7th Circuit panel opines practical tips

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The 7th Circuit Court of Appeals has some practical advice for criminal law attorneys who go before federal judges: have handy a copy of federal criminal procedure rules, particularly those involving plea discussions at sentencing, and don't be afraid to correct or point out omissions to a judge.

In a decision from the federal appellate court today, a three-judge panel also has an important practical note for trial judges: give defendants a chance for allocution before sentencing them.

Using both pieces of advice, the court panel affirmed two firearm-related convictions today in U.S.A. v. Ivory Griffin, No. 07-2442, but remanded to U.S. District Judge Allen Sharp in South Bend on grounds that the judge violated Griffin's right to a meaningful allocution by announcing the 146-month prison sentence before allowing the defendant to speak.

All sides agreed that vacating the sentence and remanding for a new sentencing is appropriate, and the 7th Circuit cited caselaw as well as the federal criminal procedure rules in ordering that.

Griffin was arrested in 2002 when state police stopped him for speeding on the Indiana Toll Road and found a sawed-off shotgun and ammunition in his trunk. He later pleaded guilty to charges of possessing an unregistered firearm and possessing a firearm after having been previously convicted of a felony; Judge Allen sentenced him to 146 months imprisonment on both counts.

During the plea colloquy involving Federal Rule of Criminal Procedure 11, the judge did not specifically advise Griffin that he'd have the right to present evidence or compel witness attendance, or that the court had authority to depart from the applicable sentencing guidelines range.

Neither Griffin's attorney nor the government counsel informed the court that it had overlooked some portions of the colloquy, the Circuit Court noted in its decision. They have a professional duty to speak up if the court forgets a portion, the federal court pointed out.

"This is not the first time that we have addressed a challenge to a Rule 11 colloquy when counsel failed at the plea hearing to inform the district court of its omissions," Judge Michael Kanne wrote. "And it is difficult to understand why counsel here did not help the court avoid correctable omissions. Confusion over Rule 11's requirements should not be the reason; (it) is not new, unclear, or even difficult to access. Not only should the counsel for the government, as well as for the defendant, be familiar with Rule 11 before even walking into a plea hearing, but it would also be a good practice for them to have a copy of the Rule handy so they can follow along with the court's colloquy. That way, if the court overlooks one of the Rule's provisions, counsel can bring the omission to the court's attention and avoid any later grief."

Judge Kanne added, "We would like to think that any sentencing judge would not only correct the omissions that he or she made while conducting the colloquy, but would appreciate the opportunity to do so."


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  1. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

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  4. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.

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