United States v. Rogers, John W. ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-2097
United States of America,
Plaintiff-Appellee,
v.
John W. Rogers,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 99 CR 977--Charles R. Norgle, Sr., Judge.
Argued September 11, 2001--Decided October 25, 2001
Before Cudahy, Easterbrook, and Williams,
Circuit Judges.
Easterbrook, Circuit Judge. Federal
agents found in John Rogers’s garage a
home-made silencer for a MAC-11
semiautomatic pistol. He has been
convicted of possessing a "firearm" (the
silencer, see 18 U.S.C. sec.921 and 26
U.S.C. sec.5845(a)(7)) not registered to
him in the National Firearms Registration
and Transfer Record. Every "firearm" (a
term of art, see Staples v. United
States, 511 U.S. 600 (1994)) must be
registered in this Record, see 26 U.S.C.
secs. 5822, 5841, by its maker and by
each transferor. The initial entry into
the Record and each transfer occasion a
$200 tax. See 26 U.S.C. secs. 5811,
5821. Possessing an unregistered firearm
is a felony. 26 U.S.C. sec.5861(d).
Rogers has been sentenced to 70 months’
imprisonment--well short of the 120-month
maximum, 26 U.S.C. sec.5871, but twice
the presumptive Guideline range for the
offense. He contests both the conviction
and the sentence.
Section 5861(d) makes it unlawful for
any person "to receive or possess a
firearm which is not registered to him in
the National Firearms Registration and
Transfer Record". Rogers possessed a
device that the jury found to be a
"firearm." He concedes that this firearm
was not registered to him. Nonetheless,
Rogers insists, he did not violate
sec.5861(d)--and, if he did, that
sec.5861(d) is unconstitutional. His
reasoning is that sec.5861(d) could not
be sustained under the Commerce Clause
because it does not depend on any link
between the firearm and interstate
commerce. Thus the legislative authority
must depend on the taxing power. See
United States v. Copus, 93 F.3d 269, 275-
76 (7th Cir. 1996). Yet Congress has not
"really" tried to raise revenues, Rogers
insists, and to support this argument he
observes that the Secretary of the
Treasury will not register a firearm that
the maker or transferee cannot lawfully
possess in the state where the firearm
would be kept. "Applications [for making
or registering firearms] shall be denied
if the making or possession of the
firearm would place the person making the
firearm in violation of law." 26 U.S.C.
sec.5822. See also 26 U.S.C. sec.5812. It
is unlawful to possess any silencer in
Illinois, the state where Rogers lives.
See 720 ILCS 5/24-1(a)(6). Thus the
Secretary would have denied an
application for permission to make the
silencer, and a nonexistent silencer
cannot be registered and taxed.
This line of argument encounters
difficulties, the first of which is that
Rogers is presenting it for the first
time on appeal. He says that
jurisdictional arguments may be advanced
at any time, but the district court had
subject-matter jurisdiction. The
indictment charged Rogers with an offense
against the United States; no more was
necessary. Courts sometimes call the link
between a statute and a source of
national authority a "jurisdictional"
requirement, but arguments along these
lines must be raised in the district
court as objections to the indictment.
Only limits on the adjudicatory power of
the court are open at any time. We used
the word "jurisdiction" loosely in Copus,
the case that gave Rogers the idea that
he could bypass the district court.
