In the

United States Court of Appeals

For the Seventh Circuit

Nos. 08-1196, 08-1197 & 08-1198

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JON BARTLETT, ANDREW R. SPENGLER, and

DANIEL MASARIK,

Defendants-Appellants.

Appeals from the United States District Court

for the Eastern District of Wisconsin.

No. 06-CR-273—C.N. Clevert, Jr., Judge.

ARGUED MAY 15, 2009—DECIDED JUNE 8, 2009

Before EASTERBROOK, Chief Judge, and BAUER and

ROVNER, Circuit Judges.

EASTERBROOK, Chief Judge. The distance between civilization and barbarity, and the time needed to pass from one

state to the other, is depressingly short. Police officers

in Milwaukee proved this the morning of October 24, 2004.

Andrew Spengler held a housewarming party that

started on October 23 and lasted into the next morning.

Spengler and many guests were police officers. Liquor
2 Nos. 08-1196, 08-1197 & 08-1198

flowed freely. Katie Brown and Kirsten Antonissen were

among the invitees. They arrived after 2:30 AM on

October 24 with Frank Jude and Lovell Harris. The quartet

was immediately made to feel unwelcome because the

women are white, and the men are not. (Harris describes

himself as black; Jude describes himself as bi-racial.) After

five minutes, the four prepared to leave—but they were

prevented when at least ten men stormed outside, surrounded Antonissen’s truck, and demanded to know

what the four new arrivals had done with Spengler’s

badge. Spengler says that he could not find it after the

quartet arrived, and he accused them of theft. The men

demanded that the four get out of the truck and surrender

the badge. When they stayed inside, the men threatened

them (“Nigger, we can kill you”) and began to vandalize

the truck. Harris tried to wake the neighbors; the men

responded: “Nigger, shut up, it’s our world.”

Eventually all four were dragged from the truck. A

search did not turn up the badge. Instead of concluding

that Spengler’s accusation was mistaken, the men

became enraged and violent. One cut Harris’s face in a

way that he described as “slow and demented.” Harris

managed to free himself and run away. Multiple men

began to kick and punch Jude. Antonissen managed to

call 911; she told the operator “they’re beating the shit

out of him.” When the men saw Antonissen use the

phone, they wrested it from her hand and flung her

against the truck so forcefully that its metal was dented.

Brown made two calls to 911 before her phone, too, was

seized.
Nos. 08-1196, 08-1197 & 08-1198 3

The first call was logged at 2:48, and two officers (Joseph

Schabel and Nicole Martinez) arrived at 3:00. The

beating continued until their appearance. Men punched

Jude’s face and torso; when he fell to the ground, they

kicked his head and thighs. The partygoers behaved as a

mob. Not a single person in the house tried to stop the

attack or even to call for aid. Jon Clausing, who had

slashed Harris’s face, explained his conduct as “just kind

of going along with everybody.” That is the way of the

mob. Society has police forces to pose a counterweight

to mobs, yet here the police became a mob.

Schabel and Martinez were on duty and had not been

drinking, so they should have put a stop to the violence.

Instead Schabel joined it, while Martinez watched. On

being told that Jude had stolen Spengler’s badge, Schabel

called Jude a “motherfucker” and stomped on his face

until others could hear bones breaking. After telling

Martinez “I’m really sorry you have to see this,” Daniel

Masarik picked Jude off the ground and kicked him in the

crotch so hard that his body left the ground. Jon Bartlett

then took one of Schabel’s pens and pressed it into each of

Jude’s ear canals, causing severe injury and excruciating

pain. The men also broke two of Jude’s fingers by bending

them back until they snapped. Spengler put a gun to

Jude’s head and said: “I’m the fucking police. I can do

whatever I want to do. I could kill you.” Bartlett used a

knife to cut off Jude’s jacket and pants, leaving him

naked on the street in a pool of his own blood.

The violence tapered off when additional on-duty police

arrived. At 3:09 officers arrested Jude. Yes, they arrested
4 Nos. 08-1196, 08-1197 & 08-1198

the victim, although Jude had never fought back. (He had

suffered a concussion and was unable to defend himself.)

