text:
    Peggy ZAHN, Plaintiff-Appellant, v. NORTH AMERICAN POWER & GAS, LLC, Defendant-Appellee.
    No. 15-2332
    United States Court of Appeals, Seventh Circuit.
    Argued December 2, 2015
    Decided February 8, 2017

      Douglas Gregory Blankinship, Attorney, Finkelstein, Blankinship, Frei-Pearson & Garber, LLP, White Plains, NY, for Plaintiff-Appellant.
    Angelo J. Kappas, Stephanie F. Jones, Attorneys, Gordon & Rees LLP, Chicago, IL, for Defendan1>-Appellee.
    Before KANNE and SYKES, Circuit Judges, and GILBERT, District Judge.

       The Honorable J. Phil Gilbert, of the United States District Court for the Southern District of Illinois, sitting by designation.

   KANNE, Circuit Judge.

Peggy Zahn filed a class-action complaint against North American Power & Gas, LLC (“NAPG”) — an Alternative Retail Electric Supplier — alleging violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, breach of contract, and unjust enrichment. NAPG moved to dismiss the complaint for lack of subject-matter jurisdiction and for failure to state a claim. The district court granted NAPG’s motion to dismiss for lack of subject-matter jurisdiction, believing that “Illinois law grants the [Illinois Commerce Commission (“ICC”)] exclusive jurisdiction over the matter.” Zahn v. N. Am. Power & Gas, LLC, No. 14 C 8370, 2015 WL 2455125, at *3 (N.D. Ill. May 22, 2015). The district court alternatively granted NAPG’s motion to dismiss for failure to state a claim, addressing the merits of the suit. This appeal followed.

In our original opinion in this case, we described NAPG’s argument that the district court lacked subject-matter jurisdiction as “miscast.” Zahn v. N. Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016). We explained that states, including Illinois, do not have the constitutional authority to limit a district court’s jurisdiction; that power lies exclusively with Congress. We noted, however, that states do “have the power to prevent the federal court from granting relief in a diversity case by denying the substantive right of action asserted.” Id. (quoting Begay v. Kerr-McGee Corp., 682 F.2d 1311, 1315 (9th Cir. 1982)). We thus recast NAPG’s jurisdictional challenge as “one to the subject-matter jurisdiction of an Illinois state court. If an Illinois state court does not have jurisdiction to hear Zahn’s claim, then Zahn has failed to state a claim upon which relief may be granted in' a federal court sitting in diversity.” Id.

Because we viewed this jurisdictional issue as an important and unsettled matter of state law, we certified the following question to the Illinois Supreme Court:

Does the ICC have exclusive jurisdiction over a reparation claim, as defined by the Illinois Supreme Court in Sheffler v. Commonwealth Edison Company, 353 Ill.Dec. 299, 955 N.E.2d 1110 (2011), brought by a residential consumer against an Alternative Retail Electric Supplier, as defined by 220 ILCS 5/16— 102?

Id. at 1095. The Illinois Supreme Court answered that question in the negative, holding that an Illinois trial court would have subject-matter jurisdiction over this type of claim. Zahn v. N. Am. Power & Gas, LLC, No. 120526, — N.E.3d -, -, 2016 WL 7007876, at *6-7 (Ill. Dec. 1, 2016). Because the district court had reached the opposite conclusion, it erred in that regard: the district court has jurisdiction to hear this case.

We next address the district court’s alternative conclusion that “[e]ven if the Court had jurisdiction over the Complaint, the Court would dismiss the Complaint for failing to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.” Zahn v. N. Am. Power & Gas, LLC, No. 14 C 8370, 2015 WL 2455125, at *3 (N.D. Ill. May 22, 2015). We first note that the district court may have committed error by addressing the merits after concluding that it did not have jurisdiction to hear the case. Cf. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (quoting Ex parte McCardle, 74 U.S. 7 Wall. 506, 514, 19 L.Ed. 264 1868) (‘Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.”). That said, we will not ignore the court’s merits analysis here because doing so would be an obvious waste of judicial resources.

The district court dismissed all three of Zahn’s claims, concluding that she had not pled sufficient facts to demonstrate that NAPG violated the Illinois Consumer Fraud and Deceptive Business Practices Act, breached a contract, or was unjustly enriched. We review de novo a district court’s dismissal of a complaint for failure to state a claim.” Berger v. Nat'l Collegiate Athletic Ass’n, 843 F.3d 285, 289 (7th Cir. 2016). In so doing, we construe the complaint in the “light most favorable to the nonmoving party, accept well-pleaded facts as true, and draw all inferences in [the nonmoving party’s] favor.” Bell v. City of Chicago, 835 F.3d 736, 738 (7th Cir. 2016) (internal quotation marks omitted).

In dismissing Zahn’s complaint, the district court did not address Zahn’s allegation that NAPG promised and their contract reflected a “New Customer Rate” of $.0499 per kilowatt hour. Zahn alleged that NAPG “lures consumers into switching to its electricity supply service by offering teaser rates that are much lower than its regular rates.” (R. 2 at ¶ 13.) She alleged that the teaser rate NAPG offered her was $.0499 per kilowatt hour (R. 2 at ¶ 15) and that she never received that initial rate but instead was charged $.0599 per kilowatt hour on her initial bill. (R. 2 at ¶ 18.) She further alleged that “[a]t no time during this period did [NAPG] charge less than $0.05990 per kilowatt hour.” (R. 2 at ¶ 18.) That alone, if true, could constitute a breach of contract or a deceptive business practice. Because the district court did not address that allegation, it committed error.

For the foregoing reasons, we REVERSE the district court’s decision that it lacked jurisdiction to hear this case, VACATE its decision regarding the merits, and REMAND for further proceedings consistent with this opinion.

      . The facts of this case are more thoroughly developed in our original opinion.


source: Caselaw Access Project

author: MANION, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Kevin A. HOFFMAN, also known as Kevin Hoffman, Defendant-Appellant.
    No. 16-1595
    United States Court of Appeals, Seventh Circuit.
    Argued November 10, 2016
    Decided February 8, 2017

      John M. Maciejczyk, Attorney, Office of the United States Attorney, South Bend, IN, for Plaintiff-Appellee.
    William J. Stevens, Attorney, Bridgman, MI, for Defendant-Appellant.
    Before RIPPLE, MANION, and ROVNER, Circuit Judges.
   MANION, Circuit Judge.

For conduct arising out of one day’s sexual abuse, Kevin Hoffman was convicted after a two-day federal jury trial of one count of exploitation of a child and one count of possession of child pornography in interstate commerce, and faced a sentence of up to thirty years in prison. While his sentence was pending, he was convicted ,in state court of sexual abuse of the same child over a period of eighteen months, and faced a sentence of up to fifty years in state prison. This case involves the discretion of a federal district court judge under U.S.S.G. § 5G1.3 to impose a concurrent or consecutive sentence, or to decline to impose either, when a subsequent state sentence for relevant conduct is anticipated. Hoffman argues that the plain language of the Sentencing Guidelines requires a district judge to impose a concurrent sentence in such a situation. Because the Guidelines are advisory, and because U.S.S.G. § 5G1.3 is inapplicable in this case, we affirm the decision below.

I. Background

Hoffman’s federal conviction arises out of events occurring on one day, September 5, 2013. On that day, Hoffman was at home in Michigan City, Indiana. He lived there with his girlfriend, Shannon, her sister-in-law, Nina, and Nina’s two young sons. Shannon had two daughters who also lived in the house: Hannah, 18, and the victim, Jane Doe, 6. Finally, the primary witness, Ashley Randle-El, 23, was a friend of Hannah’s and also lived in the house.

On September 5, 2013, Hoffman and Randle-El were caring for Jane Doe and Nina’s two young sons. All five went to the back yard patio at some point during the day. Later, Hoffman and Jane Doe went inside. Shortly thereafter, Randle-El and Nina’s two boys returned to the house, and Randle-El witnessed Jane Doe return from Hoffman’s bedroom to the kitchen. Randle-El walked to the bedroom and asked Hoffman to borrow his cell phone, which he gave to her. She returned to the kitchen in order to place a call.

When she opened the phone, she saw a photograph of Jane Doe, nude, in what the District Court characterized as a “blatantly sexual pose.” Screaming, Randle-El asked Jane Doe: “What’s going on?” Jane Doe replied: “My dad took the x-rays,” and Jane Doe ran back towards the bedroom. Hoffman came out, seized the phone, and deleted the photographs. Randle-El took the children outside, and when Jane Doe’s mother, Hoffman's girlfriend Shannon, returned home, they found no photos, and notified police. Pursuant to a search warrant, Michigan City police seized Hoffman’s cell phone and a forensic analyst discovered ten deleted images of Jane Doe naked in various postures. Hoffman was arrested on November 26, 2013, and he has remained in custody since. A grand jury returned an indictment against Hoffman on December 11, 2013, on one count of violating 18 U.S.C. § 2251(a), sexual exploitation of a child, and one count of violating 18 U.S.C. § 2252(a)(4)(B), possession of child pornography in interstate commerce.

As noted by the district court and affirmed by the government at oral argument, the case was tried “as a child pornography case” related to the events of September 5, 2013. However, during the course of the trial the jury did hear testimony from Jane Doe which related to her grooming and abuse by Hoffman over a period of time. Specifically, Jane Doe related that she and Hoffman had “praetice[d] having sex ... lots, multiple times.” Further, she testified that Hoffman’s hands would shake and that he told her he was a diabetic and would die without oral sex, which she would then perform on him. This abuse, however, was not what Hoffman was charged with: he was charged with, and convicted of, one count of sexual exploitation of a child and one child pornography count, both related to the events of September 5, 2013.

Following Hoffman’s first sentencing hearing, the district court on January 5, 2015, increased Hoffman's base offense level pursuant to U.S.S.G. § 2G2.1 (sexual exploitation of a minor) and U.S.S.G. § 4B1.5(b) (repeat and dangerous sex offender against minors). The maximum allowable sentence under the statutes was 30 years, or 360 months. This fell below the advisory guideline range of life. Therefore, the advisory range was limited to 360 months. The government agreed that 360 months was reasonable. Hoffman’s attorneys, for their part, recommended 17 years, which was 2 years above the statutory minimum of 15 years. After applying the various factors set out in 18 U.S.C. § 3553, the district judge sentenced Hoffman to • a term of 300 months’ imprisonment, and ten years of supervised release, with various conditions upon that release. He noted that the single count of production of child pornography would carry with it a minimum mandatory sentence of 15 years, so that the other aspects óf the case demanded more than simply the two years requested by defense counsel. Accordingly, he imposed a 25-year sentence on Hoffman solely for the production count, merging the possession count with it.

