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Wednesday, October 14, 2009

Ind. Decisions - 7th Circuit issues one Indiana opinion today, and an interesting Illinois opinion

In U.S. v. Jerome Williams Jr. (ND Ind., CJ Miller), an 11-page opinion, Judge Posner writes:

A jury convicted the defendant of drug and firearms offenses. He had two prior felony drug convictions and therefore received a mandatory life sentence. 21 U.S.C. § 841(b)(1)(A). The only questions presented by his appeal that require discussion (the defendant’s other grounds for appeal are either foreclosed by recent circuit precedent or frivolous) are whether the government complied with 21 U.S.C. § 851(a)(1), the “notice of enhancement” statute, and if not whether the defendant is entitled to be resentenced. * * *

The purposes of the statute are to give the defendant an opportunity to contest the use of his prior conviction or convictions to enhance his sentence, and to give him enough information about the potential sentence to enable him to decide intelligently whether to plead guilty or throw the dice by going to trial. * * *

The excuse that the government’s lawyer gave us for these omissions does not reflect well on the Department of Justice. He said that he prepared the notice in haste—long before it was due (for it was filed only six days after the defendant was indicted, yet was not due until the eve of trial, many months later)—because he was afraid he’d forget about it. He thus has offered an allpurpose excuse for premature filings in federal courts of any and all documents. * * *

Apparently the U.S. Attorney’s office for the Northern District of Indiana has no protocol for compliance with section 851, perhaps because our opinion in United States v. Tringali, 71 F.3d 1375, 1382 (7th Cir. 1995), states that “section 851 does not specify the particular form notice of an enhancement must take.” There is similar language in many other cases. [cites omitted] Sometimes the notice contains the wrong date of the offense sought to be used to enhance the defendant’s sentence, or the wrong offense, or the wrong date of the right offense, or otherwise misdescribes the offense, or fails to cite section 851. Sometimes the notice isn’t filed in court; sometimes the notice and the list of convictions are separate documents. It is odd that U.S. Attorneys seem to have so much difficulty in complying unambiguously with a simple statute. But the cases say that as long as the defendant has actual notice of the intended use of a prior conviction to enhance his sentence, the statute has been substantially complied with and that is good enough. * * *

The government takes a risk by sloppy compliance (or perhaps it is not compliance at all) with section 851(a)(1): the risk that either the court will hold that the government failed to provide the defendant with adequate notice or that the defendant will have a claim that by failing to interpret a confusing notice correctly his lawyer rendered ineffective assistance of counsel. For these reasons and to spare us pointless appeals, the U.S. Attorney’s office that prosecuted this case would be well advised to get its act together and comply strictly with section 851. It might also be wise for the Department of Justice to notify all the U.S. Attorneys of the importance of strict compliance, as the problem of noncompliance or sloppy compliance seems to be widespread, judging from the number of cases. And it is not as if strict compliance were difficult.

But the Supreme Court has been emphatic that a criminal judgment is not to be reversed as a way of disciplining prosecutors for errors, even egregious ones. Some errors in criminal proceedings are not excusable on grounds of harmlessness, but they are errors (called “structural”) that strike at the heart of criminal justice, like denial of counsel to a defendant who wants representation. See United States v. Gonzales-Lopez, 548 U.S. 140, 149-150 (2006), for a list of such errors. We cannot think of any reason why a violation of section 851(a)(1) should be thought such an error when it does not confuse the defendant or his lawyer. [numerous cites omitted in this paragraph]


Illinois Dunesland Preservation Society v. Ill. Dept. Natural Resources, a 12-page opinion in a case that was argued before a panel consisting of "EASTERBROOK, Chief Judge, and POSNER and WOOD, Circuit Judges." Judge Posner writes the opinion. Some quotes:
The defendants refused to display in the display racks in various buildings in the park a scary two-page pamphlet that the plaintiff had prepared. Entitled “Tips for Avoiding Asbestos Contamination at Illinois Beach State Park,” the pamphlet recommends “commonsense approaches . . . for minimizing exposure to you and your family from asbestos contamination while at the beaches of Illinois Beach State Park.” * * *

It is not as if the denial of rack space had closed off the only good avenue that the plaintiff has for reaching the patrons of the state park with its message. At argument the plaintiff’s lawyer, repeating an unelaborated statement in his brief, said his client would need a “demonstration permit” in order to be allowed to hand out pamphlets at the entrances to, or sites within, the park, and implied that such a permit might be difficult to obtain. One of the park officials had told him that applying for such a permit “was a potential avenue for the Dunesland Society to access the park in a way that might be able to get their message out.” But he didn’t say it was the only way, and the district judge noted that the plaintiff “did not seek to distribute its flyer within the Park by any means other than inclusion in the display racks.” The judge added that “no special permit or license is required to hand out pamphlets to Park visitors.” The park authorities cannot impose unreasonable barriers to using open public space to convey ideas and opinions (remember that a park is “a traditional public forum”), but there has been no showing that they’ve tried to do this. AFFIRMED.

Posted by Marcia Oddi on October 14, 2009 01:25 PM
Posted to Ind. (7th Cir.) Decisions