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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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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  4. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

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