United States v. Martin, 147 F.3d 529
(7th Cir. 1998), clarifies the different
uses of "jurisdiction" by holding that
proof of an interstate transaction is no
different from proof of any other element
of a federal crime. "[T]he nexus with
interstate commerce, which courts
frequently call the ’jurisdictional
element,’ is simply one of the essential
elements of [the offense]. Although
courts frequently call it the
’jurisdictional element’ of the statute,
it is ’jurisdictional’ only in the
shorthand sense that without that nexus,
there can be no federal crime . . . . It
is not jurisdictional in the sense that
it affects a court’s subject matter
jurisdiction, i.e., a court’s
constitutional or statutory power to
adjudicate a case, here authorized by 18
U.S.C. sec.3231." 147 F.3d at 531-32
(citation omitted). Martin modified
earlier cases in this circuit that had
occasionally failed to distinguish
precisely among a "jurisdictional
element" of the offense, the legislative
power of Congress under Article I, and
the subject-matter jurisdiction of the
court. "Even if the government fails to
establish the connection to interstate
commerce [or some other source of
national power], the district court is
not deprived of jurisdiction to hear the
case." 147 F.3d at 532. See also, e.g.,
Hugi v. United States, 164 F.3d 378, 380
(7th Cir. 1999); McCoy v. United States,
2001 U.S. App. Lexis 20900 at *14-16 (11th
Cir. Sept. 25, 2001). So to get anywhere
on appeal Rogers must establish plain
error, Fed. R. Crim. P. 52(b), under the
standards of Johnson v. United States,
520 U.S. 461 (1997), and United States v.
Olano, 507 U.S. 725 (1993).
Section 5861(d) prohibits possessing any
unregistered firearm; a silencer is a
firearm; Rogers possessed a silencer;
that silencer was unregistered. Where’s
the error, plain or concealed? True
enough, Rogers could not have registered
the silencer while it was in Illinois--
the national government will not put its
imprimatur on firearms that are
contraband under state law--but this
differs from saying that Rogers could not
have registered it at all. He just had to
keep it elsewhere. (Wisconsin, for
example. See Wis. Stat.
sec.941.298(3)(c).) Or Rogers could have
complied with both state and federal laws
by refraining from making or possessing a
silencer in Illinois. See United States
v. Ross, 9 F.3d 1182, 1192-94 (7th Cir.
1993), remanded on other grounds, 511
U.S. 1124 (1994), decision on remand, 40
F.3d 144 (7th Cir. 1994). It was Rogers’s
decision to violate Illinois law that
rendered him unable to comply with
federal law. That hardly implies the lack
of any genuine federal interest;
sec.5861(d) (and the associated sections)
simply channel firearms manufacture and
use (plus the associated federal
taxation) to jurisdictions where that
conduct is lawful, just as federal laws
channel the manufacture, use, and
taxation of alcohol and tobacco products,
and gambling devices, to places where the
underlying behavior complies with state
rules.
The United States prohibits smuggling,
but a smuggler still is liable for duties
on the goods he imports. Extortion is
unlawful in all 50 states, but
extortionists must pay income tax on the
pelf. Rutkin v. United States, 343 U.S.
130 (1952). The national government does
not seek to raise revenue from excise
taxes on the sale of tobacco products to
minors, but it does not follow that a
minor who buys cigarettes in violation of
state law is entitled to evade the excise
tax as a bonus. Just so with taxes on
firearms. Rogers cites United States v.
Dalton, 960 F.2d 121 (10th Cir. 1992),
which held that a statute making it
unlawful to possess a particular kind of
firearm repealed sec.5861(d) by
implication. But Ross disapproves Dalton
and holds that the possibility of
complying with both laws prevents any
implication of repeal. Likewise with
gambling, subject to federal tax but
unlawful in many places. Gambling must be
carried on where it is lawful--and the
tax must be paid whether the gambling is
lawful or not. In his reply brief, Rogers
denies that he is arguing for implied
repeal and insists that sec.5861(d)
continues to function in states that
allow silencers. Thus the more a state
does to prohibit a given kind of firearm,
the less the federal government does (or
can do) to regulate it. Why should that
be so?
The relation of secs. 5812 and 5822
to the registration requirement is
replicated in other regulatory systems.
