holding that, as long as evidence is admissible under federal law, it is admissible in federal court even if the evidence may not be admissible in state court
How later courts described this case
- holding that, as long as evidence is admissible under federal law, it is admissible in federal court even if the evidence may not be admissible in state court
- “federal standards govern the admissibility of evi dence.”
Written by the judges who cited it.
The opinion
POSNER, Circuit Judge,
concurring.
I join Judge Kanne’s opinion unreservedly. My remarks are confined to a statutory problem that this case discloses but only Congress can solve: the five-year maximum penalty in 18 U.S.C. § 371 , the federal conspiracy statute. The defendants in this case were found guilty of conspiring to murder a child because she was a potential government witness in the prosecution of a brother of one of them for federal narcotics violations that had resulted in the death of another child. The judge sentenced each of the defendants to the maximum term of five years.
The proper punishment for conspiracy is a function of the gravity of the crime the defendants conspired to commit. This point, acknowledged both in the new sentencing guidelines, see U.S. Sentencing Comm’n, Guidelines Manual § 2X1.1 (Jan. 15, 1988), and in the second paragraph of section 371, which caps the punishment for conspiracy to commit a misdemeanor at the maximum punishment for the misdemean- or, shows that a five-year ceiling for all conspiracies to violate a federal felony statute makes no sense. The federal criminal code contains a number of special conspiracy provisions with suitably severe penalties. Examples include 18 U.S.C. § 351 , which authorizes a maximum term of life imprisonment for conspiring (unsuccessfully) to kill or kidnap high federal officials; 18 U.S.C. § 241 , which imposes a maximum term of ten years for conspiring to deprive a person of his civil rights — and life imprisonment if the victim dies; 18 U.S.C. § 286 , which authorizes a maximum of ten years for conspiring to defraud the government; 18 U.S.C. § 2271 , which authorizes a maximum of ten years for conspiring to destroy vessels; 18 U.S.C. § 2384 , which authorizes a maximum of twenty years for seditious *1222 conspiracy; and, of particular pertinence here, 21 U.S.C. § 846 , which authorizes a maximum sentence for conspiring or attempting to violate the federal drug laws equal to the maximum sentence for the completed violation. But the federal witness-tampering statute, 18 U.S.C. § 1512 , while providing heavy penalties for killing, attempting to kill, or otherwise interfering with a witness, does not contain a conspiracy provision, so that the prosecution in this case had to proceed under section 371, with its five-year maximum. There is no reason for such a low ceiling; it just contributes to the randomness of federal criminal punishment. The same day we heard argument in this case we heard argument in a case where the defendant had received a fifty-year sentence for a relatively minor drug offense. Were it not for the ceiling in section 371, the punishment range for conspiring to kill a witness in violation of section 1512 would be 24 to 30 years for a first offender. See Guidelines Manual, supra, §§ 2J1.2(a), (b)(1), 2Xl.l(b)(2).
Congress should revise section 371 so that its maximum penalty depends on the crime the defendants conspired to commit. (At the same time it might wish to address another striking deficiency in the federal criminal code — the absence of a general attempt statute.) One way to do this would be to make the maximum penalty for the conspiracy equal to the maximum for the underlying crime, with perhaps a cap of twenty years when the underlying crime is punishable by a longer sentence, provided the conspiracy fails. There is an argument for punishing successful conspiracies more severely than crimes committed without conspiracy, on the ground that a conspiracy is more dangerous than an individual criminal. The sentencing guidelines do not do this but they do provide that the conspiracy should be punished as severely as the completed crime if “the defendant or a co-conspirator completed all the acts the conspirators believed necessary on their part for the successful completion of the offense or the circumstances demonstrate that the conspirators were about to complete all such acts but for apprehension or interruption by some similar event beyond their control,” § 2Xl.l(b)(2).
With the qualification just noted, the sentencing guidelines proportion the punishment for conspiracy to the punishment for the underlying crime. This is also the approach of 18 U.S.C. § 373 , which sets the maximum punishment for soliciting commission of a crime of violence at one-half the maximum punishment for the crime. Why the defendants in this case were not charged under section 373 — or under 18 U.S.C. § 1512 (a)(2)(A), which punishes attempting to kill a witness, see United States v. Rovetuso, 768 F.2d 809, 821-23 (7th Cir.1985), a factually similar case — is a puzzle.
The precise method of implementing the reform is not important. The principle that criminal sentences should be related to the gravity of the criminal conduct is, and deserves Congress’s attention. Inadequate punishment can work a miscarriage of justice, just as excessive punishment can.