Seventh Circuit

Prisoner Plaintiff

Jackson v. Sheriff of Winnebago County (22-2958)

Questions Presented

Whether the district court erred in granting summary judgment because a reasonable jury could conclude that Washington presented evidence sufficient to show that Valentine’s delay caused Washington’s harm.
Whether a reasonable jury could conclude that Valentine acted purposefully, knowingly, or recklessly and that his conduct was objectively unreasonable when he failed to arrange prompt medical care for Washington.

Clinic

Georgetown Appellate Courts Immersion Clinic

Briefing

Result

Pending.

Ledford v. Baenen (19-1694)

Questions Presented

Whether the district court erred in granting summary judgment to prison officials on William Ledford’s Eighth Amendment claims, by concluding that prison officials were not deliberately indifferent when they allowed toxic fumes to enter his cell hall, turned off the heat in a failed attempt to prevent fumes from entering, and took no further action after learning fumes persisted and temperatures plummeted.
Whether the district court erred in dismissing Ledford’s state-law negligence claims when it granted immunity to prison officials on the ground that Ledford’s confinement in the cell hall with exhaust fumes and extreme cold was not a “known danger” under Wisconsin law.
Whether the district court erred when it denied Ledford’s repeated requests for appointment of counsel without recognizing his limited capacity to litigate this complex case

Clinic

Georgetown Appellate Courts Immersion Clinic

Briefing

Opening

Result

Voluntarily dismissed.

Shaffer v. Lashbrook (19-1372)

Questions Presented

Whether the district court erred in denying Mr. Shaffer’s motion to reconsider its dismissal with prejudice for failure to prosecute, where the district court failed to issue an order to show cause or otherwise warn Mr. Shaffer it was considering that sanction, and Mr. Shaffer provided an explanation for and remedied his single alleged misstep.

Clinic

University of Chicago Supreme Court and Appellate Clinic

Briefing

Result

Affirmed. Seventh Circuit upheld district court decision to dismiss for failure to prosecute.

Pennewell v. Parish (18-3029)

Questions Presented

Did the district court abuse its discretion by refusing to appoint counsel for Mr. Pennewell and, in doing so, failing to address the specific circumstances of the case, including that Mr. Pennewell’s claims involved complex medical issues and evidence bearing on Defendants’ states of mind, and that Mr. Pennewell proceeded pro se while incarcerated, legally blind, and with no legal assistance?
Did the record below give rise to genuine questions of material fact as to whether Defendants were deliberately indifferent to Mr. Pennewell’s objectively serious medical conditions, thus precluding summary judgment?

Clinic

University of Chicago Supreme Court and Appellate Clinic

Briefing

Result

Reversed and remanded (in Clinic’s favor). Seventh Circuit held that district court abused its discretion by failing to give Pennewell’s motion particularized consideration. Instructs district court to appoint counsel on remand.

Greyer v. Illinois Dept. of Corrections (18-1290) & Johnson v. Dalke (18-1458)

Questions Presented for Greyer v. Illinois Dept. of Corrections

Whether a court errs when it does not address the intentionality or materiality of a pro se prisoner’s omission of his prior litigation history, does not find any facts as to either element, and fails to consider the prisoner’s explanation in his show-cause filing that the omission was an innocent mistake, yet nevertheless finds that the prisoner committed fraud on the court by failing to disclose his litigation history.
Whether a pro se prisoner’s failure to disclose two lawsuits in his complaint constitutes fraud on the court when the prisoner did not understand the form due to his limited capacity to read and write, when he could not assess what had been written for him, when neither of the omitted lawsuits counted as a PLRA strike, and when the omitted lawsuits did not contain any duplicative claims.
Whether a court abuses its discretion in dismissing a pro se prisoner’s case with prejudice as a sanction for fraud on the court when the prisoner failed to disclose his litigation history in the complaint, given that the extreme sanction of dismissal with prejudice is reserved for only the most serious abuses of the judicial process and that the omission was not willful, made in bad faith, or made with fault.

Questions Presented for Johnson v. Dalke

Whether the district court clearly erred in finding that a pro se prisoner requesting in forma pauperis status committed fraud on the court when he filed a complaint that disclosed eight prior lawsuits to which he was a plaintiff and omitted two prior lawsuits that he was not actively litigating and that did not result in a strike under the PLRA three-strike rule, and when the prisoner, who had not “struck out” under the PLRA, attributed those omissions to an unintentional mistake.
Whether the district court abused its discretion in dismissing a pro se prisoner’s case with prejudice as a sanction for fraud given that pro se prisoner-plaintiffs are afforded liberal pleading standards, the extreme sanction of dismissal with prejudice is reserved only for the most serious abuses of the judicial process, and the prisoner had nothing to gain by omitting the cases that he did.

Clinic (for both cases)

Northwestern Appellate Advocacy Center

Briefing for Greyer v. Illinois Dept. of Corrections

Briefing for Johnson v. Dalke

Result

Vacated and remanded (in Clinic’s favor). Seventh Circuit held that in both cases, the district court rested its conclusion that the plaintiffs committed fraud on flawed factual findings and an overly broad view of what constitutes a material omission.

Walker v. Price (17-1345)

Questions Presented

In determining whether a prisoner should be appointed counsel in a civil rights claim, a district court must balance the prisoner’s capabilities against the complexity of the case. Fredrick Walker applied for appointed counsel six times, pointing to his lack of legal capability and the difficulty of conducting discovery against prison officials while confined in the same prison. Did the district court err in denying Walker counsel?
A district court may only conduct a prisoner’s trial by videoconference if, after carefully balancing the relevant factors, it finds that the government’s interest in keeping a prisoner confined outweighs the prisoner’s interest in presenting his case in person. Here, the question is whether the district court abused its discretion when its analysis omitted several factors and entirely ignored Walker’s need to establish his own credibility to the jury.
Whether defense counsels’ factually unsupported and highly prejudicial remarks during opening and closing statements warrant a new trial.
Whether the cumulative effect of the errors, irregularities, and inequities in Walker’s case require a new trial.

Clinic

Northwestern Appellate Advocacy Center

Briefing

Result

Vacated and remanded (in Clinic’s favor). Seventh Circuit held that the district court acted within its discretion when it denied Walker’s initial motions for counsel, but abused its discretion when it denied the sixth. Seventh Circuit pointed out that in the sixth instance, Walker faced not only a jury trial — rare enough for a pro se litigant — but a trial by videoconference on top of having lost his jailhouse lawyer. It held that though the district court accounted for the first part of the Pruitt v. Mote standard (considered the simplicity of Walker’s substantive claims), it failed to account for the second part (difficulty of trying them before a jury). Seventh Circuit vacated the judgment and remanded the case for further proceedings consistent with its opinion.

McDonald v. Adamson (15-1305)

Questions Presented

Whether the district court erred in finding that res judicata barred Mr. McDonald’s § 1983 claims in federal court by virtue of his prior Illinois Court of Claims proceeding.
Whether the district court erred in dismissing Mr. McDonald’s complaint under Federal Rule of Civil Procedure 12(b)(6) when the basis of the court’s ruling was that the claims were barred by res judicata, an affirmative defense.

Clinic

Northwestern Appellate Advocacy Center

Briefing

Result

Reversed and remanded (in Clinic’s favor). Seventh Circuit held that the district court erred in finding that res judicata barred Mr. McDonald’s § 1983 claims in federal court by virtue of his prior Illinois Court of Claims proceeding. Since, according to Klopfer v. Court of Claims, the Illinois Court of Claims “is not a ‘court’ within the meaning of article VI of the Illinois Constitution of 1970,” it lacks jurisdiction to consider claims based upon a federal statute or the federal or state constitutions and is therefore not a “court of competent jurisdiction” under Illinois preclusion law. Seventh Circuit held that because the Illinois Court of Claims lacked jurisdiction to decide McDonald’s federal constitutional claim, the judgment dismissing his complaint is reversed and the case is remanded to the district court for proceedings consistent with this opinion.