Following his first sentencing, Hoffman filed a notice of appeal. During the pen-dency of that appeal, this court decided both United States v. Thompson, 777 F.3d 368 (7th Cir. 2015), and United States v. Kappes, 782 F.3d 828 (7th Cir. 2015), which bore on the validity of several conditions of supervised release imposed on Hoffman at his initial sentencing. As a result, on October 7, 2015, the parties filed a joint motion to remand for full resen-tencing, which this court granted the next day. Hoffman was resentenced in district court on March 14, 2016, again for 25 years, in the order now on appeal before this court.

Also during the pendency of Hoffman’s appeal from his first sentencing, parallel proceedings in state court were developing related to his 18-month period of abusing Jane Doe. Shortly before his federal resen-tencing, ■ an Indiana jury convicted Hoffman of child molestation, a charge for which he faced a sentencing range of 20 to 50 years. Facing this additional sentence, Hoffman argued at resentencing in the federal case that because his sentence was enhanced under U.S.S.G. § 4B1.5(b)(l), for “engage[ing] in a pattern of activity involving .prohibited sexual conduct,” he was entitled to a concurrent sentence under U.S.S.G. § 5G1.3(e). That section provides:

If subsection (a) [the crime was committed while incarcerated] does not apply, and a state term of imprisonment is anticipated to result from another offense that is relevant conduct to the instant offense of conviction under the provisions of subsections (a)(1), (a)(2), or (a)(3) of § 1B1.3 (Relevant Conduct), the sentence for the instant offense shall be imposed to run concurrently to the anticipated term of imprisonment.

After considering the arguments, the district court declined to apply § 5G1.3(c). Its reasoning was three-fold. First, it noted that under United States v. Moore, 784 F.3d 398 (7th Cir. 2015), section § 5G1.3(c) is advisory, rather than mandatory, rejecting Hoffman’s argument that the district court was compelled to sentence concurrently. See also United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Second, it rejected, “though somewhat tentatively,” Hoffman’s argument that his sentencing enhancement under U.S.S.G. § 4B1.5 was the requisite “relevant conduct” under § 5G1.3(e). The court instead held that § 5G1.3(c) simply did not apply to any Chapter Four enhancements, such as § 4B1.5. Finally, the district court noted that even if § 5G1.3(c) applied, it would have sentenced Hoffman consecutively, citing this court’s decision in United States v. Hawkins, 777 F.3d 880, 885 (7th Cir. 2015) (“We have encouraged district judges to bypass debatable issues in the calculation of Guideline ranges if the issues turn out not to matter, and to state on the record whether the sentence would have been the same if the debated issue had come out the other way.”).

Specifically, it noted that the state court might have additional information that the federal court did not have, so that the state court would be in a better position to determine an appropriate sentence for Hoffman. Rather than imposing a consecutive sentence, however, the district judge simply declined to rule, noting that “[t]his court would have no objection to the state and federal sentences running concurrently.” It is this decision that is before us on appeal.

One last event bears mentioning. On May 12, 2016, Hoffman was sentenced in Indiana state court to the statutory maximum, 50 years, and the sentence was imposed consecutively. As aggravating factors, the state court cited:

the victim’s young age, Hoffman’s role as a father figure, his high risk to re-offend, his lack of remorse and denial of responsibility despite the evidence and his prior criminal history — which includes having raped a child at knifepoint when he was 12 and having raped a relative when he was 15.

The state court cited no mitigating factors.

II. ANALYSIS

We review district .court interpretations of the Sentencing Guidelines de novo, and factual determinations underlying the application of the Guidelines for clear error. United States v. Grzegorczyk, 800 F.3d 402, 405 (7th Cir. 2015).

On appeal, Hoffman asks us to vacate his sentence and remand for resen-tencing, arguing that it was an abuse of discretion for the district court judge to decline to impose the sentence concurrent to the pending state sentence, as he argues is mandatory under § 5G1.3(c). On the one hand, Hoffman cites Setser v. United States, 566 U.S. 231, 132 S.Ct. 1463, 182 L.Ed.2d 455 (2012), for the proposition that a district court has discretion to order a federal sentence to run concurrently or consecutively to an anticipated state sentence. This is certainly true, and the district court agreed.

On the other hand, Hoffman seems to believe that because the Guidelines are advisory, the district court committed error when it noted that “The court doesn’t have the authority to do what Mr. Hoffman asks.” We do not take this stray comment to mean that the district court judge was unaware that the Guidelines are advisory. Indeed, the district court’s very next sentence explicitly notes that the Guidelines are indeed advisory. Rather, the district court was signaling that it could not apply § 5G1.3(c) in Hoffman’s case because his sentencing enhancements were simply not for “relevant conduct” that would trigger that section. Thus, the legal question before us is whether the district court erred in declining to apply § 5G1.3(c) to Hoffman’s sentence. Today, we hold that it did not err.

The text of § 5G1.3(c) is straightforward, as is its purpose. When sentencing a federal defendant for certain criminal conduct, a district judge should take note of anticipated state terms of imprisonment for relevant conduct, and, where appropriate, impose a concurrent sentence, in order to avoid an unduly harsh sentence unwittingly. What constitutes “relevant conduct” is explicitly laid out in the section: “provisions of subsections (a)(1), (a)(2), or (a)(3) of § 1B1.3.”

This exhaustive list of “relevant conduct” under § 5G1.3(c) relates back to a single subsection, U.S.S.G. § lB1.3(a): relevant conduct under Chapters Two and Three. Thus, under § 5G1.3(c), the federal district judge is instructed to consider anticipated state terms of imprisonment where that term of state imprisonment is relevant conduct to a Chapter Two or Three enhancement. As noted in the district court’s decision before us, Hoffman’s Chapter Four enhancement, U.S.S.G. § 4B1.5(b)(l), simply does not fall under § 5G1.3(c).

While it is true that Hoffman’s sentence was enhanced under a few Chapter Two enhancements—specifically, § 2G2.1(b)(l)(A), § 2G2.1(2)(A), and § 2G2.1(5)—Hoffman did not argue before the district court that these sentencing enhancements triggered § 5G1.3(c). As a result, we consider this argument waived, and will review it only for plain error. However, we need not fully consider whether § 5G1.3(c) was triggered by the Chapter Two sentencing enhancements applied to Hoffman, because any hypothetical error by the district judge was harmless. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

As detailed in the district court opinion below, even had § 5G1.3(c) been applicable, the district judge still would have declined to impose a concurrent sentence. With due care for both the rights of the accused and for our federal system, the judge noted that “this court can’t be so presumptuous as to claim certainty of the information that will be available to the state court in the event of a conviction.” Rather than imposing a concurrent sentence and thus limiting the sentencing options of the state judge, the federal district judge merely deferred. Such deferral was entirely appropriate, and to be encouraged, when the district judge has reason to believe that a state judge might have additional facts before it relevant to sentencing.

As tried in federal court, the jury did hear some testimony of Jane Doe related to her long-term abuse at the hands of Hoffman, but this testimony was limited because the charges were related to a single day’s conduct. The district court observed that the potentially more expansive state criminal trial might unveil additional factors, both aggravating and mitigating, that could serve to place the state judge in a better position than the federal judge to determine whether a concurrent or consecutive sentence was warranted. As it turns out, the state judge did preside over a more expansive prosecution covering not one day, but 18 months of repeated abuse of a 6-year old girl at the hands of a man who was supposed to be caring for her. The state court found several aggravating factors, no mitigating factors, imposed the statutory maximum sentence, and imposed that sentence consecutively. The instincts of the federal judge in this case about the need to defer were entirely appropriate.

To find the district court order in error, vacate it, and remand for a third resen-tencing could thus place Hoffman in no better position than he is now. As the district judge indicated, even applying § 5G1.3(c) he would still decline to impose a concurrent sentence, so that any hypothetical error clearly did not affect the district court’s decision. United States v. Gill, 824 F.3d 653, 662 (7th Cir. 2016).

The decision of the district court is thus AFFIRMED. •

      . Certainly, in Setser v. United States, Justice Scalia, writing for the majority, notes that “it is always more respectful of the State's sovereignty for the district court to make its decision up front rather than for the Bureau of Prisons to make the decision after the state court has acted.” 566 U.S. 231, 241, 132 S.Ct. 1463 (2012). But this holds when all the facts are known and the district judge is unsure about what actual time might be served in an anticipated state sentence. It does not hold when what the district judge is unsure about is equitable factors due to a narrow federal prosecution.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Tyran PATTON, Defendant-Appellant.
    No. 16-1319
    United States Court of Appeals, Seventh Circuit.
    Argued December 8, 2016
    Decided February 9, 2017

      Helene B. Greenwald, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.
    Beau B. Brindley, Michael J. Thompson, Attorneys, Law Offices of Beau B. Brind-ley, Chicago, IL, for Defendant-Appellant.
    Before MANION, KANNE, and HAMILTON, Circuit Judges.
   MANION, Circuit Judge.

Tyran Patton was a high-level drug dealer who, after being arrested for an unrelated firearms offense, agreed to cooperate with the government. Patton acted as an informant in the government’s investigation of illegal firearm sales but then disappeared for several months. After he reemerged, he pleaded guilty to the drug charges and was sentenced. At sentencing the government refused to move for a sentencing reduction for substantial cooperation. The district court then sentenced Patton to a below-guidelines prison sentence of 244 months’ imprisonment. Patton appeals, claiming the district court should have forced the government to file a motion for a sentencing reduction. We affirm.

I.

