Kerry L. Smith was indicted on marijuana related charges in April 2007. He retained John Rogers to represent him. Both sides dealt with voluminous amounts of discovery. Various motions were filed and superseding indictments were issued. Approximately a year into the case Rogers requested a competency evaluation for Smith. It was completed in June of 2008. No trial date was set. On August 25, 2008 Smith filed a motion asking to substitute in Beau Brindley as his attorney. On September 8 the Court set a trial date of November 4 and denied the motion to substitute counsel because Brindley was scheduled to be in another trial on November 4.

When the court rejected Brindley, Smith requested that Rogers continue to represent him. With the court’s prodding, Rogers refused. The Court appointed Ronald Jenkins to represent Smith.

Three weeks later Smith plead guilty with a written plea agreement that among other points surrendered the right to appeal unless the sentence exceeded the guidelines.

Federal Rules of Criminal Procedure Section 11(b)(1)(N) requires that the district court “must inform the defendant of, and determine that the defendant understands . . . the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.” Though the appellate waiver was in the agreement the Court made no effort to independently inform Smith of the parameters of the waiver. The court mentioned it only in passing and then only to ask Jenkins whether there was a waiver.

The right to counsel of one’s choice is so fundamental that one should not be able to waive an appeal of its denial. The denial of the right to counsel of one’s choice brings into question the value of the waiver. Different counsel will handle different issues in different ways. If Smith had been granted the substitution he may not have plead guilty and if he had plead guilty he may not have agreed to waive the right to appeal. As the appellate court stated, “[i]f a defendant is erroneously denied the counsel of his choice, it is a structural error in the trial that brings into question the voluntary and intelligent character of the guilty plea itself. ”

The Seventh Circuit Court of Appeals found a clear violation of the Sixth Amendment right to counsel. Since no trial date had been set at the time the motion to substitute counsel was made, the interference with the court’s calendar was minimal and the court’s refusal to set a trial date when Brindley was available was uncalled for and a violation of Smith’s Sixth Amendment right to counsel.

The United States Supreme Court reversed a conviction for violating the Sex Offender Registration and Notification Act (SORNA). SORNA, passed by Congress in 2006 makes state sex offenders registration laws more uniform and effective. It makes it a Federal crime for 1) people who are required to register as a sex offender to (2) travel in interstate or foreign commerce, and (3) knowingly fail to register or update a registration.

The Seventh Circuit Court of Appeals ruled that a conviction could be upheld even though the required travel occurred prior to the passage of the act as long as the defendant had sufficient time after the passage of the act to register. The Supreme Court ruled that since the restriction on interstate travel only affects those who are required to register and since the Federal requirement to register did not occur before the passage of the act in 2006, the travel had to occur after the act’s passage. Furthermore the act uses the present tense to indicate the travel requirement and Congress thereby indicated that the travel that the travel could not occur before the act was imposed.

In May 2004 Thomas Carr plead guilty to first-degree sexual abuse in Alabama. Later that year or in the beginning of 2005 he moved to Indiana and failed to comply with Indiana’s registration requirements. Even though SORNA did not take effect until 2006 the United States Attorney charged him with violating the act when he failed to register after the act took effect. The Seventh Circuit Court of Appeals upheld the conviction based on the pre-enactment travel and the Supreme Court reversed.

By holding that the law requires that the travel occur after the enactment of the act the Court avoided considering whether or not the law violated the Constitution’s ex post facto clause which bans punishing people for acts committed before a law is passed making the act illegal.

In either case the decision is for the best. Otherwise people could be punished for acts that occurred many years ago. State registration statutes have been in effect for many years and the states are capable of punishing people who failed to register prior to 2006.

The vast majority of people who come before our criminal courts at one point or another face sentencing. Either they plead guilty, often as part of a plea agreement or they are found guilty after trial. Particularly in the Federal Courts sentencing is a complicated and drawn out procedure. As a result many of the cases that are decided on appeal involve sentencing issues. As a general rule if one pleads guilty and admits the charged offense one cannot allege innocence on appeal. Thus the only issue on appeal in most cases where there is a guilty plea is the sentence imposed.

In United States v. Pape the Seventh Circuit Court of Appeals considered the correctness of a sentence in a child pornography case.

Jason Pape was an outstanding member of his community. He was a businessman and he was active in his church. He took excellent care of his children and of wife’s children she had by a prior marriage, one of whom was autistic. He had no criminal record.

There is no evidence that he mistreated his children or abused any children. But he was indicted after his daughter reported to her school that she had accidentally run across child pornography on Pape’s computer. He plead guilty and was sentenced to 90 months in prison and twenty year of supervised release. The sentence was below the advisory guideline range of 97 to 120 months.

Appellate consideration of a sentence involves two issues. The first question is whether the sentencing court followed the correct procedure and the second question is whether the sentence is reasonable or whether it is an abuse of discretion.