Jude was taken to an emergency room; the admitting

physician took photographs because “[t]here were too

many [injuries] to document” in writing. The injuries to

Jude’s ears could not be diagnosed because the

physicians could not control the bleeding. One physician

testified that she had never seen ear injuries so severe.

While Jude was receiving treatment, on-duty officers

recovered Jude’s car. Bartlett and other men had ripped

up its seats with knives and poured antifreeze over

them; apparently they poured antifreeze into the gas tank

too, damaging the engine. The radio had been wrecked.

The men broke a headlight and tore a mirror off

Antonissen’s truck. Spengler’s badge was not found in

either the car or the truck; perhaps he had put down the

badge in the house and was too soused to remember

where.

Bartlett, Spengler, and Masarik were prosecuted in

state court and acquitted after Schabel and others committed perjury on their behalf, while many people who

had been at the party claimed to suffer memory loss. That

made it impossible to show who had done what, and

the judicial system (unlike a mob) demands personal

responsibility. The Civil Rights Division of the Justice

Department then investigated, and federal prosecutors

persuaded several witnesses to cooperate. Four men

(Joseph Schabel, Ryan Lemke, Jon Clausing, and Joseph

Stromei) pleaded guilty to obstruction of justice (by

perjury, including false testimony before the federal

grand jury), to violating Harris’s and Jude’s civil rights, or
Nos. 08-1196, 08-1197 & 08-1198 5

both. Bartlett, Spengler, and Masarik were convicted by a

jury of conspiring to violate Harris’s and Jude’s right to be

free from unreasonable searches and seizures (18 U.S.C.

§241), and of the substantive offense (18 U.S.C. §242).

(Excessive force in making an arrest violates the fourth

amendment to the Constitution, applied to state police

officers by the fourteenth amendment. See Graham v.

Connor, 490 U.S. 386 (1989).) Bartlett was sentenced to

208 months’ imprisonment, Spengler and Masarik to

188 months apiece. All seven men have been fired by the

Milwaukee Police. Two more officers were fired but

later reinstated; an additional four were disciplined.

Bartlett, Spengler, and Masarik present twelve appellate

issues. Only four require discussion. The rest have been

considered, and we reject them without comment.

1. The maximum punishment for a violation of either

§241 or §242 is 120 months’ imprisonment. The longer

sentences that Bartlett, Spengler, and Masarik received

depend on convictions of both offenses. All three

contend that the evidence of conspiracy is insufficient.

Conspiracy is agreement to violate some other law, see

United States v. Shabani, 513 U.S. 10 (1994), and defendants

maintain that events developed without an agreement.

When Spengler called for aid to recover his badge, people

rushed from the party to Antonissen’s truck without

prior negotiation or agreement. 

This perspective assumes that the agreement must

predate the first substantive offense. Yet it need not. An

agreement forged in the course of committing a crime,

among people who plan to work together in an ongoing
6 Nos. 08-1196, 08-1197 & 08-1198

criminal venture, is no less a conspiracy than one that

precedes the first overt act. The battery of Jude lasted for

20 minutes. A reasonable jury could infer that defendants

and others formed a plan to do whatever was necessary

to recover Spengler’s badge and punish the thief—a

plan carried out through cooperative criminal activity.

Working together to commit a series of criminal acts, in

which each cooperative act implies a plan to cooperate

in the future, is a functional understanding of conspiracy.

See United States v. Lechuga, 994 F.2d 346 (7th Cir. 1993)

(en banc); United States v. Wantuch, 525 F.3d 505, 519

(7th Cir. 2008). None of the evidence suggests that defendants worked at cross-purposes with each other, or with

the rest of the mob. The evidence is enough to permit

an inference of agreement and thus a conviction for

conspiracy.

2. Masarik contends that he did not participate in the

beating. He concedes that he was at the party but says

that he stayed indoors or on the mob’s periphery. He

did not report the crime or assist the prosecution, so he

might have been convicted of misprison of felony, see

18 U.S.C. §4, but if he was a bystander he did not violate

§241 or §242.