Tyran Patton was a major cocaine and heroin dealer in the Chicago area. In April 2010, law enforcement agents arrested Patton’s courier with 8 kilograms of cocaine and 3 kilograms of heroin. Agents for the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) later arrested Patton pursuant to an arrest warrant in an unrelated firearms investigation. After he was arrested, Patton confessed to his use of firearms and his drug-trafficking activities. He then agreed to cooperate with the ATF. Patton assisted the ATF for about a year and made several controlled purchases of firearms. However, the government agent working with Patton was inexperienced and allowed Patton to pick his own targets. As a result, according to the government, Patton only delivered street-level dealers, protecting higher-level sources as well as family and friends. Nonetheless, Patton’s efforts resulted in several convictions and the government removing 60 guns off the streets.

In late August 2012, the ATF informed Patton that the government was about to appear before a grand jury and needed him to testify. The government also informed Patton that he would be indicted soon on the drug charges. Soon thereafter, Patton disappeared, reemerging in February 2018 only after the government had finished several trials and word was out on the street that Patton was an informant. The government claims Patton only came forward then because he needed the government’s protection.

Patton attempted to negotiate a plea agreement with the government, but because he had been AWOL for over six months, his efforts were unsuccessful. Patton eventually pleaded guilty to the drug charges without a plea agreement. At sentencing, Patton asked the district court to force the prosecutor to file a motion for a reduction in the statutory mandatory sentence and sentencing range for substantial assistance under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1. The district court stated that it didn’t think it had the authority to do so, but even if it did, it would not require the government to file such a motion under the circumstances. Nonetheless, in weighing the § 3553(a) factors, the district court took into consideration Patton’s cooperation with the government and sentenced him to a below-guideline sentence of 244 months’ imprisonment. Patton appeals his sentence.

II.

On appeal, Patton argues that the district court erred in denying his request to force the government to file a motion pursuant to § 3553(e) and U.S.S.G. § 5K1.1 for a reduced sentence for substantial assistance. Section 3553(e) provides that district courts, “[u]pon motion of the Government,” may impose a sentence below the statutory minimum to reflect a defendant’s “substantial assistance in the investigation or prosecution of another person who has committed an offense.” 18 U.S.C. § 3553(e). And Section 5K1.1 provides: “Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.”

“[FJederal district courts have authority to review a prosecutor’s refusal to file a substantial-assistance motion and to grant a remedy if they find that the refusal was based on an unconstitutional motive” or if it “was not rationally related to any legitimate Government end.” Wade v. United States, 504 U.S. 181, 185-86, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992). The burden is on the defendant, however, to make a “substantial threshold showing” that the government improperly withheld a substantial-assistance motion before he can receive a remedy. Id. at 186, 112 S.Ct. 1840.

Patton does not argue that the government withheld the motion based on unconstitutional motives; rather, he claims the government’s decision not to move for a reduction for substantial assistance “was not rationally related to any legitimate Government end.” However, contrary to Patton’s argument, the government presented two legitimate justifications for its decision to withhold a substantial-assistance motion on Patton’s behalf. First, the government explained to the district court that Patton did not fully cooperate in its investigation into illegal guns sales, but instead purposely chose targets to avoid ensnaring family members, friends, and higher-level gun dealers. Second, the government stressed that Patton disappeared for over six months, right after being told he was going to be indicted and needed to testify at a grand jury hearing. While Patton claims he had to have an operation during that time and that his wife turned off his cell-phone, even his own attorney acknowledged that Patton could have acted more promptly in getting in touch with the government following his surgery. Both rationales support the government’s decision not to move for a reduced sentence. See United States v. Miller, 458 F.3d 603, 605 (7th Cir. 2006) (holding that prosecutor’s refusal to file a substantial-assistance motion was rationally related to a law enforcement end when “the government declined to file the motion because it believed that [the defendant] was not forthcoming in reference to his cocaine source”); United States v. Davis, 247 F.3d 322, 328 (1st Cir. 2001) (noting the defendants’ “failure to cooperate in the murder investigation provides a basis for the [government withholding a motion], whatever [the defendant’s view that he had given enough already and should not be forced to go that far”).

Patton argues in response that he is entitled to remand to allow for more discovery and a hearing to allow him to show that the government’s actual motive in withholding a motion for substantial assistance was impermissible. But, as the Supreme Court held in Wade, a defendant has no right to discovery or an evidentiary hearing unless he makes a “substantial threshold showing” of an improper motive. Patton failed to make such a showing. In fact, Patton did not even argue to the district court that the government’s rationale for refusing to move for a substantial-assistance reduction was unrelated to a legitimate government end. Instead, Patton merely argued that he deserved the reduction because he provided the government with substantial assistance which led to the prosecution of seven individuals and taking 60 guns off the street. Because Patton did not argue that the government’s motive was not rationally related to any legitimate government end, our review is for plain error only. Billings, 546 F.3d at 475.

In response, Patton claims that he met the “substantial threshold showing” because the government stated at sentencing that “the government was embarrassed” and “looked terrible.” Patton argues that “[protecting the personal feelings of members of the United States Attorney’s office is not a legitimate government interest....” However, a review of the transcript from the sentencing hearing shows that Patton is taking the government’s comments completely out of context. For instance, in response to the district court’s inquiry of why the indictment of other individuals would prompt Patton to get back in touch with the government, the prosecutor explained:

Word is out on the street that Tyran Patton is cooperating. He is a snitch. He needs to get himself back in the good graces of ATF ... basically for some protection. This is not a guy who doesn’t think two steps ahead of the game. And, certainly, in this case, the defendant ran circles around a new ATF agent. It’s somewhat embarrassing what happened in this particular case.

Contrary to Patton’s portrayal, the government did not express a motive to deny Patton a reduction for substantial assistance because it was embarrassed. To the contrary: the government was detailing how Patton disappeared and only reappeared when it benefited him to do so, to illustrate why in the government’s view Patton was not entitled to a motion for a substantial-assistance reduction.

Similarly, the prosecutor’s statement that Patton had made “the government look terrible” was not an explanation for its motive in refusing to move for a substantial-assistance reduction, but a passing comment made in detailing Patton’s lack of full cooperation:

So the higher-level targets we weren’t able to get because the defendant did all of that offline. Instead, we got the lower-level guy who the defendant can go and have — pick up the guns and deliver them to the defendant. That’s what happened. It’s what makes the government look terrible. We missed those bigger guys. We missed them because of the way the defendant cooperated. And that’s what happened.

This exchange shows that the government concluded that Patton had not fully cooperated because he caused the government to miss the “bigger guys”; not because the government looked terrible for missing the bigger guys. While Patton now wishes to question the government further on its motive, the district court did not commit plain error in denying Patton’s request without further inquiry.

III.

Patton clearly cooperated with the government in its gun investigation. But because he disappeared for over six months and, in the government’s view, only fingered low-level targets, protecting higher-level sources and families and friends, the government acted within its discretion to refuse to file a substantial-assistance motion. We AlFFIRM.

      . The advisory guidelines sentencing range was 262 to 327 months’ imprisonment.

      . Because Patton did not argue to the district court that the government’s decision to withhold a substantial-assistance motion was unrelated to a legitimate government end, the district court correctly stated that it did not have the power to force the government to file such a motion. United States v. Billings, 546 F.3d 472, 475 (2008). And in any event, the district court considered Patton’s argument and rejected it.


author: KANNE, Circuit Judge.

text:
    Marshall MCDANIEL, Petitioner-Appellant, v. Cecil POLLEY, Warden, Respondent-Appellee.
    No. 15-3638
    United States Court of Appeals, Seventh Circuit.
    Argued November 4, 2016
    Decided February 9, 2017

      Jennifer T. Beach, Attorney, Barry Le-venstam, Attorney, Jenner & Block LLP, Chicago, IL, for Petitioner-Appellant.
    Erin O’Connell, Attorney, Office of the Attorney General, Chicago, IL, for Respondent-Appellee.
    Before FLAUM and KANNE, Circuit Judges, and MAGNUS-STINSON, District Judge.

      The Honorable Jane Magnus-Stinson, of the United States District Court for the Southern District of Indiana, sitting by designation.

   KANNE, Circuit Judge.

In 2001, police officers arrested Marshall McDaniel while investigating his girlfriend’s murder. McDaniel confessed during postarrest interrogation. After pleading not guilty, McDaniel unsuccessfully attempted to suppress his confession. He was convicted in Illinois state court; on direct appeal, the Illinois Appellate Court affirmed.

After his state petition for postconviction relief was denied, McDaniel petitioned the federal district court for a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied the petition. McDaniel now argues that appellate counsel was ineffective for failing to argue that his initial arrest was unlawful and that his confession was inadmissible as fruit of the unlawful arrest.

On appeal, we review the Illinois Appellate Court’s decision to deny McDaniel’s petition for postconviction relief. People v. McDaniel, 393 Ill.App.3d 1103, 368 Ill.Dec. 917, 985 N.E.2d 724 (2009). Because McDaniel was not prejudiced by appellate counsel’s failure to raise his Fourth Amendment claim, we affirm.

I. Background

On January 16, 2001, at 9:15 a.m., Officers found DeAngular Moore’s body in a high school parking lot. Moore’s body was lying next to a bloodied garbage can marked 8055 South Harvard. Because she did not have identification with her at the time of her death, Detective Brownfield sought to identify Moore by showing community members her photo. At 5 p.m., before Moore was identified, Detective Brownfield received a call from Officer Blackman. Officer Blackman told Detective Brownfield that he had seen a black male, 6’1”, 185 pounds, and in his forties, pulling a garbage can at 2 a.m. that morning. Officer Blackman said that the man pulled the garbage can into the high school parking lot and then exited empty handed.

After Detective Brownfield talked to Officer Blackman, a woman identified Moore. The woman told Detective Brownfield that Moore lived with her boyfriend — McDaniel — and described him as a black male, 6’3”, 185 pounds, and in his late forties. The woman took Detective Brownfield to a man called “Radio.” Radio identified Moore and then took Detective Brownfield and several other officers to McDaniel’s house — four doors from the address marked on the bloodied garbage can. McDaniel was not home, so the officers left.

Four officers returned about an hour later, at 8:30 p.m. They did not have a search or arrest warrant. At trial, two of the officers testified that they did not think that they had probable cause to arrest McDaniel at that time. The officers testified that they went to McDaniel’s house only to investigate Moore’s death. When the officers knocked, McDaniel answered and consented to the officers’ request to come inside.