Smith v. Dart (14-1169)

Questions Presented

Whether the district court failed to grant sufficiently liberal construction to Mr. Smith’s filings as a pro se litigant.
Whether a pretrial detainee states valid wage, work, or conditions-of-confinement claims under § 1983 when he alleges that: (1) he was compelled to perform arduous work over long hours for just three dollars per day; (2) the jail failed to provide for his basic needs, serving only nutritionally inadequate meals while charging exorbitantly high food prices in the commissary; and (3) the jail and its food were infested with pests, the cells were uncomfortably cold, and the water was polluted.

Clinic

Northwestern Appellate Advocacy Center

Briefing

Result

Affirmed in part, reversed in part (in Clinic’s favor). Seventh Circuit reversed the district court’s decision with respect to Smith’s inadequate food and contaminated water claims and remanded for further proceedings on those claims. It held that the district court should not have dismissed Smith’s inadequate food claim because in Smith’s first letter he alleged, among other things, that his “[f]ood is well below nutritional value.” It also held that, accepting Smith’s allegations that “it is a known fact that the water in the jail is polluted and contains high levels of alpha + beta radiation also cyanide and lead” as true, Seventh Circuit cannot say that Smith’s allegations of contaminated water fail to state a claim upon which relief can be granted. The remainder of the district court’s decision was affirmed.

Mejia v. Cook County (09-3540)

Questions Presented

Whether the district court committed a legal error by requiring that a Rule 59 plaintiff demonstrate that trial “testimony [was] such that reasonable persons could not believe it, because it contradict[ed] indisputable physical facts or laws” in order to win a new trial, rather than applying a traditional “miscarriage of justice” or “shocks the conscience” standard.
Alternatively, whether the district court abused its discretion by failing to grant a plaintiff’s Rule 59 motion for a new trial, when the jury verdict was incompatible with both medical evidence of the plaintiff’s injuries and expert witness testimony.
Whether a judge weighing a Rule 59 motion should give less deference to the jury verdict in a case involving escalation of force during a prison strip search, because escalation-of-force issues in the prison context are not intuitively understood by lay jurors.

Clinic

Northwestern Appellate Advocacy Center

Briefing

Result

Vacated and remanded (in Clinic’s favor). Seventh Circuit found that the district court wrongly applied the “indisputable facts” burden, forcing them to view the case in a light most favorable to the County instead of neutrally. Because of this, Seventh Circuit vacated the denial of Mejia’s motion for a new trial and remanded the case for review under the correct legal standard.

Labor & Employment Discrimination

Ziccarelli v. Dart (19-3435)

Questions Presented

The FMLA prohibits an employer from interfering with or retaliating against an employee’s exercise of FMLA rights. See 29 U.S.C. § 2615(a). The district court held that Defendants did not interfere with Ziccarelli’s right to take FMLA leave. It also held that Defendants did not retaliate against him for requesting leave. The issues presented are:

Whether Defendants interfered with Ziccarelli’s FMLA benefits when they discouraged Ziccarelli from using his FMLA leave.
Whether Defendants interfered with Ziccarelli’s FMLA benefits by failing to designate which of his requested leave days were FMLA-qualifying and by failing to responsively answer his questions about using other leave.
Whether Ziccarelli was constructively discharged in retaliation for using leave when the FMLA manager told him that he would face disciplinary action if he took more FMLA leave, and then Ziccarelli––fearing termination––resigned.

Clinic

Georgetown Appellate Courts Immersion Clinic

Briefing

Result

Affirmed in part and reversed in part (in Clinic’s favor). Seventh Circuit held that summary judgment on Ziccarelli’s FMLA interference was not warranted. Court also held that sheriff’s office did not constructively discharge employee in retaliation for requesting FMLA leave.

Johnson v. Koppers (12-2561)

Questions Presented

Whether a plaintiff can survive summary judgment under the cat’s paw theory of liability when a coworker’s accusations, which were affirmatively disputed by the plaintiff, led to the plaintiff’s firing, and when the record contained evidence of discriminatory animus in the form of race and gender-based epithets that the coworker falsely claimed the plaintiff used against him.
Whether a plaintiff can survive summary judgment under the indirect method of proving employment discrimination when a similarly situated employee was treated more favorably than the plaintiff and when there was specific evidence that defendant did not believe its stated reasons for terminating the plaintiff.

Clinic

Northwestern Appellate Advocacy Center

Briefing

Result

Affirmed. Seventh Circuit held that in order for Johnson to apply the Cat’s Paw Theory of Liability, she would have had to prove that her coworker, O’Connell, concocted a false claim about Johnson and that that claim was the direct cause of her subsequent firing. Johnson, however, failed to do this as her theory relied purely on speculation; she also failed to disprove her employer’s claim that the reason for Johnson’s subsequent firing was a physical altercation between Johnson and O’Connell, initiated by Johnson and witnessed by a third party. Seventh Circuit also found that Johnson’s indirect method of proving discrimination failed because she did not meet the second and fourth prongs of her burden: Johnson was unable to prove that her termination was not a result of her insubordination–the multiple altercations she had engaged in with her coworkers–and that other employees–those without previous write ups–were treated more favorably than her.

Luevano v. WalMart (11-1917)

Questions Presented

Whether the district court erroneously dismissed Luevano’s first pro se form complaint under 28 U.S.C. § 1915 when the district court failed to liberally construe the complaint and when Luevano alleged facially adequate claims of supervisor-based harassment and retaliation.
Whether the district court erred in denying equitable tolling when Luevano actively pursued her claims in the district court and when the district court affirmatively instructed Luevano to file an amended complaint but failed to explain how its dismissal without prejudice affected the statute of limitations.
Whether the district court improperly dismissed Luevano’s retaliation claim when her Second Complaint was timely with respect to her second EEOC charge and when the retaliation claim in her Fourth Complaint was reasonably related to that charge.

Clinic

Northwestern Appellate Advocacy Center

Briefing

Result

Reversed and Remanded (in Clinic’s favor). Seventh Circuit found that Luevano had in fact provided sufficient facts to claim supervisor-based harassment as well as retaliation by providing an extensive account of the ways in which her supervisor protected the man Luevano had accused of harassing her. Further, according to Cheek v. Western & Southern Life Ins. Co., there only needs to exist “a reasonable relationship” between the allegations in the charge and the claims in the complaint which Seventh Circuit found Luevano’s claims did possess as they could all reasonably result from an EEOC investigation of the allegations.

Other Civil

Taylor v. J.P. Morgan Chase Bank (17-3019)

Questions Presented

Taylor alleged that the totality of his interactions with Chase created a contract. And long-settled principles of contract law require looking to all of the communications and conduct between the parties to determine if a contract exists. But the district court examined only one document Chase sent Taylor—the Trial Period Plan Agreement (TPP)—in determining whether Chase was required to modify Taylor’s mortgage. The first issue is whether the district court erred in holding that Taylor failed to state a claim for breach of contract and promissory estoppel and, for the same reason, erred in denying him leave to amend his complaint.
Taylor alleged that Chase “knowingly and intentionally, with malice” lied to him to prevent him from benefitting from HAMP. As a result, Taylor spent five years under a standing judgment of foreclosure and suffered the humiliation of his home twice being scheduled for a sheriff’s sale. The second issue is whether, in light of all the facts Taylor pleaded in his amended complaint, the district court erred in denying Taylor’s motion to amend his complaint on the ground that he failed to state claims for fraud and intentional infliction of emotional distress.

Clinic

Georgetown Appellate Courts Immersion Clinic

Briefing

Result

Affirmed. Seventh Circuit held that:

Trial plan document imposed condition precedent, requiring that mortgagee countersign before trial period could begin.
Mortgagor failed to show that mortgagee waived condition precedent, precluding mortgagor’s breach of contract claim under Indiana law.
Mortgagor failed to sufficiently allege that mortgagee made a definite promise to modify loan, as required to state promissory estoppel claim under Indiana law.
Mortgagor failed to sufficiently allege that mortgagee made a misrepresentation as to past or existing fact, as required to state fraud claim under Indiana law.
Mortgagee’s refusal to enter trial modification could not form basis for claim of intentional infliction of emotional distress under Indiana law.

