Judges: Easterbrook
Filed: Jun. 17, 2014
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 13---3467 UNITED STATES OF AMERICA, Plaintiff---Appellee, v. JAMES NEWMAN, Defendant---Appellant. _ Appeal from the United States District Court for the Western District of Wisconsin. No. 12---cr---105---wmc — William M. Conley, Chief Judge. _ ARGUED MARCH 5, 2014 — DECIDED JUNE 17, 2014 _ Before EASTERBROOK, MANION, and HAMILTON, Circuit Judges. EASTERBROOK, Circuit Judge. James Newman pleaded guilty to possessing a shotg
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 13---3467 UNITED STATES OF AMERICA, Plaintiff---Appellee, v. JAMES NEWMAN, Defendant---Appellant. _ Appeal from the United States District Court for the Western District of Wisconsin. No. 12---cr---105---wmc — William M. Conley, Chief Judge. _ ARGUED MARCH 5, 2014 — DECIDED JUNE 17, 2014 _ Before EASTERBROOK, MANION, and HAMILTON, Circuit Judges. EASTERBROOK, Circuit Judge. James Newman pleaded guilty to possessing a shotgu..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-‐‑3467
UNITED STATES OF AMERICA,
Plaintiff-‐‑Appellee,
v.
JAMES NEWMAN,
Defendant-‐‑Appellant.
____________________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 12-‐‑cr-‐‑105-‐‑wmc — William M. Conley, Chief Judge.
____________________
ARGUED MARCH 5, 2014 — DECIDED JUNE 17, 2014
____________________
Before EASTERBROOK, MANION, and HAMILTON, Circuit
Judges.
EASTERBROOK, Circuit Judge. James Newman pleaded
guilty to possessing a shotgun, despite a record of convic-‐‑
tions that made it illegal for him to possess firearms. 18
U.S.C. §922(g)(1). After changing lawyers, he moved to
withdraw the plea, asserting that the record does not estab-‐‑
lish a factual basis for it. The district court denied that mo-‐‑
tion and sentenced him to 120 months’ imprisonment.
2 No. 13-‐‑3467
Newman and James Misleveck escaped from Black River
Correctional Center in Wisconsin. Misleveck soon stole a
shotgun and ammunition. Newman and Misleveck then co-‐‑
operatively stole a car and kidnapped its driver. Newman
approached the driver and asked for a cigarette; while she
was distracted, Misleveck approached her from behind,
pointed the shotgun at her, and ordered her to get into the
rear seat. Newman kept control of the victim for five hours
while Misleveck drove. The pair released her and stole a
pickup truck. Pursued by police, they abandoned both the
truck and the shotgun before escaping on foot. They made it
to Florida before being caught. We shall assume that New-‐‑
man never touched the shotgun—although the kidnap vic-‐‑
tim once stated that Newman held the gun while Misleveck
was driving, Newman maintains otherwise and the Rule 11
colloquy did not address this subject.
Newman and Misleveck were prosecuted in state court
for escape, kidnapping, armed robbery, and other crimes.
The sole federal charge was possessing the shotgun. Both
pleaded guilty. Misleveck appealed his sentence, which we
affirmed. United States v. Misleveck, 735 F.3d 983 (7th Cir.
2013). Newman appeals his conviction but does not contest
his sentence. He contends that the judge should have al-‐‑
lowed him to withdraw the plea under Fed. R. Crim. P.
11(d)(2)(B), which provides that a “fair and just reason”
supports withdrawal. Newman says that he is innocent—
which if true is a compelling reason to withdraw a plea.
United States v. Hodges, 259 F.3d 655, 661 (7th Cir. 2001). But
the judge thought Newman’s guilt established, and appellate
review of a decision under Rule 11(d)(2)(B) is deferential. See
United States v. Alcala, 678 F.3d 574, 577 (7th Cir. 2012).
