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Admittance of hearsay evidence harmless error, rules 7th Circuit

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The out-of-court testimony of a woman who said she purchased crack cocaine from a man who was on supervised release should not have been admitted during the man’s hearing regarding revoking his release, the 7th Circuit Court of Appeals held Wednesday. But this was a harmless error because the circumstantial evidence supports that the man dealt crack cocaine to the woman.

Munster Police Detective Timothy Nosich drove by a car containing Lorenzo Mosley and Sheryl Simmons. Nosich noted the woman left the car quickly after he passed by. Nosich followed Mosley’s car and pulled him over for a traffic violation. He found marijuana, crack cocaine and a large amount of cash in the car or on Mosley.

Shortly thereafter, police spoke with Simmons, who was carrying a bag of pot scrubbing pads – which are commonly used as filters in crack pipes. She turned over four little yellow baggies that contained the crack cocaine and said she already used the fifth bag she purchased.

When arrested for driving on a suspended license, Mosley was on supervised release. His probation officer sought revocation of the release and alleged several offenses, including distributing cocaine. Mosley disputed this alleged violation, because if the judge found it to be true, he would spend longer time in prison.

The District Court allowed Nosich to testify regarding what Simmons had told him and played a video of her being interviewed for the judge. Mosley objected, but the judge allowed it. Simmons did not testify in person. The judge ordered Mosley sentenced to 21 months in prison.

“In this case, the district court failed to balance Mosley’s constitutional interests in confrontation and cross-examination with the government’s reasons for not producing the witness. This was an error under Rule 32.1. Further, we cannot conclude that the district court would have admitted the hearsay if it had properly balanced the interests because, even if the hearsay was reliable (which we think it was), the government has offered no reason whatsoever for failing to produce Simmons. Accordingly, there is nothing in the record to balance against Mosley’s interest,” Judge Daniel Manion wrote in United States of America v. Lorenzo Mosley, 13-3184.

But this error was harmless because the violation of supervised release would have been found even without the hearsay evidence. The government presented strong circumstantial evidence that Mosley had sold Simmons the drug. The detective witnessed what he believed to be a drug deal and Mosley had a history of selling crack cocaine in little yellow baggies – the same kind that Simmons surrendered to police.
 

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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

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  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

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