Haywood v. Massage Envy (17-2402)

Questions Presented

Did the district court err in dismissing the amended complaint for failing to state a claim under Rule 12(b)(6)? In particular:
1. Under the benefit-of-the-bargain rule, a plaintiff has pleaded “ascertainable loss” under the MMPA, and “actual damage” under the ICFA, if she has alleged that the value of the service she received was less than the value of the service she was promised. The district court held that Holt and Haywood had failed to plead “ascertainable loss” and “actual damage” because neither had alleged that the value of the 50-minute massage she had received was less than the price she had paid for the massage, despite their allegation that Massage Envy had promised them a 60-minute massage. Was that holding erroneous?
2. The district court held that Holt and Haywood had failed to plead causation under the MMPA and the ICFA because they had not alleged that Massage Envy’s advertising had induced them to purchase a Massage Envy massage over a competitor’s massage and because they had purchased their massages from franchisees rather than from Massage Envy itself. Was that holding erroneous?

Clinic

Georgetown Appellate Courts Immersion Clinic

Briefing

Result

Affirmed. Seventh Circuit held that consumer failed to establish that business’s alleged deception about length of one-hour massage sessions was but-for cause of her injury, as required to state a claim under ICFA. Court further held that consumer’s allegations did not satisfy heightened pleadings standards required for stating a claim under MMPA. Finally, court held that district court did not abuse discretion by dismissing with prejudice.

Habeas

Ford v. Reagle (21-3061)

Questions Presented

Whether Mr. Ford’s counsel, who did nothing after the State was willing to negotiate and after his client requested he discuss a deal, provided constitutionally ineffective assistance.
Whether Mr. Ford’s counsel’s witness strategy at trial was constitutionally ineffective.
Whether the cumulative impact of Mr. Ford’s counsel’s mistakes was prejudicial.

Clinic

Northwestern Appellate Advocacy Center

Briefing

Result

Pending.

Wheeler v. Neal (18-3167)

Questions Presented

Whether Wheeler was denied his due process right to be sentenced based on accurate information.
Whether Wheeler was denied his Sixth Amendment right to the effective assistance of counsel, because his trial lawyer failed to investigate the circumstances of Wheeler’s arrest for a sexual assault in an unrelated case.

Clinic

Indiana University Maurer School of Law

Briefing

Result

Affirmed. Seventh Circuit found no “substantial showing of the denial of a constitutional right,” so they refused to grant Wheeler a Certificate of Appealability.

Kimbrough v. Neal (18-3145, 18-3153)

Questions Presented

Superintendent Neal presents:
1. Whether the district court erred in holding that Kimbrough is entitled to habeas relief under Strickland v. Washington, 466 U.S. 668 (1984), notwithstanding the Indiana post-conviction-review court’s decision rejecting Kimbrough’s Strickland claim on the basis of Indiana law.
In his cross-appeal, Kimbrough presents:
1. At least in an AEDPA case, and as a matter of equity, should a federal court’s undoubtedly broad discretion in fashioning conditional habeas relief be limited by:
  1. The relief that would have been available for the same meritorious claim in the state courts; and
  2. No provision of state law provides the Indiana state courts the power to implement a new direct appeal.

Clinic

Indiana University Maurer School of Law

Briefing

Result

Reversed. Seventh Circuit found that the main issue concerned whether the court unreasonably applied federal law according to the AEDPA deferential standard. However, like Miller v. Zatecky, 820 F.3d 275 (7th Cir. 2016), Kimbrough’s case concerns a matter of applying Indiana state law–specifically Rule 7(B)–which Seventh Circuit held is “the sort of decision § 2254 leaves to the state judiciary.” Id. at 277. Seventh Circuit therefore found that Kimbrough did not sufficiently prove that the Indiana Court of Appeals unreasonably applied federal law, and under AEDPA’s deferential standard, the state court’s decision was not “so lacking in justification that there was an error well understood… in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).

Gates v. Neal (18-1521)

Arguments for En Banc Petition

1. The showing required to obtain a certificate of appealability is very low.
2. The district court’s decision is so clearly mistaken with respect to both Strickland performance and prejudice, that the Court should issue a certificate of appealability.
  1. Strickland Performance: the district court must have been thinking of another case.
  2. Strickland Prejudice: Contrary to Wiggins, the district court applied AEDPA deference to a decision the Indiana Court of Appeals never made.
3. If this were a Brady case, the Court would probably not have a hard time concluding that Gates is entitled to relief.

Clinic

Indiana University Maurer School of Law

Briefing

Result

Affirmed. Petition for rehearing en banc filed by the petitioner-appellant was denied.

Famous v. Fuchs (19-3227)

Questions Presented

The district court dismissed Famous’s habeas petition as untimely. But the statute of limitations is subject to statutory tolling if the petitioner faced a state-created impediment to filing and to equitable tolling if extraordinary circumstances stood in the petitioner’s way. See 28 U.S.C. § 2244(d)(1)(B); Socha v. Boughton, 763 F.3d 674, 683 (7th Cir. 2014). The first issue is whether Famous is entitled to an evidentiary hearing to demonstrate that statutory and equitable tolling render his petition timely.
The Wisconsin Court of Appeals denied Famous’s ineffective-assistance-of-appellate-counsel claim. State-court decisions are not entitled to deference from a federal habeas court under 28 U.S.C. § 2254(d)(1) if they are so inadequately supported by the record as to be an unreasonable application of clearly established law. See Badelle v. Correll, 452 F.3d 648, 655 (7th Cir. 2006). In these situations, 28 U.S.C. § 2254(e) permits an evidentiary hearing where the record has not been developed so as to include the factual predicate for the petitioner’s claim and the petitioner was diligent in trying to develop that predicate. The second issue is whether Famous is entitled to an evidentiary hearing on his ineffective-assistance-of-appellate-counsel claim.
No court has heard Famous’s claim of ineffective assistance of trial counsel on its merits. 28 U.S.C. § 2254(e) permits an evidentiary hearing when the state-court record is insufficient to adjudicate the petitioner’s claims and the petitioner exercised due diligence in attempting to develop the record. The third issue is whether Famous is entitled to an evidentiary hearing on his ineffective-assistance-of-trial-counsel claim.

Clinic

Georgetown Appellate Courts Immersion Clinic

Briefing

Result

Affirmed. Seventh Circuit held that district court did not abuse its discretion in denying petitioner the defense of statutory estoppel, nor did it abuse its discretion in denying request to take further discovery. Court also held that district court did not abuse discretion in rejecting equitable tolling.

Roberts v. Fikes (18-1092)

Questions Presented

Whether Seventh or Eighth Circuit law controls Mr. Roberts’s § 2241 petition.
Whether, under Seventh Circuit law, Mr. Roberts is innocent of money laundering, where his money laundering convictions were based on transactions that were necessary business expenses.
Alternatively, whether, under Eighth Circuit law, Mr. Roberts is innocent of money laundering, where his money laundering convictions merge with his Mann Act convictions.

Clinic

Northwestern Appellate Advocacy Center

Briefing

Result

Affirmed. Seventh Circuit held that Seventh Circuit law applied and that Mr. Roberts had satisfied two of the three necessary prongs to obtain habeas relief. However, Seventh Circuit determined that Mr. Roberts did not sufficiently show a fundamental miscarriage of justice.

Bufkin & Toney v. United States (17-3306, 17-3307)

Questions Presented

Is the definition of the term “crime of violence” in 18 U.S.C. § 924(c)(3)(B) unconstitutionally vague?
1. Supplemental briefing ordered per United States v. Davis, 139 S. Ct. 2319 (2019)

Clinic

University of Chicago Supreme Court and Appellate Clinic

Briefing

Result

Dismissed for lack of jurisdiction (in Clinic’s favor). Remanded on grounds that, per Davis, government had no ground to challenge district court’s order.

Shepherd v. Krueger (17-1362)

Questions Presented

Written plea agreements often include standard-form provisions purporting to waive a defendant’s right to appeal his conviction and sentence. The first issue presented for review is whether a waiver is enforceable when, in open court, the judge, prosecutor, and defense counsel agreed that the defendant retained his right to appeal a sentencing enhancement under the ACCA.
Under the framework set out in In re Davenport, 147 F.3d 605 (7th Cir. 1998), an intervening Supreme Court decision interpreting a relevant statute may be grounds for habeas relief under 28 U.S.C. § 2241. The second issue presented for review is whether post-conviction relief is available under § 2241 for a claim pursuant to Mathis v. United States, 136 S. Ct. 2243 (2016). If so, the question becomes whether the merits of the claim should be decided using the law of the circuit of conviction or the circuit of confinement, and, under either, whether Kentucky’s second-degree burglary statute is a predicate offense under the ACCA.

