insurance of Wausau, 78 Wis. 2d 284, 254 N.W.2d 255 (1977).
907.02 Annotation The standard of nonmedical, administrative, ministerial, or routine care in a hospital need not be established by expert testimony. Any claim against a hospital based on negligent lack of supervision requires expert testimony. Payne v. Milwaukee Sanitarium Foundation, Inc. 81 Wis. 2d 264, 260 N.W.2d 386.
907.02 Annotation In the absence of some additional expert testimony to support the loss, a jury may not infer permanent loss of earning capacity from evidence of permanent injury. Koele v. Radue, 81 Wis. 2d 583, 260 N.W.2d 766 (1978).
907.02 Annotation A res ipsa loquitur instruction permits a jury to draw an inference of general negligence from the circumstantial evidence. Before a res ipsa loquitur instruction can be given, the evidence must conform to these requirements: 1) the event in question must be of the kind that does not ordinarily occur in the absence of negligence; and 2) the agency or instrumentality causing the harm must have been within the exclusive control of the defendant. A res ipsa loquitur instruction may be grounded on expert testimony in a medical malpractice case; the res ipsa loquitur standards are satisfied if the testimony and the medical records taken as a whole would support the inference of negligence or if direct testimony is introduced that the injury in question was of the nature that does not ordinarily occur if proper skill and care are exercised. Kelly v. Hartford Cas. Ins. Co. 86 Wis. 2d 129, 271 N.W.2d 676 (1978).
907.02 Annotation A hypothetical question may be based on facts not yet in evidence. Novitzke v. State, 92 Wis. 2d 302, 284 N.W.2d 904 (1979).
907.02 Annotation It was not error to allow psychiatric testimony regarding factors that could influence eye witness identification, but to not allow testimony regrading the application of those factors to the facts of the case. Hampton v. State, 92 Wis. 2d 450, 285 N.W.2d 868 (1979).
907.02 Annotation A psychiatric witness, whose qualifications as an expert were conceded, had no scientific knowledge on which to base an opinion as to the accused's lack of specific intent to kill. State v. Dalton, 98 Wis. 2d 725, 298 N.W.2d 398 (Ct. App. 1980).
907.02 Annotation Medical records as explained to the jury by a medical student were sufficient to support a conviction; the confrontation right was not denied. Hagenkord v. State, 100 Wis. 2d 452, 302 N.W.2d 421 (1981).
907.02 AnnotationPolygraph evidence is inadmissible in any criminal proceeding. State v. Dean, 103 Wis. 2d 228, 307 N.W.2d 628 (1981).
907.02 Annotation Guidelines for admission of testimony by hypnotized witnesses are stated. State v. Armstrong, 110 Wis. 2d 555, 329 N.W.2d 386 (1983).
907.02 Annotation Expert testimony regarding fingernail comparisons for identification purposes was admissible. State v. Shaw, 124 Wis. 2d 363, 369 N.W.2d 772 (Ct. App. 1985).
907.02 Annotation Bite mark evidence presented by experts in forensic odontology was admissible. State v. Stinson, 134 Wis. 2d 224, 397 N.W.2d 136 (Ct. App. 1986).
907.02 Annotation An expert may give opinion testimony regarding the consistency of the complainant's behavior with that of victims of the same type of crime only if the testimony will assist the fact-finder in understanding evidence or determining a fact, but the expert is prohibited from testifying about the complainant's truthfulness. State v. Jensen, 147 Wis. 2d 240, 432 N.W.2d 913 (1988).
907.02 Annotation Experience, as well as technical and academic training, is the proper basis for giving expert opinion. State v. Hollingsworth, 160 Wis. 2d 883, 467 N.W.2d 555 (Ct. App. 1991).