Once inside, the officers asked McDaniel if he knew why they were there, and he allegedly responded, “[B]ecause my girlfriend was murdered.” (R. 17-1 at 81); (R. 17-2 at 96). At the officers’ request, McDaniel allowed the officers to search his house. When McDaniel began acting nervous and fidgety, an officer put McDaniel in handcuffs. The officer told McDaniel that he was not under arrest and removed the handcuffs about five minutes later once McDaniel calmed down. At around 9 p.m., the officers asked McDaniel if he would come to the police station for further questioning. McDaniel acquiesced, and the officers drove him back to the station in a police car.

While on their way to the station, one of the officers called Detective Brownfield to update him. Detective Brownfield told the officer that Officer Blackman had just identified McDaniel in a photo-array lineup. Detective Brownfield directed the officers to bring McDaniel to a particular station. McDaniel arrived at the station at 10:30 p.m. At midnight, Officer Blackman identified McDaniel in a corporal lineup.

At the police station, McDaniel was placed in an interrogation room, read his Miranda rights, and then questioned three separate times over twenty-four hours. During the third round of questioning, McDaniel confessed to the murder and signed a written confession prepared by an Assistant State’s Attorney.

Despite his confession, McDaniel pled not guilty. McDaniel moved to suppress his confession on the ground that it and any related evidence was fruit of his arrest, which he argued violated the Fourth Amendment. The trial court ruled that the officers arrested McDaniel when they handcuffed him at his home and later drove him to the police station. But the trial court imputed Officer Blackman’s photo-array identification to the arresting officers, which gave them probable cause to arrest McDaniel at that time. With his confession deemed admissible, a jury convicted McDaniel of murdering Moore.

On direct appeal, McDaniel’s appointed appellate counsel argued only one issue— that the prosecution’s reference to McDaniel’s refusal to take a polygraph while in custody denied him due process of law. Appellate counsel, ignoring McDaniel’s prodding, made no argument about the arrest or the admissibility of his confession. The appellate court affirmed the conviction.

McDaniel subsequently filed a petition for postconviction relief in Cook County Circuit Court. In that petition, McDaniel argued that he had been denied effective assistance of appellate counsel because appellate counsel had not argued that his confession should have been suppressed as fruit of an unlawful arrest. The circuit court denied the petition.

The Illinois Appellate Court affirmed. Applying the Supreme Court’s two-pronged test for ineffective-assistanee-of-counsel claims defined in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the court held that appellate counsel was not ineffective in failing to raise the Fourth Amendment claim because the officers had probable cause to arrest McDaniel when they went to his house. The court held that Officer Blackman’s description of the man pulling the garbage can — which Detective Brownfield relayed to the arresting officers— created probable cause justifying the arrest. The court cited Illinois case law for the proposition that “a defendant is not prejudiced by counsel’s failure to raise” a nonmeritorious claim on appeal and concluded that “appellate counsel was not ineffective for electing not to raise the legality” of the arrest. (R. 17-5 at 43-44.)

McDaniel petitioned the district court for a writ of habeas corpus under 28 U.S.C. § 2254. The district court held that the Illinois Appellate Court erred in holding that the arresting officers had probable cause to arrest McDaniel. Nevertheless, the district court held that McDaniel had not shown prejudice as Strickland requires. A significant intervening circumstance, that is, Officer Blackman’s identification of McDaniel in the photo-array lineup, “would have probably led the appellate court to sustain the trial court’s denial of the motion to suppress.” (R. 34 at 18.) Consequently, the district court denied McDaniel’s petition. The district court issued a certificate of appealability as to McDaniel’s ineffective-assistance-of-counsel claim. This appeal followed.

II. Analysis

We review de novo a district court’s denial of a habeas petition. Dansberry v. Pfister, 801 F.3d 863, 866 (7th Cir. 2016). As we have repeatedly said, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) circumscribes our review of a claim for habeas relief that a state court has already adjudicated on the merits. E.g., King v. Pfister, 834 F.3d 808, 813 (7th Cir. 2016).

When the state court applies the correct rule as established by Supreme Court precedent to a claim, the petitioner must show that the state court’s decision was an “unreasonable application” of that precedent to the facts of the case. Emerson v. Shaw, 575 F.3d 680, 684 (7th Cir. 2009) (quoting Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002)). The qualifier “unreasonable” often controls our review: unreasonable means more than ordinary disagreement with the state court’s decision. McManus v. Neal, 779 F.3d 634, 649 (7th Cir. 2015). A state court’s decision is reasonable, even if incorrect in our independent judgment, so long as “ ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Quintana v. Chandler, 723 F.3d 849, 855 (7th Cir. 2013) (quoting Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011)). “If this standard is difficult to meet, that is because it was meant to be.” Harrington, 562 U.S. at 102, 131 S.Ct. 770.

Here, the Illinois Appellate Court applied the correct rule, the Supreme Court’s two-pronged test for ineffective-assistance-of-counsel claims from Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. To prove ineffective assistance of counsel, the petitioner must show that: (1) counsel’s performance “fell below an objective standard of reasonableness”; and (2) there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” King, 834 F.3d at 813 (quoting Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052).

When applying Strickland to the facts of a particular case, “there is no reason for a court ... to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052. The goal of ineffective-assistance-of-counsel claims “is not to grade counsel’s performance,” so when “it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed.” Id. That is the case here, so we move immediately to the prejudice prong of the analysis.

The Illinois Appellate Court affirmed the trial court’s denial of McDaniel’s petition for postconviction relief because he was not prejudiced by appellate counsel’s failure to raise a nonmeritorious claim. The court held that Officer Blackman’s description of the man pulling the garbage can created probable cause to arrest McDaniel. The district court disagreed, and we agree with its analysis: “Officer Blackman’s description ... would surely have described a substantial number of men living in the area.” (R. 34 at 17.) The description alone did not create an individualized suspicion that McDaniel killed Moore, and thus, did not create probable cause. City of Indianapolis v. Edmond, 531 U.S. 32, 37, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000).

The state points to additional evidence that it argues created probable cause: (1) how close the address on the garbage can lying next to Moore’s body was to McDaniel’s address; (2) that McDaniel knew why the officers were at his house; and (3) that McDaniel acted nervous and fidgety when the police entered his house. Whether the combined evidence creates probable cause is debatable. Probable cause is not a question we need to address here, however, because McDaniel’s confession would be admissible even if we assume that his arrest was unlawful.

Evidence obtained as the result of an unlawful search or seizure is often inadmissible under the Supreme Court’s exclusionary rule, Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), but not always.

The attenuation doctrine is an exception to the exclusionary rule. “A confession obtained through custodial interrogation after an illegal arrest must be excluded from evidence unless the confession is attenuated enough from the illegal arrest that the confession is ‘sufficiently an act of free will to purge the primary taint.’ ” United States v. Reed, 349 F.3d 457, 463 (7th Cir. 2003) (quoting Brown v. Illinois, 422 U.S. 590, 602, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975)). So long as the confession is voluntary, our analysis focuses on “whether the confession is obtained by exploitation of an illegal arrest.” Brown, 422 U.S. at 603, 95 S.Ct. 2254. To determine whether a confession is free from the taint of an unlawful arrest, we consider “[t]he temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct....” Brown, 422 U.S. at 603-04, 95 S.Ct. 2254 (internal citations' omitted).

1. Temporal Proximity

Both sides agree that McDaniel confessed over twenty-four hours after being arrested. If we were to view temporal proximity in isolation, we would hold that the confession was temporally disconnected from the arrest. Twenty-four hours far exceeds the length of time that most courts have held disconnects a confession from an illegal arrest. Reed, 349 F.3d at 463-64 (collecting cases).

The time gap is not dispositive here, however, because McDaniel was in custody the entire twenty-four hours, did not talk to a lawyer, was questioned multiple times, and was subjected to a corporal lineup. Taylor v. Alabama, 457 U.S. 687, 691, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982). In such a situation, a lengthy period of time between an arrest and confession does not serve to attenuate the arrest; we could hardly say that an illegal arrest had no effect on a confession just because the suspect was kept in interrogation for over twenty-four hours. United States v. Conrad, 673 F.3d 728, 738 (7th Cir. 2012) (noting that not only is the “time elapsed” important but also “the quality of that time”). Therefore, the first factor favors suppression.

2. Intervening Circumstances

There are two intervening events that attenuate McDaniel’s confession from his arrest. First, the interrogating officers read McDaniel his Miranda rights before they questioned him. Although Miranda warnings do not per se remove the scourge of an unlawful arrest, they “are an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest.” Brown, 422 U.S. at 603, 95 S.Ct. 2254. So even though the warnings are not dispositive, they are a factor in our analysis and tend to support attenuation.

Second, the' arresting officers had probable cause to arrest McDaniel before they began interrogating him. See Utah v. Strieff, — U.S. -, 136 S.Ct. 2056, 2062-63, 195 L.Ed.2d 400 (2016) (holding that an independent arrest warrant served as an intervening event between an unlawful stop and search incident to arrest). At some point between the time the officers left to question McDaniel and the time they left his house for the police station, Officer Blackman identified McDaniel in a photo-array lineup. While the arresting officers were on their way back to the station with McDaniel, they were informed of Officer Blackman’s identification. A single, credible eyewitness identification can create probable cause. Hart v. Mannina, 798 F.3d 578, 587 (7th Cir. 2015). Had the officers not put McDaniel in handcuffs briefly and waited minutes to put him in the police car, they would have had probable cause for the arrest.

Importantly, Officer Blackman’s identification was wholly independent of the arrest. In Taylor, the Supreme Court held that an arrest warrant filed after an illegal arrest but before the confession was not an intervening circumstance. 457 U.S. at 692-93, 102 S.Ct. 2664. In that case, the arrest warrant was based on a fingerprint match between the suspect and fingerprints found at the crime scene. The fingerprints used to match the ones at the crime scene were taken immediately after the illegal arrest, making them fruit of the illegal arrest. The Court held that, as a result, the arrest warrant did not constitute an intervening event. Id.