Clinic

Northwestern Appellate Advocacy Center

Briefing

Result

Affirmed. Seventh Circuit agreed with Sixth Circuit precedent and affirmed the denial of Shepherd’s § 2241 petition on the basis of United States v. Malone. It held that even if Shepherd could overcome all of the procedural obstacles to his petition, he was properly sentenced under the Armed Career Criminal Act.

Brown v. Brown (16-1014)

Questions Presented

Does the rule of Martinez, as extended by Trevino, apply to procedurally defaulted trial-ineffective assistance claims in § 2254 cases in Indiana?
Is Dentrell’s defaulted trial ineffective-assistance claim sufficiently “substantial” that Dentrell may attempt on remand to show that his state post-conviction counsel was “ineffective” under the standards of Strickland where: 1) this Court has already concluded that Dentrell has made a substantial showing of the denial of his right to the effective assistance of trial counsel; or 2) on the facts, there can be little excuse for not asking for a limiting instruction after the Bruton mistrial motion failed, and there is a reasonable probability that Dentrell would have been acquitted had the limiting instruction to which Dentrell was entitled been requested?

Clinic

Indiana University Maurer School of Law

Briefing

Result

Reversed and remanded (in Clinic’s favor). Seventh Court held that on the issue of procedural default, the form of “cause” found in Martinez v. Ryan, 566 U.S. —, 132 S. Ct. 1309 (2012), and expanded in Trevino v. Thaler, 569 U.S. —, 133 S. Ct. 1911 (2013), is available to federal habeas corpus petitioners in Indiana who have substantial claims for ineffective assistance of trial counsel that have been procedurally defaulted in state post-conviction proceedings by lack of any counsel or lack of effective counsel. It also determined that Brown is entitled to an opportunity to overcome procedural default of his claim for ineffective assistance of trial counsel for failure to request a limiting instruction if he can both demonstrate ineffective assistance of post-conviction counsel and assert a substantial claim of ineffective assistance of trial counsel. Seventh Circuit concluded that Brown is entitled to an evidentiary hearing.

Circuit Judge Sykes dissented: As a result of the decision, the Indiana district courts will be deluged with defaulted Strickland claims. Sykes continued that now that Indiana prisoners may use Martinez-Trevino, Indiana district judges will routinely have to contend with the two gateway questions that unlock the door to plenary review of defaulted Strickland claims. As a result of the decision, the federal courts, not the state courts, will be the primary forum for more constitutional challenges to state convictions. That result would be unavoidable if Martinez and Trevino inescapably applied. But they do not inescapably apply.

Ben-Yisrayl v. Neal (16-1013)

Questions Presented

Should the Court remand this case for the district court to hear Ben-Yisrayl’s trial ineffective-assistance claim, which cannot have been defaulted and which has never been heard, arising from his resentencing?

Clinic

Indiana University Maurer School of Law

Briefing

Result

Affirmed. Although Ben-Yisrayl raised multiple claims in his petition, his sole argument on appeal was that his resentencing counsel was constitutionally ineffective for failing to introduce “a veritable mountain of mitigation evidence.” Seventh Circuit held that because Ben-Yisrayl’s habeas petition never raised a claim based on his counsel’s failure to introduce mitigation evidence at resentencing, the claim is waived and affirmed the district court’s judgment.

Stock v Gaetz (09-2560)

Questions Presented

Whether the district court erred in denying Stock’s petition for a writ of habeas corpus, where the State violated Stock’s Sixth Amendment right to confrontation by preventing any impeachment of the State’s star witness with omissions and statements the witness made in response to Stock’s statements during a recorded telephone conversation when the omissions and statements cut at the heart of the credibility of the witness’s testimony.

Clinic

Northwestern Appellate Advocacy Center

Briefing

Result

Affirmed. Seventh Circuit held that the district court’s inadmissible hearsay ruling was neither contrary to clearly established federal law nor an unreasonable application of the Supreme Court’s Confrontation Clause because the evidence in question was declared to be not relevant.

Criminal

United States v. Seay (21-1104)

Question Presented

Whether the district court erred in denying Seay’s motions to suppress evidence in this case, because the officer conducting the stop of the car did not have personal knowledge giving rise to either reasonable suspicion or probable cause, and the record did not establish a sufficient chain of communication between officers to apply the collective knowledge doctrine.?

Clinic

University of Chicago Supreme Court and Appellate Clinic

Briefing

Result

Affirmed. Seventh Circuit rejected collective knowledge doctrine argument.

United States v. Price (20-3191)

Questions Presented

Whether the district court erred in denying Price’s motion to suppress evidence in this case, because officers’ warrantless searches of a vehicle he had driven and of his shared residence were not authorized by Price’s parole agreement and were in violation of the Fourth Amendment?
Whether the district court erred in holding that the government’s evidence was sufficient to establish that Price “constructively possessed” two firearms in violation of 18 U.S.C. § 922(g)(1), because the evidence
presented at trial was insufficient to show the required nexus between Price and either of these firearms.
Whether the district court erred in applying enhancements to the Guidelines Range for Price’s sentence, because the enhancements were not appropriate on the record of this case.

Clinic

University of Chicago Supreme Court and Appellate Clinic

Briefing

Result

Affirmed. Seventh Circuit upheld sentencing enhancements and denied sufficiency-of-the-evidence challenge.

United States v. Hopper (18-2576)

Question Presented

Whether the district court abused its discretion when it failed to consider Federal Rule of Criminal Procedure 16, which requires disclosure of documents within the government’s possession when the document is “material to preparing the defense,” as an independent basis for disclosure of the proffer letters between the government and its cooperating witnesses.
Whether the government failed to provide sufficient evidence of a single, overarching conspiracy or whether the defendant suffered a fatal variance when the government alleged a broad overarching conspiracy, but at trial proved instead a series of buyer-seller relationships that caused juror confusion, hindered the defendant’s ability to prepare his defense, and increased his sentence.
Whether the district court erred at sentencing by impermissibly double counting drug quantities identified by two trial witnesses who were most likely describing the same set of drugs and by incorrectly applying a sentencing enhancement for maintaining a drug premises when the testimony related to drug activity at the home was vague and inconsistent, and when the defendant had voluntarily ceased any drug activity in the home more than six months before the end of the charged conspiracy.

Clinic

Northwestern Appellate Advocacy Center

Briefing

Result

Affirmed in part, reversed in part (in Clinic’s favor). Seventh Circuit affirmed conviction for conspiracy to distribute methamphetamine and that he was subject to a sentence enhancement for maintaining a drug premises. However, Seventh Circuit held that because the drug quantity in the appellant’s possession was erroneously double-counted, Hopper’s sentence was vacated and his case was remanded to the district court for resentencing.

United States v. Bell (17-3505)

Question Presented

Whether the district court denied Mr. Bell his constitutional and statutory speedy trial rights by repeatedly continuing the trial over Mr. Bell’s objection, creating almost a two-year delay between indictment and trial.
Whether the district court erred in failing to suppress photographic evidence that would not have been obtained without violating Mr. Bell’s Fourth Amendment rights.

Clinic

Northwestern Appellate Advocacy Center

Briefing

Result

Affirmed. Seventh Circuit held that the search warrants were supported by probable cause and that Bell’s speedy trial rights were not violated. Regardless of the illegal search, Seventh Circuit agrees with the district court that law enforcement would have sought a warrant. Seventh Circuit holds that because Bell cannot point to any time that was improperly excluded, Bell’s rights were not violated under the Speedy Trial Act. It further holds that because the delay in trial is primarily attributable to the defense and because Bell has not made a clear showing of prejudice, his Sixth Amendment claim also fails.

United States v. Nixon (17-2132)

Question Presented

Whether the affirmative defense of “fleeing an incidence or pattern of domestic violence” contained in the federal international parental kidnapping statute includes emotional, psychological, and financial abuse.
Whether the district court erred when it failed to provide the jury with a unanimity instruction in order to cure the duplicitous indictment, and when it denied the defendant’s Rule 29 motion given the intact state court no-contact order, which restricted her ex-husband’s parental rights under the statute.
The district court held that the statute’s domestic violence affirmative defense turned on the fleeing parent’s “reasonable belief” that abuse had occurred or would continue to occur. Did the court err in excluding evidence establishing not only the defendant’s mental state at the time, but also evidence that medical experts who had examined her child had concluded that there was evidence of abuse and conveyed that opinion to the defendant.
Whether the cumulative effect of these errors is so prejudicial that it deprived the defendant of her right to a fair trial.