907.02 Annotation If the state seeks to introduce testimony of experts who have personally examined a sexual assault victim that the victim's behavior is consistent with other victims, a defendant may request an examination of the victim by its own expert. State v. Maday, 179 Wis. 2d 346, 507 N.W.2d 365 (Ct. App. 1993). See also State v. Schaller, 199 Wis. 2d 23, 544 N.W.2d 247 (Ct. App. 1995), 94-1216.
907.02 Annotation Expert opinion regarding victim recantation in domestic abuse cases is permissible. State v. Bednarz, 179 Wis. 2d 460, 507 N.W.2d 168 (Ct. App. 1993).
907.02 Annotation When the state inferred that a complainant sought psychological treatment as the result of a sexual assault by the defendant, but did not offer the psychological records or opinions of the therapist as evidence, it was not improper for the court to deny the defendant access to the records after determining that the records contained nothing material to the fairness of the trial. State v. Mainiero, 189 Wis. 2d 80, 525 N.W.2d 304 (Ct. App. 1994).
907.02 Annotation An expert may give an opinion about whether a person's behavior and characteristics are consistent with battered woman's syndrome, but may not give an opinion on whether the person had a reasonable belief of being in danger at the time of a particular incident. State v. Richardson, 189 Wis. 2d 418, 525 N.W.2d 378 (Ct. App. 1994).
907.02 Annotation Expert testimony is necessary to establish the point of impact of an automobile accident. Wester v. Bruggink, 190 Wis. 2d 308, 527 N.W.2d 373 (Ct. App. 1994).
907.02 Annotation Scientific evidence is admissible, regardless of underlying scientific principles, if it is relevant, the witness is qualified as an expert, and the evidence will assist the trier of fact. State v. Peters, 192 Wis. 2d 674, 534 N.W.2d 867 (Ct. App. 1995).
907.02 Annotation An indigent may be entitled to have the court compel the attendance of an expert witness. It may be error to deny a request for an expert to testify on the issue of suggestive interview techniques used with a young child witness if there is a “particularized need" for the expert. State v. Kirschbaum, 195 Wis. 2d 11, 535 N.W.2d 462 (Ct. App. 1995), 94-0899.
907.02 Annotation Items related to drug dealing, including gang-related items, is a subject of specialized knowledge and a proper topic for testimony by qualified narcotics officers. State v. Brewer, 195 Wis. 2d 295, 536 N.W.2d 406 (Ct. App. 1995), 94-1477.
907.02 Annotation Generally expert evidence of personality dysfunction is irrelevant to the issue of intent in a criminal trial, although it might be admissible in very limited circumstances. State v. Morgan, 195 Wis. 2d 388, 536 N.W.2d 425 (Ct. App. 1995), 93-2611.
907.02 Annotation As with still photographers, a video photographer's testimony that a videotape accurately portrays what the photographer saw is sufficient foundation for admission of the video tape, and expert testimony is not required. State v. Peterson, 222 Wis. 2d 449, 588 N.W.2d 84 (Ct. App. 1998), 97-3737.
907.02 Annotation It was error to exclude as irrelevant a psychologist's testimony that the defendant did not show any evidence of having a sexual disorder and that absent a sexual disorder a person is unlikely to molest a child because the psychologist could not say that the absence of a sexual disorder made it impossible for the defendant to have committed the alleged act. State v. Richard A.P. 223 Wis. 2d 777, 589 N.W.2d 674 (Ct. App. 1998), 97-2737. Reasoning adopted, State v. Davis, 2002 WI 75, 254 Wis. 2d 1, 645 N.W.2d 913, 00-2916.
907.02 Annotation When the issue is whether expert testimony may be admitted, and not whether it is required, a court should normally receive the expert testimony if the requisite conditions have been met and the testimony will assist the trier of fact. State v. Watson, 227 Wis. 2d 167, 595 N.W.2d 403 (1999), 95-1067.