There was no question raised about the procedure followed by the sentencing judge. But Pape raised four issues on appeal regarding the reasonableness of the sentence. First he claimed that the court did not take sufficient consideration of his parenting responsibilities. While the court must consider non-frivolous issues raised by the defendant the weight to be given to each issue is up to the court. It is clear that the court considered his parenting responsibilities and while the court’s language is slightly ambiguous at times it clearly took the responsibilities into consideration.

Second, Pape argued that the court failed to consider sections of the Guidelines that authorize consideration of extraordinary childcare responsibilities but these sections do not apply to child pornography cases.

The third issue raised by Pape is that the sentencing court failed to consider his argument that the child pornography guidelines “do not reflect the result of careful study based in empirical analysis and national experience.” The Seventh Circuit found that by sentencing Paper after considering the Guideline the sentencing judge implicitly rejected the defendant’s argument.

Pape’s final argument was the vast difference between the various District Courts in Wisconsin. But since the sentence below Guidelines and Pape did not provide any explanation for the variation the Seventh Circuit found that the argument lacks substance. It affirmed the sentence.

Catherine Miller plead guilty in Federal Court to crossing state lines to have sex with a minor. The presentence report recommended a within guidelines sentence of between 70 and 87 months. However the court sentenced her to 120 months.

The Sentencing Guidelines as originally passed were considered mandatory and judges had only a limited ability to deviate from them. But in United States v. Booker the Supreme Court found the guidelines to be advisory. While the courts have the ability to deviate from the Guideline deviations are limited and must be reasonable.

At sentencing and on appeal Miller objected to the courts adoption of the Probation Department’s recommendation that that the sentencing guidelines be enhanced by an undue influence enhancement. However such enhancement, while subject to rebuttal are required in cases where there is an age difference of over ten years. Neither the trial court not the Seventh Circuit found that the enhancement had been rebutted despite some evidence that the juvenile had prior sexual experiences and seemed open to a romantic relationship with Miller.

The second issue on appeal was the government’s use of surprize evidence at the sentencing hearing. Specifically, the government introduced photo albums showing Miller with other minors. When Miller’s attorney objected, the court gave him a five minute recess to talk to his client. He said thank you and did not further object. Therefore the appellate court found that Miller waived any objection on appeal.

The final issue was the fifty percent upward deviation from the guidelines. The trial court based its decision on the high rate of recidivism among sex offenders. The appellate court rejected the finding and returned the case to the trial court for resentencing. First it found that if there is a high rate of recidivism it applies to all people charged with the crime and the Sentencing Commission would have taken this into consideration in writing the guidelines. Second it found there was no evidence at the sentencing hearing that supported a belief in a high rate of recidivism and there is evidence to the contrary. Therefore it reversed the sentence.

Jermario Taylor was driving his GMC Yukon when he was pulled over by Special Agents Dustin Brown and Jeff Martin for driving without a seatbelt. Now Brown and Martin were not any two cops. Rather they were with the Kankakee Area Metropolitan Enforcement Group, a drug task force located in Kankakee County, Illinois. When they stopped Taylor, do they give him a ticket and leave. No they ask to search his vehicle. when Taylor asks if he must give consent, Brown and Martin say no but we just so happen to have drug sniffing dogs in our vehicle and we will have them take a sniff around your car. We would not be talking about it if the dogs didn’t find drugs. They did and Taylor was eventually sentenced to 120 months in prison and eight years of supervised release for possession of crack cocaine with the intent to distribute it.

Of course Brown and Martin say that they ask everyone they stop for traffic violations if they can search their vehicle and use the dog if they find resistance. They were just lucky. Well if you believe this . . . I have a bridge to sell you. My bet is that they recognized Taylor and used the lack of seat belts as a pretext to stop him. Also while I do not know Taylor’s race I’d be willing to bet that he is African American and that he would not have been stopped and searched if he was White.

But the Seventh Circuit says, never mind, it doesn’t make any difference. As long as Brown and Martin had probable cause to believe that Taylor was driving without seatbelts in place, the vehicle can be stopped and the dogs can sniff for drugs. The intent of the officers is irrelevant.

The obvious question is why have a Fourth Amendment? Any time anyone drives police officers, if they follow you for long enough, will find probable cause to stop you. If its not the seatbelts, you cross the white line, or go one mile over the speed limit. I can’t believe that James Madison and George Mason would have approved of such a pretextual search when they wrote the Bill of Rights. I suspect they would have been quite upset if the British had used such a pretext to search a wagon load of guns covered with hay heading towards Lexington for use by the revolutionaries. But this is the twenty-first century where we are fighting a war against drugs and the ends justify the means.