Here, Officer Blackman’s identification did not rely on anything that stemmed from the arrest. The officers knew McDaniel’s name, knew that he fit Officer Black-man’s general description of the man pulling the garbage can, and got his picture without relying in any way on the arrest. See Segura v. United States, 468 U.S. 796, 814, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) (“None of the information on which the warrant was secured was derived from or related in any way to the initial entry into petitioners’ apartment; the information came from sources wholly unconnected with the entry and was known to the agents well before the initial entry.”).

The second factor, the existence of intervening circumstances, favors admissibility.

S. Flagrancy of Police Misconduct

The flagrancy of police misconduct is the most important element of our analysis because the exclusionary rule is aimed at deterring police misconduct. Reed, 349 F.3d at 464-65 (citing Brown, 422 U.S. at 600, 95 S.Ct. 2254). “The third factor of the attenuation doctrine reflects that rationale by favoring exclusion only when the police misconduct is most in need of deterrence — that is, when it is purposeful or flagrant.” Strieff, 136 S.Ct. at 2063.

When an officer’s conduct is negligent but not flagrant or purposeful,the exclusionary rule’s objective is not served and strongly favors admissibility. Id. Good-faith mistakes, resulting from errors in judgment, “hardly rise to a purposeful or flagrant violation of ... Fourth Amendment rights.” Id.

In Striejf, an officer stopped Strieff leaving a suspected drug house without reasonable suspicion of wrongdoing. The Court said that the officer violated Strieffs Fourth Amendment rights and instead should have asked Strieff to talk instead of demanding that he do so. Notwithstanding the Fourth Amendment violation, the Court concluded that the third prong of the Brown test was not satisfied because the officer made a good-faith mistake and did not act purposefully or flagrantly.

The same rationale applies here. Two officers testified that they went to McDaniel’s house only to investigate Moore’s death and that they did not think that they had probable cause to arrest him at that time. At no point did the officers think that they were arresting McDaniel. McDaniel consented to all of the officers’ conduct: entry into his house, the initial questioning at his house, the search of his house, and going to the police station for further questioning. See United States v. Rahman, 805 F.3d 822, 831 (7th Cir. 2015). The trial court held that McDaniel was in custody for purposes of the Fourth Amendment when the officers handcuffed him at his house and later drove him to the police station. But the officers told McDaniel that he was not under arrest and took him out of the handcuffs five minutes later while still at his house. Further, McDaniel consented to going to the police station. Officers in future situations could scarcely hope to be more careful than the officers were here. These mistakes, if they were mistakes, constitute negligence. And as was the case in Striejf, everything that occurred after the initial arrest was legal. 136 S.Ct. at 2063.

Although the officers acted in good faith, that is only part of the inquiry when analyzing the purpose and flagrancy of the officers’ conduct. Reed, 349 F.3d at 465. The Supreme Court has held that an officer’s conduct is purposeful and flagrant in absence of bad faith when the officers used the unlawful arrest as an investigatory method to discover evidence. Taylor, 457 U.S. at 693, 102 S.Ct. 2664; Dunaway v. New York, 442 U.S. 200, 218, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Brown, 422 U.S. at 605, 95 S.Ct. 2254. McDaniel relies on the language in those cases to argue that his “arrest has a ‘quality of purposefulness’ in that it was an ‘expedition for evidence’ admittedly undertaken ‘in the hope that something might turn up.’ ” (Appellant’s Reply Br. at 25 (quoting Dunaway, 442 U.S. at 218, 99 S.Ct. 2248).)

Of course, the officers went to McDaniel’s house to investigate Moore’s death and hoped that their investigation would turn up evidence during questioning. But the similarities between our case and the Supreme Court cases end there. In the Supreme Court cases, the officers — regardless of their belief about probable cause — intended to arrest the suspect. Taylor, 457 U.S. at 688-89, 102 S.Ct. 2664; Dunaway, 442 U.S. at 203, 99 S.Ct. 2248; Brown, 422 U.S. at 592, 95 S.Ct. 2254. Excluding evidence in those cases served to deter future officers from arresting an individual unless they were sure that they had probable cause. Here, the officers did not intend to arrest McDaniel. Excluding McDaniel’s confession would not deter this type of conduct: officers would still have to investigate crimes before they have probable cause and would continue to rely on various witnesses’ and suspects’ consent when doing so.

To quote the Supreme Court, “[A]ll the evidence suggests that the [arrest] was an isolated instance of negligence that occurred in connection with a bona fide investigation .... ” Strieff, 136 S.Ct. at 2063. The officers’ conduct was not flagrant or purposeful, and thus, application of the exclusionary rule is not warranted. That, in addition to the intervening events, attenuated the confession from the arrest. As a result, McDaniel cannot show prejudice because the confession would have been admissible even if his arrest was unlawful.

III. Conclusion

For the foregoing reasons, the district court’s denial of McDaniel’s petition for a writ of habeas corpus is AFFIRMED.

      . McDaniel denied making this statement, but he testified at trial that he knew Moore was dead before the officers arrived because Radio had told him as much earlier in the day.

      . Despite devoting significant time in his brief to describing the improper tactics that the investigating officers allegedly used during the custodial interrogation, on appeal, McDaniel does not argue that his confession was improperly coerced.

      . We assume that the confession was not coerced because McDaniel does not argue that he was coerced into confessing. See footnote 2.

      . Although we analyze potential intervening circumstances from the defendant’s perspective in this context, McDaniel does not deny that he was made aware of Officer Black-man's photo identification. See Reed, 349 F.3d at 463 (noting that the question is whether the confession is attenuated enough from the illegal arrest that the confession is sufficiently an act of defendant's free will to purge the primary taint) (quoting Brown, 422 U.S. at 602, 95 S.Ct. 2254); see also United States v. Gregory, 79 F.3d 973, 980 (10th Cir. 1996) ("In applying the second factor in Brown, we look only from the defendant’s perspective in determining whether any intervening event occurred which isolates the defendant from the coercive effects of the original illegal stop so as to render his subsequent consent voluntary in fact.”).

      . McDaniel argues throughout his brief that Officer Blackman’s photo-array identification was "tentative.” During the identification, Officer Blackman said that McDaniel’s photo "look[ed] like” the man' he saw pulling the garbage can. Multiple officers testified that this was a tentative identification. But that fact does not change our analysis. An officer has probable cause based on an eyewitness who "it seems reasonable to believe is telling the truth.” Gramenos v. Jewel Cos., Inc., 797 F.2d 432, 439 (7th Cir. 1986) (internal quotation marks omitted). Such an identification can create probable cause even if the officers know of other evidence that might lead a jury to conclude that the eyewitness had misidentified the suspect. Tangwall v. Stuckey, 135 F.3d 510, 516 (7th Cir. 1998) (citing Gramenos, 797 F.2d at 437). Officer Blackman’s identification was sufficient to create probable cause. There was no reason to doubt that Officer Blackman was telling the truth, and it was reasonable to rely on Officer Blackman's statement that McDaniel "look[ed] like” the man pulling the garbage. The weight to give the "tentative” identification would have been for the jury to decide. United States v. Carter, 410 F.3d 942, 950 (7th Cir. 2005).

      . The Court has held that the lack of coercion during the interrogation does not mean that an officer's conduct was not flagrant or purposeful. Dunaway, 442 U.S. at 218-19, 99 . S.Ct. 2248. The officers' conduct during interrogation is not at issue here. Accordingly, we do not address whether the officers’ conduct during McDaniel’s interrogation adds to the flagrancy of their conduct.


author: WOOD, Chief Judge.

text:
    Charles BEAL, Jr., Plaintiff-Appellant, v. James BELLER and Matthew Strelow, Defendants-Appellees.
    No. 14-2628
    United States Court of Appeals, Seventh Circuit.
    Argued November 8, 2016
    Decided February 10, 2017

      Barry Levenstam, Attorney, Chicago, IL, Zachary C. Schauf, Attorney, Washington, DC, Jenner & Block LLP, for Plaintiff-Appellant.
    Tony Matthew Dunn, Attorney, Robert Irving DuMez, Attorney, Alia, Dumez, Dunn & McTernan, Kenosha, WI, for Defendants-Appellees.
    Before WOOD, Chief Judge, and POSNER and ROVNER, Circuit Judges.
   WOOD, Chief Judge.

Most Fourth Amendment issues arise when a criminal defendant files a motion to suppress evidence allegedly collected in violation of its standards, but this is not such a case. Charles Beal, Jr., has brought a civil action under 42 U.S.C. § 1983, in which he asserts that two detectives on the Kenosha, Wisconsin, police force lacked any justification recognized by the Fourth Amendment to stop him, to frisk him, and then to conduct a more thorough search. The district court granted summary judgment for the Detectives. It found that the tip on which they acted was not anonymous, as Beal contended, and that their actions were permissible under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We conclude that the critical facts were genuinely disputed, and thus we reverse and remand for further proceedings.

I

The underlying facts are straightforward; we present them in the light most favorable to Beal, as we must. See Tolan v. Cotton, — U.S. -, 134 S.Ct. 1861, 1863, 188 L.Ed.2d 895 (2014) (per curiam), Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). On September 11, 2007, Kenosha Detective Matthew Strelow received an anonymous tip that an African-American man in a yellow shirt was selling heroin on the corner of 58th Street and 11th Avenue, known as a “high crime area.” Without taking any steps to corroborate the tip, Strelow and his partner, Detective James Beller, drove an unmarked car to that intersection. There they saw Beal, who matched the tipster’s description, standing in a driveway talking to a woman. (It later turned out that he was at his aunt’s residence and was talking to a relative.) The Detectives parked their car and walked up to Beal. They told him that they had received an anonymous tip that he was selling drugs and asked him to identify himself. He did so without objection.

At that point Beller grabbed Beal’s left wrist and Strelow frisked him. Just before Strelow began, Beal’s right hand had been in his pocket. Strelow asked him to remove his hand, and Beal immediately complied. Strelow admitted that Beal’s “demeanor was cooperative.” As he carried out the frisk, Strelow felt an object that he recognized as a pair of keys, and he also felt what he described as a soft bulge that felt like tissue. It was immediately apparent that neither item was a weapon. Nevertheless, Strelow next emptied Beal’s pocket, removed a set of keys, two bunched up tissues, a photo ID, and miscellaneous letters. He examined the keychain and an attached flashlight, which he discovered had been hollowed out and now contained four small baggies with a substance the detective believed was heroin. His examination of the tissues revealed no further drugs, but there were two empty plastic bags. Beal had no money.

