In the
United States Court of Appeals
For the Seventh Circuit

Nos. 99-1684, 99-3642 & 99-3767

United States of America,

Plaintiff-Appellee, Cross-Appellant,

v.

Stanley Wright,

Defendant-Appellant

and

Deniese Watts,

Defendant-Appellant, Cross-Appellee.



Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 CR 290--Ann Claire Williams, Judge.


Argued June 5, 2000--Decided July 7, 2000




  Before Easterbrook, Diane P. Wood, and Evans, Circuit
Judges.

  Easterbrook, Circuit Judge. Of sixteen defendants
indicted for smuggling and distributing heroin,
twelve pleaded guilty and four were tried and
convicted. Two of these four (Stanley Wright and
Deniese Watts) have appealed, and the United
States has taken a cross-appeal concerning
Watts’s sentence. Defendants’ arguments do not
require extended discussion. For example, Wright
contends that the evidence against him is
insufficient because the prosecution’s witnesses
were liars. But such an argument is pointless on
appeal, for the jury determines credibility. The
testimony at issue, though from the mouths of
confessed law-breakers, did not conflict with
other evidence too reliable to disregard, so the
jury could accept it. Watts’s principal claim,
that the prosecutor violated the requirements of
Brady v. Maryland, 373 U.S. 83 (1963), by
withholding favorable evidence, founders on the
fact that the prosecutor orally alerted defense
counsel before trial to the exculpatory evidence.
That defense counsel did not follow up by
obtaining more details can’t be treated as a
constitutional violation by the prosecutor.
(Counsel’s shortcomings might be grounds for
relief if the totality of the representation fell
below the constitutional floor, see Strickland v.
Washington, 466 U.S. 668 (1984), but Watts’s
appellate lawyer sensibly reserved that issue for
potential proceedings under 28 U.S.C. sec.2255.)

  Only one of defendants’ contentions requires
additional comment. Marquis Jones testified that
Deniese Watts’s ex-husband Troy introduced
Stanley Wright as his "enforcer, and he told me--
not in front of Stan, but he had told me that,
you know, he had a couple of murders . . . and
like that on his record." The district judge
immediately told the jury to disregard this
prejudicial statement. At a side bar
conversation, the district judge learned that in
1973 Wright had been convicted of murder, but
that this conviction had been reversed, after
which Wright pleaded guilty to manslaughter. The
judge also learned that before trial Jones had
been instructed not to refer to this conviction.
The judge then stated in open court:

We’re ready to proceed, ladies and gentlemen, and
I told you you should disregard the last remark,
and in addition I wanted to advise you that
Stanley Wright has not been convicted for any
murder, so you should totally disregard it.
Wright contends that he is entitled to a new
trial because the jurors were bound to ignore
this instruction.

  Whatever weaknesses limiting instructions may
have, Wright’s problem is that this was not a
"limiting" instruction at all. The judge did not
tell the jurors to consider the murder for one
purpose but forget about it for other purposes,
nor did she tell them to put Wright’s criminal
record out of mind. Instead the judge told the
jury that Jones’s testimony was false--that
Wright did not have "a couple of murders . . .
and like that on his record." Jurors told that a
witness’s statement is untrue need not engage in
mental struggle to disregard a fact that they
deem important but the law asks them to ignore.
The judge’s actual instruction would be
problematic only if some jurors were tempted to
believe one criminal’s statement to another over
the word of a federal judge. But why would a
juror do that? Perhaps a juror could think that
the witness and the judge were using terms
differently--that the judge was discussing
convictions, while Troy Watts (and thus Marquis
Jones) meant by "record" Wright’s actual deeds.
But Wright does not make such an argument and did
not ask the judge to clarify matters further. All
things considered, the episode did more to help
Wright than to harm him, because it could have
planted seeds of doubt in jurors’ minds. If Jones
testified falsely about Wright’s criminal record,
jurors might ask themselves, how many other tall
tales did Jones tell? Listeners often judge the
veracity of their interlocutors by what is
verifiable. If Jones lied about something that
could be verified (Wright’s criminal record),
maybe he was inventing the rest of his story too.
What matters on appeal, however, is that a
"falsity instruction" is more powerful than a
limiting instruction, see United States v. Smith,
995 F.2d 662, 676 (7th Cir. 1993), and sufficed
to prevent the jury from thinking Wright a
murderer.