Clinic

Northwestern Appellate Advocacy Center

Briefing

Result

Affirmed. Seventh Circuit held that emotional, psychological, and financial abuse do not count as “domestic violence” and that the Supreme Court Justices never suggested that the word “violence” in any part of the Criminal Code can be satisfied by the three aforementioned abuses. Court also held that because Nixon did not ask the district court before trial to dismiss the indictment as duplicitous, she forfeited the argument and her legal position. Finally, court affirmed that because “parental rights” include visiting rights, G.G. maintained parental rights when appellant crossed into Canada with her daughter.

United States v. Jones (16-4254)

Questions Presented

Whether the officers’ warrantless search of Jones’s safes was unconstitutional, because his co-tenant lacked both actual and apparent authority to consent to the search of the safes, as the police knew that only Jones kept the keys to and controlled the safes, the co-tenant never accessed the safes, and Jones had told the co-tenant not to enter the safes.
Whether the officers’ warrantless search of Jones’s residence and safes was unconstitutional, because Jones objected to the warrantless searches or because the police removed Jones from the residence for the purpose of preventing him from further objecting, in contravention of Georgia v. Randolph.
Whether the district court erred in finding that the inevitable discovery doctrine applied, because the government failed to meet its burden of establishing that the officers’ subsequent decision to seek a warrant and the magistrate’s decision to grant the warrant were uninfluenced by the fruits of their unconstitutional search.

Clinic

University of Chicago Supreme Court and Appellate Clinic

Briefing

Result

Affirmed. Seventh Circuit held that Jones’s removal was objectively reasonable, and consent of co-tenant was effective to permit warrantless search of home. Court also held that government had satisfied requirements of inevitable discovery exception.

United States v. Lopez (16-2269)

Question Presented

Whether the district court denied Lopez a fair trial by allowing the government’s summary witness to testify that payments made by Lopez to his clients were “lulling payments” intended to deceive them into a sense of comfort.
Whether Lopez was denied a fair trial after the government twice compared him to infamous fraud perpetrator Bernie Madoff during closing arguments and the district court failed to correct the error.
Whether the district court erred in not following the requirements of Federal Rule of Evidence 702 by preventing defense expert witness Michael Alerding from testifying as an expert at trial.
Whether the district court abused its discretion by failing to allow Lopez to fully impeach the initial complaining witness Danny Cole through extrinsic evidence of a prior inconsistent statement.

Clinic

Northwestern Appellate Advocacy Center

Briefing

Result*

Affirmed. Seventh Circuit held that:

District court did not abuse its discretion in allowing the use of the term “lulling payments” because IRS Agent Janet DeLancey did not offer any improper opinions or conclusions in association with her use of the term in testimony. Furthermore, Lopez was given ample opportunity to cross-examine Agent DeLancey, as well as make his arguments to the jury regarding the use and meaning of that term.
Prosecutor’s two references to Bernie Madoff did not deny Lopez a fair trial, and that the district court did not abuse its discretion in overruling Lopez’s objections. Seventh Circuit held that chief among various factors (e.g. prosecutor limited his Madoff reference to the similar use of lulling payments rather than the scope of the two schemes, Lopez’s decision not to rebut the government’s argument) was that the weight of the evidence against Lopez was overwhelming.
There is no reversible error in the court’s rulings regarding defense witness Michael Aldering. Seventh Circuit held that the district court’s preclusion of the “expert” title was simply another safeguard against the danger of a jury inappropriately assigning weight and credibility to an “expert” witness’s testimony in comparison to that of others.
Though the district court erred in denying Lopez’s request to call Agent Jimmy shivers to highlight the inconsistency, the error did not have a substantial influence on the jury. Because the jury was made aware of the inconsistencies of Danny Cole’s version of events and was able to weigh his credibility accordingly, Seventh Circuit held that the district court’s error was harmless.

*Circuit Judge Posner wrote a dissenting opinion.

United States v. Montez (16-1188)

Question Presented

Whether the district court denied Montez a fair trial by erroneously admitting hearsay evidence as context while failing to issue limiting instructions as to the use of this evidence.
Whether, after the government expressly assured the district court and the defense that it would not present gang testimony at trial, the district court committed harmful error by failing to strike from the record the government’s references to gangs.
Whether Illinois’s 2006 aggravated battery statute qualifies as a crime of violence and, therefore, whether the district court erred in sentencing Montez as a career offender.
Whether the government engaged in misconduct by presenting to the grand jury testimony that incorrectly represented what was contained in recorded calls, and in failing to timely correct the mistake prior to trial.

Clinic

Northwestern Appellate Advocacy Center

Briefing

Result

Affirmed. Seventh Circuit held that:

District court did not err by admitting the entirety of conversations between Montez and Helein from December 12 to December 14, 2011 because Helein’s statements were not offered for their truth but rather to illustrate the significance of Montez’s agreement to show up and to explain Montez’s complaint about the quality of the December 12 cocaine.
Montez has waived any objection to the judge’s handling of the federal agent witness’s mention that he worked in the gang task force because Montez’s counsel rejected the judge’s invitation to do something about the comment at the time of the trial.
District court did not err by applying the career-offender enhancement in this case because uncontested findings in the presentence report indicate that Montez was indeed convicted under the aggravated battery statute’s bodily harm clause.
Montez’s claim about incorrect representation of what as contained in recorded calls lacks merit because “the petit jury’s guilty verdict[] render[s] harmless any possible error in the grand jury proceedings.” United States v. Morgan, 384 F.3d 439, 443 (7th Cir. 2004). Seventh Circuit added that the improper evidence amounted to a few mistakes in the transcripts of recorded phone calls.

United States v. Musgraves (15-2371)

Question Presented

Whether the government failed to prove that Musgraves was a member of a conspiracy to distribute cocaine, and that he possessed a handgun and distributed cocaine found in the presence and vehicle of another person.
Whether the July 2013 oral proffer agreement immunized Musgraves from statements he made to police in November 2013 when police officers proactively sought cooperation from Musgraves throughout this time period.
Whether the search warrant for Musgraves’s home was not supported by probable cause when the officers omitted all information of the informants’ credibility and reliability from the supporting affidavits to obtain the warrant.
Whether the district court erred in relying on an unreliable prior conviction as a predicate offense for purposes of a Career Offender enhancement and a seven-fold increase in Musgraves’s sentence.

Clinic

Northwestern Appellate Advocacy Center

Briefing

Result

Affirmed in part, reversed in part. Seventh Circuit affirmed the denial of the motion to suppress the evidence obtained in the July 2013 search of Musgraves’s apartment, which affirms his convictions on Counts 1 and 3. Though it held that Sergeant William Brantley’s affidavit did not provide probable cause for the research warrant in July 2013, Kenneth Boner’s affidavit rescued the search warrant because of his nonexistent criminal record at the time of submission, the recency of events described, and his appearing in person before the judge. However, it reversed the convictions on Count 2 (drug-distribution conspiracy), Count 4 (felon in possession of a firearm), and Count 5 (cocaine distribution) for insufficient evidence. Seventh Circuit vacated Musgraves’s sentence and remanded the case to the district court for resentencing on Counts 1 and 3 consistent with this opinion.

United States v. Robey (15-2172)

Question Presented

Whether the district court wrongly denied Robey’s constitutional and statutory speedy trial claims by relying on unsubstantiated representations by counsel, which resulted in a three-year delay between indictment and trial.
Whether the district court infringed Robey’s right to indictment by a grand jury when the court allowed the government to amend the indictment without jury oversight based on the government’s characterization of nineteen of the twenty-five counts as “scrivener’s errors.”
Whether the district court erred at sentencing when it found relevant conduct based on ten vehicles stolen five to seventeen months before the conduct for which Robey was tried.

