United States v. Shawn Karst ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐3675
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
SHAWN KARST,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 17‐CR‐215 — William C. Griesbach, Judge.
____________________
ARGUED NOVEMBER 4, 2019 — DECIDED JANUARY 27, 2020
____________________
Before WOOD, Chief Judge, BAUER and BRENNAN, Circuit
Judges.
BRENNAN, Circuit Judge. Leaving an untouched pizza on
the table, Shawn Karst exited a restaurant with two men who
wore Mesticas motorcycle club vests. The three drove off on
their bikes, and a few minutes later one of the two men with
Karst pulled the trigger in a drive‐by shooting. At the time,
Karst was on supervised release.
2 No. 18‐3675
Authorities petitioned for Karst’s revocation, but the re‐
quest traveled a bumpy road. The magistrate judge vacated
the petition after finding the evidence presented did not show
probable cause to believe Karst violated the release condi‐
tions. The district judge quickly reinstated the proceedings.
He later held a final hearing at which release was revoked,
and Karst received 30 more months of imprisonment.
On appeal Karst challenges the lack of a preliminary hear‐
ing on the reinstated revocation petition, whether the district
court provided him with adequate notice of his allegedly vio‐
lative conduct, and the district court’s failure to consult the
sentencing guidelines when deciding his revocation term.
I.
In 2011, Karst pleaded guilty in the U.S. District Court for
the Northern District of Indiana to the manufacture and pos‐
session of marijuana plants with the intent to distribute. He
was sentenced to 60 months of imprisonment and four years
of supervised release. His supervised release was later trans‐
ferred to the Eastern District of Wisconsin. Two conditions of
that release pertain here: Karst was required to (1) “not com‐
mit any further federal, state or local law violations” and (2)
not associate with “persons known by him to be engaged, or
planning to be engaged, in criminal activity.”
In 2018, Karst was involved in a shooting in Appleton,
Wisconsin, although the parties dispute to what degree.
Minutes before the shooting, surveillance video shows the
triggerman, Karst, and a third individual talking inside a
pizza parlor. They looked out the windows as the victim
walked past and entered his pickup truck. The triggerman
handed his Mesticas motorcycle club vest to Karst. Then all
No. 18‐3675 3
three men left the restaurant one after another, leaving an un‐
eaten pizza behind. Outside the restaurant Karst returned the
vest to the triggerman, and all three drove off on their motor‐
cycles.
The Appleton Police Department gathered traffic camera
footage of the intersection where the shooting occurred. That
video shows the three individuals driving their motorcycles
up next to the victim’s pickup. The triggerman fires several
rounds into the truck, with Karst driving two to three seconds
behind. All three motorcyclists then proceed through a red
light and accelerate after the truck.1
Based on these events, the U.S. probation department,
with the government’s concurrence, petitioned for a warrant
alleging Karst violated the conditions of supervision de‐
scribed above. The warrant issued, Karst was arrested, and
three court hearings followed.
In the first, a preliminary hearing under Federal Rule of
Criminal Procedure 32.1(a), Magistrate Judge James Sickel
sought to “determine whether there [was] probable cause to
believe that a violation occurred.” The government called
only Appleton police officer Michael Medina, who testified to
the video evidence of Karst’s involvement in the shooting.
Karst objected to Medina’s testimony under the best evidence
rule, which the magistrate judge sustained. Absent further ev‐
idence, the magistrate judge found the government had failed
to show probable cause that the defendant violated the release
1 The record reflects the victim’s truck was damaged, but none of the
rounds struck the victim.
4 No. 18‐3675
conditions, so the magistrate judge vacated the petition to re‐
voke supervised release and released Karst.