907.02 Annotation A witness's own testimony may limit the witness's qualifications. A witness who disavowed being qualified to testify regarding the safety of a product was disqualified to testify as an expert on the product's safety. Green v. Smith & Nephew APH, Inc. 2001 WI 109, 245 Wis. 2d 772, 629 N.W.2d 727, 98-2162.
907.02 Annotation If the state is to introduce Jensen evidence through a psychological expert who has become familiar with the complainant through ongoing treatment, or through an intensive interview or examination focused on the alleged sexual assault, the defendant must have the opportunity to show a need to meet that evidence through a psychological expert of its own as required by Maday. State v. Rizzo, 2002 WI 20, 250 Wis. 2d 407, 640 N.W.2d 93, 99-3266.
907.02 Annotation A determination of whether the state “retains" an expert for purposes of Maday cannot stand or fall on whether or how it has compensated its expert. An expert's status as the complainant's treating therapist does not preclude that expert from being “retained" by the state for purposes of Maday. State v. Rizzo, 2002 WI 20, 250 Wis. 2d 407, 640 N.W.2d 93, 99-3266.
907.02 Annotation For a defendant to establish a constitutional right to the admissibility of proffered expert testimony, the defendant must satisfy a two-part inquiry determining whether the evidence is clearly central to the defense and the exclusion of the evidence is arbitrary and disproportionate to the purpose of the rule of exclusion, so that exclusion undermines fundamental elements of the defendant's defense. State v. St. George, 2002 WI 50, 252 Wis. 2d 499, 643 N.W.2d 277, 00-2830.
907.02 Annotation Under the first part of the inquiry, a defendant must demonstrate that the proffered testimony satisfies each of the following four requirements: 1) the testimony of the expert witness meets the s. 907.02 standards governing the admission of expert testimony; 2) the expert testimony is clearly relevant to a material issue in the case; 3) the expert testimony is necessary to the defendant's case; and 4) the probative value of the expert testimony outweighs its prejudicial effect. Under the second part of the inquiry, the court must determine whether the defendant's right to present the proffered evidence is nonetheless outweighed by the state's compelling interest to exclude the evidence. State v. St. George, 2002 WI 50, 252 Wis. 2d 499, 643 N.W.2d 277, 00-2830.
907.02 Annotation When an expert was permitted to testify in a sexual assault case about common characteristics of sexual assault victims and the consistency of those characteristics with those of the victim at trial, a standing objection to the expert's testifying was insufficient to preserve specific errors resulting from the testimony. State v. Delgado, 2002 WI App 38, 250 Wis. 2d 689, 641 N.W.2d 490, 01-0347.
907.02 Annotation An expert's specious claims about his credentials did not render his testimony incredible or render him unqualified as a matter of law. To hold testimony incredible requires that the expert's testimony be in conflict with the uniform course of nature or with fully established or conceded facts. Questions of reliability are left for the trier of fact. Ricco v. Riva, 2003 WI App 182, 266 Wis. 2d 696, 669 N.W.2d 193, 02-2621.
907.02 Annotation Field sobriety tests are not scientific tests. They are merely observational tools that law enforcement officers commonly use to assist them in discerning various indicia of intoxication, the perception of which is necessarily subjective. The procedures an officer employs in determining probable cause for intoxication go to the weight of the evidence, not its admissibility. City of West Bend v. Wilkens, 2005 WI App 36, 278 Wis. 2d 643, 693 N.W.2d 324, 04-1871.
907.02 Annotation The United States Supreme Court and Wisconsin Supreme Court have recognized that, although it is not easy to predict future behavior and psychiatrists and psychologists are not infallible, they can opine about future behavior. Brown County v. Shannon R. 2005 WI 160, 286 Wis. 2d 278, 706 N.W.2d 269, 04-1305.
907.02 Annotation The fact that the witness was a forensic scientist did not preclude her from forming an expert opinion about the accuracy of a desk reference based on experience. The forensic scientist properly used the Physician's Desk Reference to presumptively determine the identity of suspected Oxycontin. The result of this presumptive test was supported both by a confirmatory test and other circumstantial evidence. State v. Stank, 2005 WI App 236, 288 Wis. 2d 414, 708 N.W.2d 43, 04-1162.
