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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. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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