The next day, after the probation department reported the
outcome of the preliminary hearing, Chief U.S. District Judge
William Griesbach sua sponte held a second hearing. The dis‐
trict judge concluded that the magistrate judge’s evidentiary
ruling was incorrect. After reviewing the magistrate judge’s
authority under 28 U.S.C. § 636, as well as the supervised re‐
lease statute, 18 U.S.C. § 3583, the district judge concluded the
magistrate judge was without “the authority to dismiss a
charge of a … violation of supervised release” and even if the
magistrate judge had such authority, a district court judge
“always has the authority to overturn the magistrate judge’s
determination, when it’s clearly erroneous.” The district
judge ruled that the magistrate judge had clearly erred and
reinstated the revocation proceedings:
Now, Mr. Karst was released from custody
when the magistrate judge did not find a prob‐
able cause to believe that he committed the
crime based on the—what I view as the errone‐
ous evidentiary ruling, and I donʹt intend to re‐
visit that. But this matter was set for a final hear‐
ing. I will preside over the final hearing. Itʹs still
set for final hearing. And if you would like a
preliminary hearing before the final hearing, I
can grant that and re‐hear that. Otherwise, weʹll
simply proceed to the [final] hearing.2
2 Herethe transcript says “preliminary hearing.” Because the district
judge began this sentence with the word “[o]therwise,” we presume he
meant to refer to the “final hearing,” which on September 7, 2018 had
No. 18‐3675 5
Karst’s counsel objected:
Your Honor, for the record, I will—I want to at
least note my objection, so there’s not any indi‐
cation that I’m waiving it. … I haven’t had any
sort of past experience where something has
been brought by the Court short of one of the
parties. And my understanding is the parties
in—in these cases are the Government and the
defense. The Government did not file anything
as far as I’m aware that asked the Court to re‐
view this, so I would object.
During this second hearing, the district judge invited counsel
three times to let him know, presumably by supplemental
briefing, if his analysis was incorrect. While the parties each
successfully moved to adjourn the final revocation hearing,
neither party submitted any substantive filings about the pre‐
liminary hearing or the reinstatement of the revocation peti‐
tion.
Two months later the third hearing, which was the final
revocation hearing, took place before Chief Judge Griesbach.
Karst testified he met the two other individuals involved in
the shooting that day and suggested they get lunch together.
They drove to a pizzeria, went inside, ordered food, and then
Karst stated they saw a man who looked like he was “messing
with the bikes or, you know, admiring them pretty closely.”
The shooter handed his motorcycle vest to Karst, they left the
pizzeria, and Karst returned the vest to the shooter outside.
Karst maintained he did not know the shooter had a weapon,
already been scheduled for September 21, 2018. That final hearing was
later adjourned three times and took place on December 7, 2018.
6 No. 18‐3675
and that he was not involved in any discussion about going
after the man who had looked at their motorcycles. Although
Karst later joined the Mesticas motorcycle club, Karst did not
believe he was a member of any motorcycle club on the day
of the shooting. He said he knew nothing about a feud be‐
tween the Mesticas and the DC Eagles motorcycle clubs. Karst
also claimed that because “he has bad hearing, and his bike
was very loud, as was the bike next to him,” he was unaware
the shooter fired at the victim until later. Admitted as exhibits
at this third hearing were videos from the pizza parlor and
from a traffic camera at the intersection where the shooting
took place.
The government contended the shooting related to a mo‐
torcycle club rivalry. Karst and the other two men wore outfits
with Mesticas logos, and the victim wore a shirt with the logo
of Mesticas’ rival, the D.C. Eagles. The government also sug‐
gested Karst “help[ed] conceal [the shooter’s] identity” by
carrying the shooter’s vest “in case the victim … look[ed] in
his mirrors or look[ed] behind him.” The government asked
that Karst’s supervised release be revoked because he broke
the law and associated with people engaged in criminal activ‐
ity.
The defense argued there was no record evidence Karst
was party to a crime3 of recklessly endangering safety4 or that
3 Wis. Stat. § 939.05 Parties to crime at (2) states in part: “A person is
concerned in the commission of the crime if the person: (a) [d]irectly com‐
mits the crime; or (b) [i]ntentionally aids and abets the commission of it;
or (c) [i]s a party to a conspiracy with another to commit it or advises,
hires, counsels or otherwise procures another to commit it.”
4The second‐degree version of this crime criminalizes recklessly en‐
dangering another person’s safety, while the first‐degree adds the element
No. 18‐3675 7
he was a member of a conspiracy to commit a crime.5 The
pizza parlor video had no audio, and the other two motorcy‐
clists did not testify about conversations among the three.
Karst denied they discussed shooting at the victim. Karst also
argued that because he trailed the triggerman by two or three
seconds, he did not assist in the shooting. Due to the lack of
evidence, the defense asked that Karst’s supervision not be
revoked.
