United States of America v. JAMES HARRY RAND also known as Harry Rand

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2374
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
J AMES H ARRY R AND
also known as Harry Rand,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01-CR-1069—Joan B. Gottschall, Judge.
____________
On Petition for Rehearing with Suggestion
for Rehearing En Banc
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J ULY 2, 2007
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Before E ASTERBROOK , Chief Judge, and P OSNER ,
F LAUM , R IPPLE , M ANION , K ANNE , R OVNER , W OOD , E VANS ,
W ILLIAMS , and S YKES , Circuit Judges.
The defendant-appellant, James Harry Rand, filed a
petition for rehearing and a petition for rehearing en banc
on April 19, 2007. The petition for rehearing is D ENIED . A
vote was requested on the petition for rehearing en banc,
and a majority of the judges in regular service voted to
deny the petition. Circuit Judges Ripple, Rovner, Wood,
and Williams voted to grant the petition.

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2 No. 06-2374
Accordingly, the petitions filed on April 19, 2007, are
D ENIED .
R OVNER , Circuit Judge, with whom W OOD and W ILLIAMS
join, dissenting from the denial of rehearing en banc. Not
content to entrust this matter to the State of Illinois to
prosecute James Rand for any number of state crimes
relating to aiding and abetting murder, the United States
government chose to prosecute Rand for the ill-suited
federal crime of witness-tampering. The government, it
would seem, sees this an opportunity to expand the
application of witness tampering statutes to all manner
of crimes in which a criminal takes steps to evade capture
(in other words, nearly all crimes). In fact, one need look
no further than the government’s answer to the petition
for rehearing to uncloak its plan to federalize crimes
ordinarily left to the jurisdiction of state courts by ap-
plying witness tampering statutes to any attempts crimi-
nals take to divert law enforcement from their trails:
“Defendant does not explain why he believes it is a stretch
to apply the statute to a bank robber who [while the
crime is in progress] threatens the victim teller with
harm if the teller identifies the robber. That would seem
to be a paradigm case for application of Section 1512.”
(Answer of the United States to the Petition for Rehearing
and Suggestion for Rehearing En Banc at 6, n.2). Because
of my concern about the unrestrained use of witness
tampering statutes in areas not contemplated by Congress,
and for the other reasons stated in my dissent in this case
at United States v. Rand, 482 F.3d 943, 949-52 (7th Cir.
2007), I respectfully dissent from the denial of the re-
quest for rehearing en banc in this matter.

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No. 06-2374 3
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-2-07

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