Consider, for example, the dispensing of
morphine and other narcotic drugs that
have lawful uses. A federal license is
necessary to write prescriptions for such
drugs, and the license is available only
to physicians in good standing. A person
who has never been to medical school--or
who has a medical education but has
abused his position and been convicted of
a crime--is ineligible for the federal
license. The line of argument Rogers uses
implies that, because the federal
government won’t issue a license to a
non-physician (or a convicted physician),
such a person may dispense narcotics
freely: the ban on issuing a license
cancels the prohibition on unlicensed
distribution. That’s perverse, yet it is
logically equivalent to Rogers’s position
that, because he can’t lawfully have
silencers registered in his name, he is
free to make and possess them without
taxation or regulation from the federal
government. Nor does the argument fare
better in constitutional than in
statutory terms. Rogers must think that
the national government lacks the power
to levy any tax that has among its
effects not only raising revenue (and
keeping tabs on the taxable items through
registration) but also diverting activity
to states where the taxed conduct is
lawful. Why that combination would exceed
national power, when a tax simpliciter is
proper, Rogers does not explain. Long ago
the Supreme Court held that the taxing
power may be employed to achieve a
regulatory end. E.g., McCray v. United
States, 195 U.S. 27 (1904); United States
v. Doremus, 249 U.S. 86 (1919). The
licensing and transfer taxes on firearms
have been sustained despite recognition
that a major, if not principal, goal is
regulation rather than revenue. See
Sozinsky v. United States, 300 U.S. 506
(1937). So we see no error and need not
reach the additional ingredients of the
plain-error standard.
The silencer was found, as we said at
the outset, during a search of Rogers’s
garage. That search had been authorized
by a warrant, and before trial Rogers
asked the district court to suppress the
evidence it turned up. The judge
declined, ruling that the evidence
narrated in the affidavit establishes
probable cause. The affidavit describes
an extensive investigation that followed
the arrival in the mail, at the house of
Dennis M. Sheehan, of a device that could
have killed whoever opened the package. A
small box inside the padded envelope
contained a 9 mm bullet, a tube that
served as a barrel, and a mechanism that
would fire the bullet when the box’s lid
was opened. Federal agents call this a
"pull-trigger device." Sheehan’s wife
tried to open the box but failed; she
became suspicious and took it to the
police.
Asked who might have tried to kill him,
Sheehan identified Rogers as a
possibility. Sheehan had represented
Rogers’s ex-wife during child-support
litigation a year earlier, and during the
proceedings Rogers had become verbally
and physically abusive toward Sheehan.
Sheehan also suspected (through the
report of a personal-injury lawyer) that
Rogers may have injured himself some
years earlier trying to build a bomb,
then made a false insurance claim to get
compensation. An investigation based on
credit-card records showed that during
the preceding year Rogers had purchased
components of the kind used to build the
pull-trigger device. His occupational
background included all of the skills
needed to construct such devices. Agents
learned that a construction contractor
who had fired Rogers years ago found
three pounds of explosives wired to his
truck two weeks later. Typing on the
label had idiosyncrasies displayed by
correspondence known to be from Rogers.
All of this information, and more, was in
the affidavit for the search warrant.
When the agents searched Rogers’s garage
they found not only the silencer but also
the MAC-11 (a 9 mm gun), a box of
Remington Peters cartridges identical to
the one in the pull-trigger device, tools
suitable for constructing the pull-
trigger device, and a copy of The
Anarchist’s Cookbook. An agent testified
at trial that the silencer found in the
garage had been constructed according to
the instructions in this book. In a
contemporaneous interview, Rogers
admitted that he had built the silencer
to the Cookbook’s plan. (He changed his
story at trial, but the jury disbelieved
the new tale, and the district judge
deemed the testimony perjurious.)
The district judge sensibly concluded
that the information in the affidavit
established probable cause. Because the
search was conducted under a warrant,
appellate review of this decision is
deferential, Ornelas v. United States,
517 U.S. 690, 698-99 (1996); Illinois v.
Gates, 462 U.S. 213, 236 (1983); Spinelli
v. United States, 393 U.S. 410, 419
(1969); Jones v. United States, 362 U.S.