907.02 Annotation There is no presumption of the admissibility of expert eyewitness testimony in cases involving eyewitness identification. State v. Shomberg, 2006 WI 9 288 Wis. 2d 1, 709 N.W.2d 370, 04-0630.
907.02 Annotation No expert should be permitted to give an opinion that another mentally and physically competent witness is telling the truth. An opinion that a complainant was sexually assaulted or is telling the truth is impermissible. In asserting that because the complainant was not highly sophisticated she would not have been able to maintain consistency throughout her interview unless it was something that she experienced, a witness testified that the complainant had to have experienced the alleged contact with defendant. The testimony was tantamount to an opinion that the complainant was telling the truth. State v. Krueger, 2008 WI App 162, 314 Wis. 2d 605, 762 N.W.2d 114, 07-2064.
907.02 Annotation Expert testimony must assist the trier of fact to understand the evidence or to determine a fact in issue. A suggested test for deciding when experts may be used is whether the untrained layperson would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject. The proper standard is helpfulness, not absolute necessity. State v. Swope, 2008 WI App 175, 315 Wis. 2d 120, 762 N.W.2d 725, 07-1785.
907.02 Annotation Whether a witness is qualified to give an opinion depends upon whether he or she has superior knowledge in the area in which the precise question lies. State v. Swope, 2008 WI App 175, 315 Wis. 2d 120, 762 N.W.2d 725, 07-1785.
907.02 Annotation Expert testimony is not generally required to prove a party's negligence, and requiring expert testimony before a claim can get to the jury is an extraordinary step that should be ordered only when unusually complex or esoteric issues are before the jury. This principal applies equally to a breach of contract action because it is a general rule that expert testimony is not necessary when the issue is within the realm of the ordinary experience of the average juror. Racine County v. Oracular Milwaukee, Inc., 2009 WI App 58, 317 Wis. 2d 790, 767 N.W.2d 280, 07-2861.
907.02 AnnotationAffirmed. 2010 WI 25, 323 Wis. 2d 682, 781 N.W.2d 88, 07-2861.
907.02 Annotation In an OWI prosecution, even if a defendant establishes a constitutional right to present an expert opinion that is based in part on portable breath test results, applying the St. George test, the right to do so is outweighed by the state's compelling interest to exclude that evidence. Permitting the use of that evidence as the basis for an expert opinion would render meaningless the legislature's forbidding of that evidence in OWI prosecutions under s. 343.303, an act that promotes efficient investigations of suspected drunk driving incidents and furthers the state's compelling interest in public safety on its roads. State v. Fischer, 2010 WI 6, 322 Wis. 2d 265, 778 N.W.2d 629, 07-1898.
907.02 Annotation An electronic monitoring device (EMD) report did not present an issue that is particularly complex or unusually esoteric. Additionally, the EMD involves scientific principles that are indisputable and fully within the lay comprehension of the average juror. As such, expert testimony was not required to properly establish a foundation for the report's admissibility. State v. Kandutsch, 2011 WI 78, 336 Wis. 2d 478, 799 N.W.2d 865, 09-1351.
907.02 Note NOTE: The preceding cases apply to this section as it existed prior to 2011 Wis. Act 2, which added a new standard to sub. (1) and created sub. (2).
907.02 Annotation Expert testimony about retrograde extrapolation of the defendants' blood alcohol concentration was admissible. The court's gate-keeper function is to ensure that the expert's opinion is based on a reliable foundation and is relevant to material issues. The court is to focus on the principles and methodology the expert relies upon, not on the conclusion generated. The question is whether the scientific principles and methods that the expert relies upon have a reliable foundation in the knowledge and experience of the expert's discipline. State v. Giese, 2014 WI App 92, 356 Wis. 2d 796, 854 N.W.2d 687, 13-2009.