Six witnesses testified that Masarik held Jude while

others punched and kicked him. Some of these witnesses

testified that Masarik kicked Jude in the face at least

twice, and that Masarik kicked Jude in the crotch (after

apologizing to Martinez). Masarik contends that he must

have been confused with someone else, and he proposed

to present expert testimony about high error rates in
Nos. 08-1196, 08-1197 & 08-1198 7

eyewitness identifications. The district court excluded the

proposed testimony for two principal reasons. First, the

judge stated that jurors could determine the reliability of

identifications using the evidence from direct and cross

examinations. Second, the judge invoked Fed. R. Evid. 403,

which allows the exclusion of evidence that is needlessly

cumulative or will consume trial time out of proportion

to its value.

The first of these reasons is weak. Doubtless lawyers will

ask questions designed to assist the jurors in evaluating

whether a witness is telling the truth. But the problem

with eyewitness testimony is that witnesses who think

they are identifying the wrongdoer—who are credible

because they believe every word they utter on the

stand—may be mistaken. Study after study has shown very

high error rates in the identification of strangers. See, e.g.,

Elizabeth F. Loftus & James M. Doyle, Eyewitness Testimony:

Civil and Criminal (3d ed. 1997) (collecting studies); Elizabeth F. Loftus, Eyewitness Testimony (1979; rev. ed. 1996);

Daniel L. Schacter, The Seven Sins of Memory: How the

Mind Forgets and Remembers 112–37 (2001). “An important

body of psychological research undermines the lay intuition that confident memories of salient experiences . . . are

accurate and do not fade with time unless a person’s

memory has some pathological impairment. . . . The basic

problem about testimony from memory is that most of our

recollections are not verifiable. The only warrant for them

is our certitude, and certitude is not a reliable test of

certainty.” Krist v. Eli Lilly & Co., 897 F.2d 293, 296–97 (7th

Cir. 1990) (citations to the scholarly literature omitted).
8 Nos. 08-1196, 08-1197 & 08-1198

It will not do to reply that jurors know from their daily

lives that memory is fallible. The question that social

science can address is how fallible, and thus how deeply

any given identification should be discounted. That jurors

have beliefs about this does not make expert evidence

irrelevant; to the contrary, it may make such evidence

vital, for if jurors’ beliefs are mistaken then they may

reach incorrect conclusions. Expert evidence can help

jurors evaluate whether their beliefs about the reliability

of eyewitness testimony are correct. Many people

believe that identifications expressed with certainty are

more likely to be correct; evidence that there is no

relation between certitude and accuracy may have a

powerful effect.

Still, using expert testimony to explore this question

may sidetrack a trial. A judge must balance the benefits

of illuminating evidence against the costs of collateral

inquiries. That’s why Rule 403 grants discretion to the

trial judge—and why we have held, many times, that a

trial court does not abuse its discretion by excluding

expert evidence about the reliability of eyewitness testimony. See, e.g., United States v. Carter, 410 F.3d 942, 950

(7th Cir. 2005) (collecting cases); United States v. Hall,

165 F.3d 1095 (7th Cir. 1999) (same).

The district judge did not abuse his discretion in this

case, because the conviction does not rest on identifications by Jude and the other victims. Only two of the

people who identified Masarik were strangers to him.

The other four knew him well. The social-science studies

do not suggest that people who have known one another
Nos. 08-1196, 08-1197 & 08-1198 9

for weeks or years are apt to err when identifying them

in court. What’s more, the scholarly work concerns

identification by single eyewitnesses, not the probability

of error when multiple witnesses identify the same

person. If the six in-court identifications of Masarik were

independent, and each had a probable error rate of .333

(that is, there is a one-in-three chance that any witness

was mistaken), then the probability that Masarik is innocent is .333 to the sixth power, or well under 1%. We

have remarked before that the scholarly findings about

eyewitnesses have only limited application when

multiple witnesses identify the same person. See United

States v. Williams, 522 F.3d 809 (7th Cir. 2008); Newsome v.

McCabe, 319 F.3d 301 (7th Cir. 2003). Masarik did not

proffer any evidence about the error rates in six-fold

identifications. Nor did he propose to ask an expert

whether the six identifications should be regarded as

independent, or what the risk of error in these identifications taken jointly is apt to be. Someone who proposes

expert testimony must show how the findings apply to

the litigation at hand; Masarik did not do this.