257, 270-71 (1960), making it all the
harder to upset. All Rogers has to say is
that the package was mailed to Sheehan
from a city 120 miles away from Rogers’s
garage in Coal City, Illinois. People
often try to hide their culpability. That
Rogers may have driven to a distant post
office in the hope of throwing agents off
the scheme hardly disables them from
searching his garage. The Unabomber did
not mail his packages from Montana; did
that preclude agents from closing in once
evidence linked Theodore Kaczynski to the
crimes? Nor do we doubt that the agents
were entitled to seize the MAC-11 pistol,
which was linked not only to the pull-
trigger device (through the size of the
ammunition) but also to the silencer
(which was designed to screw onto the
barrel of that gun). The MAC-11 was
evidence of two crimes, properly seized
and properly used at trial.
The Anarchist’s Cookbook also was
introduced at trial. The prosecutor
treated its title as significant and read
the jury some passages in addition to
those about building silencers. Rogers’s
trial lawyer did not object, but on
appeal Rogers contends that this use was
plain error. In some respects error
occurred: The book’s title may have been
distracting (and was misleading: it is
not about classical anarchism or about
the culinary arts), and the prosecutor
should have been limited to using those
portions of the book pertinent to the
charge. There is no problem, under either
the law of evidence or the first
amendment, in presenting to the jury
written material in the defendant’s
possession that shows how to commit the
crime, for this makes it more likely that
the defendant rather than someone else
was culpable. Dressler v. McCaughtry, 238
F.3d 908 (7th Cir. 2001). At trial Rogers
contended that he had purchased the MAC-
11 as part of a kit from someone who told
him that the tube was an "extension" and
that he had no idea that the device’s
function was to quiet the gun’s report.
Whether that is true or whether, instead,
Rogers made the silencer himself knowing
full well what the device did, was a
subject on which some contents of The
Anarchist’s Cookbook were probative. But
the judge had an obligation to keep the
prosecutor from suggesting that Rogers
should be convicted because he owned
seditious literature, that anyone who
would read a book called The Anarchist’s
Cookbook must hold his legal obligations
in contempt, or that possession of the
book implied that Rogers wanted to become
a sniper. See United States v. Holt, 170
F.3d 698, 701-02 (7th Cir. 1999). Still,
given the weight of evidence against
Rogers, and the proper use at trial of
the construction plans in this book,
plain-error doctrine does not support
reversal.
At the close of the trial the district
judge instructed the jury that conviction
depended not on whether the screw-on tube
actually worked as a silencer but on
whether it was intended to work as a
silencer. That tracks the statutory
definition. See 18 U.S.C. sec.921(a)(24).
See also United States v. Syverson, 90
F.3d 227 (7th Cir. 1996). The instruction
also told the jury, as Staples requires,
that conviction depended on proof that
Rogers knew of those attributes that made
the device a statutory "firearm."
Nonetheless, he contends, the judge
should have refused to give this
(correct) instruction and should instead
have told the jury that conviction
depended on establishing at least some
sound-muffling effect. This incorrect
instruction should have been given,
counsel insists, because in his opening
statement the prosecutor told the jury
that the amount of sound reduction is
irrelevant, provided that there is some
effect. This influenced the conduct of
the defense, according to Rogers, and the
judge should have held the United States
to that position. We are unaware of any
support for the proposition that a
defendant has a legal entitlement to
embed a legal error in a jury
instruction. If the prosecutor’s opening
statement was misleading, then Rogers may
have been entitled to extra time to
present his case after the prosecutor’s
position became clear at the jury-
instruction conference. But Rogers did
not ask for an opportunity to present
extra evidence, or for a mistrial; he
asked only for a kind of remedy that he
could not receive. (For what it is worth,
we do not think that Rogers’s preferred
instruction would have done him any good.
Expert evidence showed that the
devicereduced the report of the MAC-11 by
7 decibels.)
