In Re United States

345 F.3d 450 (7th Cir. 2003)

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Nature of the Case

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Facts

Bitsky (D) was indicted on one count of violating 18 U.S.C. § 242 (deprivation of civil rights under color of law) and two counts of violating 18 U.S.C. § 1512(b)(3) (obstruction of justice). D, a Wisconsin police officer, had assaulted an arrested person and had then tried to induce another officer to write a false arrest report justifying D's use of force and had threatened another officer in an effort to prevent her from informing on him. The United States (P) and D made a plea agreement under which he would plead guilty to one of the obstruction of justice counts, and the government would dismiss the other two counts. At the sentencing, the district judge questioned why the civil rights count had been dropped. The prosecutor explained that his main aim was to get a felony conviction, which would bar D from remaining in law enforcement, without the risk of a trial, which might result in D's being acquitted. The judge rejected the plea agreement on the ground that the one count of which D would be convicted if the agreement were accepted did not reflect the gravity of his actual offense. D decided to go ahead and plead guilty even though he no longer had the protection of a plea agreement. The judge sentenced him to 16 months in prison, the top of the guideline range without such a deduction. P filed a motion to dismiss the other two counts. The district court refused to dismiss the civil rights count and appointed a private lawyer to prosecute that count. P petitioned for a writ of mandamus commanding the district judge to dismiss that count as well and to rescind the appointment of the prosecutor. The judge has responded, stating as his reason for refusing to dismiss the civil rights count and for appointing a private lawyer to prosecute it that the government was trying to circumvent his sentencing authority because it considered the sentence that he would have imposed had D been convicted of the civil rights violation excessive, even though it would have been consistent with the sentencing guidelines.