Clinic

Northwestern Appellate Advocacy Center

Briefing

Result

Affirmed. Seventh Circuit held that:

Robey’s pre-indictment delay argument fails because the district court did not abuse its discretion in granting the two ends-of-justice continuances, and that his post-indictment delay argument fails because each of the ten ends-of-justice continuances granted to Robey (and the one continuance granted to the government) between his initial appearance in March 2012 and his trial commencement in February 2015 were supported by an order articulating adequate justification, as well as by the relevant sequence of events.
Robey’s indictment was not impermissibly amended because the district court’s dismissal of nineteen of twenty-five counts of the indictment prior to trial narrowed, rather than broadened, the indictment such that the trial jury deliberated on fewer offenses than charged by the grand jury — a practice that has been expressly upheld by the Supreme Court and Seventh Circuit.
District court did not commit clear error in finding that the ten uncharged vehicles constituted relevant conduct because the evidence presented at trial and sentencing more than sufficiently supports the district court’s finding of a “pattern of relevant conduct that far exceeded in its details the four cars that were stolen that were before the jury.” (Id. at 20.)

United States v. Jones II (15-1792)

Question Presented

Whether the district court violated Jones’s Sixth and Fifth Amendment rights by issuing a pretrial restraining order for Jones’s life insurance policies without holding a hearing or requiring the government to prove that those assets were traceable to the alleged healthcare fraud.
Whether the district court erred in finding that Jones waived his right to testify when he repeatedly evinced his desire to do so, but when his lawyer actively opposed it.
Whether the district court erred in failing to appoint new trial counsel for Jones in his healthcare fraud trial.
Whether the district court miscalculated Jones’s Guideline range based on an erroneous interpretation of the relevant-conduct provisions.

Clinic

Northwestern Appellate Advocacy Center

Briefing

Result

Affirmed. Seventh Circuit held that:

Because Jones failed to lodge a timely objection to his pretrial restraining order before the district court, it reviews only for plain error, and that the district court committed no plain error by issuing the pretrial restraining order because nothing in the record tends to show that the life insurance policies were not tainted by Jones’s fraud, and because it is unclear whether Jones even needed the life insurance policies to retain counsel.
Because Jones provided a simple “yes” to the district judge’s third inquiry as to whether or not he waived his right to testify — the responses to the judge’s earlier two questions were ambiguous — Jones waived his right to do so.
There was no abuse of discretion by the district judge in denying Jones new trial counsel because despite the obvious tension between Inman and Jones, the record shows that Jones had engaged in a prolonged pattern of obstructionist behavior.
District court properly used Jones’s 1985 conviction to increase the base offense level for his felon-in-possession counts, and that there is no error in the resulting guideline computation.

United States v. Ajayi (14-2183)

Question Presented

Whether the government’s evidence was insufficient to prove the defendant guilty beyond a reasonable doubt of bank fraud and money laundering when, among other things, it failed to prove that the defendant knew of a check’s forgery before he deposited it.
Does a district court abuse its discretion by excluding, on relevance grounds, emails regarding the defendant’s nascent business when the government argued that the business did not exist and relied on that fact to prove elements of the charged crimes.
Whether the district court plainly erred in failing to give a pattern jury instruction required when the government charges bank fraud under 18 U.S.C. § 1344(2).
Whether the government’s five bank fraud charges were multiplicitous when they were based on five separate withdrawals of funds rather than the single deposit of the check on which the funds were drawn.
Whether the indictment was impermissibly amended and suffered a fatal variance when the government’s evidence tried to establish a broader and categorically different scheme than the one alleged in the indictment and where that scheme was not linked to the defendant.

Clinic

Northwestern Appellate Advocacy Center

Briefing

Result

Affirmed in part, vacated in part (in Clinic’s favor). Seventh Circuit held that evidence was sufficient to establish Ajayi knew the check was altered, held that the district court acted within its discretion when it excluded certain emails related to Ajayi’s business plan, held that there was no error in the district court’s jury instructions, and held that Ajayi’s contention that there was a variance or a constructive amendment between the indictment and the proof offed at trial is without merit. However, because the four counts of bank fraud arose from Ajayi’s acts of withdrawing funds after he deposited the fraudulent check and were merely in furtherance of the crime, Seventh Circuit concluded that the four bank fraud counts were multiplicitous, vacated Ajayi’s convictions on counts 2, 3, 5, and 6, and remanded for resentencing because the district court committed plain error by permitting his convictions.

United States v. Jones I (14-1665)

Question Presented

Whether the district court violated Federal Rule of Criminal Procedure 11 when it repeatedly commented on the plea negotiations, including warning the defendant that he should work with his lawyer because he faced “very, very serious” charges and the government was willing to dismiss most of them.
Whether the government’s second superseding indictment was multiplicitous or duplicitous when it impermissibly charged Jones over three separate counts—based solely on the location where authorities found the firearms when the evidence showed that the defendant possessed the firearms as a single course of conduct.
Whether the district court incorrectly calculated Jones’s sentencing guideline range and criminal history category by using a conviction that occurred more than fifteen years prior to the commencement of the conduct in this case.

Clinic

Northwestern Appellate Advocacy Center

Briefing

Result

Dismissed (in Clinic’s favor). Seventh Circuit held that the government’s motion is denied and the appeal is dismissed for lack of appellate jurisdiction. This lack of appellate jurisdiction was previously ruled in United States v. Kaufmann, 951 F.2d 793, 795 (7th Cir 1992), and Seventh Circuit saw no principled basis for distinguishing Kaufmann in this case. Though Seventh Circuit did not vacate the sentence, it noted that when sentencing Jones on his conviction for healthcare fraud, the district court can take into account the sentence imposed on the firearms counts.

United States v. Pollock Jr. (13-2764)

Question Presented

Whether the district court’s failure to instruct the jury that it must unanimously agree on the specific firearm possessed in order to sustain a conviction under 18 U.S.C. § 922(g)(1) violated the defendant’s right to due process.
Whether the government’s repeated mischaracterization of two different witnesses’ testimony about critical facts affected the defendant’s substantial rights.
Whether the district court erred in not adequately addressing the 18 U.S.C. § 3553(a) factors both in the sentence as a whole and in its decision to apply a consecutive sentence, in applying the § 5K2.9 policy statement, in imposing an alternate sentence, and in imposing a substantively unreasonable sentence.
Whether the district court erred in applying the relevant-conduct and cross-reference guidelines.
Whether the district court erroneously imposed an alternate sentence that included a crime-of-violence enhancement and a finding that the firearms did not constitute a collection.

Clinic

Northwestern Appellate Advocacy Center

Briefing

Result

Affirmed. Seventh Circuit held that:

There is no error, let alone plain error, in the instruction the district court gave to the jury because — as established by the First Circuit in United States v. Verrecchia — possession of a specific firearm is not an element of the offense.
The prosecutor did not mischaracterize Bowyer’s testimony at the sentencing hearing, and his addition of such a minor detail — the fact that the pistol was a .45 caliber — during the trial did not deprive Pollock of a fair trial.
Pollock’s argument on appeal regarding the § 3553(a) factors does not direct Seventh Circuit to anything specific that the district court failed to consider or take into account. Seventh Circuit also held that the district court’s decision that a more severe punishment was warranted was satisfactory.
District court did not err in applying the cross reference because threatening to kill Bowyer after discussing all of the evidence she allegedly “had” against Pollock was sufficiently “in connection with” his act of violence.

United States v. Wallace (13-2160)

Question Presented

Whether Wallace’s Confrontation Clause rights were violated at trial by the admission of the confidential informant’s testimonial video coupled with the informant’s absence from trial.
Whether the district court abused its discretion in denying Wallace’s motions for new counsel.
Whether the police violated Miranda by questioning him when he was in custody.

Clinic

Northwestern Appellate Advocacy Center

Briefing

Result

Affirmed. Seventh Circuit found that the videotape procured by Andrew Wallace, the confidential informant, does not fit under 801(a) of the Federal Rules of Evidence, as a screenshot of a crime does not constitute a “statement” or an “assertion” made by Andrew Wallace himself; the investigator who did interpreted the video and is the one narrating was present at trial to be cross-examined by Wallace, thus giving him an opportunity to confront the agent. Additionally, the right of counsel “of choice” does not extend to defendants who require appointed counsel, so Wallace’s right to counsel was not violated; similarly, Seventh Circuit found that pursuing two separate claims of ineffective counsel in two separate trials is procedurally inefficient, so they rejected both claims without prejudice. Finally, while Wallace was being held in a custodial setting, his Miranda rights were not violated because the DEA agent was not asking Wallace to make a statement “incriminating or otherwise.” He was simply asking Wallace a yes or no question where Wallace chose to respond with an incriminating answer, “everything in there’s mine.”

