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Wednesday, January 09, 2013

Ind. Decisions - 7th Circuit denies rehearing en banc in one Indiana case today

In U.S. v. Weir (SD Ind., Magnus-Stinson), a 6-page opinion, the panel writes:

On December 14, 2012, defendant-appellant filed a petition for rehearing and petition for rehearing en banc. All the judges on the original panel have voted to deny the petition for rehearing and no judge in regular active service asked for a vote on the petition for rehearing en banc. The petition is therefore DENIED.

ROVNER, Circuit Judge, concurring in the denial of rehearing. Michael D. Weir complains that his Fourth Amendment rights were violated when a police officer seized $6,655 from him during a traffic stop. Because his trial counsel never objected to the seizure or to the introduction of evidence obtained as a result of the seizure, our review is for plain error. United States v. Kelly, 519 F.3d 355, 361 n.1 (7th Cir. 2008). * * *

So even if the seizure of the cash was error, it was not plain error. Before we will reverse for plain error, we must find (1) that there is error, (2) that it is plain, and (3) that it affects substantial rights. United States v. Thornton, 642 F.3d 599, 605 (7th Cir. 2011). “Once these three conditions have been met, we may exercise our discretion to correct the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. James, 464 F.3d 699, 709 (7th Cir. 2006). The defendant bears the burden of establishing that the error affected substantial rights by demonstrating that the outcome probably would have been different without the error. Id. As I have just demonstrated, the outcome would have been the same whether or not the officer seized the cash. Once the cash was legitimately discovered, alea iacta est. I therefore concur in the denial of the petition for rehearing, but I do not endorse the rationale used in the opinion to justify the seizure.

Posted by Marcia Oddi on January 9, 2013 10:42 AM
Posted to Ind. (7th Cir.) Decisions