July 20, 2004

Indiana Decisions - Three from the 7th Circuit Today

USA v. Booker, Freddie J.

This is, of course, the now well-known July 9th decision of the 7th Circuit holding that the sentencing guidelines violate the 6th amendment. It has been posted again today, presumably because of minor, non-substantive amendments made, according to the opinion, July 12th.

Given this Lyle Denniston article today in the NY Times, the case may soon be before the Supreme Court:

Paul D. Clement, the acting United States solicitor general, has approved taking two cases swiftly to the Supreme Court, according to a Justice Department official who spoke on the condition of anonymity. One would be a direct appeal from a ruling by a federal trial judge in Portland, Me. [Fanfan], bypassing the federal appeals court in Boston. The other would be a regular appeal from a decision by a federal appeals court in Chicago [Booker].
[More] See this post from Blakely Blog for what precisely was modified in Booker, along with more about the anticipated cert petition.

Conner, Kevin A. v. McBride, Daniel R. (SD Ind., Judge Barker)

Before EASTERBROOK, KANNE, and ROVNER, Circuit Judges.
KANNE, Circuit Judge. This habeas corpus appeal comes to us following Kevin Conner’s October 7, 1988 conviction for three murders in Indiana. The jury recommended death for the killings and, subsequently, the state court judge sentenced Conner to two death sentences and a term of 60 years on November 3, 1988. After exhausting his state remedies [cites omitted], Conner then filed a petition for federal habeas corpus relief, which the district court denied, Conner v. Anderson, 259 F. Supp. 2d 741, 769 (S.D. Ind. 2003) (“Conner III”). * * *

III. Conclusion. To summarize, the district court’s denial of Conner’s petition for a writ of habeas corpus as to (1) the admissibility of his confession; (2) the ex parte jury communication; and (3) the assistance of trial counsel is AFFIRMED.

USA v. Sims, Rufus (ND Ill.)
Before POSNER, EVANS, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. Convicted money launderer Rufus Sims (see United States v. Sims, 144 F.3d 1082 (7th Cir. 1998)) filed a motion under Fed. R. Crim. P. 41(g) (formerly 41(e)) in the district court in which he had been convicted asking for the return of seized property. He concedes that most of the property identified in the motion was properly forfeited, but continues to claim entitlement to property that he asserts was seized but never forfeited. * * *

[T]he government eventually learned that a bit more money had actually been seized than was identified in the forfeiture order—$14,172 more, to be exact. Assuming that this money was never forfeited (the record is unclear whether it was), it qualifies as property that has been seized but not forfeited. But there is a hitch: Sims did not list the $14,172 either in his Rule 41(g) motion or in any other filing in the district court. He listed it for the first time in his brief on appeal. That of course was too late. The claim for the money is thus—forfeited. AFFIRMED.

Posted by Marcia Oddi at July 20, 2004 12:20 PM