Strelow arrested Beal based on the results of the pocket search, Beal was charged with possession of heroin in state court. He moved to suppress the evidence on the ground that the Detectives had violated the Fourth Amendment by stopping him without sufficient cause, by frisking him even though there was no reason to think he was armed or dangerous, and by searching his pocket after confirming that he was unarmed. After holding a mul-ti-day hearing on the motion, the Wisconsin court suppressed the evidence and dismissed all charges against Beal.

II

Beal filed this action against Beller and Strelow under 42 U.S.C. § 1983 on October 19, 2012, comfortably within the six-year period that applies to cases in Wisconsin. See Wis. Stat. § 893.53; Malone v. Corrections Corp. of Am., 553 F.3d 540, 542 (7th Cir. 2009). He verified his complaint, swearing that the account it contained of the relevant events was “accurate and true ... subject to the penalty of perjury.” Later he filed an amended complaint, which also was verified under penalty of perjury. Beller and Strelow (to whom we refer collectively as- the Detectives unless the context requires otherwise) filed a motion for summary judgment on the basis of qualified immunity. Beal initially had some problems obtaining the records from his suppression hearing, but he ultimately received them and submitted them in opposition to the motion. This was not enough, however, to stave off defeat. Going beyond the qualified immunity ground the Detectives had asserted, the district court granted summary judgment for them on the ground that “no reasonable jury could find that plaintiff’s Fourth Amendment rights were violated” at all. (This finding risked labeling the state court as unreasonable, given the fact that the state court had made precisely this finding when it granted Beal’s motion to suppress. But we do not rest our decision on this uncomfortable point.)

In its opinion, the district court made a number of critical assumptions, all unfavorable to Beal. For example, it said that “Beller knew who the informant was and that the informant had previously provided other officers in the police department with reliable information.” Describing the Detectives’ arrival at the house, the court said that “Plaintiff saw the officers. He made eye contact with Strelow and immediately put his hand in his right front pocket and turned as if to walk away.” With respect to the pat-down search, the court accepted that Strelow “believed the soft bulge [he felt] was a number of individually wrapped packages of narcotics wrapped in tissue paper.” Based on that account of the facts, the court concluded that the Detectives had reasonable suspicion, for Terry purposes, to detain Beal briefly and to frisk him. The results of that frisk, it continued, provided probable cause for Beal’s arrest. Those findings, taken together, were enough to doom Beal’s section 1983 case. With the help of recruited counsel, whose efforts the court greatly appreciates, Beal has appealed.

Ill

The most important question on this appeal is whether the undisputed facts showed that the tip on which the Detectives acted came from a known source, or if there is a genuine dispute of fact over the question whether the source was anonymous. This is critical, because if the tip was anonymous, then the rule of Florida v. J.L., 529 U.S. 266, 268, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), which holds that an anonymous tip without more does not justify a stop-and-frisk, comes into play. If the tip came from a known source with a proven track record, the legal analysis is markedly different.

Beal’s initial verified complaint contains the following assertions of fact on that point:

¶ 7. Plaintiff was standing in his aunt’s driveway talking to a family member Lisa when two detectives approached the plaintiff and stated we have an anno-nymous [sic] tip that you are selling drugs.
¶ 8. An annonymous [sic] tip lacks sufficient indictia [sic] of of [sic] reliability and aside from the alleged tip there was no other basis nor probable cause for said detectives to stop, frisk and seize any contents from Plaintiff Beal’s pocket, nor arrest the plaintiff.

Beal’s handwritten amended complaint (filed December 21, 2012), which was also verified, offered this account:

¶ 7. Plaintiff was standing in aunt’s driveway talking to a family member Lisa when two detectives approached my cousin and I and stated Come to the vehicle. They stated “we recieved [sic] a phone call you are selling drugs.”
¶ 8. An annonymous [sic] tip lacks sufficient indictia [sic] of reliability and aside from the alleged tip there was no other basis nor probable cause for said detectives to stop, frisk and seize any contents from my pockets, nor arrest me.

Paragraph 7 of the initial complaint offers a first-hand report from Beal about what the Detectives said about the tip: it was anonymous. Paragraph 8 is more of a legal conclusion, but it provides context for paragraph 7 and reinforces the fact that Beal has competent testimony to show that the tip was indeed anonymous. The Detectives argue, however, that we cannot rely on the first complaint, because an amended complaint was filed and it omits the critical word “anonymous” in its version of paragraph 7. They rely on the rule under which “facts or admissions from an earlier complaint that are not included in a later complaint cannot be considered on a motion to dismiss.” Scott v. Chuhak & Tecson, P.C., 725 F.3d 772, 783-84 (7th Cir. 2013). Scott also notes that “where the original complaint and an amended complaint contain contradictory or mutually exclusive claims, only the claims in the amended complaint are considered.” Id. at 784.

For several reasons, however, the Scott rule does not apply here. First, there is a distinction between an ordinary complaint that serves as a pleading, and a verified complaint. The former type is what Scott was describing. For pleading purposes, once an amended complaint is filed, the original complaint drops out of the picture. See, e.g., Wellness Community-National v. Wellness House, 70 F.3d 46, 49 (7th Cir. 1995). But a verified complaint is not just a pleading; it is also the equivalent of an affidavit for purposes of summary judgment, because it “contains factual allegations that if included in an affidavit or deposition would be considered evidence, and not merely assertion.” Ford v. Wilson, 90 F.3d 245, 246 (7th Cir. 1996). The verified complaint does not lose its character as the equivalent of an affidavit just because a later, amended complaint, is filed. Boxdorfer v. Thrivent Fin. for Lutherans, No. 1:09-cv-0109-DFH-JMS, 2009 WL 2448459, at *2 & n.2 (S.D. Ind. Aug. 10, 2009) (Hamilton, D.J.).

Our situation is a little different from the one in either Ford or Boxdorfer. In Ford, there was no amended complaint, and so nothing with which to compare the original verified complaint. In Boxdorfer, there was an amended complaint, but it was not verified, and so the only verified document before the court was the original complaint, on which the court relied in deciding the case. We have two complaints, and both are verified. This is no more remarkable than having two affidavits from the same person in a case. There is no rule against multiple affidavits, and so no rule against multiple verified complaints. In a case similar to ours, where a pro se litigant filed verified original and amended complaints, the Eighth Circuit considered both versions in a decision reversing summary judgment for the defendants. See Hartsfield v. Colburn, 371 F.3d 454, 455-57 (8th Cir. 2004). We will do the same.

The next question is whether the two verified complaints, as we put it in Scott, contain contradictory or mutually exclusive assertions. The Detectives argue that they do, because the word “anonymous” is missing from ¶ 7 in the amended complaint. This is not, however, a fair reading of Beal’s complaint. Shortly after it decided Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the Supreme Court reaffirmed that “[a] document filed pro se is to be liberally construed, ... and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). We review Beal’s complaint with this in mind. First, there is nothing inconsistent about saying “we have an anonymous tip that you are selling drugs,” and saying “we received a phone call you are selling drugs.” At worst, there is a detail missing in the second version, but the phone call easily could have been anonymous. Second, the broader context shows that Beal intended no such shift between the original and the amended complaint. Paragraph 8 of the two versions is practically identical. There would have been no reason to include it in the amended complaint if Beal was abandoning his position that the Detectives told him that the tip was anonymous. Since there is no inconsistency between the two versions of the verified complaint, there is no reason why Beal cannot rely on his initial assertion that he was told that the tip was anonymous.

Moreover, this was not Beal’s only evidence that the tip was anonymous. He pointed to substantial circumstantial evidence that buttressed his account. For example, the sworn criminal complaint in the state-court action charging him with heroin possession said that Strelow and Beller “received an anonymous tip regarding an individual selling heroin” and that Beal matched the description provided by “the anonymous tipster.” The Detectives argue that the prosecutor was just mistaken, but that is a jury point, not something that can be resolved at summary judgment. They also contend that the prosecutor relied on Strelow’s arrest report, which says only “we received a tip.” This point, too, might be called to a jury’s attention but is of little moment here. In response, Beal could note that he was arrested on September 11, 2007, and the criminal proceeding did not begin until December 2007. There was plenty of time for the prosecutor to flesh out the details of the arrest report with Strelow before the complaint was filed. It is telling, also, that the Detectives’ reports make no mention of the use of an informant — that assertion did not enter the picture until the suppression hearing, which was resolved by a January 19, 2009, order granting the motion.

Other details do not carry much weight on their own, but a trier of fact could think that they corroborate Beal’s account. At the suppression hearing, Beller testified that he took the tipster’s call, that he was required to write a report on its contents, that he did so, and that the report stated that he knew the informant. Unfortunately, however (he told the state court), the report went missing. He explained this awkward fact by saying “[r]eports get lost once in awhile [sic],” and described himself as “flabbergasted” by the disappearance of this one. Far from attempting to remedy this problem by providing some other form of corroboration, the prosecutor refused to identify the informant at the suppression hearing — a move the Detectives have tried to justify in this court by citing unspecified “strategic” reasons “that are not part of the record.”

The bottom line is that there is a genuine issue of fact on the question whether the tip that led the Detectives to Beal was anonymous. Even though such questions are resolved by the court in a suppression hearing in a criminal case, in a civil action under section 1983 they are subject to the ordinary rules governing summary judgment. Taking the facts in the light most favorable to Beal, we must assume that the tip was anonymous and uncorroborated.

That takes us directly to Florida v. J.L., supra, 529 U.S. 266, 120 S.Ct. 1375. The first question is whether a trier of fact would be compelled to find that the Detectives were authorized, based on the knowledge they had, to stop and frisk Beal. If we were to answer that question in the affirmative, then we would need to consider whether the additional search of Beal’s pockets after the initial frisk was permissible. Because we answer it in the negative, however, we need not address the latter points, and Beal’s civil suit must go forward.

