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Friday, May 20, 2011

Ind. Decision - 7th Circuit releases Indiana opinion in typescript form

In U.S. v. Sellers (ND Ind., Lozano), a 22-page opinion notable both for its early release, but also for the fact that the 3-judge panel includes "The Honorable Sandra Day O’Connor, Associate Justice of the United States Supreme Court (Ret.), sitting by designation," Judge Rovner writes:

In this court, Sellers argues that the district court deprived him of his Sixth Amendment right to choice of counsel by failing to grant a continuance, that the court erred in denying his motion to suppress evidence gathered pursuant to the search of his vehicle, and that the government lacked sufficient evidence at trial to prove him guilty beyond a reasonable doubt of the drug offense. Because we find that Sellers was indeed denied his Sixth Amendment right to counsel of his choosing, the judgment of the district court is vacated and the case remanded for a new trial. We need not address Sellers’s other issues presented for review.

I. Our holding obviates the need to detail the facts surrounding Sellers’s criminal activity and arrest. Instead, we focus on the particulars surrounding Sellers’s choice and retention of counsel, and the district court’s response. * * *

[ILB: Here is a sample of the opinion, this from pp. 17-18]

The record provides no evidence that the court balanced any of these circumstances against the needs of fairness and the demands of its calendar. See Gonzalez‐Lopez, 548 U.S. at 152. It seems instead that the court stood on unyielding principle — the principle that new counsel must “take the case as he finds it;” the principle that continuances will not be granted for those who request them at the eleventh‐hour and miss other deadlines; and the principle that delay of one case will unfairly backlog other cases.

In addition to the more compelling “eleventh‐hour” and court scheduling rationales articulated by the district court, its opinion and oral rulings are riddled with indications of generalized annoyance with defendant’s counsel that smack of an arbitrary application of the rule as retribution for both counsel’s own errors, and the errors of others. Most strikingly, the district court confessed:

I also ran into the problem where there were other cases with Illinois counsel, who just happened some were Illinois counsel, and they were counsel that were appearing at the 11th hour and asking for continuances because of new counsel. So if I got excited with you, that was one of the reasons you caught my wrath because of the dilemma that was being caused by that.
R. 36, Tr. 5/12/08 at 5. There can be no more arbitrary and unreasonable application of a rule than as punishment for the missteps of another lawyer in an unrelated case. There were plenty of other indications that the court was simply annoyed with Oppenheimer. * * *

As a final matter, on May 9, 2011, Sellers moved this court for a temporary release on bond pending appeal. That motion to this court is now moot, but in light of the exigent situation regarding Sellers’s mother and her declining health, the district court shall construe that motion as one made to it and shall decide the motion with all due haste.

The judgment and sentence below are VACATED, and this case is REMANDED for a new trial, including all pre‐trial proceedings. The mandate shall issue immediately.

Posted by Marcia Oddi on May 20, 2011 06:00 PM
Posted to Ind. (7th Cir.) Decisions