Tuesday, May 07, 2013
Ind. Decisions - 7th Circuit decides one Indiana case today
In JOSE J. LOERA, JR. v. UNITED STATES OF AMERICA (ND Ind., Simon), a 14-page opinion, Judge Posner writes:
The petitioner, Jose Loera, asks us to set aside his conviction on the ground that his trial lawyer had been ineffective. See 28 U.S.C. § 2255. Loera had been indicted back in 2005 on drug charges. In response to a motion to suppress, the judge had forbidden the government to offer evidence of what the petitioner had told DEA agents after he allegedly asked for a lawyer. After repeated continuances the judge dismissed the indictment (though without prejudice), on the ground that the delay resulting from the continuances had violated the Speedy Trial Act, 18 U.S.C. §§ 3161 et seq. Loera was reindicted and again sought to suppress his statements to the agents. But this time the judge—the same judge—denied the motion on the ground that actually Loera had not told the DEA agents he wanted a lawyer. So the statements were admitted into evidence. The jury convicted Loera and the judge sentenced him to 240 months in prison. We affirmed the conviction and sentence. 565 F.3d 406 (7th Cir. 2009).
Loera faults his lawyer first for having failed to argue to the district judge that the denial of the motion to suppress in the first round of the criminal proceeding should be binding in the second round—the trial—by virtue of the doctrine of collateral estoppel; and second for having failed to argue in that first round that the delay in the proceeding had violated not only the Speedy Trial Act but also the speedy trial clause of the Sixth Amendment; if so, the dismissal of that proceeding should have been with prejudice, Strunk v. United States, 412 U.S. 434, 439-40 (1973); 3B Charles Alan Wright & Peter J. Henning, Federal Practice & Procedure § 803, p. 358 (4th ed. 2013), in which event Loera could not be tried subsequently for the same offense. * * *
With no prejudice from delay within the meaning given “prejudice” by Doggett and other cases (no prejudice in part because of the defendant’s acquiescence in the delay, see Doggett v. United States, supra, 505 U.S. at 658), and no indication of any invidious or otherwise improper ground of or motive for protracted detention, there is no justification for vacating a conviction on constitutional speedy trial grounds, which has the effect of acquittal. The Speedy Trial Act, it is true, imposes much tighter (though still porous) deadlines. But it offsets them by allowing the judge to impose for their violation only the mild sanction of dismissal without prejudice, thus permitting retrial. Given the availability of the Act, there shouldn’t be many cases in which federal defendants successfully invoke the speedy trial clause. The constitutional clause plays a greater role in state prosecutions, to which the Act is inapplicable.
Loera has not shown that his lawyer was ineffective. The denial of his section 2255 motion is therefore AFFIRMED.
Posted by Marcia Oddi on May 7, 2013 12:47 PM
Posted to Ind. (7th Cir.) Decisions