A concurring opinion in Hall added that, although

jurors should be made aware of the scholarly findings

in appropriate cases, it is often better to have the judge

summarize the state of knowledge than to have a parade

of experts. 165 F.3d at 1120. Masarik did not ask the

judge to recap the scholarly findings for jurors’ benefit. For

him, it was an expert on the stand or it was nothing; the

judge did not abuse his discretion in blocking that testimony in order to keep this trial on track.
10 Nos. 08-1196, 08-1197 & 08-1198

3. All three defendants contend that their sentences

are unreasonably high when evaluated under the criteria

in 18 U.S.C. §3553(a). They stress §3553(a)(6), which

requires a sentencing judge to consider “the need to

avoid unwarranted sentence disparities among defendants

with similar records who have been found guilty of similar

conduct”. Lemke, Clausing, Schabel, and Stromei all

received sentences considerably less than 188 months;

Bartlett, Spengler, and Masarik contend that this difference makes their sentences unreasonably high.

We have encountered this argument before and rejected

it.

There would be considerably less cooperation—and thus more crime—if those who assist

prosecutors could not receive lower sentences

compared to those who fight to the last. Neither

[United States v.] Booker[, 543 U.S. 220 (2005)] nor

§3553(a)(6) removes the incentive for cooperation—and because this incentive takes the form of

a lower sentence for a cooperator than for an

otherwise-identical defendant who does not cooperate, the reduction cannot be illegitimate. After

all, §3553(a)(6) disallows “unwarranted sentence

disparities” (emphasis added), not all sentence

differences.

[T]he kind of “disparity” with which §3553(a)(6) is

concerned is an unjustified difference across judges

(or districts) rather than among defendants to a

single case. If the national norm for first offenders

who gain $275,000 or so by fraud is a sentence
Nos. 08-1196, 08-1197 & 08-1198 11

in the range of 33 to 41 months, then system-wide

sentencing disparity will increase if Boscarino’s

sentence is reduced so that it comes closer to

Aulenta’s. Instead of one low sentence, there will

be two low sentences. But why should one culprit

receive a lower sentence than some otherwisesimilar offender, just because the first is “lucky”

enough to have a confederate turn state’s evidence? Yet that is Boscarino’s position, which

has neither law nor logic to commend it.

Sentencing disparities are at their ebb when the

Guidelines are followed, for the ranges are themselves designed to treat similar offenders similarly.

That was the main goal of the Sentencing Reform

Act. The more out-of-range sentences that judges

impose after Booker, the more disparity there will

be. A sentence within a properly ascertained range

therefore cannot be treated as unreasonable by

reference to §3553(a)(6).

United States v. Boscarino, 437 F.3d 634, 638 (7th Cir. 2006).

Defendants acknowledge that the circuit’s law is against

them, but they contend that we must reevaluate the

subject in light of Rita v. United States, 551 U.S. 338 (2007),

Gall v. United States, 552 U.S. 38 (2007), and Kimbrough v.

United States, 552 U.S. 85 (2007), which emphasized that

the Guidelines are not binding and that district judges

have considerable discretion to implement their own

conceptions of just sentences, notwithstanding the Sentencing Commission’s views. See also Spears v. United

States, 129 S. Ct. 840 (2009); Nelson v. United States, 129

S. Ct. 890 (2009).
12 Nos. 08-1196, 08-1197 & 08-1198

To address defendants’ contention, we must separate

two questions: first, does §3553(a)(6) require a judge to

reduce anyone’s sentence below the Guideline range

because other persons who committed the same crime

but pleaded guilty and cooperated received lower terms?;

second, does §3553 as a whole permit a judge to go

below the Guideline range for this reason?