United States v. Walker (13-2145)

Question Presented

Whether a Brady violation occurred where the district court barred the defendant from retrieving his own property held in police custody in order to present his defense and where the government conducted only a superficial inquiry into the nature and status of this evidence.
Whether the district court erred in refusing the defendant’s proposed buyer-seller jury instruction while simultaneously permitting the government to rely on conspiracy-based doctrines at trial.
Whether the district court erred in awarding restitution without explanation or specific findings, based solely on the government’s unsubstantiated claims of loss.

Clinic

Northwestern Appellate Advocacy Center

Briefing

Result

Affirmed. Seventh Circuit held that no Brady violation occurred because Walker failed to prove that the evidence was either suppressed or that he made a “diligent effort” to try and obtain the evidence where he failed to ask the police department to hand over said evidence. Seventh Circuit further found that Walker’s buyer-seller jury instruction was not relevant to his defense given that the instruction is a defense against conspiracy not wire fraud which is what Walker was being accused of. Finally, Seventh Circuit found that, considering Walker’s failure to object at the lower trial, the government did not plainly err in determining the amount of damages to be awarded to the victims or identifying the victims themselves. For these reasons, Seventh Circuit affirmed the judgement of the district court.

United States v. Sinclair (12-2604)

Question Presented

Whether the district court erroneously denied Roderick Sinclair’s motion for a continuance because the court improperly weighed the competing interests of the court against Sinclair’s Sixth Amendment right to counsel of his choice.
Whether the district court erred in increasing Sinclair’s base offense level by rejecting the Probation Office’s suggestion to group the drug-possession and felon-in-possession counts that resulted from the same conduct.

Clinic

Northwestern Appellate Advocacy Center

Briefing

Result

Affirmed. Seventh Circuit found that the district court did not abuse their discretion nor did they violate Sinclair’s Sixth Amendment right when denying his motion for a continuance after he submitted it “last minute.” They cited the reason for this decision being that his plan to obtain new counsel was unclear, and the trial itself would have had to undergo significant disruptions if it were to have been moved back. Moreover, Seventh Circuit held that the district court had followed the proper order of analysis during sentencing, leading them to determine that counts 1 and 3 were not treated as offense characteristics of each other, so the district court correctly decided not to group the 2 counts.

United States v. Maxwell (12-1809)

Question Presented

Whether the government waived a possible forfeiture defense in opposing the defendant’s motion for acquittal or a new trial when it addressed the defendant’s arguments on the merits, never objected to the timeliness of the defendant’s claim, and deliberately declined to ask for plain-error review.
Whether the district court erred in overlooking the government’s waiver and sua sponte applying a plain-error standard of review to deny the defendant’s motion for acquittal or a new trial.
Whether, under the Sixth Amendment’s Confrontation Clause, the district court erred in admitting the testimony of a witness who testified about forensic laboratory analysis that she did not conduct.
Whether the defendant is entitled to resentencing under the Fair Sentencing Act of 2010 following the Supreme Court’s decision in Dorsey v. United States.

Clinic

Northwestern Appellate Advocacy Center

Briefing

Result

Affirmed in part, Remanded in part (in Clinic’s favor). In light of United States v. Turner and Williams v. Illinois, Seventh Circuit held that the forensic testimony was not plainly erroneous because the government may not introduce forensic reports as subjective evidence against a witness if the technician that performed the reports is not present in court, but an expert witness can give testimony as to the significance of the data produced by another technician. Further, Maxwell did not object to this testimony at the time of the trial, and the Seventh Circuit found no plain error: his claim was denied. Seventh Circuit did find that although the district court erred in failing to apply new FSA sentencing guidelines to Maxwell’s sentence–thus making his sentence longer than it should have been–Maxwell failed to show plain error on the court’s part–had the lower court known that the FSA guidelines should have applied, they would not have ruled differently. For this reason, Seventh Circuit affirms all other aspects of the appeal but remands Maxwell’s sentencing to the lower courts to be allow them to sentence properly under the new FSA guidelines.

United States v. Reeves (11-2328)

Question Presented

Whether the district court improperly applied sentencing enhancements under 21 U.S.C. §§ 841 and 851 after erroneously concluding that prior state trial counsel’s performance was constitutionally adequate where counsel failed to advise the defendant that a felony guilty plea rendered him automatically eligible for severe recidivist sentencing consequences, including a possible life sentence.

Clinic

Northwestern Appellate Advocacy Center

Briefing

Result

Affirmed. In accordance with their ruling in Lewis v. United States, Seventh Circuit held that, in 2004, Reeves’s lawyer did not err in failing to inform Reeves that his guilty plea could result in an enhanced sentence in the future; thus, Seventh Circuit found that the district court did not improperly apply sentencing enhancements, and their decision was affirmed.

United States v. Ford (11-2034)

Question Presented

Was the defendant denied his right to present a defense when the district court excluded the only witness capable of establishing the defendant’s whereabouts, appearance, and demeanor on the night of the robbery.
Whether the district court erred in admitting identification testimony when: (1) an inferior procedure was used and a photo in the array was altered to emphasize the characteristics identified by the witness; (2) the witness’s prior descriptions of the perpetrator were vague, sparse, and inaccurate and sixteen months passed between the incident and the identification; and (3) the government acknowledged just days before trial that the witness had identified another as the robber in the immediate wake of the crime.

Clinic

Northwestern Appellate Advocacy Center

Briefing

Result

Affirmed. Seventh Circuit held that the excluded defense witness was in fact an alibi witness who intended to testify to Ford’s psychological inability to have committed the robbery. Because of this, Seventh Circuit held that the district court properly excluded the witness based on Ford’s failure to comply with Rule 12.1(a) that would have required that the prosecution have advanced notification of any witness testimony related to an alibi. Seventh Circuit further found that, while the photo array was suggestive and biased against Ford, the police department had simply engaged in harmless error and there were still many other ways Ford could have been identified as the bank robber outside of the photo lineup.

United States v. Griffin (11-1951)

Question Presented

Whether a felon-in-possession conviction can be sustained under a constructive-possession theory when the government established neither a nexus between the contraband and the defendant nor any other affirmative evidence of the defendant’s intent to control the contraband.
Whether the district court improperly instructed the jury, thus prejudicing the defendant and lowering the government’s burden to prove the requisite mens rea of intent, when it unnecessarily defined the term knowingly but failed to define the term intent.
Whether the government made improper remarks during its closing argument by using Griffin’s prior criminal record as propensity evidence and by appealing to the jury’s sense of law and order.

Clinic

Northwestern Appellate Advocacy Center

Briefing

Result

Reversed (in Clinic’s favor). Seventh Circuit found that, even when viewing the evidence in a light most favorable to the government and the jury’s guilty verdict, there was not sufficient evidence to establish a nexus between the contraband–the guns and ammunition–and Griffin. Despite what the government had improperly argued in the first trial, proximity and/or access is not equivalent to possession, meaning the felon-in-possession statute was not violated, and Seventh Circuit reversed Griffin’s conviction.

United States v. Lamb (10-2230)

Question Presented

Whether the district court erred in instructing the jury that lawful destruction of contraband is punishable by § 1512(c)(1), a statute only intended to reach corporate fraud.
Whether the defendant’s indictment, which specifically charged her with destroying a user-quantity of cocaine base, was either constructively amended or fatally varied by evidence, argument, and instructions that expanded her liability to include her co-defendant’s powder cocaine conspiracy.
Whether the evidence was sufficient to convict the defendant for corruptly destroying cocaine base when no witness observed drugs or drug paraphernalia in the defendant’s possession, another person with equal access to any drugs was present in the house, and no one informed the defendant that an investigation or official proceeding was underway.
Whether the district court erred in applying an accessory-after-the-fact crossreference to the defendant’s sentence when the cocaine base she purportedly destroyed was unrelated to her co-defendant’s cocaine powder conspiracy.