The court ruled from the bench and found Karst not cred‐
ible. The court noted how Karst had accepted the shooter’s
vest and then returned it, presumably to help the shooter con‐
ceal his identity. From review of the pizzeria video, the court
also found that the victim did not approach the three motor‐
cyclists’ bikes. The court concluded the interaction among the
three motorcyclists “show[ed] familiarity and much more
than having just met on the streets.” The court found the mo‐
torcyclists had chased the victim’s pickup truck and that Karst
would have seen the shooter, who was directly in front of
Karst with a hand outstretched firing the gun. The court
agreed there was no audible description of a plan but inferred
from the interaction among the motorcyclists inside the res‐
taurant, throughout the chase, and during the shooting “that
there was an effort and a plan to go after this individual.” The
court found the preponderance of the evidence showed Karst
“conspired as a party to a crime to conduct this drive‐by
of acting with utter disregard for human life. Both are felonies. WIS. STAT.
§ 941.30(1)–(2).
5 Wis. Stat. §
939.31 Conspiracy states in part: “[W]hoever, with intent
that a crime be committed, agrees or combines with another for the pur‐
pose of committing that crime may, if one or more of the parties to the
conspiracy does an to effect its object, be fined or imprisoned or both … .”
8 No. 18‐3675
shooting or the shooting of another person” and thus violated
the conditions of his supervised release.
The hearing moved directly to sentencing. The govern‐
ment recommended the statutory maximum of three years in‐
carceration. The defense noted the guidelines recommended
12 to 18 months incarceration and requested Karst receive 12
months because he was not the shooter and other mitigating
factors. The court agreed that Karst was not the shooter but
found his testimony on his lack of involvement incredible.
The court concluded Karst’s involvement deserved significant
punishment, in part, because the time and location of the
shooting posed a great danger to the public. After hearing the
defendant’s allocution but without mentioning the sentencing
guidelines, the court imposed a revocation sentence of 30
months incarceration. Karst appealed.6
II.
A. Preliminary Hearing for
Supervised Release Revocation
At the second hearing, the district judge (1) found the mag‐
istrate judge committed clear error in applying the best evi‐
dence rule, (2) reiterated that the matter was set for a final
hearing, and (3) did not conduct a preliminary hearing to find
probable cause. On appeal, Karst first argues the district court
erred by reinstating the revocation petition without finding
there was probable cause to support the petition. Karst points
6 Karst was released from custody by the magistrate judge on Septem‐
ber 6, 2018. He remained out of custody for three months until the final
revocation hearing on December 7, 2018, at which, after supervised release
was revoked, he was remanded into custody.
No. 18‐3675 9
to the text of Federal Rules of Criminal Procedure
32.1(b)(1)(C)—“[i]f the judge does not find probable cause, the
judge must dismiss the proceeding”—and argues “the gov‐
ernment had no more shown probable cause before the dis‐
trict judge than it had the previous day before the magistrate
judge.”
The parties disagree as to this court’s standard of review
on this first issue. Karst argues for de novo review and the
government for plain error review. We are persuaded Karst
sufficiently objected to the district court’s decision to reinstate
the proceedings. But Karst’s first argument on appeal is not
that the district court erred by reinstating the revocation pro‐
ceedings; instead, he contends the district court erred by not
conducting a preliminary hearing after it reinstated the pro‐
ceedings. Karst did not raise, note, or argue this point before
the district court and so seemingly failed to preserve a claim
of error under Federal Rule of Criminal Procedure 51(b). Be‐
cause no objection to the lack of a preliminary hearing was
ever made, the defendant never presented to the district court
the full argument he now raises on appeal, and the district
court never had the opportunity to consider Karst’s reasoning
on that point. That counsels plain error review under Federal
Rule of Criminal Procedure 52(b). See Puckett v. United States,
129 S. Ct. 1423, 1428–29 (2009) (plain error review limits ap‐
pellate court authority and induces timely raising of objec‐
tions before the district court, which is ordinarily in the best
position to resolve the issue).