The first of these questions received a negative answer

in Boscarino and similar cases, which have observed that

§3553(a)(6) addresses only “unwarranted” disparities. A

difference justified by the fact that some wrongdoers

have accepted responsibility and assisted the prosecution,

while others have not, is not “unwarranted.” The best way

to curtail “unwarranted” disparities is to follow the

Guidelines, which are designed to treat similar offenses

and offenders similarly. Far from disapproving this

understanding, the Supreme Court adopted it in Gall:

Section 3553(a)(6) requires judges to consider “the

need to avoid unwarranted sentence disparities

among defendants with similar records who

have been found guilty of similar conduct.” The

Court of Appeals stated that “the record does not

show that the district court considered whether

a sentence of probation would result in unwarranted disparities.” 446 F.3d at 890. As with the

seriousness of the offense conduct, avoidance of

unwarranted disparities was clearly considered

by the Sentencing Commission when setting the

Guidelines ranges. Since the District Judge correctly calculated and carefully reviewed the Guide-
Nos. 08-1196, 08-1197 & 08-1198 13

lines range, he necessarily gave significant weight

and consideration to the need to avoid unwarranted disparities.

128 S. Ct. 586, 599 (emphasis added). A sentence within a

Guideline range “necessarily” complies with §3553(a)(6).

But there is more to §3553 than §3553(a)(6). A judge must

respect all of the statutory criteria in order to mete out a

sentence “sufficient, but not greater than necessary, to

comply with the purposes [of sentencing] set forth in

paragraph (2) of this subsection.” 18 U.S.C. §3553(a). The

Court held in Kimbrough, and reiterated in Spears, that a

judge need not accept the Sentencing Commission’s

penological framework. The court may adopt its own. It

follows that §3553 permits a judge to reduce one defendant’s sentence because of another’s lenient sentence—not

because of §3553(a)(6), but despite it. Avoiding “unwarranted” disparities (as the Sentencing Commission or a

court of appeals defines them) is not the summum

bonum in sentencing. Other objectives may have

greater weight, and the court is free to have its own

policy about which differences are “unwarranted.”

It follows that, if the district judge thought himself

forbidden to take account of Lemke’s, Clausing’s,

Schabel’s, or Stromei’s (relatively) low sentences when

deciding what punishment to impose on Bartlett, Spengler,

or Masarik, he was mistaken. The judge did not make

this error, however. He concluded that the disparity is

justified by material differences in the offenders’ conduct

and acceptance of responsibility, not that a disparity is

unjustified but irremediable. The district judge followed
14 Nos. 08-1196, 08-1197 & 08-1198

§3553(a), and understood the extent of his discretion,

when sentencing Bartlett, Spengler, and Masarik.

4. Masarik was sentenced at the top of his range (151

to 188 months); that sentence is reasonable under §3553

and Rita. See also United States v. Mykytiuk, 415 F.3d 606,

608 (7th Cir. 2005) (an in-range sentence is presumed

reasonable on appeal). Spengler’s sentence of 188 months

exceeds the top of his range (121 to 151 months) but is

reasonable under Gall: the district judge properly

deemed him the instigator. Some of his conduct, such as

pointing a gun at Jude’s head and proclaiming authority

to kill anyone he wanted, was not taken into account in

the Guidelines calculation.

Bartlett’s sentence of 208 months likewise exceeds the

top of his range. He committed the most brutal acts.

Thrusting a pen into a person’s ear canals is torture by

any definition. While facing the state charges, Bartlett

threatened to blow up his former police station, a crime

for which he has been convicted in state court and sentenced to 54 months. He also defrauded a gun dealer into

selling him a submachine gun, violating gun-control laws

as well as the terms of his federal bail; this conduct drew

another 18 months in a separate prosecution. A district

judge might deem a lengthy consecutive sentence

essential for incapacitation as well as deterrence and

desert. But the court may not have appreciated that Bartlett’s sentence exceeds his Guideline range.

Many cases in this circuit say that sentences exceeding

the Guideline range must be explained not only in

absolute terms, under the criteria of §3553(a), but also
Nos. 08-1196, 08-1197 & 08-1198 15

with an analysis of why a Guideline sentence would be

insufficient. See, e.g., United States v. Gordon, 513 F.3d

659, 666 (7th Cir. 2008); United States v. Wachowiak, 496

F.3d 744, 749–50 (7th Cir. 2007). These decisions did not

survive Nelson, which holds that district judges need

not—indeed must not—begin with a presumption in

favor of a Guideline sentence. If there is no need to start

from the perspective that an in-range sentence usually

is best, there is also no need to explain why some

different sentence is better. The judge’s task is to choose

a reasonable sentence. The court must take the Sentencing Commission’s views into account, but a sentence

cannot be called “unreasonable” just because the

judge explains why he chose that sentence, rather than explaining his decision from the Guidelines’ perspective.

