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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. wow is this a bunch of bs! i know the facts!

  2. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  3. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  4. It's a capital offense...one for you Latin scholars..

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