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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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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