Clinic

Northwestern Appellate Advocacy Center

Briefing

Result

Affirmed. Seventh Circuit held that § 1512(c)(1) was never intended by Congress to limit the statute to only white collar crimes, and can therefore be applied to the destruction of drug contraband in Lamb’s case. They further held that Lamb need not know of any official investigation pending or currently ongoing, she simply must’ve destroyed evidence in the hopes that any trial that may have amounted from her or her co-defendant, Johnson’s, illegal activities was affected in her favor. Finally, Seventh Circuit found that Lamb’s knowledge of Johnson’s cocaine distribution conspiracy was sufficient to prove that Lamb destroyed evidence to obstruct a larger crime than simply her own possession: the district court did not clearly err in applying accessory-after-the-fact to her co-defendant’s conspiracy.

United States v. Snow (10-2031)

Question Presented

In the absence of any other suspicious or threatening circumstance, does an officer have the reasonable suspicion that a person is armed and dangerous necessary to justify a search based only on a third-party allegation that the person had attempted to “get into” a window of a neighboring house?

Clinic

Northwestern Appellate Advocacy Center

Briefing

Result

Affirmed. In accordance with Terry v. Ohio, Seventh Circuit held that because authorities had a reasonable suspicion that Snow had just committed a burglary, and because burglary is the type of crime usually carried out with a weapon, the police officers had reasonable grounds to believe Snow to be armed and thus reasonable grounds to stop and search him. Following this, the district court properly denied Snow’s motion to suppress all evidence of the firearm.

United States v. O’Connor (09-2476)

Question Presented

Whether the indictment should be dismissed with prejudice for violations of both the Speedy Trial Act and the defendant’s constitutional right to a speedy trial.
Whether the jury instructions were misleading, caused a constructive amendment of the indictment, and failed to instruct the jury on an element of the offense.
Whether the evidence presented at trial was sufficient to support a verdict of wire fraud.
Whether the district court abused its discretion in refusing to remove irrelevant and prejudicial information from the indictment before giving it to the jury during deliberations.

Clinic

Northwestern Appellate Advocacy Center

Briefing

Result

Affirmed. The constitutional right to a speedy trial under the Sixth Amendment is different to the statutory right under the Speedy Trial Act; regardless, because O’Connor bears primary responsibility for many of the pre-trial extensions, failed to file a motion to dismiss until 3 years after her “speedy trial clock began,” and suffered no actual prejudice, Seventh Circuit held that the district court properly denied O’Connor’s motion to dismiss and neither her constitutional nor statutory rights were violated. Next, in accordance with US v Griffin, O’Connor’s approval of the jury instruction waives her right to challenge the instruction on appeal. US v Roberts addresses the third question presented: sufficiency of the evidence challenges require that no rational juror would have found the defendant guilty beyond a reasonable doubt and are viewed in a light most flattering to the government. Seventh Circuit held that O’Connor simply did not meet this burden, thus there was sufficient evidence to support a verdict of wire fraud. Finally, Seventh Circuit disagreed with O’Connor’s claim that the jury viewed prejudicial and irrelevant information because said information was either elicited during trial or included in the charge itself.

United States v. Thornton (09-1494, 09-1606)

Question Presented

The district court dismissed the § 2113(a), ¶ 2 counts on grounds of double jeopardy. Did the district court err in doing so where the first and second paragraphs of § 2113(a) satisfy the Blockburger test for two distinct offenses, since each provision requires proof of a fact which the other does not: evidence that a defendant attempted to enter a bank with the intent to commit a bank robbery in violation of § 2113(a), ¶ 2 (which requires proof of attempted entry), will not support an indictment under § 2113(a), ¶ 1, where the government must prove the use of actual force and violence or intimidation (but not necessarily attempted entry)?

Clinic

Northwestern Appellate Advocacy Center

Briefing

Result

Reversed and remanded. Seventh Circuit found that there was no issue of double jeopardy because § 2113 creates two different crimes, in accordance with the Supreme Court’s decisions in Prince v. United States and Blockburger v. United States; thus, the district court erred in their dismissal, and their decision was reversed and remanded.

United States v. Tapia (09-1426)

Question Presented

Whether a protective sweep of a home incident to an arrest violates the Fourth Amendment when the arresting officers have no articulable factual basis to suspect any individual other than the arrestee was present in the home or could present a threat to officer safety.
Whether a district court abuses its discretion when it applies a substantial sentence increase requiring a finding that the defendant committed an uncharged felony but fails to identify the felony or its elements and leaves the record devoid of meaningful explanation for its decision.
Whether a district court abuses its discretion and violates a defendant’s Fifth Amendment right to due process by basing a sentence on evidence lacking any indicia of reliability, where the remaining evidence is plainly insufficient to support the decision.

Clinic

Northwestern Appellate Advocacy Center

Briefing

Result

Affirmed. Seventh Circuit held that, in accordance with Maryland v Buie, a protective sweep of the home was reasonable and did not violate Tapia’s Fourth Amendment right to privacy. In accordance with Rule 32 of the Federal Rules of Criminal Procedure (Fed. R. Crim. P. 32), Seventh Circuit found that the district court had resolved all issues of fact on the record–since the ballistic evidence was uncontested and the testimonies of Rodriguez, Gozdal, and Larsen were found to be reliable–and also made clear to both parties which crime was used to augment the sentence. Finally, Seventh Circuit deemed “the uncontroverted ballistic evidence” alone to be reliable and sufficient enough to support the district court’s decision thus the potential reliability of witness testimony–despite the holding that it was in fact reliable testimony–was irrelevant.

United States v. Johnson (08-2817)

Question Presented

Whether the district court denied Johnson a fair trial when it refused to instruct the jury on Johnson’s buyer-seller theory of defense even though he offered ample evidence to support such an instruction.
Whether the government proved Johnson guilty beyond a reasonable doubt of conspiracy to distribute cocaine and crack.

Clinic

Northwestern Appellate Advocacy Center

Briefing

Result

Affirmed. Seventh Circuit held that because Johnson presented no objections to the district court’s ruling that there was insufficient evidence to present Johnson’s “buyer-seller theory,” his claim to an unfair trial is unfounded. Further, because Johnson could not prove that there had been a gross miscarriage of justice so that “a conviction would be shocking,” Seventh Circuit held that a reversal was not warranted.

United States v. Sykes (08-2558)

Question Presented

Whether the district court abused its discretion in dismissing the bank robbery charge against Sykes without prejudice for violation of the Speedy Trial Act, thereby allowing reprosecution, when the Speedy Trial clock ran for 233 days and the illegal delay allowed the government to bring an additional charge against Sykes.
Whether Sykes’s Fifth Amendment due process right to meaningful access to the courts was violated when he was detained during the month-and-a-half before his trial without access to a law library or his standby counsel.
Whether the district court denied Sykes a fair trial when it permitted jurors to question witnesses during the trial.

Clinic

Northwestern Appellate Advocacy Center

Briefing

Result

Affirmed. Seventh Circuit found that the Speedy Trial Act was not violated as the government did not “act in bad faith,” and Sykes acted as a “passive defendant,” failing to demand “prompt attention.” Because Sykes had access to standby council for the first 18 months of his imprisonment and was offered (but denied) a continuance after his council became unreachable, Seventh Circle held that Bounds v. Smith was not violated. Finally, while the district court erred in allowing jurors to openly ask witnesses questions, Sykes cannot prove that jurors asked improper questions or that their questions changed the outcome of the trial: thus, the trial was not unfair.

United States v. Bright (08-1770)

Question Presented

Whether the district court committed plain error by admitting into evidence unreliable identification evidence procured by an unduly suggestive photo array in violation of Bright’s Fifth Amendment right to due process of law.
Whether the district court abused its discretion under Federal Rule of Evidence 403 by admitting two pieces of prejudicial guilt-by-association evidence.
Whether the district court erred when it assumed that a conviction for attempted escape, 18 U.S.C. § 751(a), automatically satisfies the requirement of a specific intent to obstruct justice for purposes of a section 3C1.1 sentencing enhancement.

Clinic

Northwestern Appellate Advocacy Center

Briefing

Result

Affirmed. Seventh Circuit rejected arguments and affirmed Bright’s conviction and sentence.