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7th Circuit upholds conviction

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The 7th Circuit Court of Appeals affirmed a defendant's conviction and sentence for selling a firearm to a felon, ruling the wording of his indictment did not require the government to prove he knew about the gun buyer's past convictions.

In U.S.A. v. Dwayne Haskins, No.06-1438, Haskins was convicted of violating 18 U.S.C. 922(d) after selling a firearm to co-worker Darryl Eller, who was a convicted felon. Eller cooperated with federal agents after police arrested him as a felon in possession and confiscated his gun after an incident at work. Police inadvertently returned the gun to Haskins, who worked as a security guard with Eller at a bar. Haskins then told Eller he would sell the gun back to Eller.

Eller worked with police and was wired during phone calls with Haskins about purchasing the gun. Haskins was arrested and told an ATF agent he knew Eller had been in some trouble but didn't know if he had been in prison. At trial, Eller testified Haskins and other co-workers knew he was a convicted felon.

Haskins appealed his conviction and sentence of 18 months, arguing there was insufficient evidence, his sentence was too harsh, and the government and District Court amended his indictment. Specifically, Haskins argued the government had to prove he knew Eller was a felon and knew of the particular felony referred to in the indictment. Haskins relied on United States v. Willoughby, 27 F.3d 263 (7th Cir. 1994), in which the court reversed a conviction where the defendant's indictment for using a firearm in relation to a drug trafficking crime specified a particular drug trafficking crime. That indictment stated the crime as distribution of cocaine, but the government only proved at trial a connection between the defendant's use of a firearm and possession of cocaine.

In Haskins' case, the indictment specified Eller's 1993 felony conviction and did not narrow the description of charges against Haskins or his knowledge of Eller being a felon. Judge Ilana Diamond Rovner described Eller's felony conviction information as "superfluous background information" that the government doesn't need to prove.

Haskins also argued his conviction should be reversed because there was insufficient evidence to prove he knew Eller had been convicted of a felony. Judge Rovner wrote Eller's testimony that Haskins knew he was a felon, Haskins' comment to ATF agents that he knew Eller was a felon "the first time I saw him", and his conversation with Eller before and during the sale of the gun all prove he knew Eller was a felon.

Haskins believed his sentence to be unreasonable, arguing a mitigating factor was used against him in sentencing and the judge relied on improper and irrelevant factors when sentencing him. Haskins told the court he had been shot by a felon 14 years ago but was not given the opportunity at trial to explain why his victim status justified a lower sentence. The District Court deemed this incident as irrelevant to his current crime, wrote Judge Rovner. The circuit judges found the District Court gave "meaningful consideration" to sentencing factors found in 18 U.S.C. 3553 and affirmed Haskins' conviction and sentence.

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  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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