The Supreme Court yesterday, as expected, granted certiorari to McDonald v. Chicago. In the 2007-2008 session of the Supreme Court, it decided District of Columbia v. Heller. In Heller the Supreme Court decided that the Second Amendment to the Constitution granted individuals a limited right to possess guns. Prior to Heller the general view was that the Second Amendment only grant a collective right to members of militias to possess guns.

Heller involved Federal law since it involved the District of Columbia. Therefore the Supreme Court did not decide whether the Second Amendment limited the ability of the states and local governments to control gun ownership. The Bill of Rights originally only protected citizens from the actions of the United States government. Over time the Supreme Court has gradually decided that the Fourteenth Amendment incorporated the various rights guaranteed by the Bill of Rights into the national law guaranteeing such rights against state and local limitations. However the Second Amendment has not been incorporated by the Supreme Court. This question will be decided in McDonald The Seventh Circuit took the traditional view following Nineteenth Century precedent in ruling that Heller is limited to Federal laws. On appeal the Supreme Court will rule whether it applies to state and local governments.

The traditional way to incorporate rights guaranteed by the bill of Rights is through the Due Process Clause of the Fourteenth Amendment, While Allen Gura, the attorney who argued Hellerr before the Supreme Court and who will argue McDonald will argue that the Supreme Court should use the Due Process Clause to incorporate the Second Amendment, alternatively he will argue that the Court should use the Privileges and Immunities Clause of the Fourteenth Amendment. Many modern scholars believe that the Privileges and Immunities Clause is the appropriate way to incorporate the rights guaranteed by the Bill of Rights. This will give us an opportunity to see whether the Supreme Court will adopt this theory.

Dawnya Grice made two 911 calls on February 15, 2007. In the first she said that her boyfriend Terrence L. Katz had threatened her and she had left her apartment to get away from him. On request she told the operator that he did not have a weapon. In the second call she said he had left the apartment and he had a gun and it looked like he was carrying it in his pants. He was detained and no weapon was found. They did find $1800 in cash on him.

Grice consented to the police searching the apartment. They found guns, marijuana and cocaine. Katz’s fingerprints were on a Remington 12 gauge shotgun. He was charged with various offenses but was only convicted on one count of possession of a gun by a convicted felon. He made motions for an acquittal and for a new trial pursuant to Sections 29 and 31 of the Federal Rules of Criminal Procedure. But the motions were denied and the appeal was filed.

At trial the parties stipulated that Katz had been convicted of a felony prior to February 15, 2007 and that Grice leased the apartment. Neither Katz nor Grice testified at the trial.

At trial and on appeal Katz argued that there was insufficient evidence to convict him of a violation of 18 USC Section 922(g) being a felon in possession of a gun. In order to convict him the prosecution must prove that he had a prior felony conviction, that he possessed the weapon after the conviction and that the weapon traveled in interstate commerce. The first element was stipulated to and there was no argument about the third element. The only issued is whether he possessed the weapon on February 15, 2007 since the stipulation said he had been convicted sometimes prior to that date.

The court found that there was no evidence that he possessed the weapon on February 15, 2007 and it reversed the conviction. Possession can be either personal or constructive. The only evidence showing Katz’s possession of the gun was his fingerprints on the gun. But since the date of the fingerprints cannot be proved this did not help the government’s case.

Constructive possession can be shown when two people are present in a house and there is evidence tying the defendant to the gun. But none was present and there was no evidence showing Katz’s ties to the house. There was no evidence that he lived there. None of his clothes were found there and there was no indicia showing that Katz had any ties to the house.

Joseph Thomas was pulled over by an officer for a traffic violation. The officer then properly checked to see if Thomas had any warrants. The officer found no warrants in the name of Joseph Thomas but he did find a warrant in the name of Joshua Thomas for having six outstanding parking tickets. For some unknown reason Joshua Thomas’ warrant had Joseph Thomas’ drivers license number on it, although it had different addresses.

Thomas sued in Federal court on various state and Federal grounds, including violation of his Fourth Amendment and Due Process rights. He argued that under Illinois law officers had no right to prosecute individuals for failure to pay parking tickets.

The Seventh Circuit ruled that Thomas did not have standing to sue under the grounds that there was no right to arrest someone for failure to pay parking tickets since it was Joshua Tomas, not Joseph Thomas who failed to pay his parking tickets.

Thomas’ Due Process claim was that he did not receive notice that he could be arrested for not paying traffic tickets. But the Court easily denied this claim since Joseph Thomas did not have any outstanding parking tickets he would not have received notice even if the city gave such notices.

As to the Fourth Amendment claim the court citing Supreme Court decision in Atwater found that if there is probable cause for the arrest there is no Fourth Amendment violation even if there is no right to arrest the defendant under the statute.