Now we come to sentencing. Possession of
an unregistered silencer has a base
offense level of 18 under U.S.S.G.
sec.2K2.1(a)(5). The district court added
2 levels for obstruction of justice after
concluding that Rogers committed perjury
at trial. (This finding is uncontested on
appeal.) Rogers has no other criminal
convictions. With a criminal history
category of I and an offense level of 20,
his sentencing range was 33 to 41 months.
The district court imposed a 70-month
sentence, however, after concluding (on
the basis of the mailed device) that his
criminal history category understated his
past dangerousness. The judge determined
that a more appropriate criminal history
category would be V. Then he looked up
the sentencing range from the
intersection of criminal history category
V and offense level 21. (The rationale
for the extra offense level was not
explained.) That range is 70-87 months,
from which the district judge selected
the 70-month sentence.
The Sentencing Commission has authorized
judges to depart upward from the normal
range when "reliable information
indicates that the criminal history
category does not adequately reflect the
seriousness of the defendant’s past
criminal conduct or the likelihood that
the defendant will commit other crimes".
U.S.S.G. sec.4A1.3 (policy statement). We
have added that in using this power the
district judge may not simply pitch out
the guidelines but must abide by their
structure--principally by asking what the
effect on the sentencing level would have
been if the defendant had been charged
with, and convicted of, the other
criminal conduct that the judge finds has
occurred. In particular, we have held, a
judge may not depart by more than would
have been appropriate in the event of a
conviction. See, e.g., United States v.
Ferra, 900 F.2d 1057, 1061-64 (7th Cir.
1990). Uncharged conduct may be serious,
and a district judge may take it into
account, see United States v. Watts, 519
U.S. 148 (1997), but criminal acts
(determined on the basis of a
preponderance of "reliable" evidence)
that have not led to a conviction cannot
justify a greater enhancement than
identical conduct that has led to a
conviction on proof beyond a reasonable
doubt.
The district court concluded that Rogers
sent the pull-trigger device lacking a
specific intent to kill, but knowing that
it created a risk of death or serious
injury. No injury ensued. Thus the
closest offenses would have been
attempted second-degree murder under
state law, or mailing an explosive device
with attempt to injure, in violation of
18 U.S.C. sec.1716. Both offenses likely
would have led to sentences exceeding one
year, and thus to 3 criminal history
points under U.S.S.G. sec.4A1.1(a). That
would have put Rogers in criminal history
category II and raised his range to 37-46
months. It does not justify a leap to
category V, or a change from offense
level 20 to offense level 21. The
district court did not try to reconcile
its approach with Ferra or our other
cases describing how departures under
sec.4A1.3 should be handled; we do not
think that they are reconcilable.
Basing a sentence on related criminal
conduct, such as the misuse of a firearm
by someone convicted (as Rogers was) of a
firearm record-keeping offense, usually
depends on cross-references within the
Guidelines, not on manipulating the
criminal-history category. What the
prosecutor tried to accomplish in this
case by persuading the judge to pile on
criminal history categories was the
equivalent of a cross-reference to
U.S.S.G. sec.2K3.2(a)(1), the guideline
for mailing destructive devices. Because
no one was injured, sec.2K3.2 points in
turn to sec.2X1.1, the attempt guideline.
From there the chain of cross-references
would reach sec.2A2.1, which covers
attempted murder, and lead (in the
prosecutor’s view) to an offense level of
28, which carries a range of 78-97 months
even for criminal history category I. The
prosecutor noted that the combination of
offense level 20 and criminal history VI
has a range of 70-87 months and asked the
judge to use that range. The judge balked
at criminal history category VI,
concluding that Rogers did not intend to
kill Sheehan, and fell back to criminal
history category V, but then used the 70-
87 month range anyway after spontaneously
increasing the offense level to 21. This
process, the prosecutor insists,
adequately linked the sentence to the
structure of the Guidelines. Perhaps so
(for reasons we come to presently), but
it is not the method of sec.4A1.3. It is
the method of the cross-reference, and it
should be used only if the applicable
guideline has a cross-reference.
