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7th Circuit warns attorneys about compliance

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The 7th Circuit Court of Appeals chastised the U.S. Attorney's Office in Indiana's Northern District to "get its act together" to comply strictly with a statute that imposes a mandatory life sentence for a defendant convicted of a drug offense with two prior drug convictions. The Circuit Court upheld a defendant's life sentence, finding the government fulfilled the statutory purposes and adequately informed the defendant of what he was facing.

In United States of America v. Jerome Williams Jr., No. 09-1924, Jerome Williams claimed the government failed to comply with 21 U.S.C. Section 851(a)(1), the "notice of enhancement statute," so he should be re-sentenced. The notice sent to Williams contained only one conviction from 2002 and stated further information concerning his criminal history can be obtained from the United States Probation Office in the Pretrial Services Report. The report wasn't attached in the information and wasn't even filed with the District Court until nine months after Williams received the notice.

The report lists Williams' prior record, which contains 19 sets of charges but only one other felony drug conviction. The government's lawyer explained he prepared the notice in haste long before it was due because he was afraid he'd forget about it.

"The excuse that the government's lawyer gave us for these omissions does not reflect well on the Department of Justice," wrote Judge Richard Posner. "He thus has offered an all-purpose excuse for premature filings in federal courts of any and all documents."

The Circuit opinion took the U.S. Attorney's office to task for not having a protocol for compliance with Section 851 and for the inconsistencies in how the notices are presented.

"It is odd that U.S. Attorneys seem to have so much difficulty in complying unambiguously with a simple statute," the judge noted.

But caselaw has said that as long as the defendant has actual notice of the intended use of a prior conviction to enhance his sentence, the statute has been substantially complied with and that's good enough. The Circuit Court determined that to be the case for Williams and upheld his life sentence.

Williams has a legitimate argument that the notice should contain which specific convictions are being relied on to enhance, and placing the dispositions and convictions in one list could leave a defendant to guess which one is being used to enhance the sentence. However, in Williams' case, he only had one other felony drug conviction, so it was clear which convictions were being used, wrote Judge Posner.

The Circuit Court advised the Department of Justice to notify all U.S. Attorneys of the importance of strict compliance because it seems to be a problem across jurisdictions. Sloppy compliance brings a risk the court will hold the government failed to provide a defendant with adequate notice or the defendant has a claim for ineffective assistance of counsel.

"For these reasons and to spare us pointless appeals, the U.S. Attorney's office that prosecuted this case would be well advised to get its act together and comply strictly with section 851," he wrote.

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  1. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

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  4. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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