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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. Should be beat this rap, I would not recommend lion hunting in Zimbabwe to celebrate.

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  4. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

  5. Good points, although this man did have a dog in the legal fight as that it was his mother on trial ... and he a dependent. As for parking spaces, handicap spots for pregnant women sure makes sense to me ... er, I mean pregnant men or women. (Please, I meant to include pregnant men the first time, not Room 101 again, please not Room 101 again. I love BB)

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