Otherwise the courts are disregarding the
Sentencing Commission’s decision to
include or omit authority for cross-
referencing to other crimes (and, if that
authority is included, the Commission’s
decision to select among the possible
links). Some guidelines convey cross-
referencing power, a form of real-offense
sentencing. Some omit it, and for these
guidelines the courts are limited to
charge-offense sentencing. That
difference must be respected. Limits on
the extent to which the Guidelines adopt
a real-offense sentencing system are an
integral part of the Sentencing
Commission’s plan. See U.S.S.G.
sec.1A.4(a).
Well, then, does sec.2K2.1 allow cross
references to other offenses? Yes, it
does. Section 2K2.1(c)(1) reads:
If the defendant used or possessed any
firearm or ammunition in connection with
the commission or attempted commission of
another offense, or possessed or
transferred a firearm or ammunition with
knowledge or intent that it would be used
or possessed in connection with another
offense, apply--
(A) sec.2X1.1 (Attempt, Solicitation, or
Conspiracy) in respect to that other
offense, if the resulting offense level
is greater than that determined above; or
(B) if death resulted, the most
analogous offense guideline from Chapter
Two, Part A, Subpart 1 (Homicide), if the
resulting offense level is greater than
that determined above.
This is general: "any firearm" in
connection with "another offense." It
appears to cover use of the pull-trigger
device (not just the silencer) as part of
attempted murder. Death did not result,
so sec.2K2.1(c)(1)(A) sends us to
sec.2X1.1 and then, just as in the
prosecutor’s argument, to sec.2A2.1, the
attempted-murder guideline. This
guideline offers two options: offense
level 28 if the defendant had the intent
required for first-degree murder, and
level 22 otherwise. The district court
determined that Rogers did not have the
intent required for first-degree murder,
so we get level 22. This exceeds the
level 18 base prescribed by
sec.2K2.1(a)(5), so we take level 22, add
2 for obstruction of justice, and end at
level 24. For someone in criminal history
category I, the sentencing range is 51-63
months. That’s an increase over the
starting point (33-41, recall), but not
as great as the prosecutor’s proposal--
and without any "departure" at all. It
avoids the pitfall of trying to shoehorn
a cross-reference into sec.4A1.3, and by
following the language of sec.2K2.1(c)
exactly, it does the cross-reference
right, as the prosecutor’s proposal did
not.
Maybe there is a flaw in this approach
that we have not detected. The district
court is free to explore on remand any
other avenues opened by sec.2K2.1(c). All
we hold is that the district court must
use the Guidelines’ own methods--either
departure to criminal history category II
or the explicit cross reference--rather
than trying to blend the departure and
cross-reference approaches without
following either one.
One final matter before we close.
Circuit Rule 30(a) provides:
The appellant shall submit, bound with
the main brief, an appendix containing
the judgment or order under review and
any opinion, memorandum of decision,
findings of fact and conclusions of law,
or oral statement of reasons delivered by
the trial court or administrative agency
upon the rendering of that judgment,
decree, or order.
Circuit Rule 30(b)(1) also calls for:
Copies of any other opinions, orders, or
oral rulings in the case that address the
issues sought to be raised. If the
appellant’s brief challenges any oral
ruling, the portion of the transcript
containing the judge’s rationale for that
ruling must be included in the appendix.
The materials called for by Rule 30 are
the tools of decision on appeal. A court
cannot perform its function in reviewing
the district court’s decision unless it
knows the reasons why those decisions
were made. For most judges of this court,
reading the decisions under review is the
first step in the preparation of an
appeal. To ensure that lawyers are aware
of their obligations, Circuit Rule 30(d)
specifies that counsel must warrant to
the court that their briefs comply with
Circuit Rule 30(a) and (b). The clerk’s
office uses this as a flag: A brief
missing the required statement will be
returned (on the assumption that counsel
was unaware of Rule 30), but a brief
containing the statement will be
accepted--for the clerk’s office has no
way to go behind the statement and
determine whether counsel has included
all of the required material.