J.L. reached the Supreme Court from a criminal proceeding in which the defendant was seeking to have evidence suppressed. Its holding, however, is central to the issue before us. The facts will sound familiar. On October 13, 1995, an anonymous caller reported to the police that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun. Id. at 268, 120 S.Ct. 1375. There was no audio recording of the tip, and nothing was known about the informant. Despite this dearth of information, the police responded and found a young man of that description at the bus stop. They approached him, immediately ordered him to put his hands up, frisked him, and seized a gun from his pocket. He was charged under state law with carrying a concealed firearm without a license and possessing a firearm while under the age of 18. At the trial level, he successfully moved to suppress the gun as the fruit of an unlawful search; the intermediate appellate court reversed, but the Supreme Court of Florida reinstated the suppression order. The U.S. Supreme Court affirmed that decision.

It began by reaffirming its earlier holding in Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), that “an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity.” Id. at 270, 120 S.Ct. 1375 (quoting White, 496 U.S. at 329, 110 S.Ct. 2412). The tip in J.L., it continued, “lacked the moderate indicia of reliability present in White and essential to the Court’s decision in that case.” Id. at 271, 120 S.Ct. 1375. The indicia in White to which the Court referred included extensive detail about the suspect and accurate predictions about her future movements. Critically, the information reliably pointed to the illegal activities at issue. In contrast, as the Court pointed out, it is no great task to provide an accurate description of someone standing on a corner.

The Court also rejected a special rule for firearms cases, using language that foresees Beal’s situation: “If police officers may properly conduct Terry frisks on the basis of bare-boned tips about guns, it would be reasonable to maintain under the above-cited decisions that the police should similarly have discretion to frisk based on bare-boned tips about narcotics. As we clarified when we made indicia of reliability critical in Adams [v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) ] and White, the Fourth Amendment is not so easily satisfied.” Id. at 273, 120 S.Ct. 1375.

The Detectives urge that this case differs meaningfully from J.L., even accepting the facts that favor Beal. First, they note that they did corroborate the location and description of the person described in the tip. Second, they assert that tips are recorded and thus, as in Navarette v. California, — U.S. -, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014), they should be deemed reliable. Third, they attach significance to the fact that Beal was in an area known for drug trafficking. Fourth, they rely on Strelow’s testimony that Beal looked away from him, turned to walk away, and put his right hand in his right pants pocket. Last, the Detectives said that the tip referred to Beal by name.

Once again, while a jury might find that these points support the Detectives’ actions, it would not be required to do so. The facts that they corroborated the location, that they knew the area to be one associated with drug trafficking, and that the tipster identified Beal by name, do nothing more than the tip in J.L. accomplished. Here is the Supreme Court’s explanation of why that is insufficient:

An accurate description of a subject’s readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has ■ knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.

529 U.S. at 272, 120 S.Ct. 1375. The missing link here is any indicium of reliability related to the assertion of illegality. We have not yet reached the point at which every person found in an area known for drug trafficking can be stopped and frisked, just because the person happens to be there.

That leaves the Detectives’ second and fourth points, which we take in turn. In Navarette, the Supreme Court considered the question whether a call to the 911 service, coupled with some effort by the police to corroborate the caller’s information, was enough to justify a traffic stop for suspicion of driving while intoxicated. The 911 caller reported that a vehicle had run her off the road. The caller furnished a detailed description of the vehicle, complete with license plate number. A short time later, in an area consistent with the 911 caller’s information, the state police found the suspect vehicle (a pickup truck) and pulled it over. As they approached the truck, they thought they smelled marijuana. They were correct: a search of the truck revealed some 30 pounds of marijuana in the truck bed. Arrests and prosecution followed, and the defendants moved to suppress the marijuana based on the J.L. principle.

The Supreme Court upheld the decision of the California Supreme Court, which had found the stop justified by reasonable suspicion. The Court found this case closer to White than to J.L., because of the presence of details that corroborated the criminal aspect of the anonymous tip. It found the fact that the caller was an eyewitness reporting an immediate traffic violation telling; and it also found “the caller’s use of the 911 emergency system” to be an “indicator of veracity.” Navarette, 134 S.Ct. at 1689. Even if, at first glance, the caller might appear to be anonymous, there are features of the 911 system that permit a later identification. Calls can be traced and recorded. For some time cellular carriers have been required to relay the caller’s telephone number to the 911 dispatcher and to identify her geographic location. The Court concluded that “[gjiven the foregoing technological and regulatory developments, however, a reasonable officer could conclude that a false tipster would think twice before using such a system. The caller’s use of the 911 system is therefore one of the relevant circumstances that, taken together, justified the officer’s reliance on the information reported in the 911 call.” Id. at 1690.

No one in the present case, however, asserted that the tipster used Ke-nosha’s 911 system. The emergency nature of the 911 call on which the Navarette Court relied is therefore missing. In addition, no evidence in the record suggests that Kenosha has a dedicated tip line (unless the mysterious Gang Unit telephone functions this way), or if it does, that it has the tracing capabilities that are mandated for 911 services. At most, we could assume that the police department has a recording of an anonymous male or female voice. That is not enough, in our view, to trigger Navarette’s rule.

As for Strelow’s description of Beal’s behavior, all that needs to be said is that Beal disputes this account. Beal stated at his deposition that his right hand was already in his pocket when the Detectives arrived, and that he was cooperative throughout the encounter. It does not help the Detectives that Strelow also testified that he and Beller were trying to sneak up on Beal, and that Beal did not notice the unmarked car’s arrival. Even if Beal did turn away from the Detectives for a moment as he stood in his aunt’s driveway, it is hard to find anything suspicious about that. Beal’s testimony, we add, is obviously competent to describe what he himself was doing.

IV

Once again, the question before us is not whether the evidence seized from Beal as a result of the Detectives’ stop-and-frisk should be suppressed. That question arose in the state criminal proceeding, and it was resolved favorably to Beal. (The Detectives are not bound by that ruling, since they are being sued in their individual capacity; but it bears noting that the state court’s conclusion is of no help to them.) The question we must resolve is whether summary judgment in the Detectives’ favor in this section 1988 suit was proper. We conclude that it was not. The validity of their decision to stop Beal will depend on the trier of fact’s resolution of a number of disputed facts: Was the tip anonymous? Did Beal take any action that was sufficiently suspicious to justify the stop? Did the Detectives have any other information that provided at least reasonable suspicion to stop (and then frisk) Beal? The existence of these disputed facts is also enough to defeat the Detectives’ assertion of qualified immunity. See, e.g., Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995).

We make no predictions about the ultimate outcome of a trial. For present purposes, it is enough to say that summary judgment for the Detectives should not have been granted. The judgment of the district court is Reveüsed and the case is ReiiaNded for further proceedings consistent with this opinion.


author: POSNER, Circuit Judge. •

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Minas LITOS and Adrian and Daniela Tartareanu, Defendants-Appellants.
    Nos. 16-1384, -1385, -2248, -2249, -2330
    United States Court of Appeals, Seventh Circuit.
    Argued January 18, 2017
    Decided February 10, 2017
    Nathaniel Whalen, Attorney, Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.
    Alexander Maurice Beeman, Attorney, Beeman Law, Anderson, IN, for Adrian Tartareanu and Daniela Tartareanu.
    Kerry Clementine Connor, Attorney, Highland, IN, for Minas Litos.
    Before WOOD, Chief Judge, and POSNER and HAMILTON, Circuit Judges.
   POSNER, Circuit Judge. •

The three defendants were indicted in 2012 on charges of having committed and conspired to commit wire fraud, in violation of 18 U.S.C. §§ 1343 & 1349, by extracting money from lenders (including Bank of America) that had financed the sale of properties owned by the defendants in Gary, Indiana. The fraud lay in the fact that the defendants had represented to Bank of America (we can ignore the other lenders, who are not affected by this litigation) that the buyers of the properties were the source of the down payments on the houses, whereas in fact the defendants were the source, having given the buyers the money to enable them to make the down payments. They had also helped the buyers provide, in their loan applications to Bank of America, false claims of creditworthiness. In each of the transactions the defendants walked away with the purchase price of the property they had sold minus the down payment amount, since the “down payment” they received was their own cash, which they’d surreptitiously transferred to the impecunious buyer.

The defendants’ guilt of fraud is not at issue. The issue is the propriety of the restitution, in the amount of $893,015, that the district judge ordered the defendants to make to Bank of America, on the ground that they had cheated the bank by pretending that the buyers, not they, were the source of the down-payment money for the sale of their houses. The judge credited a written declaration by a Bank of America representative that “had [the Bank] known the true source of [the] down payment funds, [it] would not have issued the subject loans” to the buyers of the properties. The district judge rejected the defendants’ argument that the bank was not entitled to restitution because it had been a coconspirator; he ruled that the bank “did not participate in the kickbacks to buyers or provide false information on •loan applications.”

The judge was right about that, and right too that the bank had lost $893,015 as a result of the buyers’ defaulting on the loans that the bank issued to finance the purchase of sixteen houses from the defendants. But he was wrong to take the bank representative at her word; her affidavit provided no basis for determining that she knew that Bank of America wouldn’t have made the loans had it not been for the defendants’ fraudulent statements.

The order of restitution is questionable because Bank of America, though not a coconspirator of the defendants, does not have clean hands. It ignored clear signs that the loans that it was financing at the behest of the defendants were phony. Despite its bright-eyed beginning as an upstart neighborhood bank for Italian-American workers, Bank of America has a long history of blunders and shady practices; it narrowly survived the Great Depression of the 1930s, nosedived in the 1980s, and lost tens of billions of dollars in the crash of 2008 — including $16.65 billion in a settlement with the U.S. Justice Department ■over charges of mortgage fraud. See, e.g., Michael Corkery and Ben Protess, “Bank of America Papers Show Conflict and Trickery in Mortgages,” New York Times, Aug. 21, 2014, https://dealbook.nytimes. com/2014/08/21/bank-of-america-papers-show-conflct-and-trickery-in-mortgages/ (visited Feb. 10, 2017, as were the other websites cited in this opinion); Matt Taib-bi, “Bank of America: Too Crooked to Fail,” Rolling Stone, March 14, 2012, www. rollingstone.com/politics/news/bank-of-america-too-crooked-to-fail-20120314; Moira Johnston, Roller Coaster: The Bank of America and the Future of American Banking 6-11 (1990); Gary Hector, Breaking the Bank: The Decline of Bank America 49-53, 302-07 (1988). And at the sentencing hearing the judge said: “I think they [the defendants and Bank of America] are equally culpable. Isn’t that a fair way to look at this? ... Bank of America knew [what] was going on. They’re playing this dance and papering it. Everybody knows it is a sham because no one is assuming any risk. So what’s wrong with saying they’re [of] equal culpability?” Indeed; and we are puzzled that after saying this the judge awarded Bank of America restitution — and in the exact amount that the government had sought.