Even if the objection at the second hearing is viewed more
broadly to encompass Karst’s entire argument, we still con‐
clude we review for plain error given the events in the district
court. During the second hearing, the district judge noted his
10 No. 18‐3675
intention not to “revisit” the magistrate judge’s probable
cause decision. But the district judge twice offered to hold a
preliminary hearing, and during one of those offers he said he
would “re‐hear” arguments on the probable cause issue. The
defense did not accept this offer to re‐hear the probable cause
question. Even more, during the second hearing the district
judge invited counsel three times to let him know if his anal‐
ysis was incorrect, including by supplemental filings. The de‐
fense did not pursue the matter further and thus never pre‐
sented to the district court the full argument he now raises on
appeal. If the defense had done so, the district court may have
proceeded differently. This failure to timely assert a right con‐
stitutes a forfeiture, United States v. Olano, 507 U.S. 725, 733
(1993), which also results in plain error review. United States
v. Flores, 929 F.3d 443, 447 (7th Cir. 2019) (“We review forfeited
arguments for plain error … .).
Plain error review requires the defendant show an error
that: (1) was not intentionally waived; (2) was plain, that is,
clear or obvious; (3) affected the defendant’s substantial
rights; and (4) seriously affected the fairness, integrity, or
public reputation of judicial proceedings. United States v.
Brazier, 933 F.3d 796, 800 (7th Cir. 2019) (citing Molina‐
Martinez v. United States, 136 S. Ct. 1338, 1343 (2016); Olano,
507 U.S. at 732–34).
Karst fails on the third element, however; he has not
shown that the lack of a preliminary hearing affected his sub‐
stantial rights. At the final revocation hearing, Karst had a full
opportunity to contest the facts underlying the charges
against him. His counsel cross‐examined the only adverse
witness, and Karst testified to his own version of the facts. No
witnesses or documents have been identified as a result of the
No. 18‐3675 11
lack of a preliminary hearing, and Karst has not argued that
the lack of such a hearing affected his revocation sentence. In‐
deed, as a result of the sequence of hearings, Karst remained
out of custody for three months between the magistrate
judge’s dismissal of the revocation petition and its resolution
at the final hearing. Karst has not demonstrated how the lack
of a preliminary hearing caused him prejudice, so the plain
error standard is not satisfied here. See United States v.
Robertson, 367 Fed. Appx. 301, 304 (3d Cir. 2010) (failure to
hold preliminary hearing not plain error when district court
otherwise complied with Federal Rules of Criminal Procedure
32.1 and defendant did not show how lack of preliminary
hearing caused prejudice); United States v. Chin, 224 F.3d 121,
123 (2d Cir. 2000) (citing United States v. Companion, 545 F.2d
308, 312–13 (2d Cir. 1976)) (failure to hold preliminary hearing
did not deprive defendant of due process because any defect
was irrelevant in light of valid revocation hearing);
Companion, 545 F.2d at 312–13 (failure to hold a preliminary
hearing was not prejudicial error when defendant had
already been found in violation of probation following revo‐
cation hearing). Regardless of his efforts on the other three
elements, Karst has not shown an error that affected his sub‐
stantial rights.
B. Notice of Violation
Karst also argues the district court erred by not identifying
which federal, state, or local crime he committed. Even if the
crime could be discerned, Karst contends, the district court’s
factual findings are “fundamentally at odds with” its conclu‐
sion that by a preponderance of the evidence Karst conspired
with the other individuals to commit the shooting. The record
does not show Karst objected on these points, so we again
12 No. 18‐3675
review for plain error. United States v. Lee, 795 F.3d 682, 685
(7th Cir. 2015).
Federal Rule of Criminal Procedure 32.1(b)(2), which gov‐
erns revocation proceedings, entitles the defendant to notice
of the alleged violation. But this court does not require district
courts to identify a “specific crime” when revoking release.
Lee, 795 F.3d at 686 (“Lee maintains that both Rule 32.1 and
the Constitution require a citation to a specific statute when
the alleged violation involves a federal, state, or local crime.
Although we accept such a citation as sufficient evidence, we
have never held that it is necessary, nor have most of the other
circuits.” (citations omitted)).