907.02 Annotation If experts are in disagreement, it is not for the court to decide which of several competing scientific theories has the best provenance. The accuracy of the facts upon which the expert relies and the ultimate determinations of credibility and accuracy are for the jury, not the court. As stated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence. State v. Giese, 2014 WI App 92, 356 Wis. 2d 796, 854 N.W.2d 687, 13-2009.
907.02 Annotation The evidentiary standard under sub. (1) made effective February 1, 2011, did not apply to expert testimony in the ch. 980 discharge petition trials in this case because the discharge petitions did not “commence" “actions" or “special proceedings" but were part of the underlying commitments. The original ch. 980 commitments in this case began several years before the standard was adopted, and the filings in this case did not constitute the “commencement" of an “action" or a “special proceeding." Because the legislature had a rational basis for not applying the evidentiary standards under sub. (1) to expert testimony in post-February 1, 2011, discharge petitions that seek relief from pre-February 1, 2011, commitments, no violation of equal protection or due process occurred. State v. Alger, 2015 WI 3, 360 Wis. 2d 193, 858 N.W.2d 346, 13-0225.
907.02 Annotation Sub. (1) adopts the reliability test established by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Daubert itself acknowledges that its test for the admissibility of expert evidence is “flexible." In this case, the proposed expert testimony did not neatly fit the Daubert factors. This did not, however, require exclusion. The court appropriately considered other factors bearing upon the reliability of the testimony and found that she had “sufficient knowledge, skill, experience, and training" to qualify her as an expert. State v. Smith, 2016 WI App 8, 366 Wis. 2d 613, 874 N.W.2d 610, 14-2653.
907.02 Annotation The drug recognition evaluation (DRE) protocol is a nationally standardized protocol for identifying drug intoxication based on the well-established concept that drugs cause observable signs and symptoms, affecting vital signs and changing the physiology of the body, and testimony based on the DRE protocol is subject to sub. (1). State v. Chitwood, 2016 WI App 36, 369 Wis. 2d 132, 879 N.W.2d 786, 15-0097.
907.02 Annotation Daubert provided the following illustrative, non-exhaustive list of factors a court may consider in deciding whether expert testimony based upon scientific, technical, or other specialized knowledge is reliable: 1) whether the theory or technique employed by the expert is generally accepted in the relevant community; 2) whether it has been subject to peer review and publication; 3) whether it has been tested; and 4) whether the known or potential rate of error is acceptable. State v. Chitwood, 2016 WI App 36, 369 Wis. 2d 132, 879 N.W.2d 786, 15-0097.
907.02 Annotation A trial court's obligation to act as a gatekeeper under Daubert does not require it to conduct a Daubert admissibility analysis if there is no objection to the testimony, and the trial court's failure to sua sponte engage in such an analysis does not constitute plain error under s. 901.03 (4). State v. Cameron, 2016 WI App 54, 370 Wis. 2d 661, 885 N.W.2d 611, 15-1088.
907.02 Annotation To determine whether expert testimony is admissible under sub. (1), a court must engage in a 3-step analysis, considering whether: 1) the witness is qualified; 2) the witness's methodology is scientifically reliable; and 3) the testimony will assist the trier of fact to determine a fact in issue. Bayer v. Dobbins, 2016 WI App 65, 371 Wis. 2d 428, 885 N.W.2d 173, 15-1470.
907.02 Annotation A trial court should admit medical expert testimony if physicians would accept it as useful and reliable. Expert medical opinion testimony is reliable if the knowledge underlying it has a reliable basis in the knowledge and experience of the relevant discipline. Instead of exclusion, the appropriate means of attacking shaky but admissible experience-based medical expert testimony is by vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof. Seifert v. Balink, 2017 WI 2, 372 Wis. 2d 525, 888 N.W.2d 816, 14-0195.

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