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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 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

  2. 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.

  3. 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.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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