No. 13-‐‑3467 3
Reduced to its essentials, Newman’s argument is that
when entering the plea he believed erroneously that simply
being in the presence of a person with a gun equals construc-‐‑
tive possession of that gun. Newman asserts that the state-‐‑
ments during the Rule 11 colloquy could not support the
plea on any basis other than constructive possession. We
grant his premise: Keeping company with someone who car-‐‑
ries a gun does not automatically demonstrate possession.
Actual possession means physical control, and constructive
possession means the authority to exercise control. See United
States v. Rawlings, 341 F.3d 657 (7th Cir. 2003); United States v.
Brown, 724 F.3d 801 (7th Cir. 2013). If Misleveck was holding
the shotgun as Newman’s delegate, or if they controlled it
jointly and Misleveck would have handed it to Newman on
request, then Newman had constructive possession; other-‐‑
wise not. The prosecutor contends that the facts adduced
during the Rule 11 colloquy support an inference that New-‐‑
man and Misleveck jointly controlled the shotgun. Maybe so,
but we need not decide.
The events that Newman related when pleading guilty
show that he and Misleveck undertook joint criminal activi-‐‑
ty—carjacking and flight to avoid capture, among other
crimes—and worked together from the moment of their es-‐‑
cape (perhaps earlier) until their capture. In other words,
they engaged in a conspiracy. Every conspirator is liable for
acts of other conspirators within the scope of the agreement.
See Pinkerton v. United States, 328 U.S. 640 (1946).
Each conspirator acts as agent of the others during their
joint criminal activity. Misleveck used the shotgun to ad-‐‑
vance the joint venture of fleeing—and Newman, well aware
of this, remained Misleveck’s confederate without trying to
4 No. 13-‐‑3467
withdraw. So Misleveck’s possession is imputed to New-‐‑
man, which supplies ample basis for the plea. A person may
plead guilty without understanding the details of the legal
theory that supports the conviction. Cf. United States v. Rice,
116 F.3d 267, 268 (7th Cir. 1997). Newman’s imprecise view
of constructive possession does not spoil his plea, because
what Newman called constructive possession we call the lia-‐‑
bility of co-‐‑conspirators. The effect is the same. Attribution
under a Pinkerton theory does not depend on a formal charge
of conspiracy. United States v. Macey, 8 F.3d 462, 468 (7th Cir.
1993). Agency is what supports mutual culpability.
There’s another way to see this. Suppose Misleveck alone
possessed the gun. In doing so he, being a felon, committed
the felon-‐‑in-‐‑possession crime. Newman aided that offense
by associating with Misleveck in a criminal venture and
helping to advance its success. See, e.g., Rosemond v. United
States, 134 S. Ct. 1240 (2014). A person who aids or abets the
commission of a crime is liable as a principal. 18 U.S.C. §2.
And an indictment need not charge the §2 offense separate-‐‑
ly. Aiding or abetting is a proper basis of conviction in every
prosecution. See United States v. Moore, 936 F.2d 1508, 1525–
28 (7th Cir. 1991) (applying this principle to affirm a convic-‐‑
tion under §922(g)(1)).
The Supreme Court concluded in Rosemond that a person
aids or abets a firearms crime when he participates in joint
criminal activity, seeks to promote its objective, and knows
that a confederate has a gun, in time to “do something with
[that knowledge]—most notably, opt to walk away.” 134 S.
Ct. at 1249–50. Newman knew that Misleveck had and was
wielding a gun, and he had plenty of time to walk away. In-‐‑
stead he maintained the cooperative venture. Under Rose-‐‑
No. 13-‐‑3467 5
mond, Newman is liable to the same extent as Misleveck. In
both Rosemond and Rawlings a confederate pulled a gun un-‐‑
expectedly, leaving other participants without an opportuni-‐‑
ty to drop out of the venture. Here, by contrast, Newman
continued to cooperate with Misleveck long after learning
that he had and was using a shotgun.