And there is worse. The judge remarked that “the loan applications [submitted to Bank of America] were a joke on their face. They are just, I think, laughable.” The bank had issued 9 mortgages to a person named Julius Horton in a 3-month period, based on his false claims to have $1 million in assets and earn $10,000 a month; 8 mortgages to Glenn McCue in a 2½ month period, who listed as assets homes he didn’t own and rental income on those homes; 6 mortgages in a 10-day period [!] to Melissa Hurtado, who claimed to have a gross income of $3400 a month and $320,000 in a banking account — she had no such money, nor had she the two properties that she claimed to own; 3 mortgages to Jonathan Sein, who listed ownership of homes that he didn’t own and a nonexistent $150,000 bank account; and 2 mortgages to Alberto Gonzalez, who listed a home he didn’t own and pretended to have a bank account with $350,000 in it, though his monthly income was estimated to be only between $1000 and $2000. Bank of America approved them all! The transactions with all these mortgage applicants took place in 2007 and the first few months of 2008, 2007 being the last full year of the housing bubble and 2008 the first year of the crash.

Had the bank done any investigating at all, rather than accept at face value obviously questionable claims that the mortgagors were solvent, it would have discovered that none of them could make the required down payments, let alone pay back the mortgages. These people were just fronts for the defendants, who made the down payments required by the bank, pocketed the mortgage loans (which were of course much larger than the down payments) that the bank made, and left it to the nominal mortgagors to default since they hadn’t the resources to repay the bank. All this was transparent.

To say the bank was merely negligent would be wrong. Recklessness is closer to the mark. Negligence is merely failure to exercise due care; often it is unconscious. Recklessness is knowing involvement in potentially harmful activity. The bank was reckless. It had to know that it would receive applications for mortgage loans from people who knowing or doubting their ability ever to repay them would misrepresent their assets and earning power in order to obtain the loans, their thinking taking the form of “sufficient unto the day is the evil thereof,” a biblical maxim (meaning “live in the present”) that is better applied to spiritual life than to investment decisions. And the bank knew that in a bubble period it would have no difficulty selling the mortgages it had issued — even mortgages doomed to default; the bank’s failure to demand evidence of the financial sufficiency of the mortgagees constituted deliberate indifference to a palpable risk that the bank’s executives must have been aware of. The bank had every incentive to close its eyes to how phony these loan applications were, because it expected to turn around and sell the mortgages to a hapless Fannie Mae. (It was foiled in this scheme, regarding the sixteen properties at issue, only because Fannie Mae noticed just how “irregular” the transactions were and forced Bank of America to take the mortgages back.)

Restitution for a reckless bank? A dubious remedy indeed — which is not to say that the defendants should be allowed to retain the $893,015. That is stolen money. We don’t understand why the district judge, given his skepticism concerning the entitlement of Bank of America to an award for its facilitating a massive fraud, did not levy on the defendants a fine of $893,015. 18 U.S.C. § 3571(d) authorizes a fine of not more than the greater of twice the gross gain or the gross loss caused by an offense from which any person either derives pecuniary gain or suffers pecuniary loss.

Had the amount of the fraud been made the basis of a fine rather than restitution, the $893,015 would have gone to the federal Treasury, a far worthier recipient of it than Bank of America in this case. At least that is an issue that deserves the further scrutiny of the district court, and we are therefore vacating the order of restitution and remanding for a full resentencing as to the Tartareanus (more as to Litos later). Because a criminal sentence is a package composed of several parts, “when one part of the package is disturbed, we prefer to give the district court the opportunity to reconsider the sentence as a whole so as to ‘effectuate its sentencing intent.’ ” United States v. Mobley, 833 F.3d 797, 801 (7th Cir. 2016). Our remand for the imposition of a new sentence for the Tartareanus will allow the district court to “reconfigure the sentencing plan” to “satisfy the sentencing factors in 18 U.S.C. § 3553(a).” Pepper v. United States, 562 U.S. 476, 507, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011), quoting Greenlaw v. United States, 554 U.S. 237, 253, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008).

We ask the district judge to give serious consideration on the remand to the possible alternative remedy of a heavy fine on the defendants. With regard to such a possibility the judge may wish to ask either the Board of Governors of the Federal Reserve System or the Office of the Comptroller of the Currency (or both, perhaps in collaboration) to submit an amicus curiae brief addressed to the issue of the appropriateness of an order of restitution in a case such as this.

We are mindful that the federal criminal code requires “mandatory restitution to victims of certain crimes,” 18 U.S.C. § 3663A (the Mandatory Victim Restitution Act of 1996, usually referred to as the MVRA), including fraud, see § 3663A(c)(l)(A)(ii), but only for “an offense resulting in damage to or loss or destruction of property of a victim of the offense.” § 3663A(b)(l). That doesn’t seem to describe the loss suffered by Bank of America as a result of its improvident loans, especially when we consider its complicity in the loss — its reckless decision to make the loans without verifying the solvency of the would-be borrowers, despite the palpable risk involved in, for example, providing mortgage loans to a person who applies for six mortgages in ten days.

We need to consider, however, the possible bearing on the issue of restitution in this case of United States v. Soto, 799 F.3d 68 (1st Cir. 2015), a case in which one of the defendants challenged a restitution order on the ground that “because the losses stemmed not only from her conduct but also from the lenders’ own greed and market practices at the time, her actions did not proximately cause the entire loss.” Id. at 97. The court of appeals rejected the argument on the ground that the fact “that the lenders’ own greed and market practices at the time may have contributed to the loss has nothing to do with whether the entire loss amount was foreseeable to [the defendant].” Id. at 98. But the defendant in Soto had argued that the lenders were “greedy,” not that they had engaged in wrongdoing but only that the general “market practices” at the time had influenced their behavior. This ease is different because of the palpably phony nature of the loan applications and the fact that Bank of America approved all of them without investigation of the manifold suspicious circumstances — such conduct of a major bank is indicative of deliberate indifference rather than of mere negligence. That difference also distinguishes this case from United States v. Ojeikere, 545 F.3d 220, 223 (2d Cir. 2008), which held that “restitution under the MVRA may not be denied simply because the victim had greedy or dishonest motives, where those intentions were not in pari materia with those of the defendant.” The court reasoned that the victims had not been involved in a scheme to lose their own money. Here, in contrast, Bank of America was deliberately indifferent to the risk of losing its own money, because it intended to sell the mortgages and transfer the risk of loss to Fannie Mae for a profit.

It- remains to consider defendant Litos’s appellate waiver. He pleaded guilty and in his guilty plea agreement he “agree[d] to make restitution to the victims of my offense in an amount to be determined by the sentencing court” and waived his right to appeal or otherwise contest his conviction or sentence. Yet like the Tartareanus, who were convicted by a jury, Litos appealed — despite his waiver— thus presenting us with a dilemma. If we enforce his appellate waiver, Litos will be left on the hook for the full $893,015 in restitution to Bank of America, because the district judge’s order made the three defendants jointly and severally liable. But if we vacate the restitution portion of all three sentences, we must ignore Litos’s appellate waiver. Because our doubts about the propriety of ordering restitution to Bank of America apply as much to Litos as to the other defendants, however, and because it would be unjust to make Litos alone owe the full amount of restitution to the undeserving bank, we’ve decided to ignore the appellate waiver.

A number of the other federal courts of appeals have said they won’t enforce even voluntary and knowing waivers in plea agreements if enforcing them would result in a “miscarriage of justice.” See, e.g., United States v. Vélez-Luciano, 814 F.3d 553 (1st Cir. 2016); United States v. Adams, 814 F.3d 178, 182 (4th Cir. 2016); United States v. Hahn, 359 F.3d 1315, 1327 (10th Cir. 2004); United States v. Andis, 333 F.3d 886, 891 (8th Cir. 2003); United States v. Khattak, 273 F.3d 557, 562 (3d Cir. 2001); United States v. Teeter, 257 F.3d 14, 25-26 (1st Cir. 2001). In Vélez-Luciano, for example, the First Circuit refused to enforce an appeal waiver with respect to a condition of supervised release because the government had indicated that it no longer thought the defendant ought to be subject to the condition and the court had expressed its own reservations about the utility of the condition. 814 F.3d at 564-65. And in this case too the government and the district judge both expressed reservations about the propriety of awarding restitution to Bank of America.

Further with reference to Litos’s appeal waiver, we’ve held that there are exceptional situations in which waiver does not foreclose appellate review — for example if an appeal waiver is part of a plea agreement that was involuntary, or if the district court relied on a constitutionally impermissible factor, or if the defendant received ineffective assistance of counsel in regard to the negotiation of a plea agreement, or if the sentence exceeded the statutory maximum. Jones v. United States, 167 F.3d 1142, 1144 (7th Cir. 1999). And, coming closer to the facts of this case, in United States v. Andis, supra, 333 F.3d at 892, the Eighth Circuit said it would not enforce an appellate waiver if “the sentence is ‘in excess of a statutory provision or otherwise contrary to the applicable statute’ ” (emphasis added). Likewise, Bank of America was not a proper victim for the purposes of restitution under 18 U.S.C. § 8668A, and so the order of restitution was contrary to the applicable statute and therefore illegal— just as a prison term that exceeded a statutory maximum would be illegal.

We therefore decline to enforce Litos’s appellate waiver as to restitution, but, because the exceptions to waiver are narrow, uphold it as to the rest of his sentence. So while we reverse the order of restitution against Litos as well, we remand only for limited resentencing on the issue of restitution (with direction to consider whether a fíne is possible).

In all other respects the judgment of the district court is affirmed.