But the problem here is that Thomas suffered a grievous wrong. He was arrested and forced to put up bail for a crime he did not commit. But there appears to be no remedy for the wrong. Usually in these cases you argue the lack of probable cause. But that’s a tough standard to meet. Without really discussing it the Seventh Circuit seems to accept that the officer had probable cause to arrest Thomas based on the fact that the warrant for Joshua Thomas had Joseph Thomas’ license number on it.

In the classic case of Brady v. Maryland the Supreme Court found that prosecutors must provide material evidence in their possession or the possession of the law enforcement agency to the defense where that evidence might be helpful. Today we will look at a Seventh Circuit case in which the appellate court refused to order a new trial since the evidence held by the prosecutor and law enforcement agencies was not material.

To establish a Brady violation the defendant must prove:

(1) that the prosecution suppressed evidence; (2) that
the evidence was favorable to the defense; and (3) that the evidence was material to an issue at trial.

James Daniel started an on-line conversation with Amanda_13 about sex. Eventually they agreed to meet in Will Park in Valparaiso, Indiana. Daniel promised to bring a condom. But Amanda_13 was not named Amanda and “she” was not 13. “She” was Sergeant Richard Howard of the Porter County Sheriff’s Department. Instead of having sex in the park Daniel was arrested there. Daniel’s second mistake was to give consent to search his computer. The government’s expert found two more sets of communications involving daisy13_Indiana and blonddt. Both sets of conversations were introduced at trial. But unbeknownst to the prosecutor at trial both daisy13_Indiana and blondtt were law enforcement officers working the same scam as Sergeant Howard. At some point between the end of trial and sentencing the prosecutor found out that daisy13_Indiana was a law enforcement agent and it wasn’t until oral argument that the prosecutor found out that blonddt was also a government agent.

After the prosecutor informed the defense counsel that daisy13_Indiana was a police officer, counsel did not request a new trial or inform the court. (Habeas on incompetence of counsel coming up next?) Without objection from in defendant in the trial court, at least as far as Daisy13_Indiana the appellate court uses a plain error test judge the Brady error.

Under the plain error standard, the alleged Brady violation must be an obvious error that affected Daniel’s substantial rights and created a substantial risk of convicting an innocent person.

The appellate court found that the evidence was not material. First, impeaching the expert would do no good since he was not involved in the investigation. Second, since the conversations with daisy13_Indiana and blonddt occurred after the conversation with amanda_13 they could not be used to show entrapment and finally the evidence was admitted to show Daniel’s state of mind and whether they were peace offices or not was not relevant as long as Daniel thought that they were young girls.

Rarely is a case reversed on appeal for failure of the trial judge to grant a continuance. But in United States v, Williams the Seventh Circuit reversed a conviction and remanded the case to the trial court for a new trial finding that the judge abused his discretion in denying a motion for a continuance of the trial date.

Corvet Williams and Bryan Austin were charged with two bank robberies. On the Wednesday before trial the government informed their lawyers that it had a new witness, Edward Walker. Walker claimed to be the get away driver in the second robbery and that Williams admitted to him that he participated in the first robbery,

Walker was subpoenaed on September 21, 2007. He called the US attorney and an interview was set for October 11. The trial was set for October 22, Walker was given immunity and promised that the US attorney would contact the court in a separate matter that he had in state court. On the Wednesday before the trial at a pretrial conference the US attorney told defense counsel that Walker would testify. Defense counsel immediately moved for a continuance. The Court denied the motion on the day of trial despite a significant showing that Walker’s testimony opened up the need to investigate his criminal records and also the need to interview new possible witnesses who would either impeach Walker’s testimony.

Under Seventh Circuit precedent the court should consider

1) the amount of time available for preparation;
2) the likelihood of prejudice from denial of the continuance;
3) the defendant’s role in shortening the
effective preparation time; 4) the degree of complexity
of the case; 5) the availability of discovery from
the prosecution; 6) the likelihood a continuance
would have satisfied the movant’s needs; and 7) the
inconvenience and burden to the district court and
its pending case load.

as well as any other appropriate factors in determining whether the court abused its discretion in denying a continuance. Reviewing these factors, the appellate court found that there was limited time for preparation, that the likelihood of prejudice was considerable, that the fault was on the government, that discovery was delayed, that a continuance would allow the defense to interview specific individuals and there was no evidence that a continuance would interfere with the Court’s schedule.

In response to the proposed evidence, the defense could have developed a new trial plan since all of the evidence prior to release of Walker’s testimony indicated that only two people were involved in the robbery. But with Walker’s testimony, the defense had to change their plan to prove that only two robbers were involved thus impeaching Walker. One of the two robbers may have been Walker who apparently knew about much of the planning for the robbery. As the appellate court pointed out the defense did not have sufficient time to respond to Walker’s testimony and change their gameplan. As a result the trial court’s failure to grant the motion for a continuance was an abuse of discretion and the defendants were prejudiced by the lack of time to prepare for trial, considering the new evidence.