Newman maintains that Pinkerton never supports crimi-‐‑
nal liability in a prosecution under §922(g)(1). Some lan-‐‑
guage in United States v. Walls, 225 F.3d 858 (7th Cir. 2000),
supports that position, but it is not what Walls held. Rawlings
describes Walls this way: “Pinkerton ascribes the crimes of co-‐‑
conspirators to each other, not a conspirator’s acts that when
combined with the acts of another conspirator might add up
to a crime.” 341 F.3d at 660 (emphasis in original). The panel
in Walls was concerned about the possibility that Conspira-‐‑
tor A might possess a gun—lawfully because A had a clean
record—while Conspirator B, who had a felony record, per-‐‑
formed other acts having nothing to do with weapons. The
panel thought that it would be “ridiculous” (225 F.3d at 866)
to conclude that A, who lacked a felony conviction, had
committed the felon-‐‑in-‐‑possession offense. That approach
does not help Newman. Both Newman and Misleveck had
felony convictions before their cooperative venture started.
Misleveck unquestionably committed the felon-‐‑in-‐‑
possession crime, which per Rawlings can be imputed to his
confederate Newman.
Having said this, we confess to some doubt about the
statements in Walls and Rawlings that Pinkerton is limited to
attribution of completed crimes. The Supreme Court’s opin-‐‑
ion in Pinkerton does not easily submit to such an interpreta-‐‑
tion. The Court thought it
6 No. 13-‐‑3467
settled that “an overt act of one partner may be the act of all
without any new agreement specifically directed to that act.”
United States v. Kissel, 218 U.S. 601, 608. … A scheme to use the
mails to defraud, which is joined in by more than one person, is
a conspiracy. Cochran v. United States, 41 F.2d 193, 199-‐‑200. Yet all
members are responsible, though only one did the mailing. [Ci-‐‑
tations omitted.] The governing principle is the same when the
substantive offense is committed by one of the conspirators in
furtherance of the unlawful project. Johnson v. United States, 62
F.2d 32, 34. The criminal intent to do the act is established by the
formation of the conspiracy. Each conspirator instigated the
commission of the crime. The unlawful agreement contemplated
precisely what was done. It was formed for the purpose. The act
done was in execution of the enterprise. The rule which holds re-‐‑
sponsible one who counsels, procures, or commands another to
commit a crime is founded on the same principle. That principle
is recognized in the law of conspiracy when the overt act of one
partner in crime is attributable to all.
328 U.S. at 646–47. This passage attributes acts from one con-‐‑
spirator to another, not just completed crimes—as the dis-‐‑
cussion of mail fraud shows.
Walls rests on a belief that federal law never allows a
conviction based on a combination of elements. It would be
“ridiculous,” Walls stated, to hold that if Conspirator A
commits Element X, and Conspirator B commits Element Y,
then both are guilty when neither of them committed a
whole crime. Yet that’s what the mail fraud example in Pink-‐‑
erton entailed. And Rosemond reiterates that conclusion. The
Court observed that aiding-‐‑and-‐‑abetting convictions are
proper even though each participant commits a subset of the
crime’s elements—indeed, even though it would have been
impossible for some participants to have committed some
elements. The Court cited Pereira v. United States, 347 U.S. 1,
8–11 (1954), and could have added Standefer v. United States,
No. 13-‐‑3467 7
447 U.S. 10 (1980); and United States v. Pino-‐‑Perez, 870 F.2d
1230 (7th Cir. 1989) (en banc). It continued: “The division of
labor between two (or more) confederates thus has no signif-‐‑
icance: A strategy of ‘you take that element, I’ll take this one’
would free neither party from liability.” 134 S. Ct. at 1247 &
n.6. It is hard to see why conspirators’ liability should be
treated differently; Pinkerton treats the two as sharing the
same rules of attribution and culpability.
Because Misleveck committed all of the elements neces-‐‑
sary to a felon-‐‑in-‐‑possession conviction, attribution is proper
to his co-‐‑conspirator Newman under the approach we took
in Walls and Rawlings. The rationale of those cases may need
further consideration in light of Rosemond. That can be de-‐‑
ferred to a case in which a conviction depends on combining
different elements committed by different confederates.
AFFIRMED
