United States Seventh Circuit

Conviction and sentence for conspiring to violate the victim's right to be free from unreasonable searches and seizures and battery under color of law is affirmed where: 1) the evidence is sufficient to support the conspiracy conviction as reasonable jury could infer that defendants formed a plan and carried it out through cooperative criminal activity; 2) the district court did not abuse its discretion in excluding defendant Masarik's proposed expert testimony about high error rates in eyewitness identifications; and 3) defendant's sentence was not unreasonable and the court did not abuse its discretion under 18 U.S.C. section 3553(a) in imposing a sentence higher than defendants with similar records who have been found guilty of similar conduct, as the disparity was justified by material differences in the offenders' conduct and acceptance of responsibility. Defendant Bartlett's sentence is vacated and remanded for the district court to evaluate and ensure that above-guidelines range sentence rests on a deliberate choice rather than a mistake.

Appellate Information

• Argued 05/15/2009
• Decided 06/08/2009
• Published 06/08/2009

Judges

• EASTERBROOK, Chief Judge., Before EASTERBROOK, Chief Judge, and BAUER and ROVNER, Circuit Judges.

Court

• United States Seventh Circuit

Counsel

• For Appellant:
  
• David W. Simon (argued), Foley & Lardner, Milwaukee, WI, for Jon Bartlett., Brian Kinstler (argued), Kohler & Hart, Milwaukee, WI, for Andrew Spengler., Alan G, Habermehl (argued), Kelly & Haqbermehl, Madison, WI, for Daniel Masarik.


• For Appellees:
  
• Dirk C. Phillips (argued), Department of Justice, Washington, DC, for Plaintiff-Appellee.