Karst admits the written revocation petition provided him
adequate notice, and we conclude the district court’s state‐
ment that Karst “conspired as a party to a crime to conduct
this drive‐by shooting or the shooting of another person” is
more than sufficient to notify him of the violative crime. The
district court need not have labeled Karst’s conduct as “reck‐
lessly endangering safety,” nor sorted out the complexities of
Wisconsin inchoate criminal law. Our precedent does not im‐
pose a specificity requirement on the district courts but in‐
stead looks to whether the revocation petition “provides [the
defendant] with enough ‘basic facts’ to give him ‘written no‐
tice of the alleged violation’ within the meaning of Rule
32.1(b)(2)(A).” Id. at 687 (citing United States v. Kirtley, 5 F.3d
1110, 1113 (7th Cir. 1993)). That standard is satisfied here.
Karst also argues the district court’s “conclusion that Mr.
Karst … was a party to such a crime by conspiracy is funda‐
mentally at odds with the district court’s own factual
No. 18‐3675 13
findings.” Wisconsin criminal law of conspiracy7 requires:
“(1) An agreement among two or more persons to direct their
conduct toward the realization of a criminal objective” and
“(2) [e]ach member of the conspiracy must individually con‐
sciously intend the realization of the particular criminal ob‐
jective.” State v. Hecht, 116 Wis. 2d 605, 624, 342 N.W.2d 721,
732 (1984) (citation omitted). Karst asserts the district court
erred by finding he was party to a crime of “shooting at a per‐
son” because the court found the conspiracy’s goal “was to
either frighten or shoot [the victim].” Karst reasons that be‐
cause the court found the conspiracy’s intent may have been
broader than his intent, the district court failed to show he
“individually consciously intend[ed] the realization of the
particular criminal objective,” here of shooting at a person.
Rather, Karst notes, he “may have simply intended to give
[the victim] a scare.”
Karst oversimplifies the district court’s finding. That court
found Karst was “well aware of the plan” to “either frighten
or shoot the victim” and that Karst “joined [his associates] in
committing this crime.” The criminal objective of this conspir‐
acy—shooting at a person—can lead to a victim being shot at
or merely frightened. Neither the district court nor this court
need analyze the specific intent underlying the criminal con‐
spiracy. The district court found Karst and his associates
agreed to shoot the victim, Karst was aware of the plan, he
joined his associates in a conspiracy to shoot at the victim, and
he aided the conspiracy when he accepted the shooter’s vest
7 Karst assumes Wisconsin state law applies on this question, but the
supervised release terms require he “not commit any further federal, state
or local law violation,” so federal conspiracy law could also apply. We
consider Karst’s argument on the basis he advances it.
14 No. 18‐3675
and then returned it, presumably to help the shooter conceal
his identity. These findings support the district court’s con‐
clusion that Karst committed a crime violating his supervised
release.
C. Sentencing Guidelines at Revocation Hearing
Karst’s final arguments are that during the sentencing
phase of the final revocation hearing (the third hearing) the
district court erred by failing to consider and apply the
Sentencing Guidelines and by failing to take his mitigation
testimony into account. We review de novo these claims of
procedural error. United States v. Bustos, 912 F.3d 1059, 1062
(7th Cir. 2019).
“As with an initial sentencing decision, when deciding
whether to revoke a term of supervised release, the district
court must begin its analysis with the recommended impris‐
onment range found in the Guidelines.” United States v.
Snyder, 635 F.3d 956, 959 (7th Cir. 2011) (citation omitted). The
district court failed to identify the appropriate category of of‐
fense under the Guidelines and to consider the applicable sen‐
tencing range. The government concedes that fact. We require
remand to the district court if that court did not consider the
Guidelines when revoking a term of supervised release, id. at
962, and we will so order.
Whether the district court failed to sufficiently consider
Karst’s arguments in mitigation is more complicated. During
the sentencing phase, Karst argued he had a minimal role in
the crime, asserted he had adjusted to supervision and stayed
out of “trouble” for years since his release, reiterated that he
“did not know this was going to happen,” and claimed he
tried to cooperate with the police. In the sentencing remarks
No. 18‐3675 15
the district court responded to some but not all of these state‐
ments. On remand, the district court should evaluate each of
the mitigation points Karst raises.
III.
For these reasons, we AFFIRM IN PART, REVERSE IN
PART, and REMAND for further proceedings. We see no
grounds for Karst’s call to reassign this case under Circuit
Rule 36, so we decline that request.