The attorney representing Rogers filed
a brief containing this representation
(over counsel’s signature): "[I certify]
that all of the materials required by
Circuit Rule 30(a) and (b) are included
in the Appendix." The clerk’s office
accepted the brief for filing. But the
certificate is false. The appendix to the
brief contains the indictment, excerpts
from a Wisconsin statute and the Code of
Federal Regulations, and the affidavit
supporting the search warrant--none of
which is required by Rule 30, or for that
matter even permitted to be in an brief’s
appendix by Circuit Rule 30(b)(7)--plus
the judgment of conviction, the sole
representative of Rule 30(a) material.
What is missing is considerably more
important: The district judge’s ruling
denying the motion to suppress, the
judge’s rulings concerning jury
instructions, and the judge’s statement
of reasons for the upward departure from
the Guidelines. These are the key
materials required by Rule 30; none was
provided. Nor did the body of the brief
supply the omission. A reader of Rogers’s
brief would not learn that the district
judge had any reasons. Counsel does not
recapitulate the district judge’s
reasoning and then respond. The brief is
written, for the most part, as if this
court were to make the initial decision
on all contested issues.
Compliance with Circuit Rule 30 is
essential to proper performance of the
appellate task, especially by those
members of this court whose chambers are
outside Chicago and who lack instant
access to the record. Even judges with
chambers in Chicago often prepare for
oral argument at home or elsewhere and
need the district judge’s reasons ready
to hand. Rogers’s attorney not only
failed to comply with Rule 30(a), and
thus deprived the judges of essential
material, but also made a
misrepresentation that prevented the
clerk’s office from learning of the
shortcoming before the case was submitted
to a panel. In civil cases one common
response to such shortcomings is to
dismiss the appeal. Urso v. United
States, 72 F.3d 59, 61 (7th Cir. 1995);
Mortell v. Mortell Co., 887 F.2d 1322,
1327 (7th Cir. 1989). In criminal cases
we have deemed it inappropriate to penal
ize the client for the lawyer’s
misconduct and have resolved the appeal
on the merits--as we have done in
Rogers’s case--while imposing sanctions
on the lawyer. The normal sanction is a
public rebuke and a fine of $1,000. See
In re Galvan, 92 F.3d 582 (7th Cir.
1996). See also, e.g., United States v.
Evans, 131 F.3d 1192 (7th Cir. 1997).
At oral argument we asked counsel to
explain the false statement and deficient
appendix; his response was that he had
not been trial counsel and had neglected
to find the required materials in the
record. That may be an accurate statement
of cause, but it is no excuse. Rather it
compounds the offense, because it is hard
to see how an appellate lawyer can
represent his client effectively without
first learning why the district court
acted as it did. What is more, it is
impossible to see how a conscientious
lawyer could sign his name to the
statement required by Rule 30(d) without
taking the steps necessary to verify that
the representation is true. Closing one’s
eyes and signing without regard to truth
or falsity--a form of recklessness or
deliberate indifference--is culpable
rather than extenuating. The explanation
also does not ring altogether true.
Although Rogers’s brief largely neglects
the district judge’s reasoning, it point
edly observes that at sentencing the
judge rejected the prosecutor’s
contention that Rogers had mailed the
pull-trigger device with intent to kill,
finding instead that Rogers had been
reckless. So counsel must have reviewed
the transcript of sentencing and should
have put in the appendix the portions
containing the district judge’s reasons.
His explanation thus does not give us any
reason to deviate from the practice
adopted in Galvan.
The conviction is affirmed but the
sentence is vacated, and the case is
remanded for further proceedings
consistent with this opinion. The motion
for bail pending appeal (which we ordered
taken with the case) is denied. Counsel
is reprimanded for making a
misrepresentation to the court and fined
$1,000 (payable within 10 days) for
violating Circuit Rule 30.