  Watts’s offense level under the Sentencing
Guidelines was 38, which with her clean criminal
record produced a presumptive range of 235 to 293
months’ imprisonment. But the district court
sentenced Watts to only 170 months, departing
downward on account of what the judge called
"extraordinary family circumstances." The judge
recognized that "[f]amily ties and
responsibilities . . . are not ordinarily
relevant in determining whether a sentence should
be outside the applicable guideline range."
U.S.S.G. sec.5H1.6; see also 28 U.S.C.
sec.994(e). But "ordinarily" is not "never," see
Koon v. United States, 518 U.S. 81, 95-96 (1996),
and the judge believed that Watts’s circumstances
were extraordinary. A clinical psychologist
submitted a report that Joshua Watts, the seven-
year-old son of Deniese and Troy who had a strong
bond with his mother, became "anxious and
depressed as a result of learning that his mother
may possibly not continue to live with him" and
that this anxiety had led to a conflict with a
school classmate and a decrease in academic
performance. After reciting the psychologist’s
main findings, the district judge concluded that
a downward departure is appropriate.
  Although appellate review is deferential, we
think it impossible to say that the clinical
psychologist’s report details anything
"extraordinary" about Deniese Watts’s family ties
and responsibilities. Normal children react
adversely to learning that their parents will be
absent for years on end. Troy has been
incarcerated for some time, and the district
judge found that he "has played little or no role
in Joshua’s life for the last several years." The
prospect of losing his remaining parent is bound
to disturb a child. But this is true of any
normal child. "Imprisoning the mother of a child
for even a short period of time is bound to be a
wrenching experience for the child, but the
guidelines do not contemplate a discount for
parents of children." United States v. Stefonek,
179 F.3d 1030, 1038 (7th Cir. 1999). If the
mundane findings with respect to Joshua justified
a departure, then the norm in sec.5H1.6 would be
subverted, and district courts would be free to
disregard the guidelines when sentencing parents.
See United States v. Carter, 122 F.3d 469, 474-75
(7th Cir. 1997). We held in Stefonek that
circumstances more compelling than Watts’s--
"unrebutted testimony that the learning problems
of [the defendant’s] child will be aggravated by
her absence" (179 F.3d at 1038)--still do not
justify a departure unless the record establishes
not only that the harm "would be greater than the
harm to a normal child" (ibid.) but also that
care from other sources would be unable to
alleviate that harm. Joshua is a normal child;
almost by definition his normal reaction cannot
justify a departure. See also United States v.
Sweeting, 2000 U.S. App. Lexis 8678 (3d Cir. May
3, 2000).

  What is more, nothing in the psychologist’s
report suggests that reducing his mother’s
sentence from 235 months to 170 months would do
the slightest good for Joshua. The psychologist
did not try to assess the difference (if any) to
a seven-year-old child between knowing that his
mother will be gone until he is 19 (a 170-month
sentence less 15% good-time credits) and knowing
that his mother will be gone until he is 24 (a
235-month sentence less credits). Rare is the
youngster who can appreciate the difference
between two months and two years into the future.
We doubt that Joshua’s mental health and
educational prospects could be measurably
improved by knowledge that his mother will be
released when he is 19 rather than five years
later. In either case the parental bond and
support are sundered, and someone other than his
mother must raise the child to maturity. (In
Joshua’s case, that "someone" will be Deniese’s
sister.)

  Reducing a sentence to assist a child’s
development makes most sense when the range is
low to begin with and a small departure allows
the parent to provide continuing care. For
example, a defendant whose offense level is in
Zone B of the sentencing table could be given
probation (or home confinement) rather than
incarceration with only a small downward
departure. See United States v. Galante, 111 F.3d
1029, 1031 (2d Cir. 1997); United States v.
Haversat, 22 F.3d 790, 797-98 (8th Cir. 1994);
United States v. Sclamo, 997 F.2d 970, 972-74
(1st Cir. 1993); United States v. Gaskill, 991
F.2d 82 (3d Cir. 1993); United States v. Alba,
933 F.2d 1117, 1122 (2d Cir. 1991). But taking a
few years off a long sentence is worthless to
children and costly to the program of
proportionate punishment under the guidelines.
Deniese herself would be the sole beneficiary of
this sentence reduction. The only case we could
find approving a family-circumstances reduction
in a sentence that remained hefty is our own
United States v. Owens, 145 F.3d 923, 926, 928-29
(7th Cir. 1998), but in Owens the parties did not
discuss the fact that even after the reduction
the defendant could not assist his family for a
decade. Today we conclude that a downward
departure for extraordinary family circumstances
cannot be justified when, even after reduction,
the sentence is so long that release will come
too late to promote the child’s welfare.

  With respect to Wright the judgment is
affirmed. With respect to Watts the conviction is
affirmed but the sentence is vacated, and the
case is remanded for resentencing within the
range for offense level 38.