The old regime of “departures” is defunct. See Irizarry v.

United States, 128 S. Ct. 2198 (2008).

Although the judge need not use the Guidelines as the

fulcrum of analysis, the court still needs to understand

the relation between the Guidelines and the ultimate

sentence. Both Rita and Gall say that the court must

construct a Guideline range accurately. A sentence is

procedurally unreasonable if the judge thinks it within

the range, but it isn’t—either because the range was

not determined accurately in the district court, or

because the judge misunderstood what that range was.

Bartlett’s range is 151 to 188 months. Much of the sentencing transcript reads as an explanation about why

the sentence is at the high end of the range. At the end

of the proceeding, the judge stated bluntly that the sen-
16 Nos. 08-1196, 08-1197 & 08-1198

tence would be the top of the range. But the actual sentence of 208 months is 20 months higher. That’s a problem.

The prosecutor says that, by the close of the proceeding,

the judge had recognized that 208 months exceeds Bartlett’s range. The transcript is not as clear to us as it

appears to be to the prosecutor. Given the risk of confusion, the better part of wisdom is to ask the district judge

to take another look, to ensure that the sentence rests on

a deliberate choice rather than a mistake. A 208-month

sentence is reasonable substantively, but no one, not

even a Bartlett, should lose 20 months of freedom

because a district judge read across the wrong line in a

table. (The range 168 to 210 months is the next highest

in the Guidelines’ sentencing table.)

Nonetheless, the prosecutor maintains, Bartlett forfeited any opportunity for appellate relief because he did

not “object” to the 208-month sentence on the ground that

it exceeds the Guideline range. We put “object” in scare

quotes because remonstration with the judge is not an

objection as usually understood. Both the Rules of Evidence and the Rules of Criminal Procedure require a

litigant to make known the position it advocates and to

present evidence and argument for that position. These

steps are essential to facilitate intelligent decision in the

district court. Counsel present positions, and judges

then decide. But the rules do not require a litigant to

complain about a judicial choice after it has been made.

Such a complaint is properly called, not an objection, but

an exception. The rule about exceptions is explicit: “Exceptions to rulings or orders of the court are unnecessary.”
Nos. 08-1196, 08-1197 & 08-1198 17

Fed. R. Crim. P. 51(a). Rule 51(b) adds that a litigant

preserves a contention for review “by informing the

court [before the decision is made] of the action the party

wishes the court to take . . . and the grounds for” that

action. Bartlett and his lawyer argued for a lower sentence, and they gave reasons. They have preserved their

appellate options.

Having said this, we must acknowledge that some of our

opinions use the word “objection” in the same way the

prosecutor did, and they hold (or at least suggest) that

lawyers must ask a judge to reconsider the sentence (or

other decision) as the price of appellate review. See, e.g.,

United States v. Harvey, 232 F.3d 585, 587 (7th Cir. 2000);

United States v. Marvin, 135 F.3d 1129, 1135 (7th Cir. 1998).

These decisions do not discuss Rule 51(a), and for the

most part they did not need to; they are compatible

with Rule 51(b), which (in language that we did not

reproduce above) requires a protest immediately after

the ruling if the litigant did not have an opportunity to

argue the point earlier. When the judge surprises counsel,

it is far better to air and resolve the matter in the

district court than to bypass available opportunities for

correction and save the issue for appeal. But when an

issue is argued before the judicial ruling, counsel need not

take exception once the court’s decision has been announced. That’s what Rule 51(a) says. Bartlett’s sentence

was the subject of extensive argument and evidence; his

lawyer did not need to argue with the judge once the

sentence had been pronounced.

All three convictions, and the sentences of Spengler and

Masarik, are affirmed. Bartlett’s sentence is vacated, and
18 Nos. 08-1196, 08-1197 & 08-1198

his case is remanded for proceedings consistent with

this opinion.

6-8-09