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Friday, January 31, 2014

Ind. Decisions - 7th Circuit decides two Indiana cases, one yesterday and one today

In UNITED STATES OF AMERICA v. SCOTT ADKINS (ND Ind., Simon), a 32-page opinion decided Jan. 30, 2014, Judge Flaum writes:

This is a consolidated appeal of two separate, but related, cases against Scott Adkins. In one case, a jury convicted Adkins of attempting to possess heroin with intent to distribute, and of being a felon in possession of a firearm. In the other, Adkins pled guilty to receipt of child pornography. Adkins raises several arguments on appeal. He first attacks his convictions on the heroin and firearm charges, arguing that he is entitled to a new trial due to alleged errors regarding evidentiary decisions, jury instructions, and improper statements by the government. We reject these arguments and affirm Adkins’ heroin and firearms convictions. Adkins next argues that we should vacate his sentence on the heroin and firearm convictions because of multiple alleged sentencing errors. We reject these arguments and affirm his sentence as well. Finally, with respect to his child pornography sentence, Adkins contends that one special condition of his supervised release is unconstitutionally vague and overbroad, and that we may review this issue despite the appeal waiver in his guilty plea. We agree. We therefore vacate and remand on this ground alone. * * *

[beginning at p. 26] Special Condition Five is unconstitutional * * *

Special Condition Five states: “The defendant shall not view or listen to any pornography or sexually stimulating material or sexually oriented material or patronize locations where such material is available.” Read literally, this provision might preclude Adkins from using a computer or entering a library—irrespective of what he views in either place—because both are “locations” where “sexually stimulating material … is available.” Indeed, he might not be able to ride the bus, enter a grocery store, watch television, open a magazine or newspaper, read a classic like Romeo and Juliet, or even go out in public (given the ubiquity of advertisements that use potentially sexually oriented or sexually stimulating images to pique consumer interest). More practically, how can we tell which images or voices are sexually stimulating for Adkins? Cf. United States v. Smith, 972 F.2d 960, 962 (8th Cir. 1992) (striking down a supervised release condition and criticizing it as “unworkable” in practice). It is hard to see how the potential breadth of Special Condition Five would satisfy the narrow tailoring requirement of 18 U.S.C. § 3583(d). * * *

However, this is not a case where we can tweak the relevant condition “easily.” Id. at 843. In order to render this special condition constitutional, we would need to define multiple key terms or provide multiple limiting constructions. In other cases where we found the special condition vague or much broader than necessary, we have vacated and remanded. See, e.g., Goodwin, 717 F.3d at 524–25; Monteiro, 270 F.3d at 473. And because the district court will retain jurisdiction over this case for many years, including the power to amend the conditions of supervised release at any time, see 18 U.S.C. § 3583(e)(2), it is in a superior position to write a new condition, if it so chooses.

We recognize the difficulty of drafting special conditions in this context. We therefore emphasize that various options remain open, including (1) defining the crucial terms in the existing special condition in a way that (a) provides clear notice to Adkins (preferably through objective rather than subjective terms), (b) includes a mens rea requirement (such as intentional conduct), and/or (c) is not broader than reasonably necessary to achieve the goals of 18 U.S.C. § 3553(a)(2)(b), (a)(2)(C), and (a)(2)(D), see § 3583(d); and (2) narrowing the scope of proscribed conduct, such as by (a) focusing on child pornography, which federal statutes objectively define, see, e.g., 18 U.S.C. § 2256(8), and/or (b) focusing on particular establishments such as strip clubs, adult bookstores, and adult theaters.

In sum, given the importance of notice and reasonably narrow tailoring, see 18 U.S.C. § 3583(d)—which our precedent, Goodwin, reinforces—we vacate Special Condition Five and remand to the district court.

In UNITED STATES OF AMERICA v. TIMOTHY L. RICHARDS (ND Ind., Springmann), a 14-page opinion, decided Jan. 31, 2014, Judge Bauer writes:

Timothy L. Richards (“Richards”) was charged in a four-count indictment with (1) possession of a controlled substance with intent to distribute, (2) maintaining a residence or place for the purpose of using and distributing controlled substances, (3) possession of a firearm in furtherance of a drug trafficking crime, and (4) being a felon in possession of a firearm. Prior to trial, the district court denied Richards’ first and second motions to suppress evidence that the police seized without a search warrant at the time of his arrest. After trial, a jury convicted Richards of all four charges.

Richards now appeals the district court’s decisions to allow the government to introduce the seized evidence and raises two issues. First, Richards argues that the district court erred when it found that Edward Rawls (“Rawls”) had the mental capacity to consent to the warrantless search of his home. Second, Richards argues that the district court erred when it found that (1) Rawls had apparent authority to consent, and even if Rawls did not have the requisite authority to consent, (2) exigent circumstances validated the warrantless search of a bedroom Richards used in Rawls’ house. For the following reasons, we find no error. * * *

The district court properly denied Richards’ first motion to suppress evidence because Rawls validly consented to the officers’ warrantless search of his house. The court properly denied Richards’ second motion to suppress because Rawls had apparent authority to consent to a search of his entire home, including the west bedroom. Therefore, the district court’s denials of Richards’ motions to suppress are AFFIRMED.

Posted by Marcia Oddi on January 31, 2014 01:48 PM
Posted to Ind. (7th Cir.) Decisions